The NLRB Comes to Campus: An Update on Union Activity at U.S. Institutions of Higher Education

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2 The NLRB Comes to Campus: An Update on Union Activity at U.S. Institutions of Higher Education Wednesday, March 19, 2014

3 Moderator Anna M. Elento-Sneed, Shareholder/Director, Alston, Hunt, Floyd & Ing Honolulu, Hawaii, USA 2

4 Speakers Natasha Baker, Partner, Hirschfeld Kraemer San Francisco, CA Peter A Jones, Partner, Bond Schoeneck & King, Syracuse, NY pjones@bsk.com 3

5 Speakers Mark S. Mathison, Principal, Gray Plant Mooty, Minneapolis, MN Joshua M. Salsburey, Partner, Sturgill, Turner, Barker & Moloney, Lexington, KY 4

6 Recent NLRB Activities and Developments Affecting Colleges and Universities Peter Jones, Bond Schoeneck & King 5

7 Activism at the National Labor Relations Board NLRB issues quickie election rules NLRB decision on micro-bargaining units The NLRB and charter schools Revisiting Yeshiva University more major changes on the horizon for faculty organizing? 6

8 NLRB Quickie Election Rules The Board first issued its proposed new Quickie election rule almost 3 years ago in June 2011 After a public comment period, the Board issued its final, revised rule in December 2011 The new rule first became effective on April 30,

9 NLRB Quickie Election Rules 15 days later, a federal court declared the new rule invalid because the Board lacked a quorum when members voted on the final version. The NLRB is now at full strength On February 6, 2014, the Board reissued the original version of the rule that was first proposed in June 2011 Public comment ends April 7,

10 NLRB Quickie Election Rules Establishes electronic filing of election petitions to save processing time (shortens clock 1-2 days) Requires representation hearings be held within 7 days instead of 14 days (shortens clock another 7 days) Eliminates hearings for any voter eligibility issues involving less than 20% of the proposed unit 9

11 NLRB Quickie Election Rules Eliminates pre-election appeals of Regional Director rulings (shortens clock up to 14 days) Requires employer to produce electronic list of eligible voters within 2 days instead of 7 (shortens clock 5 days) 10

12 Combination: New Election Rule and Board s Recent Ruling on Micro-Units In a 2011 case, Specialty Healthcare (357 NLRB No. 83), the Board reversed 20 years of precedent by now allowing unions to form highly selective micro-units The decision has greatly limited an employer s ability to challenge the union s proposed unit in an election petition With the new rule added, fast-track targeted elections will undoubtedly lead to greater unionization 11

13 NLRB Jurisdiction over Charter Schools In a 2012 case, Chicago Mathematics & Science Academy Center (359 NLRB No. 41), the NLRB found that a charter school in Chicago was subject to NLRB jurisdiction The union argued the entity was a political subdivision of the state and thus exempt from NLRB jurisdiction: 12

14 NLRB Quickie Election Rules Created directly by the state so as to constitute a department or administrative arm of the government? Administered by individuals who are responsible to public officials or to the general electorate? NLRB ruled the charter school entity was NOT a political subdivision: 13

15 NLRB Quickie Election Rules Created by five individuals as private, nonprofit corporation, and the state s role did not emerge until after the private initiative and incorporation State itself did not operate the charter schools Charter schools law permitted district to contract with third parties to establish and operate charter schools Charter entity s board members were privately appointed and removed 14

16 Yeshiva Are Universities Next? Historical treatment of faculty under NLRA Employees or managerial? National Labor Relations Board v. Yeshiva University, 444 U.S. 672 (1980) Faculty typically considered managerial o Extensive role in institutional governance o Emphasis on academic matters» Which courses offered» When offered» To whom offered 15

17 Revisting Yeshiva In 2012 the NLRB signaled its interest in revisiting its analysis under the Yeshiva decision In Point Park University (6-RC-12276), the NLRB called for interested parties to brief the issue of what factors should come into play in making a managerial determination in the higher education setting Yeshiva has resulted in the rejection of nearly all organizing attempts by full-time faculty at private colleges and universities 16

18 Revisting Yeshiva In Pacific Lutheran University (19-RC ) the Board once again requested Yeshiva amicus briefs The case involves a dispute involving an attempt by adjuncts to unionize at Pacific Lutheran University On February 10, 2014 the NLRB sought briefs from interested parties on two significant issues: 17

19 Revisting Yeshiva Whether a religiously affiliated university is subject to the Board s jurisdiction; and Whether certain university faculty members should be considered managerial (once again asking interested parties to address the application of Yeshiva) 18

20 The Pacific Lutheran Questions Which Yeshiva factors most significant? Evidence of making or effective control decisions? Factors identified to date sufficient? What additional factors should be considered? Distinct approach for higher ed appropriate? 19

21 The Pacific Lutheran Questions Does the Board appropriately distinguish between professional and managerial status? Changes in models of decision making since Yeshiva that should be considered? 20

22 The Pacific Lutheran Questions Are there useful distinctions to be drawn between different job classifications of faculty? Did the Regional Director correctly find the Faculty to be employees in the Pacific Lutheran case? 21

23 The Evolving Issue of Students Who May Be Employees with a Protected Right to Unionize Mark Mathison, Gray Plant Mooty 22

24 Challenge and Import of Employee Issues Issues over the NLRA employee status of students tend to be complex, murky, and subject to the shifting politics of the NLRB. NLRA employees have protected rights: To unionize To have the NLRB conduct a union election where they have made a showing of interest. To engage in concerted activity for mutual aid or protection. 23

25 New York University Ruling New York University, 332 NLRB 1205 (2000) Reversed 25 years of NLRB precedent Held that graduate assistants are employees under the NLRA Student status and employee status are not mutually exclusive 24

26 Brown University Ruling Brown University, 342 NLRB 483 (2004) Returned to pre-nyu precedent; the law today Held that graduate assistants are not employees because they are primarily students and have a primarily educational, not economic, relationship with their university 25

27 NYU Chronology After the Board s ruling in NYU, the graduate students at NYU unionized. But in 2005, after the Board s decision in Brown, NYU ceased recognition of the graduate students union. In 2005 and 2006, graduate assistants went on strike at NYU. 26

28 NYU Chronology The graduate assistants petitioned the NLRB for an election 2011: regional NLRB ruling that, under Brown, graduate assistants lack collective bargaining rights But: ruling questions logic of Brown. 27

29 NYU Chronology Graduate assistants appeal to full NLRB 2012 NLRB announces it will use NYU appeal to reconsider Brown; issues invitation to amicus briefing November 2013, NYU and the UAW announce agreement to hold private (AAA) election 28

30 NYU Chronology NYU agrees to neutrality in election UAW agrees to not interfere with NYU s right to manage its academic affairs UAW withdraws appeal December 2013: graduate assistants vote in private election in favor of union representation 29

31 Northwestern University Student Athletes Seek Union Representation January 2014: football players on scholarship at Northwestern University file an NLRB election petition. The Chicago NLRB office conducts February hearing to consider the student athletes employee status. 30

32 Student Athletes Seek Union A decision is expected by mid-april; an appeal to the full board is likely. Union: two examples of employment concerns for student-athletes: Cost of attendance: Interest in coverage for true cost of attending a university Medical care expense (during & after playing career) reimbursement 31

33 Graduate Assistants v. College Athletes Under the factors in Brown: Graduate assistants and college athletes must be students Consideration given to time spent obtaining degree vs. performing service Financial aid contingent on work Relationship between the service and the student s degree Educational relationship vs. economic relationship 32

34 Unionized Athletics: Implications NCAA Joint employer? Public vs. private universities Who, exactly, can unionize? Only revenue-generating sports? o Title IX implications Only athletes on scholarship? 33

35 Implications Which other students? Work-study students? Which other employment laws? Wage and hour? o Impact on NCAA eligibility if paid? Unemployment insurance? Workers compensation benefits? Employment discrimination? 34

36 Institutional Action Now? General best practices for union avoidance (engagement, communication) Bargaining unit analysis Review scholarship policies & agreements 35

37 Are You In or Out? Understanding the NLRB s Exercise of Jurisdiction over Religious Schools, Public Schools and Joint Employers. Joshua Salsburey, Sturgill, Turner, Barker & Moloney 36

38 Religious Schools: Evolution of NLRB Jurisdiction 1951: NLRB indicates it will not exercise jurisdiction over non-profit schools, reasoning that doing so would not serve the NLRA s purposes. 1970: NLRB opts to assert jurisdiction over all private, nonprofit schools with a substantial effect on interstate commerce. 37

39 Religious Schools: Evolution of NLRB Jurisdiction 1979: USSC holds in NLRB v. Catholic Bishop of Chicago that Congress did not contemplate the exercise of jurisdiction over churchoperated schools because doing so would pose a significant risk of infringement on First Amendment rights. 38

40 Religious Schools: Evolution of NLRB Jurisdiction After 1979: NLRB begins to exercise jurisdiction over schools with a substantial religious character. 2002: In University of Great Falls v. NLRB, the D.C. Circuit rejects the NLRB s test and applies its own test per Catholic Bishop and other USSC cases. 39

41 Competing Standards: NLRB vs. D.C. Circuit Substantial religious character test: Looks at all aspects of a religious school s organization and function that may be relevant to the inquiry of whether the exercise of the Board s jurisdiction presents a significant risk that the First Amendment will be infringed. 40

42 Competing Standards: NLRB vs. D.C. Circuit Also looks at the religious organization s involvement in operating the school, the degree to which the school has a religious mission and curriculum, and if the school applies religious criteria in the hiring process. Essentially asks if the school is religious enough, i.e., does it elevate religious doctrine over academic freedom, require faculty and most students to be members of the same faith, and actively proselytize other students. 41

43 Competing Standards: NLRB vs. D.C. Circuit The Great Falls test: Asks whether the school: Holds itself out as providing a religious educational environment Is organized as a non-profit and Is affiliated with, owned, operated or controlled (directly or indirectly) by a recognized religious organization, or within an entity whose membership is determined at least in part with reference to religion 42

44 Competing Standards: NLRB vs. D.C. Circuit Will the NLRB keep its substantial religious character test? Will it adopt Great Falls? Or will an entirely new test emerge? 43

45 Public Schools: So You Want to Be a Political Subdivision? By definition, states and their political subdivisions are not employers under the NLRA and so are exempt from the NLRB s jurisdiction. A political subdivision is an entity that is either: (a) created directly by the state, so as to constitute a department or administrative arm of the government; or (b) administered by individuals who are responsible to public officials or the general electorate. 44

46 Public Schools: So You Want to Be a Political Subdivision? Public schools are routinely recognized as political subdivisions. At least one federal court has even approved sanctions against a plaintiff for pursuing a claim against an exempt city college with political subdivision status. 45

47 Public Schools: So You Want to Be a Political Subdivision? The harder question is whether an entity associated with (but separately organized from) the public school can borrow the school s political subdivision status. Example: University contractor seeking to avoid NLRB jurisdiction through association with its state university customer. Example: State university seeking to exempt a research center or other venture from NLRB jurisdiction by asserting its political subdivision umbrella. 46

48 Public Schools: So You Want to Be a Political Subdivision? The NLRB s exercise of jurisdiction has evolved and expanded: Before 1979: The NLRB applied intimate connection test : The NLRB adopts governmental control test 1995: The NLRB disregards employers association with government entities and asserts jurisdiction when statutory definition and monetary requirements are met 47

49 Public Schools: So You Want to Be a Political Subdivision? Several U.S. Appeals Courts have all held that the government control test is not mandated by the NLRA. 48

50 In this Together? Impact of Joint Employer Status on NLRB Jurisdiction When two or more employers exert significant control over employees, they are joint employers under the NLRA. Joint employer status is a factual question for the NLRB to decide. Courts will affirm the NLRB s decision if it is supported by substantial evidence. Even a slight difference between two cases might tilt a case toward a finding of joint employment. 49

51 In this Together? Impact of Joint Employer Status on NLRB Jurisdiction Joint employer status cannot create jurisdiction over an entity that is otherwise exempt. Examples of instances where joint employer status might be an issue Unions who represent workers employed by a university contractor and are seeking to rope in the university, as well. Contractors seeking to avoid NLRB jurisdiction by borrowing a public university s political subdivision status. 50

52 Examples of Joint Employer Issues Early examples of joint employer issues. Notable modern examples of joint employer issues. 51

53 Adjunct Organizing Efforts around the Country Natasha Baker, Hirschfeld Kraemer 52

54 Overview of Organizing Campaign Adjunct Action Campaign by SEIU Petitions for "part-time" faculty Sometimes limited to the main campus 53

55 Compensation Benefits Issues Institutional committees and governance Uncertainty of work from semester to semester Lack of access to unemployment insurance in some states 54

56 Constituencies Faculty Students Alumni Local community 55

57 Various Approaches Neutrality Opposition Informational responses: anatomy-of-a-letter-what-universitiestell-adjuncts-about-unions 56

58 Recommendations Assess adjunct population Note the varying compositions of bargaining units Assess compensation and benefits and whether the institution can address Develop methods of learning about and addressing concerns 57

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