Kline, Alexander, Johnson Call on NLRB General Counsel to Explain Pursuit of Joint-Employer Cases
Send letter to NLRB General Counsel on legality of his pursuit of labor violations against franchisors
WASHINGTON, D.C., March 5, 2015
Rep. John Kline (R-MN), chairman of the House Education and the Workforce Committee, Senator Lamar Alexander (R-TN), chairman of the Senate labor committee, and Senator Ron Johnson (R-WI), chairman of the Senate homeland security and governmental affairs committee, today called on National Labor Relations Board General Counsel Richard Griffin to provide an explanation of his recent comments on his pursuit of labor violation cases against franchisors as joint employers under the National Labor Relations Act, despite admission that the legal grounds for doing so may be flawed.
In a letter to Griffin, they write, “Notwithstanding the concerns we have if the Board does expand its joint-employer standard, we are troubled that you appear to be pursuing joint-employer cases knowing your legal theory is problematic.”
“[Griffin] stated, ‘in that area we have a problem, legally, for our theory’ to hold franchisors as joint employers. Despite this admission, only months later on December 19, 2014, [Griffin] issued complaints against a franchisor as a joint employer.”
The full text of the letter is below:
Dear Mr. Griffin:
We are writing with questions about recent comments you made in support of pursuing labor violations against franchisors as joint employers under the National Labor Relations Act (NLRA). Additionally, we have concerns that you intend to pursue labor violations in this manner despite your admission that the legal grounds for doing so may be flawed.
The National Labor Relations Board (NLRB or Board) is currently evaluating whether to change the standard that determines whether an employer is a joint employer for purposes of collective bargaining and labor law violations under the NLRA. On June 26, 2014, you filed an amicus brief urging the Board to “abandon its existing joint-employer standard,” that has been in place for three decades, in favor of a “new standard” that takes “into account the economic and industrial realties of employment relationships.”
In the brief, you appeared to express frustration that the current joint-employer standard does not allow for meaningful collective bargaining in franchisor-franchisee relationships because franchisors are not at the bargaining table. You stated that the current standard “preclud[es] employees from exerting traditional economic pressure on a company that effectively controls many of their working conditions.” Accordingly, you asked the Board to adopt your view of the law which would effectively ensure franchisors must bargain with employees of the franchisee and are liable for labor violations.
Notwithstanding the concerns we have if the Board does expand its joint-employer standard, we are troubled that you appear to be pursing joint-employer cases knowing your legal theory is problematic. On July 29, 2014, the NLRB announced that you had authorized complaints alleging violations of the NLRA against a franchisor as a joint employer. Then, on October 24, 2014, at a labor conference entitled, “Zealous Advocacy for Social Change,” you spoke about “law reform efforts” underway at the Board. During your presentation, you discussed the joint–employer issue and singled out franchisor-franchisee relationships. You stated, “in that area we have a problem, legally, for our theory” to hold franchisors as joint employers. Despite this admission, only months later on December 19, 2014, you issued complaints against a franchisor as a joint employer.
We are also concerned that your October 24 remarks pointed to research conducted by Dr. David Weil, Department of Labor Wage and Hour Division Administrator, that argues for an expansion of joint-employer relationships for purposes of liability in labor law. NLRB’s ex parte rules prohibit communications relevant to the merits of an unfair labor practice proceeding between the general counsel and third parties. Therefore, if you are communicating with Dr. Weil or other third parties about pending NLRB complaints it could be inappropriate.
To better understand your comments and whether you are appropriately pursuing joint employer cases, please answer the following questions and provide the information requested by March 19, 2015.
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