By: Robert A. Fisher, Esq.,Jeffrey A. Berman, Esq., and Mary Kay Klimesh, Esq.
Seyfarth Synopsis: On December 1, 2017, the newly-confirmed General Counsel of the National Relations Board, Peter Robb, issued a memorandum to the NLRB regional offices listing legal issues that should be submitted for review to the Division of Advice prior to the issuance of an unfair labor practice complaint. Among other responsibilities, the Division of Advice provides guidance to the General Counsel and the regional offices with respect to significant legal issues arising in the processing of unfair labor practice charges.
The memorandum also listed seven different legal memoranda, commonly known as “GC Memos,” issued by Mr. Robb’s predecessor that were being rescinded. Of significant importance to colleges and universities is that among the seven rescinded GC Memos was the Memorandum entitled “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context” (“the Report”). This Report set out then-General Counsel Richard F. Griffin Jr.’s views as to the applicability of three election cases previously decided by the NLRB — Pacific Lutheran University, Columbia University, and Northwestern University — to unfair labor practice cases involving the Section 7 rights of faculty, student assistants and student-athletes. Our prior description of the Report can be found here. The rescission of the Report signals that the new General Counsel intends to depart from his predecessor on these issues.
NLRB Jurisdiction Over Religious Colleges and Universities and Managerial Status
In Pacific Lutheran University, 361 NLRB No. 157 (December 16, 2014), the NLRB, departing from well-established case law, including decisions of the United States Supreme Court, announced a new test to determine when jurisdiction would be asserted over religious colleges and universities in representation cases. The test established in Pacific Lutheran increased the instances in which jurisdiction would be asserted. Also breaking with a prior decision of the Supreme Court, the Pacific Lutheran decision narrowed the circumstances in which faculty involved in school decision-making would be deemed to be managerial and thus excluded from protection of the National Labor Relations Act (“the Act”). Analysis of the decision can be found here.
As specifically intended, Griffin’s Report extended the holdings of Pacific Lutheran beyond representation cases to the unfair labor practice context. The positive effects of the new General Counsel’s rescission of the Report should be felt in both unfair labor practice and representation cases.
In Columbia University, 364 NLRB No. 90 (2016), the Board, departing from years of decision-making, held that students who performed services for the university in connection with their studies, specifically teaching and research assistants, were employees within the meaning of the Act for the purposes of organizing. The Report extended this conclusion to the unfair labor practice context. Moreover, and although the Board in Columbia University did not address the status of non-academic student workers such as those who work in cafeterias and bookstores, the Report also concluded that such student workers have rights under the Act.
Taken together, the Report meant that prior General Counsel Griffin believed that student assistants and non-academic student workers not only could unionize under the Act, but that they also were protected from actions being taken against them because of their efforts to unionize. Colleges and universities should expect positive effects in both areas as a result of Robb’s rescission of the Report.
Lastly, Griffin’s Report addressed the Board’s decision in Northwestern University, 362 NLRB No. 167 (2015), in which, based on public policy considerations, it declined to exercise jurisdiction over a representation petition relating to the University’s scholarship football players. In doing so, the Board specifically left unresolved the question of whether college scholarship football players are employees subject to the Act. Undaunted by the fact that the Board would not decide the employee status issue, former General Counsel Griffin concluded that, based on the record in Northwestern University, Division I scholarship football players are employees under the Act and left open the possibility of a similar determination as to scholarship athletes in other sports.
The Report already had been used by plaintiffs in wage-hour litigation to support their position that certain scholarship athletes are employees for purposes of state and federal wage-hour laws, including the Fair Labor Standards Act. The rescission of the Report should prevent that in the future.
General Counsel Robb’s recession of the Report is not surprising. After the Report was issued by former General Counsel Griffin, Congressional Committee Head Virginia Foxx (R-NC) and Subcommittee Chair Tim Walberg (R-MI) asked Griffin to either immediately rescind the Report or “step down.” We reported on this here. Although the Report is only directed toward unfair labor practice cases, it would not be surprising if the Board decided to revisit its underlying holdings in Pacific Lutheran and Columbia University. Indeed, on December 12, 2017, Board Member Emanuel noted in an unpublished decision that the Board’s precedent regarding the status of students as employees under the Act “warrants reconsideration.”
When most people think of labor law violations, they probably think of “Big Business.” But employees, employers, and labor organizations file thousands of charges each year called Unfair Labor Practices against unions and union officials.
An Unfair Labor Practice (ULP) occurs when a union or an employer violates Section 8 of the National Labor Relations Act. Union members commonly file ULPs against their union because the union failed to fairly represent its members. Employees also file ULPs against union leaders for intimidation, coercion, violence, and many other labor law violations.
The National Labor Relations Board’s annual report for fiscal year 2010 included the number of Unfair Labor Practices alleged against employers and unions. Once again, union officials faced a disproportionately high number of allegations of wrongdoing, when compared to employers. The worst part: The vast majority of allegations said that members were the ones hurt by the union officials that are supposed to protect them.
In 2010, the NLRB reported that:
- Unions faced a total of 6,338 allegations of violating labor law;
- 80.6% of those charges were cases where a union attempted to “restrain or coerce employees in the exercise of the rights guaranteed” by the National Labor Relations Act (Sec.8(b)(1)).
How to File a ULP
To file a ULP against a union, a union member must fill out NLRB Form 508. Be advised that the NLRB doesn’t have jurisdiction to investigate all unfair employment issues. The NLRB will investigate the allegations and either dismiss the case, seek a settlement from the union, or issue a formal complaint. Union members may also withdraw the complaint. If, after filing a complaint, the union refuses to settle the issue, the case will be heard by an Administrative Law Judge. Depending on the outcome, the NLRB will either issue an order or dismiss the case.
The National Labor Relations Board has more information on the Unfair Labor Practice process.
Examples of Unfair Labor Practices by a Union
The National Labor Relations Board provides the following examples of ULPs by unions:
- Mass picketing in such numbers that nonstriking employees are physically barred from entering the plant;
- Acts of force or violence on the picket line, or in connection with a strike;
- Threats to do bodily injury to nonstriking employees;
- Threats to employees that they will lose their jobs unless they support the union’s activities;
- Statement to employees who oppose the union that the employees will lose their jobs if the union wins a majority in the plant ;
- Entering into an agreement with an employer that recognizes the union as exclusive bargaining representative when it has not been chosen by a majority of the employees;
- Fining or expelling members for crossing a picket line that is unlawful under the Act or that violates a no- strike agreement;
- Fining employees for crossing a picket line after they resigned from the union;
- Fining or expelling members for filing unfair labor practice charges with the Board or for participating in an investigation conducted by the Board;
- Refusing to process a grievance in retaliation against an employee’s criticism of union officers;
- Maintaining a seniority arrangement with an employer under which seniority is based on the employee’s prior representation by the union elsewhere;
- Rejecting an application for referral to a job in a unit represented by the union based on the applicant’s race or union activities;
- Causing an employer to discharge employees because they circulated a petition urging a change in the union’s method of selecting shop stewards;
- Causing an employer to discharge employees because they made speeches against a contract proposed by the union;
- Making a contract that requires an employer to hire only members of the union or employees “satisfactory” to the union;
- Causing an employer to reduce employees’ seniority because they engaged in antiunion acts;
- Refusing referral or giving preference on the basis of race or union activities in making job referrals to units represented by the union, and;
- Seeking the discharge of an employee under a union-security agreement for failure to pay a fine levied by the union.