The National Labor Relations Board has run into an ironic problem in its efforts to pursue an unfair practices complaint against McDonald’s Corp. In response to subpoenas from the board, the fast-food giant has provided the requested documents, but only after heavily redacting them.
McDonald’s says the blacked-out sections are irrelevant to the NLRB’s complaint against it and involve confidential company information. The board, the main federal labor law enforcement agency, disagrees and in September asked a court to force the company to comply.
“On May 13, 2015, the general counsel sent a letter to McDonald’s noting that many of the documents provided by McDonald’s in response to the subpoena ‘contain significant redactions of unprivileged material’ and requesting that McDonald’s ‘promptly provide unredacted versions of those documents and that future productions comply with the subpoena instructions,'” the board said, according to a September court filing recently made public.
“The failure of respondent McDonald’s to comply with the subpoenas … has impeded and continues to impede the board’s prosecution of the unfair labor practices charges,” the board said.
The September filing notes that the board began seeking the documents in December and claims that McDonald’s has delayed and resisted at every turn.
Companies redacting documents under subpoena by federal agencies is not unprecedented. Courts have made allowances to prevent information becoming available to a business’ competitors, for example.
“It is not unusual to redact information that is not material to the investigation,” said Matthew Haller, spokesman for the International Franchise Association, of which McDonald’s is a member.
Sources at business trade associations who requested anonymity said it was not a common practice, but it is allowed. Even the labor board concedes this. A June order by a labor board administrative law judge in the McDonald’s case notes that some courts “have permitted parties to unilaterally redact documents” on the grounds of relevancy. The judge nevertheless argued that that should not apply in the McDonald’s case.
The fast-food giant disagrees. “Despite McDonald’s producing volumes of responsive information — so far, in excess of 160,000 pages of material with more being processed — the NLRB’s general counsel has brought an action in federal court to enforce a massive subpoena. McDonald’s will vigorously argue that the subpoena is overly broad and excessive. To the extent any document has been redacted, it was to protect sensitive and personal information not relevant to the issues in this case. Such a redaction is recognized by the federal courts as appropriate,” McDonald’s spokeswoman Lisa McComb told the Washington Examiner.
A spokeswoman for the labor board declined to comment, saying the board had nothing to add beyond what was stated in the legal filings.
The complaint is ironic since President Obama’s administration has an extraordinarily poor record in making information available, even when the law says it must. Reporters have often complained that it often does not comply with Freedom of Information Act requests and heavily redacts the documents when it does. Last year, the Associated Press reported that “more often than ever, the administration [has] censored government files or outright denied access to them.”
In 2014, the Society of Professional Journalists said in a letter to the president that official government censorship was getting worse “particularly at the federal level” and urged him to loosen the restrictions.
In effect, McDonald’s is putting the administration’s labor board attorneys through the same frustrations that reporters currently experience when trying to investigate the administration.
The board’s complaint against McDonald’s says the corporation is a “joint employer” with its franchisees and therefore liable for any labor violations that occur at them. McDonald’s disputes that, noting that about 90 percent of its franchisees are privately owned businesses that merely rent out its name and brand.
The labor board subpoena demands various documents spanning 114 categories, all relating to the company’s businesses practices and organization model.
Richard Griffin, the board’s general counsel, is particularly interested in obtaining documents regarding the corporation’s “operations consultants,” the people the company uses to monitor restaurants and ensure they are adhering to the terms of their franchise agreements.
Griffin, a former top attorney for International Union of Operating Engineers, also is seeking all documents relating the corporation’s “Response to Fast Food Fight for $15 Campaign.”
Fast Food Forward and Fight for $15 are nonprofit activist groups funded by the Service Employees International Union, which has been trying to organize McDonalds, which is non-union. The groups stage protests at restaurants and have mounted a public relations campaign against the corporation.
A finding that McDonald’s is a joint employer would make organizing the corporation easier since it would give unions such as SEIU a single target to pressure rather than forcing them to organize restaurants one at a time.
Business groups are closely watching the case. Many fear it will create a broad precedent making all franchisers legally responsible for labor violations by franchisees, undermining the franchise business model. Republicans have introduced legislation in reaction to the board’s move that would codify that franchisers and franchisees are legally separate entities.
