Unions and Third Party Groups Use Safety to Attack Fast Food Restaurants

 

Yesterday was one of those occasions when I wish that my predictions had been inaccurate. I have speculated that the SEIU and other unions harassing fast food restaurants would eventually add mass OSHA complaints to their joint employer, discrimination, living wage, and other attacks. Yesterday, you probably saw the articles about “Fight for $5’s” coordinated effort to file OSHA Complaints in 19 cities.

Now, don’t get me wrong. Restaurants, just like every other employer, must remain vigilant to protect their workers and to ensure compliance with OSHA standards. However, I question the sincerity of those OSHA complaints. I am sure that many restaurants need to improve compliance and safety, but I do not like third parties using OSHA’s limited resources to advance other agendas. OSHA deserves a larger budget, but until that exalted day, they have to employ their resources where they are most effective.

The SEIU and other groups readily admit that the OSHA complaints are the latest part of their “Fight For $15 Campaign” which allegedly seeks to hold restaurants accountable for working conditions at franchise locations. The unions’ obvious goal is to eventually organize the huge number of fast food workers, but the transitory nature of such workers has traditionally made them unreceptive to joining a union. The strategy is to make employers so miserable that they give up and simply agree to a card check or other reorganization effort instead of an NLRB-supervised election.

The Complaints are against Franchisees, but is the union trying to involve the Corporation?

Under existing OSHA law, and OSHA’s Multi-employer Citation policy, absent corporate employees on site, it’s difficult to see how the Corporation would be citable based on requiring adherence to corporate standards. Thus, individual franchise restaurants should not be treated as part of the McDonald’s corporation for purposes of determining repeat violations of the same standards for McDonalds Corporation. Company stores would be different. If a franchisee owns more than one unit, other units could be exposed to Repeat violations if the same violations occur in a five year period. Repeat citations of routine items account for most of the six figure citations against companies with multiple locations. I do not see how the corporation would be subject to OSHA citations for individual franchisee’s stores. However, given the NLRB’s recent efforts to allege joint employment between restaurants such as McDonald’s and their franchisee, it will be interesting to see OSHA’s approach.

Use this concern to “Check” OSHA Compliance.

In the interim, restaurants should treat these complaints as a wake-up call to ensure that they are in compliance with OSHA’s standards. Keep in mind that you may maintain a safe work environment but still miss certain OSHA requirements. Likewise, OSHA standards are just part of a good employer’s safety efforts.

Common restaurant OSHA violations include:

  • allowing materials to occasionally block exits, fire extinguishers and electric panels, such as during deliveries;
  • inadequately marked exits; unacceptable accumulation of water on the floor and trip hazards
  • failure to maintain Safety Data Sheets (SDS) for hazardous chemicals used
  • failure to document training employees who wash dishes, clean and perform other duties which require such chemicals
  • adequate eye protection and other PPE for the use of chemicals

The Press Releases and posted “Fight For $15” video emphasizes exposure to grease burns; especially associated with cleaning and emptying grease. Restaurants should carefully check for proper procedures, PPE, and disposal practices.

Do Restaurant Managers know how to handle an OSHA Inspection, as well as handbiling and protesters?

Most restaurant managers never meet OSHA and have no idea how to manage an OSHA inspection. The way in which they manage the inspection may be the difference between a good result and thousands of dollars in citations. Is a corporate, private consultant, trade association or law firm ready to advise such managers?

It is questionable whether the unions’ latest efforts will in anyway assist in organizing restaurant franchisee employees, but review my past article about UNITE-HERE’s multi-year safety attacks on the Hyatt Corporation if you want to see the extraordinary expense and hardship such corporate-wide attacks can cause. You might also review these past posts on third party attacks on Retailers, Restaurants and on Distribution.

Howard A Mavity

Fisher & Phillips LLP

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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