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Senate hands restaurants a big victory on labor front

The U.S. Senate handed restaurant chains a little-noticed but significant victory yesterday with the confirmation of Peter Robb as the next general counsel of the National Labor Relations Board. He succeeds Robert Griffin, the force behind the redefinition of  “joint employer” and a host of other pro-labor measures that vexed restaurant employers.

The Senate had already approved two other nominees to the five-person board from President Trump, recasting the panel to be less antagonistic to the business community.

The moves are part of an effort to roll back the pro-union decisions that came under Griffin’s tenure. The most impactful of those changes was the redefinition of some franchisors as joint employers of franchisees’ staffs, a shift that would expose deep-pocketed companies like McDonald’s to lawsuits arising from entrepreneurs’ employment missteps. The NLRB’s reversal of longstanding policy was expected to discourage franchising as franchisors worried about their legal exposure.

But a host of other NLRB measures were also blasted by restaurants and other industries that have been in the crosshairs of unions. Decisions cleared the way for organizers to use a company’s own email system to lobby for unionization, and employees were seen as having the right to complain aloud to customers about working conditions as a way of swaying public opinion. Staff members were also seen as having a right to visit the premises before or after their shifts to muster support for union representation.

The restaurant industry has been a leader in the effort to temper the NLRB’s actions legislatively. On Tuesday, the U.S. House of Representatives passed an industry-supported measure to reinstate the previous interpretation of the joint-employer concept, in effect leaving franchisees responsible for their employment policies and practices.

The move was applauded by the National Restaurant Association, which has been at the forefront of efforts to push through the bill, known as the Save Local Business Act.

“We strongly applaud Congress for standing up for restaurants and small businesses across the country,” said Cicely Simpson, the NRA’s EVP of public affairs. “Passage of the Save Local Business Act will restore the clear, traditional standard of joint employment.”

However, passage of the measure by the Senate is uncertain.

The Senate’s approval of Robb, a Republican and Vermont attorney who has often represented management in court disputes with union members. He is arguably best known as the attorney who defended President Reagan’s decision to fire all air traffic controllers after their union voted to call an illegal strike.

Yesterday’s vote broke along party lines, 49-46.

The general counsel’s position is a powerful one for the NLRB. The holder of the post determines what disputes merit consideration by the board or courts. The general counsel also argues measures before the board.

Griffin’s term on the board expires this month.

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