Employer Labor Relations Blog

Strike Early, Strike Often: NLRB Urged to Expand Protections to Intermittent Strikers

Posted in Current Events, NLRB, Picketing, Protected Concerted Activity, Uncategorized, Unfair Labor Practices

NLRB 2By: Bryan Bienias, Esq.

Seyfarth Synopsis: The Office of the General Counsel for the NLRB has asked the Board to adopt a sweeping new test that will significantly broaden the protections granted to employees who engage in frequent, short-term strikes during the same labor dispute. 

In a purported effort to update existing law to meet the realities of modern labor disputes, the Office of the General Counsel for the National Labor Relations Board last week announced that it will ask the Board to adopt a new test for determining whether intermittent and partial strikes are protected under the National Labor Relations Act. The GC distributed to all regional directors and officers a 15-page model brief to be inserted into filings before the Board and ALJs laying out its new test and also urges the Board to distinguish between “partial” and “intermittent” strikes (as the terms have be used interchangeably over the years).

Under the new test, the Act would explicitly protect employees who engage in multiple short-term strikes, particularly those addressing the same labor dispute, where: “(1) they involve a complete cessation of work, and are not so brief and frequent that they are tantamount to work slowdowns; (2) they are not designed to impose permanent conditions of work, but rather are designed to exert economic pressure; and (3) the employer is made aware of the employees’ purpose in striking.” Under current Board law, workers who strike multiple times, especially in the same labor dispute, can lose the Act’s protections and face discipline or termination.

Citing the need for certainty in the face of the increasing use of intermittent strikes by non-union workforces, as well as employers’ increasing use of temporary employees, the GC’s proposed test significantly broadens the protections granted to employees who engage in intermittent and partial strikes, while providing little guidance for employers as to how existing methods for addressing strike activity could reasonably combat the disruptions and uncertainty caused by frequent, short-term strikes.

The GC notes its test “recognizes that there is a point at which intermittent strikes are so frequent and brief that they enable employees to effectively reap the benefits of a strike without assuming the attendant risks,” citing examples of a ten-minute strike every thirty minutes, or an hourly work stoppage once employees reach daily production quotas. Beyond these extreme examples, however, the GC provides little in the way of practical limitations as to how frequently employers may strike during the same labor dispute before losing the Act’s protections.  Is a 45-minute strike every day protected?  A two-day strike every week?  As of now, it’s anybody’s guess.

The GC also claims that employers are “not helpless in the face of such strikes,” having traditional strategies of permanent replacement, lockouts, subcontracting, etc. at their disposal. But the question remains how practical or effective such traditional strategies would be in the face of frequent, short-term strikes multiple times per week or per month.

While we do not know whether the Board will ultimately adopt the GC’s proposed test, employers can expect to see these arguments raised in future NLRB proceedings. In the meantime, employers should consult with counsel regarding lawful strategies for minimizing risk and potential disruptions caused by employees’ and unions’ increasing use of intermittent or partial strikes during labor disputes.

New York Judge Puts A Nail In Union Organizer’s FLSA Claims Coffin

Posted in Organizing, Uncategorized

Coffin  By: Monica A. Rodriguez, Esq.

Seyfarth Synopsis: New York district court judge in Krupinski v. Laborers Eastern Region Org. Fund, No. 15-cv-00982 (S.D.N.Y. Sept. 30, 2016), grants union’s summary judgment dismissing former union organizer’s FLSA claims.  

Former union organizer of LEROF, a non-profit organization associated with the Laborers International Union of North America (“LIUNA”) sued the Union for unpaid wages under the FLSA.

Did the Union properly classify the union organizer as exempt? This was the question at issue before the court. Both the Union’s summary judgment motion and Plaintiff’s partial summary judgment motion focused on the answer to this question. The court agreed with the Union that the Union organizer’s job duties were duties of an exempt employee.

The court first reviewed Plaintiff’s primary duties. As an organizer, Plaintiff’s primary objective was to motivate, educate, and train construction workers and to convince non-union workers to join LIUNA. Plaintiff frequently worked off-site to participate in “rat and casket” actions. According to the organizer, these actions, or demonstrations, were organized to protest poor working conditions at non-unionized worksites and used inflatable rats and coffins as props.

Plaintiff argued that the physical labor in setting up the inflatable rats, constantly adjusting and maintaining the rats, and carrying and unloading the caskets rendered his duties mostly manual in nature. The court rejected his argument noting that the physical tasks were merely incidental to the primary, non-manual duty of organizing workers.

The court also found that the undisputed facts showed that plaintiff’s primary duties were to increase LIUNA’s membership and market share. Organizers were essentially the face of LIUNA to the public and non-unionized workers. The court noted that his duties, thus, mirrored several duties listed in the Secretary of Labor’s regulation as examples of exempt type of work.

The court also analyzed Plaintiff’s discretion and independent judgment on matters of significance. Plaintiff identified target workers and potential candidates for house calls during union campaigns, searched for and reported potential health code violations at non-union job sites, and varied his approach during organizing campaigns depending on the situation. The court found that Plaintiff undoubtedly exercised discretion and independent judgment when engaging in this work. Moreover, because labor union organizing campaigns are of significance to the Union, the court noted, Plaintiff’s role in these campaigns was important for determining his status as an exempt employee.

The court concluded that the Union successfully showed that its former organizer was an exempt administrative employee. As a result, the court granted the Union’s summary judgment motion burying the union organizer’s FLSA claims six feet under.

NLRB Reaffirms Alan Ritchey Doctrine with New Make-Whole Twist

Posted in Bargaining Unit, NLRB, Representation Cases, Uncategorized, Unfair Labor Practices

DisciplineBy: Ronald J. Kramer, Esq. & Kaitlyn F. Whiteside, Esq.

Seyfarth Synopsis: The Board reaffirmed, prospectively, the Alan Ritchey doctrine requiring employers to bargain over discretionary discipline issued to newly organized employees pre-first contract and mandated prospective make-whole relief including reinstatement and back pay for future violations.

The Board in Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (Aug. 26, 2016) reaffirmed its prior decision in Alan Ritchey Inc., 359 NLRB No. 40 (Dec. 14, 2012), requiring employers to bargain over discretionary discipline issued to newly organized employees prior to the execution of a first contract or a separate side letter addressing discipline. Alan Ritchey was previously invalidated by the Supreme Court’s decision in NLRB v. Noel Canning.

Considering the issue de novo, the three-member majority led by Chairman Pearce, who also served as Chairman when Alan Ritchey was issued, reiterated that employers must provide notice and an opportunity to bargain to the union before imposing discipline (with limited exceptions for minor discipline and exigent circumstances).  We previously covered the obligations under Alan Ritchey here.

The majority emphasized the importance of protecting employees’ rights during the pre-first contract phase of the bargaining relationship. Allowing the employer to exercise discretion in imposing discipline during this time would, according to the majority, “demonstrate to employees that the Act and the Board’s processes implementing it are ineffectual, and would render the union…impotent.” Total Security, 364 NLRB No. 106, slip op. at 10.

The Board found that the discharges in Total Security met the standard established in Alan Ritchey for pre-imposition bargaining and that no such bargaining took place.  The Board declined, however, to order retroactive enforcement of its decision, holding that such enforcement would constitute manifest injustice. Id. at 12.

The majority in Total Security also set forth, for the first time, the remedies available for future Alan Ritchey violations.  In addition to standard remedial relief, i.e. cease-and-desist orders, a requirement to bargain, and notice-posting, the Board opined that make-whole remedial relief, including reinstatement and back pay, would also be appropriate. Id.  Where post-violation the parties did bargain and later reached agreement on discipline, the majority indicated the back pay remedy generally would run from the date of unilateral discipline until the date of the agreement to the extent the agreement did not provide for such back pay.  An agreement providing less than full lost back pay and purporting to settle the pre-discipline bargaining violation would be subject to review under the Board’s standards for non-Board settlement agreements if challenged.  In the event the parties, post-violation, bargained in good faith to impasse over the discipline, back pay would run until the date of impasse. Id. at 13.

Such make-whole relief would, however, be subject to an employer’s affirmative defense that the discipline was “for cause” under the Act. The majority’s new “for cause” defense places the burden on the employer, during the compliance phase of the case, to show “(1) the employee engaged in misconduct, and (2) the misconduct was the reason for the suspension or discharge.” Id. at 15.

The burden of proof then shifts to the General Counsel and the charging party to challenge the employer’s showing by demonstrating, for example, disparate discipline for the same behavior or other reasons for leniency. The employer may rebut such evidence by proving that the employee would have received the same discipline regardless.  The ultimate burden of persuasion remains, at all times, with the employer.

In a 25 page dissent longer than the decision itself, Member Miscimarra asserted the majority took a “wrecking ball to eight decades of NLRA case law.” He not only addressed how the majority erred in reaffirming Alan Ritchey, but he also criticized the majority’s creation of the affirmative defense.  Member Miscimarra argued that Section 10(c) of the Act requires the General Counsel to demonstrate the absence of cause in order to find a violation rather than placing the burden on the employer to show cause in order to avoid liability.  Moreover, Member Miscimarra asserted that that cause issue must be addressed as part of the liability phase of the proceedings as opposed to the remedial phase.

The reaffirmation of Alan Ritchey is no surprise, although the provision of a back pay remedy and the new employer burden during the compliance phase to prove a “for cause” defense is.  Given the complaint against the employer here was dismissed as the ruling was prospective in nature, it likely will be some time before this new rule is actually appealed to the courts.

Moving forward, employers negotiating first contracts risk an unfair labor practice finding if they do not comply fully with Alan Ritchey’s bargaining requirements for any discipline that could even arguably be seen as discretionary.

Local Tax Incentives Tied to Use of Union Labor —Preempted by the NLRA?

Posted in Current Events, Preemption, State Law

By: Skelly Harper, Esq.

Seyfarth Synopsis: Third Circuit rejects market-participant argument, opening the door for preemption challenge to local law tying tax incentives to use of union labor.

The case before the Third Circuit, Associated Builders & Contractors v. City of Jersey City,  involves a Jersey City ordinance providing developers with tax abatements when they build projects in certain areas. Developers are eligible for the tax abatements, however, only if they enter into project labor agreements requiring their contractors and subcontractors to use union labor for the duration of the project. The PLAs required by the ordinance specify, among other things, that “there will be no strikes, lock-outs, or other similar actions,” and that the developer and the union will agree to dispute-resolution procedures. The ordinance covers projects that are funded entirely by private investment.

The legal issue before the Third Circuit was application of the “market participant doctrine.” The plaintiffs in the case argued that the ordinance was preempted by both the NLRA and ERISA. They also argued that the ordinance is barred by the dormant Commerce Clause of the U.S. Constitution. The District Court had ruled that these arguments were not cognizable, because it concluded that Jersey City acted as a market participant — and not a regulator — when enforcing the ordinance. The Third Circuit reversed and remanded.

The Third Circuit held that the market-participant doctrine did not apply because Jersey City did not have a “proprietary interest” in the privately funded projects. The Third Circuit reasoned that providing tax incentives does not transform Jersey City into an investor, owner, or financier of a project. The Third Circuit therefore directed the District Court to decide whether the ordinance was preempted or barred. The decision offered “no comment” on whether the ordinance was in fact preempted the NLRA or ERISA or barred by the dormant Commerce Clause.

The decision sets forth a potential road map for all employers — not just developers — to consider whenever confronted with local tax incentives that are only available to employers with a union contract. While the challenge was brought in this case by the developers, employers outside the construction industry may be able to pursue similar arguments. For example, the Third Circuit’s theory should encompass local laws that require hotels have a union for the hotel developer to receive a tax break

So Much for Management Rights Clauses — The Board Strikes Again

Posted in Bargaining Unit, Collective Bargaining, NLRB, Uncategorized, Unfair Labor Practices

CBA  By: William P. Schurgin, Esq. & Karla E. Sanchez, Esq.

Seyfarth Synopsis: In Graymont PA, Inc. the Board majority ruled that a unionized employer cannot unilaterally change rules or policies that affect bargaining unit employees even if its collective bargaining agreement contains a broad management rights clause.

In Graymont PA, Inc., 364 NLRB No. 37 (2016), the union had represented a unit of the employer’s employees since the 1960’s.  The most recent bargaining agreement contained a management rights clause that stated that the employer retained:

the sole and exclusive rights to manage; to direct its employees; . . .  to evaluate performance, . . . to discipline and discharge for just cause, to adopt and enforce rules and regulations and policies and procedures; [and] to set and establish standards of performance for employees . . .

While the agreement was in effect, the employer announced that it was going to implement changes to its work rules, absenteeism policy, and progressive discipline policy.  These rules and policies were not a part of the agreement.  After the employer made the announcement, the union informed it that it wanted to discuss the announced changes. The employer explained to the union that although it had no obligation to bargain over the changes, it was willing to listen to the union.  The employer discussed with the union and made a few revisions to the work rules and absenteeism policy based on the union’s comments.  Nevertheless, the Board found that the employer’s changes to the work rules, absenteeism policy and progressive discipline policy constituted unlawful changes because the employer did not have the right under the agreement to make these unilateral changes.

The Board noted that for purposes of determining whether a collective bargaining agreement allows an employer to make unilateral changes, it applies the “clear and unmistakable waiver” standard.  Under Graymont PA, Inc., to constitute a clear and unmistakable waiver of a union’s right to bargain over changes in policies, procedures and/or work rules, the management rights clause must specifically refer to the types of rules/policies at issue. In other words, a broad management rights clause that provides management with the sole and exclusive right to “manage” and “direct its employees,” “evaluate performance,” “adopt and enforce rules and regulations and policies and procedures,” and “set and establish standards of performance” does not waive the right of the union, for example, to bargain over changes to an attendance rule or a progressive discipline policy. For such a waiver to be enforceable, according to the Board majority, the management rights clause must specifically refer to rules and regulations related to “discipline”  and  “attendance.”

This Graymont PA decision creates new restrictions on an employer’s ability to rely on a management rights clause to make changes to rules and/or policies without first bargaining with the union. At the same time, it opens the door for unions to file unfair labor practice charges over such changes. In order to evaluate an employer’s right to make unilateral changes in rules, regulations, handbooks or policies, every collective bargaining agreement’s management rights clause will need to be reviewed to determine how specifically it refers to the changes in question.


Follow Member Miscimarra on Twitter

Posted in NLRB


For those of our blog followers who also use Twitter to receive some of their news, let us recommend NLRB Member Phil Miscimarra (@NLRBMiscimarra) as a great follow. Last week, Member Miscimarra recently began tweeting out new NLRB decisions in which he authored an opinion separate from the majority opinion, along with a brief description of the decision and a handy reference to the page on which his opinion commences.  By definition, this is a good clue that the decision is controversial, may be of particular importance to employers, and is ripe for challenge at the court of appeals, with Member Miscimarra doing his level best to provide a road map for a court inclined to disagree with the NLRB’s current majority.

Board Ties Judges’ Hands In Settling Cases Directly

Posted in NLRB, Uncategorized, Unfair Labor Practices

Hands Tied   By: Ron Kramer, Esq.

Seyfarth Synopsis: Overturning 25 years of precedent, the NLRB rules that an ALJ may only enter an order approving and incorporating settlement terms proposed by a respondent over the objections of the General Counsel and charging party if it provides a full remedy for all of the violations alleged in the complaint.

In United States Postal Service, 364 NLRB No. 116 (Aug. 27, 2016), the NLRB in a 2-1 decision took away from Administrative Law Judges the ability to approve substantial compliance settlements directly with a respondent over the objections of the General Counsel and the charging party.  For 25 years, ALJs have had this ability provided the offer substantially remedied the violations alleged in the complaint under the criteria set forth in Independent Stave Co., 287 NLRB 740, 743 (1987):  (1) whether the parties and individual discriminatees have agreed to be bound, and the position taken by the General Counsel; (2) whether the settlement is reasonable in light of the nature of the violations alleged, litigation risks, and the stage of the litigation; (3) whether there has been any fraud, coercion, or duress by any of the parties in reaching the settlement; and (4) whether the respondent has engaged in a history of violations or breached previous settlement agreements.

The ALJ in United States Postal Service applied Independent Stave to issue a settlement in the form of a consent decree in a Section 8(a)(1) threat case where the employer, in return for a non-admission clause, agreed to post the appropriate remedial notice for the required 60 days at the facility where the violation occurred, and to the entry of a default judgment if there was a failure to comply with the agreement for a six month period from the closure of the case on compliance.  The ALJ believed the offer reasonable in light of the minor and isolated nature of the violation, the risks of litigation, and the fact that the relief agreed upon was almost the same as if there had been a judgment.  The General Counsel and union opposed the settlement because of the notice posting was limited to the location of the violation, instead of being posted district-wide, and the General Counsel objected to the six month sunset provision on enforcement.

The Board majority reversed, and overturned twenty-five year old precedent applying Independent Stave to such consent orders.  The majority found that the Independent Stave standard was specifically formulated for evaluating a non-Board settlement between a charging party and respondent  to which the General Counsel was not a party.  In those situations, the majority concluded, a judge could justify approving a settlement that contained less than full relief  in deference to the charging party’s judgment concerning its own interests and the well-established policy favoring private dispute resolution.  Those considerations did not come into play where only the respondent was willing to settle.

Instead, the majority applied what it considered to be the standard in Electronic Workers IUE Local 201 (General Electric Co.), 188 NLRB 855, 957 (1971), that a judge could only agree to such a resolution over the objections of both the charging party and General Counsel if it provided “a full remedy for all of the violations alleged in the complaint.”  Here, the majority did not consider the six month sunset provision on enforcement to be full relief since there would not have been such a limitation had the General Counsel won the case.  Thus, the majority set aside the order and remanded the case for a hearing.

Member Miscimarra dissented. Among other points, Member Miscimarra:  (i) questioned how a judge could reasonably reject a settlement found reasonable under Independent Stave; (ii) noted the Board intended to apply Independent Stave to these cases given the criteria included taking into consideration who was agreeable to the settlement; (iii) rejected the idea that Independent Stave favored resolution of cases only where the charging party desired to settle; and (iv) pointed out the Board in General Electric never declared full relief was a pre-requisite for a judge-approved settlement.  Member Miscimarra also noted that the only relief the Board took issue with, the sunset provision, was not even something to which the union even objected.  Moreover, he claimed the sunset provision did not make the settlement less than a full remedy given it related more to the process of enforcing a breach, the aggrieved party did receive full relief, and such sunset clauses were expressly permitted in informal settlements.

The consent order in United States Postal Service was no different than the terms of many informal Board settlements, and better than many non-Board settlements.  It resolved the case without the cost and expense of a trial, and provided full relief — or if not something very close to it — to effectuate the purposes and policies of the Act.  Many counsel for the General Counsel and unions would have settled this case on those terms anyway.  By taking away a judge’s ability to enter into such a consent order, and instead requiring full relief, the Board is giving General Counsel and charging parties more leverage in determining whether cases settle and, if so, on what terms.  This will result in more cases going to trial.

NLRB General Counsel Seeks To Regulate and Target Employers with Independent Contractors

Posted in Collective Bargaining, Current Events, NLRB, Organizing, Protected Concerted Activity, Unfair Labor Practices

By: Adam J. Smiley, Esq.

Seyfarth Synopsis: NLRB General Counsel releases an Advice Memorandum finding that the misclassification of independent contractors amounts to a standalone violation of Section 8(a)(1) of the NLRA.

On August 26, 2016, Richard Griffin, the General Counsel of the National Labor Relations Board (“NLRB”), released an Advice Memorandum outlining his legal theory that the misclassification of employees as independent contractors constitutes a standalone violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”) because, in his view, the misclassification interferes with and restrains the exercise of Section 7 rights.[1]

In Pac. 9 Transp., Inc., the Employer used independent contractor drivers to perform services at the ports of Los Angeles and Long Beach.  In late 2012, the International Brotherhood of Teamsters began a “non-traditional” organizing campaign of the drivers, and as part of the campaign began filing individual wage and hour claims with the California State Labor Commissioner on behalf of drivers, claiming that the Company had misclassified them as independent contractors.  On November 13, 2013, the Teamsters filed an unfair labor practice charge against the Company (21-CA-116403), alleging that the Employer unlawfully threatened and interrogated certain drivers.  In response to the charge, the Company argued that the Region lacked jurisdiction because the drivers were independent contractors.  The Region dismissed this argument and determined that the drivers were statutory employees, and ultimately concluded that the Company had violated the NLRA.

On April 24, 2015, the Teamsters filed another charge (21-CA-150875), alleging that the Company’s purported misclassification of its drivers, by itself, violated Section 8(a)(1).  The Advice Memo regarding this charge concludes that, “the Region should issue a Section 8(a)(1) complaint alleging that the Employer’s misclassification of its employees as independent contractors interfered with and restrained employees in the exercise of their Section 7 rights.”

As we discussed in a previous blog post, the General Counsel has recently focused on misclassification issues.  While this Advice Memo focuses on a single case, it appears that the General Counsel seeks to apply his theory more broadly and involve the Board in other disputes regarding independent contractors.  And the extraordinary remedy suggested by the General Counsel – which is contained in a closing footnote – instructs the Region to seek an order requiring that the Employer stop referring to the drivers as independent contractors, and “require that the Employer take affirmative action to rescind any portions of its Agreements with its drivers that purport to classify them as independent contractors and to post the appropriate notice.”  In other words, the General Counsel of the NLRB seeks to expand the purview of labor policy to dictate the worker classification decisions of employers.

This novel theory will surely be challenged. The very premise of the General Counsel’s determination that a mistaken classification decision violates Section 8(a)(1) is tenuous and untested.  And even if a court agrees with this concept, Board action is ripe for a preemption challenge, at the very least regarding violations under the Fair Labor Standards Act.

We’ll keep you posted on future developments on this important issue.

[1] The Advice Memorandum was issued on December 18, 2015, but was not publically released until the underlying unfair labor practice was resolved.

Back to School: NLRB Takes Aim at Colleges and Universities

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

By:  Christopher W. Kelleher, Esq., Mary Kay Klimesh, Esq. & Jeffrey A. Berman, Esq.

Seyfarth Synopsis:  The National Labor Relations Board issued three important decisions this week that will significantly impact private colleges and universities.

Student Assistants Eligible to Unionize

By a vote of 3 to 1, the Board held that college and university student assistants — including undergraduates — who perform services in connection with their studies, are “employees” under Section 2(3) of the NLRA, and therefore have the right to bargain collectively. Columbia University, 364 NLRB No. 90. In doing so, the Board overruled Brown University, 342 NLRB 483 (2004), which held that student assistants are not statutory employees. The ruling directly contradicts the Board’s nearly 80-year treatment of students under the Act.

Because Section 2(3) does not adequately define the term “employee,” the Board looked to common law agency principles to determine whether student assistants are covered. The Board thus found that even when the economic relationship “may seem comparatively slight” relative to the academic relationship, “the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship[.]” The Board found no compelling statutory or policy considerations to hold otherwise.

Member Miscimarra, the Board’s lone dissenter, argued that the relationship between the students and the university is “primarily educational,” and thus does not fit “the complexities of industrial life.” The dissent warned that the Majority disregarded “what hangs in the balance when a student’s efforts to attain [a] … degree are governed by the risks and uncertainties of collective bargaining and the potential resort to economic weapons” such as strikes, slowdowns, lockouts, and litigation.

Religious Universities Covered by NLRA

The issue in Seattle University, 364 NLRB No. 84 and Saint Xavier University, 364 NLRB No. 85 was whether these religiously affiliated institutions should be exempted from the Board’s jurisdiction based on First Amendment guarantees against entanglement between church and state. The universities argued that as religious institutions, their faculty members are not covered by the National Labor Relations Act. At the very least, they argued, teachers in religious studies departments should be excluded from the proposed bargaining units, which comprised part-time and contingent faculty.

In both cases, the Regional Director determined that the university’s faculty members generally were covered by the NLRA and that the unit appropriately included religious studies faculty. On review, the Board applied its test set forth in Pacific Lutheran, 361 NLRB No. 157 (2014), which permits Board jurisdiction unless: (1) the university or college holds itself out as providing a religious educational environment; and (2) it holds out the petitioned-for faculty members as performing a specific role in creating or maintaining the school’s religious educational environment. (For more about the Board’s decision in Pacific Lutheran University, 361 NLRB 157 (2014), see here ).  The Board found that both universities met this test when it came to faculty in the religious studies departments, thereby excluding them from the bargaining units.

While this might sound like good news, the Board denied review of the Regional Director’s determination that faculty in other departments were covered. The Board thus continues to ignore the Supreme Court’s mandate in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) that the NLRA must be construed to exclude teachers in church-operated schools. The Board is not entitled to base jurisdiction on the conclusion that certain teachers perform a role in creating or maintaining the school’s religious educational environment. However, that is exactly what happened in these two cases. According to the Supreme Court, this type of inquiry by itself may impermissibly impinge on rights guaranteed by the Religion Clauses of the Constitution.


The Board continues to broadly exercise its authority in order to maximize the number of employers and employees covered by the Act, this time in cases involving three universities. We can expect challenges to all three decisions.





Posted in Bargaining Unit, Collective Bargaining, Concerted Activity, Organizing, Recognition, Representation Cases

By:  Christopher W. Kelleher, Esq.

Seyfarth Synopsis: The NLRB ruled that students who work as teaching assistants at colleges and universities are “employees” under the NLRA and are thus permitted to engage in collective bargaining.

On August 23, 2016, the National Labor Relations Board issued a 3-1 decision in Columbia University, Case 02-RC-143012, holding that private college and university student assistants — including undergraduates — who perform services in connection with their studies, are “employees” under Section 2(3) of the National Labor Relations Act, and therefore have the right to bargain collectively.

In doing so, the Board overruled Brown University, 342 NLRB 483 (2004), which held that student assistants are not statutory employees. The ruling directly contradicts the Board’s treatment of students under the Act for nearly all of its 80-year history.

Because Section 2(3) does not adequately define the term “employee,” the Board looked to common law agency principles to determine whether student assistants are covered. The Board thus found that even when the economic relationship “may seem comparatively slight” relative to the academic relationship, “the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship[.]” The Board found no compelling statutory or policy considerations to hold otherwise. The decision applies only to private schools and universities.

Member Miscimarra, the Board’s lone dissenter, argued that the relationship between the students and the university is “primarily educational,” and thus does not fit “the complexities of industrial life.” The dissent warned that the Majority disregarded “what hangs in the balance when a student’s efforts to attain [a] … degree are governed by the risks and uncertainties of collective bargaining and the potential resort to economic weapons” such as strikes, slowdowns, lockouts, and litigation.