DC Circuit skeptical of McDonald’s NLRB deal offer

A McDonald’s restaurant sign is visible in Swansea, McDonald’s reopened all drive-thru restaurants today, following the coronavirus disease (COVID-19) outbreak, Swansea, Wales, Great Britain, June 2, 2020. REUTERS / Carl Recine

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  • Judges doubt the group has met the high bar to overturn the settlement
  • Obama-era affair seen as test to extend franchisor liability
  • NLRB adopted a business-friendly standard in the 2020 rule

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(Reuters) – A U.S. appeals court appeared to be set to uphold McDonald’s Corp’s settlement of a major National Labor Relations Board case, saying the company had helped its franchisees fight unionization efforts.

Micah Wissinger, lawyer for the union-backed Fast Food Workers Committee (FFWC), told a U.S. appeals court for the DC Circuit panel that the 2019 settlement was inappropriate because it did not resolve the key question of whether McDonald’s could be held responsible. for the actions of its franchisees.

NLRB attorney Joel Heller told the court that since the agency was at the time reviewing the test to see whether the companies were “co-employers” of franchise workers, a ruling on the question in the McDonald’s case was unnecessary.

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But Wissinger said the NLRB’s reasoning was wrong because no new standard would have applied to the case, which was filed in 2014.

The three judges on the panel expressed doubts whether the NLRB’s approval of the deal over objections from the workers who brought the case was so unreasonable that it should be quashed.

“The court didn’t have to agree with what the agency said, but it clearly recognized what their reasoning was,” said circuit judge Judith Rogers. “What else did he have to do?”

The Obama-era case against McDonald’s, one of the largest in board history, involved allegations that franchise workers had been fired or sanctioned for participating in protests organized by the group Fight for $ 15. When the case was first filed, it was seen as a major test of efforts to extend corporate accountability for the illegal labor practices of their franchisees and contractors.

The board decided to settle the matter after former President Donald Trump took office. The deal required McDonald’s to pay individual workers between $ 20 and $ 50,000, but did not include a concession that the company was legally responsible.

An administrative law judge rejected the settlement, saying it would not adequately protect workers, but the five-member council in 2019 disagreed.

Wissinger told Circuit DC on Friday that a long-standing NLRB precedent required the board to uphold an ALJ’s findings unless they were clearly wrong.

Circuit Judge Laurence Silberman countered that if the board defers to the ALJs on questions of witness credibility, “the board will never defer to an ALJ on a major policy issue.”

The panel also included circuit judge Neomi Rao.

The case is Fast Food Workers Committee v. NLRB, United States Court of Appeals for the DC Circuit, No. 20-1516.

For the fast food workers committee: Micah Wissinger from Levy Ratner

For McDonald’s: Akin Gump Strauss Hauer & Feld’s Pratik Shah

For franchisees: Thomas O’Connell of Best Best & Krieger

For the NLRB: Joel Heller

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Daniel Wiessner

Dan Wiessner (@danwiessner) reports on labor, employment and immigration law, including litigation and policy development. He can be reached at [email protected]

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