No one accuses the government of being responsive to the public. Whether you are a veteran seeking care or need to renew your license at your local DMV, you can expect to wait. Another area where the public can expect to wait on the government: responses to public records requests.
Here, at the Competitive Enterprise Institute, we are all too familiar with waiting on FOIA requests. For example, “EPA has stonewalled CEI repeatedly and continues to slow-walk CEI’s ‘Windsor’ request, insisting it need only process 120,000 records at the glacial pace of 100 records processed per month; that is, it says it will conclude this production in 100 years.”
On the other hand, the federal government doesn’t like to wait and will use its power to extract information it wants from the public.
In Investor’s Business Daily, I summarize the National Labor Relations Board’s attempt to use its vast powers to force McDonalds to handover proprietary data:
Last year, NLRB General Counsel Richard Griffin consolidated dozens of unfair labor practice charges against McDonald's franchisees and named McDonald's USA LLC as a joint employer responsible for alleged labor-law violations of privately owned franchises all across the country. The case had stalled because the NLRB has asked for multiple continuances.
The NLRB claimed the case has been held up because of a purported lack of transparency from McDonald's. It complains that McDonald's has heavily redacted information that it needs to make its case.
In defense, McDonald's contends the blacked-out information is not relevant to the case or concerns business practices that are proprietary information. In September, the NLRB opposed McDonald's request to commence the case, but a trial is tentatively set to start Jan. 11. It's about time.
McDonald's has produced over 100,000 pages of documents and calls the NLRB's discovery requests excessive. McDonald's has gone out of its way to supply the NLRB with the information it will need to question witnesses, build its case and begin the hearing.
Despite McDonald’s producing over 100,000 pages to the Board, the NLRB wants more. And to no one’s surprise, a court is ordering McDonald’s to comply (see the court order here). As Politico reports, “A federal judge in Manhattan ordered 10 McDonald's franchisees to comply with the NLRB's subpoenas in the joint employer case against them and McDonald's USA LLC.”
Under the Obama administration, things are turned upside down. Private information is public and public information is private.
In 2014, the NLRB used over 1,000 exemptions in order to deny FOIA requests, with many exemptions involving privileged communications within or between agencies, which mirror the kind of information that the NLRB has sought and will obtain via court order from McDonald’s.
On top of the NLRB’s lack of transparency, its attack on McDonald’s is blatant political payback. Even the NLRB’s General Counsel Richard Griffin acknowledges that the “sole” reason the agency is pursuing the case against McDonald’s is because of the multi-million union campaign known as “Fight for $15.”
Do the NLRB board members really think paying back union allies is worth unending a franchise system that has served entrepreneurs and consumers well for decades? Do they care that franchises alone employ millions of workers and accounted for 10 percent of new jobs in 2013 and 2014?
Unfortunately, it is highly unlikely that NLRB members will consider how their new joint-employer standard will make it harder for entrepreneurs to start a new business or the loss of jobs. This makes it all the more important that Congress withhold funding from the NLRB to enforce the new joint-employer standard.