Employer Labor Relations Blog

D.C. Circuit Court of Appeals May Limit the Board’s Standard for Evaluating Employers’ Confidentiality Policies

Posted in NLRB, Unfair Labor Practices

By:  Kenneth R. Dolin

In Hyundai Am. Shipping v NLRB, No. 11-1351 (Nov. 6, 2015), the D.C. Circuit Court of Appeals recently enforced a Board order with respect to a work rule that prohibited employees from discussing matters under investigation by the employer, but refused to enforce the Board’s order with respect to a provision urging employees to make complaints to their immediate supervisors rather than to fellow employees. The court’s reasoning in Hyundai may benefit all employers seeking to expand the standards for the legality of requiring and suggesting confidentiality in internal investigations that were recently set forth by the Board in Banner Estrella Medical Center, 362 NLRB No. 137 (June 26, 2015).

The court in Hyundai found the employer’s investigative confidentiality rule clearly limited employees’ Section 7 rights to discuss their employment and that the rule was “so broad and undifferentiated that the Board reasonably concluded that [the employer] did not present a legitimate business justification for it.”  No. 11-1351 at 7. The court reasoned that the employer had not shown that its obligations to comply with antidiscrimination statutes and guidelines “offer[ed]  a legitimate business reason to ban discussions of all investigations, including ones unlikely to present these concerns.” Id. at 6. However, the court expressly declined to “endorse the ALJ’s  novel view that in order to demonstrate a legitimate and substantial justification for confidentiality, an employer must ‘determine whether in any given investigation witnesses need protection, evidence is in danger of being fabricated, and there is a need to prevent a cover up.’” Id. at 7. Instead, the court stated that it “agree[d] that an employer’s obligation to comply with [federal and state antidiscrimination statutes and] guidelines requiring confidentiality may often constitute a legitimate business justification for requiring confidentiality in the context of a particular investigation or particular types of investigations.” Id. at 6.

The employer’s handbook in Hyundai also included the following employee conduct provision: “Voice your complaints directly to your immediate superior or to Human Resources through our “open door” policy. Complaining to your fellow employees will not resolve problems. Constructive complaints communicated through the appropriate channels may help improve the workplace for all.” The court found that the handbook merely “urge[d] employees to voice their complaints to their supervisors or to Human Resources,”  and that “the language [wa]s neither mandatory nor preclusive of alternatives.” Id. at 9. Moreover, the court found that “the handbook d[id] not prescribe penalties for complaints to fellow employees.”  Id. at 10. Accordingly, the court concluded that “a reasonable employee would not read the provision, with its exhortatory language and lack of penalties, to prohibit complaints protected by Section 7.” Id.

This D. C. Circuit Court of Appeals case is significant because the “novel” ALJ’s view that the court refused to endorse was actually the standard “reaffirmed” by the Board in Banner Estrella Medical Center,  362 NLRB  No. 137,  sl. op. at 2-4. Following the court decision in Hyundai, it remains uncertain whether an employer will still be required to demonstrate on a case-by-case basis in any particular investigation whether the witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up.  Rather, the court in Hyundai expressly recognized that an employer’s obligation to comply with antidiscrimination guidelines may often constitute a legitimate business justification for requiring confidentiality in the context of particular investigations or particular types of cases. Accordingly, it appears that this decision could provide the death knell to the novel, case-by-case approach used by the Board majority in Banner Estrella to determine the need for nondisclosure and may very well serve to  permit employers to adopt internal guidelines identifying particular types of investigations when employee-witnesses can or should be asked not to disclose details regarding investigative-meeting conversations, especially those investigations where federal and state antidiscrimination guidelines require confidentiality.

Further, this court decision also provides, contrary to the Board’s position in Banner Estrella, 362 NLRB No. 137, sl. op. at 4-5,  that exhortatory language and lack of penalties may save an employer’s rule. Accordingly, it appears this decision may provide a safe harbor to employers that merely request or suggest unaccompanied by any threat of discipline, as opposed to instruct or require under threat of discipline, nondisclosure of the of matters discussed in investigative meetings, especially where the request is limited in scope to the duration of the investigation and is limited to those types of investigations where there is some business need.


Graduate Students or Employees? NLRB to Weigh In (Again)

Posted in Bargaining Unit, Elections, NLRB, Organizing, Recognition, Representation Cases

By: Jeffrey A. Berman, Mary Kay Klimesh, & Bryan R. Bienias

Last week the National Labor Relations Board decided to reconsider whether graduate teaching assistants at private universities should be treated as employees under the National Labor Relations Act. The case, The New School, Case No. 02-RC-143009, involves a UAW petition to organize graduate students at New York’s New School and marks the Obama Board’s latest attempt to re-visit, and likely reverse, its decision in Brown University, 342 NLRB 483 (2004). In Brown, the Board held that graduate students performing teaching and research services are not “employees” within the meaning of Section 2(3) of the Act because their relationship with the university was primarily educational.

Roughly two years ago, many anticipated the Board would use graduate students union campaigns at New York University and the Polytechnic Institute of New York University as a platform for reversing Brown. However, the cases became moot when the schools and the unions reached voluntary election agreements in November 2013.

This recent decision comes on the heels of the Board’s August 2015 denial of jurisdiction over a union’s drive to organize football players at Northwestern University, where it noted that “the scholarship players bear little resemblance to the graduate student assistants or student janitors and cafeteria workers whose employee status the board has considered in other cases.” Northwestern Univ., 362 NLRB No. 167, slip op. at 3-4 (2015).

Board Member Miscimarra dissented from the Board’s decision to use the New School as a vehicle for revisiting the graduate student issue, noting that Brown is consistent with more than 40 years of Board law holding that “graduate student assistants are not statutory employees, except for a brief four-year period” where the Board considered graduate students to be employees under the Act.

The Board will likely invite amicus briefing on both sides of the issue in the New School case. Should the Board reverse its decision in Brown, the nation’s private colleges and universities can expect a dramatic increase in the efforts of unions to represent their graduate students involved in teaching and research.

We will keep you posted as this issue develops.

Dislike Employees’ Facebook “Likes”? Fire Away at Your Own Risk

Posted in Concerted Activity, NLRB, Protected Concerted Activity

By: Jeffrey Berman and Monica Rodriguez

On October 21, 2015, the Second Circuit Court of Appeals upheld the ruling of the National Labor Relations Board (“Board”) decision in Triple Play Sports Bar and Grill, 361 NLRB No. 31 (2014). The employer, Triple Play, had appealed the Board’s decision finding that it had violated Section 8(a)(1) of the National Labor Relations Act (“Act”) when it: (1) discharged several employees for their Facebook activities, and (2) maintained an overbroad Internet/Blogging policy.

The court issued its decision in a Summary Order, which does not have precedential effect. The NLRB has filed a motion requesting that the Second Circuit publish the opinion to give it precedential authority.

Facebook Activity

So what was the employee conduct at issue? One of Triple Play’s employees posted the following on his Facebook page: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money… Wtf !!!!” Several of the employee’s Facebook friends and other Triple Play employees responded to the post.

One of the Triple Play employees responded with a “like” to the original posting. Another employee commented “I owe too. Such an asshole.” The Board found that the “like” and the comment constituted protected concerted activity under the Act since they involved four current employees and were part of an ongoing sequence of discussions that began in the workplace about Triple Play’s calculation of the employees’ tax withholding.

The court then discussed whether the Board correctly found that the Facebook activity was so disloyal or defamatory as to lose its protected status under the Act. Triple Play argued that the conduct was not protected by the Act because the comments could have been read about current or potential customers. The Board and the appellate court rejected Triple Play’s argument, noting that accepting it would “lead to the undesirable result of chilling virtually all employee speech online.” The appellate court further noted that the Board’s determination that the “obscenities viewed by customers accords with the reality of modern-day social media use.”

Triple Play also argued that the conduct was not protected because the “like” and the comment were made even though the employees knew that initial posting was false. The appellate court agreed with the Board that the communications were not disparaging, but instead “disclosed the ongoing labor dispute over income tax withholding,” and thus, were protected. The court further found that even if the employees’ claims regarding the tax withholdings later proved inaccurate, such inaccuracies did not remove those statements from protection of the Act.

Internet/Blogging Policy

The other issue before the court was whether employees would reasonably construe the policy language in Triple Play’s handbook to prohibit Section 7 activity. Triple Play’s policy provided:

[W]hen internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.

The Board found that the “employees would reasonably interpret [the] rule as proscribing any discussions about their terms and conditions of employment deemed ‘inappropriate’ by [Triple Play].” The appellate court summarily affirmed the Board’s decision without much explanation.

Impact on Employers

The take away for employers is to be wary of disciplining employees for communications made on social media. In this case, the Board (and the court) excused the profane language used by employees on the grounds that it was “concerted” activity regarding an issue at work. Employers should also review their policies regarding internet and blogging to ensure that they are not “overbroad” and could be interpreted as prohibiting discussions about the terms and conditions of employment. If you have any questions regarding your workplace’s social media policies or practices, please contact the authors, or another Seyfarth attorney.

The NLRB’s New Election Rule: Lessons Learned From the First 150 Days

Posted in Uncategorized

By: Chuck Walters and Jack Toner

About six months ago, the National Labor Relations Board’s new regulations and procedures governing union representation elections went into effect.  Before they did, many people predicted that the new rules would significantly increase the number of union elections, drastically shorten the time between the filing of a petition and holding of an election, place significant stress on management trying to comply with the tight deadlines immediately following the filing of the petition, and make it more likely that unions will prevail in representation elections.

So . . . has any of that turned out to be true?  So far, both the data and our experiences have taught us that, yes, the dire warnings were well founded.  Employers were right to be concerned and those who began preparing for the new Election Rule early were wise to do so.  There is more organizing activity, the tight post-petition timelines are very difficult to meet in the absence of significant preparation, and it is harder than ever for employers to prevail in elections — especially if they have not done meaningful groundwork in advance to prepare for the possibility of an election.

In our Lessons from the First 150 Days webinar, Jack Toner and Chuck Walters will discuss the trends revealed in the NLRB’s own data as well as some of our Firm’s experiences under the new rules.  It’s not quite Halloween yet, but prepare to be frightened as Chuck and Jack take you on a 20-minute tour of the haunted house employers are now living in under the NLRB’s new election rules.

Webinar Recording

PowerPoint Presentation


NLRB Regional Director Finds that Employer Failed to Substantially Comply with New Requirement to Provide “Available” Personal Phone Numbers and Email Addresses for Voters and Directs Second Election

Posted in Elections, NLRB

By: Ashley K. Laken, Esq.

After the NLRB’s expedited election rules went into effect last April, the extent to which an employer faced with a union representation petition must search for and provide voters’ personal email addresses and cell phone numbers and include them on the voter list provided to the union was somewhat of an open question. On October 16th, Region 01 of the NLRB shed some light on this issue in a decision and direction of second election (The Danbury Hospital, Case 01-RC-153086). The result for employers is not a particularly happy one.


Under the old election rules, after a union filed a petition for an election with the NLRB, the employer was required to provide a list of eligible voters that simply contained the employees’ full names and home addresses. This list (known as the Excelsior list) was required to be provided within seven calendar days after the approval of an election agreement or the issuance of a Direction of Election.

Under the new expedited election rules, the Excelsior list must now also include the employees’ “available” personal (non-business) email addresses and “available” home and personal cell phone numbers. In addition, the list must now be provided within two business days after the approval of an election agreement or the issuance of a Direction of Election.

This left open the question of what “available” means and how much effort an employer is required to expend to determine what employee contact information is “available” to it. It seemed somewhat obvious that if an employer had previously asked all employees to provide their personal email addresses and then maintained a list of those email addresses in a centralized database, then the employer would need to provide those email addresses on an Excelsior list. But what if only one supervisor out of ten had at some point in the past obtained personal email addresses for some of the employees reporting to him? Would those email addresses be considered “available” to the employer? Region 01’s recent decision seems to suggest that they would be, and an employer’s failure to provide them on the Excelsior list would be sufficient to set aside a favorable election result.

The Decision and Direction of Second Election

On June 19, 2015, an election was conducted among a unit of 866 employees at a hospital in Connecticut, with 346 employees voting for the union and 390 voting against. The union subsequently filed objections to the election result, one of which was that the employer had failed to provide a complete voter list that included available personal cell phone numbers and personal email addresses.

To compile the voter list, the employer had culled information from “Lawson,” its human resources database. The employer provided phone numbers for approximately 94% of the eligible voters, and it also provided all personal email addresses that it had maintained in the Lawson database.

The Hearing Officer (and ultimately the Regional Director for Region 01 of the NLRB), concluded that the employer had not substantially complied with the Board’s requirement that an employer exercise “reasonable diligence” in compiling voter contact information, reasoning that the employer had failed to search its other available data sources. In reaching this conclusion, the Hearing Officer and the Regional Director observed that the employer utilized other databases and other non-electronic means to regularly compile and store employee contact information. For example, the nursing department staffing office used a second database to store contact information for employees working on nursing units, the emergency department used yet another database to store employee information in order to send out messages to employees when extra shifts were available, and one unit in the hospital maintained an employee phone list that was “readily available to managers.” It was also observed that the employer used an applicant tracking system to process and track candidates for open positions. The employer’s argument that it would be unduly burdensome to sort through the 36,000 contacts in that system to locate personal email addresses for the relatively small number of eligible voters included in it was flatly rejected, with the Regional Director reasoning that the system differentiated between internal and external candidates, “a feature that would likely dramatically reduce the number of employees whose records would need to be searched.”

The Regional Director also dismissed the employer’s argument that the record was devoid of evidence that the employer possessed a significant number of additional cell phone numbers or email addresses that were not provided to the union. The Regional Director reasoned that because the employer did not satisfy its obligation under the rule to conduct a reasonably diligent search, it was impossible to know how many available email addresses and cell phone numbers were omitted from the list. The Regional Director also observed that evidence of bad faith on the employer’s part or actual prejudice to the union is unnecessary. Rather, all that is required is a showing that the employer failed to make a “good faith effort” to search its files and databases for the newly required contact information.

Employer Takeaways

It seems clear that under the new election rules, the definition of what employee contact information is “available” to an employer is quite broad. Because the sources of such information may be diffuse, because employers must now compile and provide such information to the union within a very short timeframe after an election petition is filed, and because the consequence of failing to do so is the setting aside of a favorable election result, employers should strongly consider working with their labor counsel to develop proactive strategies for determining what contact information is available to them and for being ready to comply with this new requirement. Seyfarth has many labor attorneys with experience developing and implementing such strategies.


NLRB Forces Buyers To Become “Successors” Against Their Will

Posted in Collective Bargaining, Current Events, Representation Cases

By: Ronald J. Kramer

While all eyes were on the landmark Browning-Ferris decision issued Thursday, the Board issued yet another split decision that also may have far reaching consequences. In GVS Properties, LLC, 362 NLRB No. 194 (Aug. 27, 2015) (here), a case of first impression, the Board in a 2-1 decision held that a purchaser employer becomes a Burns successor with an obligation to recognize and bargain with the Union when, as required by a local worker retention law, it has to hire the predecessor employer’s employees for a “trial period.”

The purchaser employer, GVS, had acquired several real estate properties in New York City and decided to insource maintenance work that had been contracted out to a unionized contractor. The city’s Displaced Building Service Workers Protection Act (DBSWPA) required that GVS, as the successor, retain the maintenance employees for a 90-day transition employment period (or at least as many of those it needed to perform the work). GVS set initial terms and hired 8 of the 9 predecessor employees in accordance with the law. The union demanded recognition, but GVS refused on the grounds that it would not employ a substantial and representative complement of employees until after the expiration of the 90-day transition period when it would be free to decide whether to keep the predecessor’s employees. In this case, after the 90-day period GVS fired three of the old employees and brought on 4 new employees, meaning a majority of the post-transition period work force were not former union employees. GVS had no obligation to recognize the union under its theory.

The Board majority found that GVS became a successor under NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), at the point it assumed control of the predecessor’s business and hired, pursuant to the DBSWPA, a majority of its workforce from among the former employer’s employees for the transition period. The primary dispute between the parties was whether it was possible for an employer to become a successor under Burns during a period of time when it had no legal choice as to whether to retain the predecessor’s employees. GVS and dissenting Member Johnson argued that, based on the Supreme Court’s decision in Fall River Dyeing v. NLRB, 482 U.S. 27, 40-41 (1987), a buyer becomes a successor under Burns only if it does so voluntarily, i.e., if it makes a “conscious decision” to hire a majority of the predecessor’s employees, for in such a case it “intends” to take advantage of the predecessor’s workforce. When a worker retention statute mandates that a purchasing employer retain the predecessor’s workforce for a period of time, the employer does not retain the employees voluntarily and thus Burns is inapplicable. As such, GVS and Member Johnson argued the Burns test could only be applied upon the expiration of any state mandated employment period, after the employer could freely choose whether and how many of the predecessor employees to retain.

The Board majority disagreed, claiming that GVS made its “conscious” decision to have a majority of its workforce consist of predecessor employees when it purchased the buildings in a locale subject to the DBSWPA. The majority further analogized the situation to prior cases where the Board found succesorship to apply when buyers were required to retain the predecessor’s employees as part of the purchase agreement, or when employees were hired on a probationary basis. The majority believed that the NLRA’s aim to preserve industrial peace was best served by considering GVS to be a successor when the employees were hired as required by law as opposed to delaying employee bargaining rights until the end of the statutory transition period.

The dissent further argued that the Board’s decision likely would nullify all local worker retention statutes, for the courts would find them preempted by the NLRA given that states and local governments effectively could use such laws to force purchasing employers to recognize unions. Indeed, in Rhode Island Hospitality Ass’n v. City of Providence, 667 F.3d 17 (1st Cir. 2011), the court refused to find preempted a worker retention ordinance requiring a successor hospitality employer to retain the predecessor’s workforce for three months because the court relied in part on the assumption that, under Burns, a successor employer likely would not be forced to recognize the union during three month mandatory employment period. The court specifically acknowledged that, if it was wrong, and the NLRB decided otherwise, the issue would be open to relitigation. Member Johnson stated that if local governments can control successorship decisions that are supposed to be voluntary, then the notion of federal supremacy will be turned on its head. The majority recognized the possibility of preemption, but did not view it as a sufficient reason to rule differently.

At this point, however, the Board majority has not gone the extra step of declaring a purchaser in such a situation to be “perfectly clear” successor required to adopt the predecessor’s contract. “We do not, as the dissent suggests, imply–much less hold–that all new employers subject to worker retention statutes are ‘perfectly clear’ successors, and we are not ‘obliterat[ing]’ the Burns right of successor employers to set their employees’ initial terms.” Employers subject to worker retention statutes can avoid “perfectly clear” successor status by announcing new terms and conditions of employment prior to or simultaneously with the expression of intent to retain their predecessors’ employees.

This decision, unless overturned, will have far reaching impacts. Many localities have local worker retention statutes, meaning prospective purchasers will have no choice but to recognize the predecessor employees’ union if requested even if, ultimately, only a minority of the workforce post-retention period consists of predecessor employees.  For example, California just passed a far reaching law that applies to all  grocery store purchasers and requires the purchaser to retain the prior owner’s employees for a period of ninety (90) days.  See California AB 359 (signed into law August 17, 2015).   Moreover, courts can no longer sidestep the preemption question on worker retention statutes by assuming the successorship determination would not be made until after the expiration of the mandatory retention period. Last but certainly not least, even though the majority appeared to recognize that a purchasing employer in a worker retention state that set initial terms would not be a “perfectly clear” successor, that issue was not technically before the Board and thus, the majority’s comments are simply dicta. Member Johnson fears such an employer could be found to be a perfectly clear successor.

Stay tuned. This will not be the last we hear of this issue

NLRB Vastly Expands the Definition of Joint Employer

Posted in Collective Bargaining, Organizing, Representation Cases, Unfair Labor Practices

By: Richard L. Alfred, Marshall B. Babson, Joshua L. Ditelberg, Bradford L. Livingston, Stuart Newman, and Karla E. Sanchez

In a ruling that will affect most business relationships and extends far beyond either labor law or the concept of employment generally, the National Labor Relations Board issued a much awaited decision today, Browning-Ferris Industries of California (“Browning-Ferris”), 362 NLRB No. 186 (August 27, 2015), found here, that expansively broadened the definition of who is a joint employer — an otherwise unrelated entity that does not hire, fire, supervise or determine the wages and benefits of another employer’s employees but that nevertheless bears responsibilities to those employees under the National Labor Relations Act (“NLRA” or the “Act”).

To view our full discussion of the case, please click on the link below:


Giving Unions Their Dues: “The More Things Change, the More They Stay the Same.”

Posted in Collective Bargaining, NLRB, Unfair Labor Practices

By: Bradford L. Livingston

Depending on your point of view, it’s the same old (and new) song. Whether the famous 19th Century line by French writer Jean-Baptiste Alphonse Karr, the lyrics from the 2010 Bon Jovi song, or decisions of the current National Labor Relations Board (“NLRB” or “Board”), it’s apparently true that the more things change, the more they stay the same.  Thus and yet again, the NLRB has determined that employers normally will be obligated to continue deducting union dues even after a collective bargaining agreement expires.  Today in Lincoln Lutheran of Racine, 362 NLRB No. 188 the NLRB reaffirmed that it is overturning a 50 year-old precedent allowing employers to discontinue union dues deductions after a collective bargaining agreement expires.

Employers normally must maintain the “status quo” or most existing terms and conditions of employment following the expiration of a collective bargaining agreement.  Unless there is a lawful impasse in negotiations, an employer may not change wages, job assignments, vacation scheduling procedures, overtime assignment rules, health and welfare contributions, or many other terms or conditions of employment during the hiatus between a contract’s expiration and the beginning of a new labor agreement.

Several key exceptions to this rule exist, however.  In Bethlehem Steel, 136 NLRB 1500 (1962), the NLRB ruled that an employer’s dues-checkoff obligations were tied to a contractual union security clause which, like a management rights or no strike clause, expires with the labor agreement.  And so for 50 years, the Board held that when a labor agreement expires, both the union security clause and any obligation to deduct and remit employees’ union dues terminates.

That tune changed in 2012. In WKYC-TV, Inc., 359 NLRB No. 30 (Dec. 12, 2012),  the Board announced that employers could no longer unilaterally stop deducting union dues after a collective bargaining agreement expires. [See our prior blog post .]  While labor agreements may be drafted to provide for the expiration of dues deductions, such a clause must be, in the NLRB’s view, “clear and unmistakable.”  Thus, after contract expiration, an employer could lawfully stop making dues deductions only if it was confident (and correct) that its dues-checkoff clause terminated with the labor agreement.  Absent that certainty, if a union engaged in a strike, employers were required to continue deducting dues from crossovers – bargaining unit employees who choose not to or abandon a strike – without necessarily knowing whether they resigned their union membership and dues-checkoff authorizations.

In its 2014 NLRB v. Noel Canning decision [as discussed here], however, the U.S. Supreme Court found that many NLRB decisions, including WKYC-TV, were decided by a Board that was not validly appointed.  So did the law revert then to Bethlehem Steel and the ability to cut off dues deductions after contract expiration? Not so fast, my friend, because, of course, the more things change the more they stay the same. Faced with yet another opportunity to consider the issue, today the NLRB today affirmed its ruling in WKYC-TV and found that, absent a clear and unmistakable waiver, employers need to continue giving unions their dues.   And as the dissent by Members Miscimarra and Johnson points out, the Board Majority’s rule will only impede labor negotiations by encouraging employers to reject dues checkoff clauses in bargaining first contracts, proposing to delete them in contract renewal negotiations, and – since the pressure from discontinuing dues deductions after contract expiration cannot occur – raising the stakes in negotiations by potentially locking out employees to exert economic leverage. Instead of Bon Jovi, the tune we’re hearing may be the labor anthem “Solidarity Forever.”

College Football Unions: The Refs Call Off the Game

Posted in Bargaining Unit, Collective Bargaining, Current Events, Organizing, Representation Cases

By:  Bradford L. Livingston, Esq.

On the eve of a new college football season, the referees at the National Labor Relations Board (NLRB) got it right on instant replay: they called off the game. In a ruling earlier today, the NLRB’s five Members unanimously declined to assert jurisdiction over Northwestern’s scholarship football athletes.  [Decision] There will be no union of college football players — at least for now.

In case you forgot the game being played during the 17 months since the NLRB Regional Director’s original decision that scholarship college football players are employees who may form a union under the National Labor Relations Act (NLRA), the facts are this: In early 2014 the College Athletes Players Association or CAPA, a union affiliated with The United Steelworkers, filed a petition seeking to represent Northwestern University’s scholarship football players. Following a hearing before Region 13 of the NLRB, on March 26, 2014, the Regional Director ordered a representation election, finding that it would “effectuate the purposes of the [National Labor Relations] Act to assert jurisdiction over scholarship athletes.” The NLRB conducted an election in April 2014 and impounded the ballots while Northwestern University appealed the Regional Director’s decision to the full NLRB. Following the filing of multiple briefs by both the parties and various amici curiae, the NLRB issued its ruling today.   In this case, all 5 current members of the NLRB joined in the decision by outgoing member Harry Johnson, whose term expires on August 27.

While fans often disagree with both the referees’ and replay booth’s calls, this time the referees got it right. In earlier posts on this blog [http://www.employerlaborrelations.com/2014/04/24/college-football-unions-nlrb-to-play-the-game/ and http://www.employerlaborrelations.com/2014/04/17/will-the-nlrb-tackle-the-ncaa/ and http://www.employerlaborrelations.com/2014/03/31/college-football-unions-what-game-is-being-played/ and http://www.employerlaborrelations.com/2014/03/27/college-football-unions-throw-the-flag-for-a-false-start/ ] and in my testimony at a Congressional hearing on the issue [http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=374849], I noted various problems with a finding that college football players could be considered employees under the NLRA.

Although the referees got it right, they did so only by avoiding the central issue in the case. Rather than deciding whether or not scholarship athletes are employees under the NLRA, the Board found an astute and politically correct way for its three-Democrat Member majority to avoid antagonizing their friends in organized labor. Contrary to its Regional Director, the NLRB found that it “would not effectuate the policies of the Act” and therefore — as suggested in our original blog post — declined to asset jurisdiction over Northwestern’s scholarship athlete. In reaching its conclusion, the Board noted that college and professional sports are played not alone but against other teams. And at the professional level, all the teams and their players are typically covered by a common labor agreement. A single team with its own labor agreement would lead to an un-level playing field. Likewise, the NLRB noted that it can only assert jurisdiction over private universities, which represent only 17 of the 125 colleges and universities in the FBS or top level of college football. The vast majority of teams are public colleges and universities beyond the reach of the NLRA and NLRB. Rather than promoting uniformity and stability, the Board recognized that an inherent asymmetry would be created when different teams play by different rules. Therefore, the NLRB decided that a “no call” was the best call. Hedging its bets, however, the NLRB noted that the result might be different if circumstances changed or if a different petition were filed.

Like other instant replay decisions in college football, this decision cannot be appealed any further. Just as the Big Ten or SEC Commissioner cannot overturn referees’ decision on the field or from the instant replay booth, there is no court to which CAPA can now turn. Decisions of the NLRB in representation cases like this are final; so we will never know how Northwestern’s scholarship athletes voted. And while other courts will decide when (and fans can debate) whether college football players should be paid for participating in their sports under other laws and legal theories, it is now clear that college football players cannot unionize and bargain under the National Labor Relations Act (for the foreseeable future). So as we begin a new season of college football, let’s get set to enjoy the game on the gridiron rather than before the NLRB.

NLRB Reversed for Ignoring “Common Sense”

Posted in NLRB, Protected Concerted Activity, Unfair Labor Practices

By: Brian Stolzenbach, Esq.

In Southern New England Telephone Company v. NLRB, the D.C. Circuit reversed an NLRB decision finding it unlawful to prohibit public-facing employees (including in-home service technicians) from wearing a particular t-shirt to work.  The t-shirt, promoted by the union representing the employees in question, said “Inmate” on the front and “Prisoner of AT$T” on the back.  We quote from the beginning of Judge Kavanaugh’s opinion:

Common sense sometimes matters in resolving legal disputes.  This case is a good example. . . .  No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say “Inmate” and “Prisoner.”

While recognizing that the law “protects the right of employees to wear union apparel at work,” the court also observed a longstanding exception to that rule.  A company “may lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image.”  Even though the court is generally deferential to the NLRB in these matters, the court found the NLRB’s decision to be unreasonable and held that the employer was well within its rights to ban the wearing of the t-shirt by employees who interact with the public.

Key point for employers:  Don’t focus too much on the outcome of this particular case.  Pay more attention to the general rule (and also to the fact that the employer here had to take its case all the way to the court of appeals to prevail).  Many employers reasonably believe they can ban the wearing of union apparel (shirts, buttons, hats, stickers) at work because it is inconsistent with the employer’s general dress code.  Alas, this is often not the case.  The question of whether a particular employee has a right to wear a particular piece of union paraphernalia is sometimes a difficult one, and there are numerous NLRB cases addressing the different “special circumstances” when an employer may prohibit such items (the Southern New England case addresses only one of them).  Before rushing to tell your employees to remove a union hat, button, shirt, etc., on pain of discipline, it is often a sensible use of your time to pause and consult your labor relations counsel about the risks and ramifications of doing so.