Employer Labor Relations Blog

NLRB to Employer: Sexually Harassing Gestures On The Picket Line Are Protected Activity

Posted in NLRB, Protected Concerted Activity, Unfair Labor Practices

By: Amanda A. Sonneborn

Continuing to push the limits of reason, the Board recently upheld an ALJ’s decision finding that an employer unlawfully suspended a striking employee who made an obscene gesture and “grabbed his crotch” towards another employee while on the picket line. As one might expect, the employer concluded that the employee who engaged in the obscene gesture violated the company’s sexual harassment and workplace violence policies. To discipline the employee for the conduct, the employer issued the employee a suspension. The Union subsequently filed an unfair labor practice charge challenging the suspension.

After a hearing on the issue, while the ALJ concluded that the striker did engage in “misconduct” by making the lewd gesture towards the other employee, he found it did not rise to a level sufficient to lose the protection of the National Labor Relations Act. In fact, the ALJ concluded “that for a striking employee to forfeit the protection of the Act, an implied threat of bodily harm must accompany a vulgar or obscene gesture.” So, given that the striker only engaged in admittedly “vulgar or obscene” conduct, the employer could not suspend the employee for his activity on the picket line.

In reaching this conclusion, the ALJ summarily dismissed the employer’s obligations to prohibit sexual harassment under Title VII of the Civil Rights Act by concluding that this obscene conduct did not constitute sexual harassment. In doing so, the ALJ boldly claimed that the misconduct “cannot be legitimately characterized as `sexual harassment’” and that, under Title VII, “a plaintiff generally cannot prevail on the basis on a single incident not involving physical contact.” The ALJ cited one federal appeals court case from 2006 in support of his conclusion. The Board then adopted the ALJ’s decision on the issue with no additional discussion.

Employers should stay tuned as this case looks ripe for appeal.

Divided Supreme Court Finds Fair Share Fees For “Partial-Public Employees” Unconstitutional

Posted in Arbitration, Current Events, Representation Cases, Uncategorized

By: Ronald J. Kramer and Joshua L. Ditelberg

Earlier today the Supreme Court issued its decision in Harris v. Quinn, Case No. 11-681 (June 30, 2014), finding in a 5 to 4 decision that the First Amendment prohibits the collection of “fair share,” or agency fees from Illinois Rehabilitation Program personal assistants.  The Court majority, by attacking longstanding precedent on this issue, raises significant questions as to the application of fair share fees in the public sector generally.

In Harris, the plaintiffs provided in-home health care services in Illinois for people with varying levels of disabilities and other health needs.  While the State paid the salaries of these personal assistants, provided health insurance, set certain employment qualifications, conducted performance reviews, and described services that assistants may provide, the person receiving the care—the customer—essentially controlled most aspects of the employment relationship, and by regulation was designated as the employer of the personal assistants.  As the State was not the sole employer of the personal assistants, at one time they had no collective bargaining rights under the Illinois Public Labor Relations Act (“Act”).  In 2003, the Act was amended to designate “personal care attendants and personal assistants working under the Home Services Program” as state employees for purposes of collective bargaining.  Some twenty thousand Rehabilitation Program assistants thereafter voted to be represented by the Service Employees International Union (SEIU).  The Rehabilitation Program assistants’ contract included a union security clause that required all assistants who were not union members to pay their “fair share” of fees for the costs of actual bargaining and non-political contract administration activities.  Illinois law permits such fair share fee provisions in collective bargaining agreements.

The plaintiffs (a group of potentially affected employees) sued, challenging the constitutionality of the fair share fee requirement.  They claimed that the fair share fee requirement violated the First Amendment by compelling their association with, and speech through, the union.  The plaintiffs asserted infringement even though, by paying only “fair share” fees, ostensibly they were only paying for the union’s representation of them for bargaining and administrative (not political) purposes.  No monies arguably were going towards union political activities.

The District Court and then the Seventh Circuit rejected the plaintiffs’ claims.  Finding the personal assistants were state employees, at least with regard to collective bargaining, the Seventh Circuit found the union’s collection and use of fair share fees was permitted by almost sixty years of prior Supreme Court jurisprudence, especially Railway Employees’ Dep’t v. Hanson, 351 U.S. 225, 76 S. Ct. 714 (1956) (finding Railway Labor Act preempted the state constitution and thus a union shop provision in a contract was lawful), and Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S. Ct. 1782 (1977) (holding no First Amendment violation to require non-union public teachers under the  “agency shop” clause of their collective bargaining agreement to financially support the union’s collective bargaining, contract administration, grievance-adjustment procedures, and other activities “germane to its duties as collective-bargaining representative.”).

In reversing the Seventh Circuit, the Court noted that the State of Illinois was seeking to significantly expand Abood to apply, “not just to full-fledged public employees, but also to others who are deemed to be public employees solely for the purpose of unionization and the collection of an agency fee.”  The Court examined its earlier reasoning in Abood, and found its analysis to be “questionable on several grounds.”  The Court criticized the decision for, among other reasons, simply assuming that the Court previously had decided such fair share payments were constitutional in the public sector, and for failing to appreciate the difference between core union speech involuntarily subsidized by dissenting public sector employees, where wages and benefits also were political issues, and core union speech involuntarily funded by their private sector counterparts.

Given Abood’s “questionable foundations,” and because personal assistants are quite different from full-fledged public employees, the Court refused to extend Abood to cover what it termed “partial-public employees”—a concept which is novel and undeveloped in public sector employee jurisprudence.  (Elsewhere in its decision, the Court also referred to “quasi-public employees.”) The Court then analyzed the constitutionality of the payments compelled by Illinois law under applicable First Amendment standards.  The Court held that the agency fee provisions could not satisfy the test used in Knox et al. v. Service Employees International Union, Local 1000, __ U.S. __,  132 S. Ct. 2277 (2012), specifically that the provision does not serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.  The Court rejected claims that agency fee provisions promoted “labor peace”—in its view, a critical rationale supporting agency fees in the private sector—given the union’s status as exclusive bargaining agent was not inextricably linked to such fees, and any threat to labor peace was diminished in this situation given personal assistants do not work at a common facility (with potentially conflicting labor groups) but instead work in private homes.  That the union might be an effective advocate for personal assistants further was insufficient to warrant the restriction in employee rights.

The four dissenting Justices argued that Abood controlled the outcome of this case and that, as such, the agency fees provision should be upheld.  The dissent agreed with the Seventh Circuit that the fact the personal assistants might be jointly employed by both the State and the individual customers should make no difference to the analysis.  The dissent considered the terms over which the State exercised control to be primarily those that would be subject to bargaining, and that the fact the scope of bargaining is circumscribed given the customer’s authority over individualized employment matters like hiring and firing to be irrelevant—given that states often limit the scope of permissible public sector bargaining.

The dissent further noted that, despite the majority’s “potshots” at the decision, even it declined the invitation to overturn Abood, and that the Court’s “precedent … fairly understood and applied, makes it impossible for this Court to reverse that decision.”  The dissent spent considerable time explaining why the Court should not overturn Abood given it is stare decisis, and explained Abood was properly decided in the first place.

While Harris technically is limited to so-called “partial-public employees, the majority’s blistering attack and critique of Abood raises questions as to whether the current majority (or at least much of it) would vote to uphold Abood if it faced a case involving full-fledged public sector employees.  This fear should be of grave concern to public sector unions.  Public sector employees constitute almost half of the unionized workforce, even though many states limit or prohibit public sector unions.  Indeed, according to the Bureau of Labor Statistics, in 2013 38.7% of the public sector workforce was organized (whether union members or not), a percentage five times higher than the private sector workforce (7.5%).  In states where public sector employees are legally permitted to organize they have become very powerful politically.  If public sector employees who have been forced to pay fair share fees for years to organizations they do not support are no longer required to pay such fees, it might deliver a critical blow to the clout of public sector unions.

Public sector unions dodged a bullet.  The question remains whether they will be able to do so the next time, assuming, of course, the makeup of the Court does not change.

Supreme Court Cans NLRB Recess Appointments

Posted in Appointments, Current Events, NLRB

By:  John J. Toner, Esq.

The Supreme Court today issued its much anticipated decision in NLRB v. Noel Canning, regarding the President’s authority to avoid the Senate’s confirmation procedure by granting recess appointments to fill  vacant positions. The decision specifically involved the legitimacy of the President’s recess appointment of Terence Flynn, Sharon Block, and Richard Griffin to be Members of the National Labor Relations Board. A unanimous Court found that those appointments were beyond the President’s authority and, therefore, unconstitutional.

As a result of the Court’s decision, NLRB decisions in which Block, Griffin, or Flynn participated will most likely be invalidated and will need to be reconsidered by the current Board, which already has a considerable backlog of pending cases and is devoting substantial efforts to issue the “quickie” election regulations. Among the decisions that the NLRB will have to revisit are those involving highly controversial issues such an employer’s ability to issue reasonable rules regarding employee behavior at work or to limit access to its facilities by off-duty employees; an employer’s obligation to continue dues deduction after expiration of the collective bargaining agreement; the duty to bargain discipline during first contract negotiations; confidentiality instructions to employees during employer investigations; and an employer’s obligation to provide a union with documents previously considered confidential.

In addition to the case decisions that now may be invalidated, any administrative actions in which Block, Flynn, or Griffin participated may also be invalid — including the appointments of Regional Directors and Administrative Law Judges. As a result, many decisions issued by these Regional Directors or Administrative Law Judges also may be invalid.

The total fallout from this important decision will not be known for some time and we will continue to monitor and advise you of recent developments. To be sure, however, no matter how extensive the repercussions ultimately extend, the decision is a tremendous victory for employers.

Board Majority Finds Referring to Owner as a “F___ing Crook” and an “A__hole” No Bar to Reinstatement with Back Pay

Posted in NLRB, Protected Concerted Activity, Unfair Labor Practices

By: Michael J. Rybicki, Esq.

Employers frequently express extreme frustration and bewilderment with respect to the Board and its decisions. We can only imagine how the owners of Plaza Auto Center, Inc. in Yuma, Arizona must feel following the Board’s Supplemental Decision in Plaza Auto Center, Inc., 360 NLRB No. 117, 199 LRRM 1523 (May 28, 2014), directing reinstatement and back pay for an employee who, while engaging in protected concerted activity, called the owner a “f__ing crook” and an “a___hole” (in the interest of decorum, we’ve declined to reprint the offensive language), told the owner he would regret it if the employee was fired, and who engaged in other conduct that a federal court of appeals concluded called for a remand to the Board to determine whether the employee’s outburst cost him the protection of the Act (Plaza Auto Center, Inc. v. NLRB, 664 F.3d 286 (9th Cir. 2011).

A Board majority (Chairman Pearce and Member Hirozawa) found that the outburst and associated conduct did not deprive the employee of the Act’s protections. The outrageousness of this decision is clear from the dissent of Member Johnson, whose comments also give a fair flavor of the facts in the case:

[The Majority’s] approach implies that such misbehavior is normative, or at least that the Act mandates tolerance of it whenever profane or menacing outbursts are somehow connected to protected concerted activity. I disagree. By this standard employees … will be permitted to curse, denigrate, and defy their managers with impunity during the course of otherwise protected activity, provided that they do so in front of a relatively small audience, can point to some provocation, and do not make any overt threats. In my view, few, if any, employers would countenance such behavior in the absence of protected activity. I do not believe they must act so differently when the confrontation involves protected activity.

In reaching its decision, the Majority reversed certain critical credibility findings by the administrative law judge, which is highly unusual. The Majority also notes that the employee had no history of similar misconduct. At the time of his termination, however, the employee had been employed for only two months.

NLRB Affirms Ruling That Employer Maintained Unlawful “No Gossip Policy”

Posted in Concerted Activity, Current Events, NLRB, Protected Concerted Activity

By: Howard M. Wexler, Esq.  &  Joshua D. Seidman, Esq.

As we previously blogged about – most recently here  and here, the NLRB has taken aim at employer workplace rules that it contends are unlawfully restricting employees’ Section 7 rights. 

On June 13, 2014 the NLRB affirmed an ALJ decision issued in Laurus Technical Institute, 360 NLRB No. 133 (Laurus), a case we previously blogged about here, where an employer’s “No Gossip Policy” was found unlawful. 

The Board’s Decision

In Laurus Technical Institute, a technical school implemented a “No Gossip Policy” (“Policy”) in February 2012. In relevant part, the Policy stated that “[e]mployees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action…[that] may include termination.”

Additionally, the Policy listed six instances to help define “gossip,” including “[t]alking about a person’s personal life when they are not present,” “[t]alking about a person’s professional life without his/her supervisor present,” and “[c]reating, sharing, or repeating” rumors about another person, that are overheard, or that constitute hearsay. The Policy was published in multiple versions of the school’s employee handbook.

Nine months after the school introduced the Policy, it terminated an employee for “Unsatisfactory Performance.” In the employee’s termination letter the school noted that there were several reasons for her termination, including “multiple complaints about repeated violations of ‘the company’s written ‘no gossip policy,’ as outlined in the company’s handbook,’ which had ‘a direct and negative impact on [her] coworker’s ability to effectively perform their job responsibilities,’” and “attempts to actively solicit and recruit coworkers to work for another company, a direct competitor.”

The ALJ concluded that the school’s Policy violated Section 8(a)(1) of the Act. The decision explained that because “[t]he language in the no gossip policy is overly broad, ambiguous, and severely restricts employees from discussing or complaining about any terms and conditions of employment,” the Policy prohibits employees from exercising their rights under the Act. Similarly, the ALJ noted that the school’s Policy further chills employees’ protected rights because it “narrowly prohibits virtually all communications about anyone, including the company or its managers.”

The ALJ then dissected the employer’s actions with respect to the terminated employee. First, the decision stated that the termination was unlawful because “Board precedent holds that discharging an employee for violating an unlawful overbroad rule is likewise unlawful.” While the school argued that the employee “did not engage in any such protected activity, but if she did, she is not afforded the protection of the [NLRA] because of her disruptive behavior and its effects on her coworkers,” the ALJ rejected this argument and found that the employee was merely discussing recent layoffs of their former co-workers and supervisor and that such discussions constitute protected concerted activity.

 In its June 13, 2014 decision the Board adopted the ALJ’s finding that the employer’s “No Gossip Policy” was “overly broad.”  As a result of its finding that the employer violated Section 8(a)(1) of the NLRA when it terminated the at-issue employee for violating the “No Gossip Policy” the Board ordered full reinstatement, with back pay. 

Implications For Employers

This decision highlights the continued need for employers tread lightly given the NLRB’s ever increasing fixation with workplace rules that it contends are unlawfully restricting employees’ Section 7 rights.  As the case law continues to develop, employers concerned about potential legal challenges might want to revisit their handbooks and explore the possibility of revising those policies that may be problematic in light of these recent decisions.  As a result, employer should be prepared find themselves (and their handbooks and work rules) in litigation before the NLRB.

NLRB ALJ Finds Hooters’ Handbook Rules and Termination of Waitress To Be Unlawful

Posted in NLRB, Protected Concerted Activity, Unfair Labor Practices
By:  Ashley K. Laken, Esq.
On May 19th, an NLRB administrative law judge (“ALJ”) found that a Hooters franchise located in Ontario, California unlawfully fired a waitress after she complained about a bikini contest run by the restaurant. The ALJ also held that Hooters maintained unlawful rules in its employee handbook, and that it unlawfully maintained an arbitration agreement that required employees to waive the right to bring class claims.
The Firing
During a conversation with a regional manager a few days before the bikini contest, the Charging Party raised concerns that managers had recently made unprofessional comments about various waitresses (i.e., that they were “getting fat,” were “dumb,” and were “divas”), and she also expressed that she was not looking forward to the bikini contest because it was “rigged” and the girls were forced to participate without being paid. She and some of her coworkers had previously discussed these concerns among themselves.
On the day of the contest, two of the Charging Party’s coworkers had a verbal altercation with each other in which the Charging Party was only tangentially involved. The Charging Party was subsequently terminated for the stated reason that she had been involved in the altercation.
The ALJ found that the Charging Party’s discharge was motivated by her protected concerted activity (i.e., her complaints to the regional manager the previous week) and that the discharge was therefore unlawful. In reaching this conclusion, the ALJ noted that the employer had failed to conduct a thorough investigation before concluding that the Charging Party had been involved in the altercation. The ALJ also noted that the employer’s stated reasons for the Charging Party’s discharge had shifted over time. The ALJ held that the Charging Party was entitled to backpay and reinstatement, among other remedies.
The Handbook Rules and the Arbitration Agreement
The ALJ also found that nine rules in the employee handbook interfered with employees’ Section 7 rights to engage in protected concerted activity and were therefore unlawful. Among some of the rules found unlawful were the following:
• NEVER discuss tips with other employees or guests. Employees who do so are subject to discipline up to and including termination.
• Insubordination to a manager or lack of respect and cooperation with fellow employees or guests may result in discipline up to and including termination.
• Disrespect to our guests including discussing tips, profanity or negative comments or actions may result in discipline up to and including termination.
• The unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person or party may result in discipline up to and including termination. This includes, but is not limited to, recipes, policies, procedures, financial information, manuals or any other information in part or in whole as contained in any Company records.
• Be respectful to the Company, other employees, customers, partners, and competitors. Refrain from posting offensive language or pictures that can be viewed by coworkers and clients. Refrain from posting negative comments about Hooters or coworkers. In all cases, NEVER publish any information regarding a coworker or customer.
• Any other action or activity that the Company reasonably believes represents a threat to the smooth operation, goodwill or profitability of its business may result in discipline up to and including termination.
Finally, citing the Board’s controversial D.R. Horton decision, the ALJ found unlawful the employer’s arbitration agreement that required employees to give up the right to pursue employment-related claims on a class or collective basis.
Concluding Thoughts
The decision underscores the risks involved in terminating employees (union or non-union) who have recently engaged in what might later be found to have been protected concerted activity (i.e., employees who complain about working conditions). Even if the real reason for termination has nothing to do with the employees’ complaints, employers could nonetheless find themselves (and their handbooks and work rules) in litigation before the NLRB.

The UAW and Non-Union Automakers: If at First You Don’t Succeed, Why Try Again?

Posted in Current Events, Elections, NLRB, Organizing

By: Bradford L. Livingston

Earlier this month the United Auto Workers (UAW) announced that it had withdrawn its challenges to an NLRB representation election the union lost at a Chattanooga, Tennessee auto manufacturing plant. Despite access to the facility and its hourly employees, the absence of any anti-union campaign from management, and other alleged overt and covert help from company management, the UAW lost in a secret ballot election by a vote of 626 in favor of to 712 against union representation. Following the loss, the union filed a variety of objections to the election process, including claims that Tennessee’s Republican lawmakers unfairly affected the vote. In withdrawing its challenges to the election, the union will now need to wait a year before another vote can be conducted there.

By targeting a European-based company where the legal framework encourages unionization as part of a social contract between an employer and its workers, the UAW openly expected that the Chattanooga plant would be the first in a series of organizing successes among automakers in America’s largely non-union South. But other UAW organizing campaigns have been ongoing in America’s South as well.

At the same time it was targeting the Chattanooga facility, the UAW had been attempting to organize a Mississippi assembly plant operated by the Japanese automaker, Nissan. Unlike the Tennessee plant, however, Nissan had been exercising its “free speech” rights under Section 8(c) of the National Labor Relations Act to tell its employees why the company believes employees do not need union representation. Those communications from management have apparently worked, and despite significant efforts by the UAW, the union reportedly has had little success with Nissan’s employees.

So if the UAW cannot win either with or without any employer resistance, the union has apparently decided not to try the NLRB’s traditional organizing process again. Rather, it is shifting gears and hoping that the U.S. State Department will provide a boost. On April 27, the union — in conjunction with the international labor group IndustriALL — asked the State Department to mediate a dispute with Nissan over the UAW’s attempts to organize Nissan’s employees. In effect, the UAW claims that international guidelines of the Organization for Economic Cooperation and Development (OECD), to which the United States is a signatory, provide rules concerning workers’ organizing rights that trump the processes established under the NLRA.

The American labor relations model is based on employee free choice, and Section 7 of the NLRA guarantees employees the right either to “form, join or assist labor organizations” or to “refrain from any and all such activities.” Under NLRA Section 8(c), organized labor has the opportunity to make its case to employees and management has the legally-protected opportunity to present its counterarguments. The NLRB’s processes are designed to ensure what it calls “laboratory conditions” where employees can in private, somewhat like Shakespeare’s Hamlet, answer the existential labor relations question of whether “to be or not to be” represented by a union. And to date, there are no claims that Nissan isn’t playing by the lawful and well-established NLRB rules in its communications and dealings with its employees.

But if at first you don’t succeed, why try again? Unions only represent about six percent of America’s private sector workforce, yet rather than asking whether they provide a service employees really want,  it’s easier to blame the rules. And when the accepted rules are inconvenient, change them. European labor codes are far more union-friendly. That’s precisely what the UAW hopes Secretary of State Kerry will do in invoking the OECD guidelines. The State Department has three months within which to decide whether or not to take on the dispute, and even if it does so, Nissan has no obligation to agree to the mediation. Whatever the State Department decides, invoking the OECD process shows that organized labor continues to look for the magic bullet. So if at first you don’t succeed, play a different game.

College Football Unions: NLRB to Play the Game

Posted in Current Events, Elections, NLRB, Representation Cases

By:  Bradford L. Livingston, Esq. 

Earlier today and as expected, the five-member NLRB announced that it had granted Northwestern University’s request to review NLRB Regional Director Peter Ohr’s decision that Northwestern’s scholarship football players are “employees” within the meaning of the National Labor Relations Act.  After the players vote in a secret ballot election tomorrow, April 25, the ballots will be impounded until the Board issues its eventual ruling.  And in recognition of the novel issues raised in the case, the NLRB said that when it issues its briefing schedule, it would invite amicus briefs on the issue from other interested non-parties.

In reality, today’s announcement implies nothing about the ultimate result.  As with any coach’s challenge and “booth review,” the replay officials at the NLRB may affirm, reverse or modify its Regional Director’s decision.  So don’t change the channel if you’re enjoying this gridiron battle, but feel free to take advantage of the extended time out to grab a snack and the beverage of your choice.  This may take a while.

NLRB Requires Hospital To Pay Union’s Negotiating Expenses

Posted in Collective Bargaining, NLRB

By:  Ashley K. Laken, Esq.

On April 14, the NLRB found that a California hospital had repeatedly failed to bargain in good faith with a union representing its registered nurses and that an order requiring the hospital to reimburse the union for six months of negotiating expenses was warranted.  Fallbrook Hospital Corp., 360 NLRB No. 73.   The decision highlights the broad remedies available to the Board when an employer fails to bargain in good faith, and outlines what not to do when negotiating with the union.

The Underlying Facts

The union was certified as the bargaining agent of the hospital’s registered nurses in late May 2012, and negotiations for a first contract began in early July 2012.  The union and the hospital met eleven times between July 2012 and January 2013.

During the first eight bargaining sessions, the hospital refused to provide any proposals or counter-proposals, stating that it would not do so until it received all of the union’s proposals.  The hospital also left one of the bargaining sessions abruptly without explanation and another of the sessions three minutes after arriving.  After the eleventh bargaining session in January 2013, the hospital failed to respond to the union’s requests for future bargaining dates.

The Decision and Order

 In May 2013, an NLRB administrative law judge found that the hospital had violated Sections 8(a)(5) and (1) of the Act by failing to bargain in good faith with the union.  The ALJ recommended, among other things, a 6-month extension of the certification year, but declined to grant the union’s request that the hospital be ordered to reimburse the union’s negotiating expenses.

The Board agreed with the ALJ that the hospital had failed to bargain in good faith with the union.  Additionally, two of the three Board members participating in the decision (Chairman Pearce and Member Hirozawa) found that a 1-year extension of the union’s certification as the nurses’ bargaining agent and an award of the union’s negotiating expenses were necessary to fully remedy the detrimental impact that the hospital’s unlawful conduct had had on the bargaining process.

With respect to the extension of the certification year, Pearce and Hirozawa reasoned that the hospital had “effectively precluded any meaningful bargaining for virtually the entire certification year.”  With respect to the award of negotiating expenses, they reasoned that the record showed that the hospital “deliberately acted to prevent any meaningful progress during bargaining sessions” and that the hospital’s misconduct “infected the core of the bargaining process” to such an extent that its effects could not be eliminated by the mere application of the Board’s traditional remedy of an affirmative bargaining order.  They also reasoned that requiring the hospital to reimburse the union’s negotiation expenses was warranted to make the union whole for the resources that were wasted because of the hospital’s unlawful conduct.

The Board therefore ordered the hospital to reimburse the union for the negotiating expenses it incurred between July 2012 and January 2013 and explained that such expenses could include reasonable salaries, travel expenses, and per diems.  The Board did, however, decline the union’s request that the hospital be ordered to reimburse its litigation expenses and the union’s request that the hospital be ordered to read the Board’s remedial notice to assembled employees during paid working hours.

Concluding Thoughts

 The decision highlights the significant clubs that the Board has at its disposal when employers are found to have bargained in bad faith.  While employers are not often ordered to pay a union’s negotiating expenses, this possibility should not be ignored, especially when engaging in difficult union negotiations.

Will the NLRB Tackle the NCAA?

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

By: Bradford L. Livingston, Esq.

In previous posts about possible unionization by Northwestern University’s scholarship football players, I likened the National Labor Relations Board (“NLRB”) to referees who had committed a false start penalty and showed how the union’s game wasn’t just against Northwestern. This time – in a gridiron battle of acronyms worthy of UCLA v. USC or UM v. OSU – we’ll consider whether, rather than refereeing it, the NLRB intends to insert itself into the game against the NCAA.

After all, attacking the NCAA is the du jour socially-relevant thing to do. The O’Bannon case over college player royalties is set to go to trial in June, new antitrust lawsuits have been filed against the NCAA by several college athletes, and the social and political debate over disparities in wealth and income is increasing in volume. So perhaps the NLRB sees an opportunity to pile on.

In their December 2007 dissent in Register Guard, 351 NLRB 1110, NLRB Members Wilma Liebman and Dennis Walsh – then the pro-union Democratic minority on the Board – called the NLRB the “Rip Van Winkle of administrative agencies.” That was then; this is now. Awake from its slumber and with union advocates now in the majority, the NLRB is like a caffeine-crazed college freshman pulling an all-nighter before an exam to frantically make up for lost time. In an environment where only about 6% of private sector workers are represented by a labor organization, the NLRB (with or without a lawful quorum and its initiatives enjoined by the courts) has been busily helping organized labor. Among both obvious and more subtle examples, just consider its court-quashed “Employee NLRA Rights” posting requirement, its now-revived quickie election rulemaking initiative, its many decisions finding illegal both unionized and non-union employer handbook, social media and other policies (e.g., loyalty, confidentiality, class action waivers, and disparagement). So if the NLRB has decided to reassert its relevancy by entering the game against the NCAA, what plays will it call?

First Down: Give the Union a Bargaining Unit it Can Win

Northwestern’s players are set to vote in a secret ballot NLRB election on April 25, although the ballots will likely be impounded until after the NLRB reviews its Regional Director’s decision that college football players are employees. But no matter how that vote eventually turns out, the game is far from over. The NLRB has given organized labor a new page for its playbook: alternative potential bargaining units.

Unions are strategic in deciding what groups to organize; they understandably file election petitions for groups of workers where they think they’ll win. And with the NLRB’s decision in Specialty Healthcare, 357 NLRB No. 83 (2011), the NLRB has given unions a significant advantage in seeking winnable, so-called “micro” bargaining units. As described in Section 9 of the NLRA, union elections have always been held regarding an appropriate bargaining unit, not the most appropriate bargaining unit. This distinction is critical: where a proposed unit is appropriate under Specialty Healthcare, an employer can only challenge the union’s choice if it meets a very high burden in proving that a different  unit shares an “overwhelming community of interest” with those the union seeks to represent. So while the new Steelworkers-supported college athletes’ union, CAPA, called the play for a bargaining unit comprised of all Northwestern’s football players (and the NLRB’s regional Director approved a unit of all football scholarship recipients who had not exhausted their eligibility), CAPA could just as easily have audibled.

Because CAPA or any other union can file a petition for any unit it is able to organize, why not a unit of only a college football team’s offense, offensive line, or just its quarterbacks? After all, unlike punters and placekickers (who may share their own community of interests but are often not receiving a scholarship), the QBs – who have a separate quarterbacks coach (in NLRA terms, a Section 2(11) “supervisor”), study a different playbook, etc. – will all invariably be on scholarship and share their own community of interests. And why limit organizing to scholarship athletes; why not any college student with a scholarship who receives “pay for play?” When the games are broadcast, instead of focusing TV cameras on freshmen in the bleachers holding up signs saying “Mom and Dad: Send $$$,” wait until they pan outside the stadium to show the striking marching band flute section, whose picket signs proclaim “No Toot Without Loot.” If, as they must, the NLRB’s rules on small bargaining units apply to scholarship athletes as employees, a union will inevitably succeed in organizing some “appropriate” unit.

Second Down: The NCAA as the Athlete’s Employer

No matter whether first down results in big yardage or no gain with Northwestern, the NLRB may be diagramming a second down play in which it takes on not just the 17 private colleges and universities that play major college football, but all of them. To do so, it may conclude that the NCAA is a “joint employer” with any individual college’s scholarship athletes. The NLRB has long held that an organization can be an entirely separate entity, but a joint employer for NLRA purposes if they both codetermine or “take part in determining the essential terms and conditions” of employment of a group of employees. EMI Music, Inc., 311 NLRB 997 (1993). Companies that regularly use labor from staffing agencies, mechanical or janitorial contractors, and other providers understand the risks of joint employment status under the NLRA and often take active steps to minimize their active control over the others’ employees. It is no stretch to argue that the NCAA’s incredibly detailed rules on transfers among teams, eligibility requirements, hours of practice, and everything else determine essential terms and conditions of their participation in the sport – or “employment” to the NLRB. Once a union gains any yardage with its first down play and succeeds in organizing Northwestern (or any other “appropriate” bargaining unit of scholarship athletes among the private colleges and universities that play by NCAA rules), the NCAA as a joint employer – like the primary college employer itself – must recognize and bargain with that unit.

Third Down: The NCAA’s Bargaining Obligation

The NLRB’s call on second down sets up an easy decision for its next play. Once the NCAA is found to be a joint employer, its detailed rules almost certainly must go by the wayside. An employer’s obligation to bargain under NLRA Section 8(a)(5) will supersede any argument that “those have always been our rules” or “that’s what we do at all our other non-union facilities” (such as the public colleges and universities over which the NLRB has no jurisdiction). Simply put, if a union organizes any group of scholarship athletes, the university’s and NCAA’s obligation to bargain in good faith will leave any mandatory subject of bargaining (“wages, hours and other terms and conditions of employment”), which includes the NCAA rulebook, open for negotiation.

Fourth Down: Non-Union Employees are Covered by the NLRA

One of the great things about fourth down is that, no matter the field position or how many yards a team has to go, it can still score a touchdown. And this could be the NLRB’s trick play: that all employees are protected by and have NLRA Section 7 rights. So just consider for a moment the many recent NLRB decisions deeming illegal various employer policies, ranging from regulating online social media posts, to prohibitions against damaging the employer or its reputation, to communications with the media, and other forms of “NLRA protected” communication. In his decision, the NLRB’s Regional Director specifically relied on the following to claim that college football players are employees:

The players must also abide by a social media policy, which restricts what they can post on the internet, including Twitter, Facebook, and Instagram. In fact, the players are prohibited from denying a coach’s “friend” request and the former’s posting are monitored. The Employer prohibits players from giving media interviews unless they are directed to participate in interviews that are arranged by the Athletic Department. Players are prohibited from swearing in public, and if a player “embarrasses” the team, he can be suspended….

In every other “employment” context, recent NLRB decisions have consistently considered policies like these (and their application in disciplining an employee) a violation of employees’ NLRA Section 7 rights. Let’s see what happens when the first college scholarship athlete (take any scholarship athlete at any private college or university) files an unfair labor practice charge with the NLRB. After all, and as the NLRB has made explicitly clear over the last several years, these Section 7 rights apply to all employees, including those who do not belong to a union. Note to college and NCAA as a joint employer: the remedy for an unlawful employment policy invariably includes rescission of the policy (there goes the NCAA rulebook). Even if a union never succeeds in organizing a single college athlete, TOUCHDOWN, NLRB!

Time Out:  

So let’s take a break in the action:  This has nothing to do with whether college athletes are somehow exploited, should be paid for playing, or deserve royalties for television or other use of their likenesses. Other litigation is pending, and the rising tide of public opinion undoubtedly will transform college sports. (In fact, just yesterday the NCAA relaxed its limits on feeding college athletes.) This is merely a labor law commentary about using the NLRA as a vehicle to prompt this social change. College sports will almost certainly be different and no matter what view you may have about the merits of compensating college athletes, the question here is whether or not the NLRB should be playing the game. And, as explained here and in my earlier posts – no matter what down it is – the NLRB should punt.