Collo vs McDo

Institutions

The NLRB (National Labor Relations Board)

The US federal agency for collective labour law. For ten years it has been unable to decide whether a franchisor is the employer of its franchisees' employees.

In brief

  • Created in 1935 by the National Labor Relations Act (Wagner Act), 29 U.S.C. § 151 et seq.
  • Five members, staggered 5-year terms (one expires each year); quorum of three. The increase from 3 to 5 members dates from the Taft-Hartley Act (1947).
  • A General Counsel, appointed for 4 years, independent of the Board: he holds exclusive authority to decide whether to prosecute (29 U.S.C. § 153(d)).
  • Powers: secret-ballot union elections, and the suppression of unfair labour practices.
  • ⚠️ The Board makes law mainly through case-by-case decisions rather than through regulations — hence the instability of its standards, which swing with the majorities.

The distinctive feature of the NLRB is its two-headed structure: the Board adjudicates, the General Counsel prosecutes, and the two are independent of each other. A case reaches the Board only if the General Counsel has decided to issue a complaint — a decision he takes alone.

This architecture explains much of the instability of American doctrine on joint employment (joint employer). Because it is not fixed by statute or by a lasting regulation, the test has been redefined through successive decisions, in one direction and then the other, as political control has changed hands. The question of whether McDonald's is a joint employer of its franchisees' employees was raised in 2014; it still has no stable answer.

Sources

External sources.

  1. 29 U.S.C. § 153 — National Labor Relations Board — Cornell Legal Information Institute
  2. 29 U.S.C. § 156 — Rules and regulations — Cornell Legal Information Institute

Where this comes up in the case file

ArticleIs the franchisor the employer?

Other glossary entries — Institutions

The European Court of Human RightsThe Court of CassationThe court of appealThe commercial courtThe Court of Justice of the European UnionThe EUIPO

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