Alexander, Johnson, Kline Call on NLRB General Counsel to Explain Pursuit of Joint-Employer Cases

WASHINGTON, March 5 – U.S. Senator Lamar Alexander (R-Tenn.), chairman of the Senate labor committee, Sen. Ron Johnson (R-Wis.), chairman of the Senate homeland security and governmental affairs committee, and Rep. John Kline (R-Minn.), chairman of the House Education and Workforce 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.”

The members cite an October 24, 2014, labor conference, during which Griffin discussed the joint-employer standard, stating: “‘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 members write in the letter.

The full text of the letter is below:

The Honorable Richard Griffin, Jr.

General Counsel

National Labor Relations Board

1099 14th St. N.W.
Washington, D.C. 20570-0001

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.^[1]  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.”^[2] 

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.^[3]  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.”^[4]  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.^[5]  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.^[6]  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.^[7]  Despite this admission, only months later on December 19, 2014, you issued complaints against a franchisor as a joint employer.^[8]

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.^[9]  NLRB’s ex parte rules prohibit communications relevant to the merits of an unfair labor practice proceeding between the general counsel and third parties.^[10]  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.

1.     Did any developments occur in the law between your comments on October 24, 2014, and the filing of complaints on December 19, 2014, that named a franchisor as a joint employer? 

a.      If not, please explain your comments made at the October 24, 2014, labor conference.

2.     Produce all documents and communications between the Office of General Counsel and the Board referring or relating to the joint employer standard from November 4, 2013, to present.

3.     Produce all documents and communications between the Office of General Counsel and any other federal agency about the joint employer standard from November 4, 2013, to present.

If you have any questions about this request, please have your staff contact Kristin Nelson, HELP Committee Senior Oversight & Investigations Counsel, at (202) 224-6770, Caroline Ingram, HSGAC Committee Counsel, at (202) 224-4751, or Marvin Kaplan, Workforce Policy Counsel, at (202) 225-4527.  Thank you for your attention to this matter.

Sincerely,

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