The Catholic University of America

Summary of Federal Laws

Employment

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Miscellaneous Employment Laws

Labor Management Relations Act of 1947 (amends the National Labor Relations Act of 1935)

29 U.S.C. § 141 et seq.; 29 C.F.R. § 103.1

Protects the rights of employees to unionize, etc. Applies to private postsecondary institutions with gross annual revenues of a least $1 million dollars.

The National Labor Relations Board is the Federal Agency charged with enforcing the National Labor Relations Act.

 

Trustees of Columbia University in the City of New York and Graduate Workers of Columbia-GWC, UAW,Case 02-RC-143012, August 23, 2016 NLRB

 

In this case the NLRB decided students who perform services at a University in connection with their studies are statutory employees within the meaning of 2(3) of the National Labor Relations Act. In so holding the Board overruled the earlier decision by the Board in Brown University, 342 NLRB 483 (2004), where the Board found that graduate student assistants were not employees.

The holding states:

The Board has the statutory authority to treat student assistants as statutory employees, where they perform work, at the direction of the university, for which they are compensated. Statutory coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the Act does not reach.***

Thus, we hold today that student assistants who have a common-law employment relationship with their university are statutory employees under the Act. We will apply that standard to student assistants, including assistants engaged in research funded by external grants. Applying the new standard to the facts here, consistent with the Board’s established approach in representation cases, we conclude (1) that all of the petitioned-for studentassistant classifications consist of statutory employees; (2) that the petitioned-for bargaining unit (comprising graduate students, terminal Master’s degree students, and undergraduate students) is an appropriate unit; and (3) that none of the petitioned-for classifications consists of temporary employees who may not be included in the unit. Accordingly, we reverse the decision of the Regional Director and remand the proceedings to the Regional Director for further appropriate action.

 

The Board discarded the finding in Brown, supra, that in order to find an employment relationship, the relationship must be primarily economic in character, arguing that the intent of the NLRA was to maximize collective bargaining opportunities for other than the narrow categories specifically excluded (e.g., agricultural workers and those involved in family enterprises). The Board held it would define mandatory subjects of collective bargaining for student assistants on a case by case basis. The dissent argued much of what had been the prior majority opinion, including the impracticality of strikes (you shut off the access to the education you are there to receive) and that NLRB involvement is not warranted simply because "students may occupy a variety of academic positions in conjunction with their education."

See NLRB: Graduate Students at Private Universities May Unionize, August 24, 2015 Inside Higher Ed

 

Northwestern University and College Athletic Players Association (CAPA), Petitioner, Case 13-RC-121359 (August 17, 2015) (Decision by NLRB, upon review and order)

In March 2014, a Regional Director held the grant in aid scholarship football players at Northwestern were employees within Section 2(3) of the NLRA. Northwestern appealed, and the NLRB reversed, holding that the Board would decline jurisdiction as involvement in this case would not improve stability in labor relations. The NLRB noted Northwestern is a private school, while the rest of the Big Ten are public, and emphasized this was a unique case.

National Association of Manufacturers, et al. v. NLRB, No. 12-5068 consolidated with 12-5138, Decided May 7, 2013. (U.S. C.A. D.C. Circuit)

The U.S. Court of Appeals for the DC Circuit invalidated the entire NLRB final rule issued August 30, 2011 requiring employers to post notice of employee rights. After a brief discussion of recess appointments, the court turned to section 8(c) of the act which states: 

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

The court then noted that the Board's rule violates this section of the LMRA by making the employer's failure to post an unfair labor practice, and then also by allowing the failure to be evidence of anti-union animus.

Since Subpart B of the Final Rule cannot be severed from Subpart A, the court held the entire rule to be invalid.

 

Delay of Effective Date, Final Rule, Notification of Employee Rights under the NLRA, 76 Fed. Reg. 82133, Dec. 30, 2011
The effective date of this rule is delayed until April 30, 2012. For more see the NLRB press release dated Dec. 23, 2011. This postponement was at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule.The NLRB webpage contains a poster that can be downloaded.

Chamber of Commerce v. NLRB, US Dist. Court for the District of Columbia, Civil Action No. 11-2262 May 14, 2012

Complete text (18 pages) of decision by U.S. District Court (District of Columbia) holding that the National Labor Relations Board’s (NLRB’s) recently effective rules on expedited representation case procedures are invalid because a quorum of the Board did not participate in the vote adopting the rules. In response to the court’s decision, the NLRB suspended the implementation of the rules and the NLRB acting General Counsel withdrew guidance issued to regional offices and advised regional directors to revert to their previous practices for election petitions.

Final Rule Representation-Case Procedures, 76 Fed. Reg. 80138, Dec. 22, 2011
This final rule is effective April 30, 2012. The rule speeds up the time period for elections, eliminating critical days from the election campaign, giving employers less time to wage their campaign. See the Nixon Peabody Alert dated 12/22/11 on this change in Representation Case Election Procedures. Pre-election hearings will be limited to the question of whether an election should be held, and the rule defers until after the election hearings on such matters as the appropriate composition of bargaining groups and eligibility of employees to participate in the election.See the NLRB redlined version of the changes, which the U.S. Chamber of Congress is seeking to block by filing suit asking for an injunction. See also the Hogan Lovells Jan. 3, 2012 excellent summary of the rule and the litigation and proposed legislation.

ACE Comments Submitted in Response to National Labor Relations Board Notice of Proposed Rulemaking (76 Fed. Reg. 36812, June 22, 2011) to Amend Representation-Case Procedures. August 22, 2011. The proposed rule would make substantial changes to representation and election procedures following the filing of a union petition for representation with the NLRB. See the NLRB Fact Sheet of changes. ACE and other higher education organizations oppose many of the changes.

Final Rule Notification of Employee Rights Under the National Labor Relations Act, 76 Fed. Reg. 54006, August 30, 2011. This rule became effective on January 31, 2012.

The most significant change in the final rule is the deletion of the requirement that employers distribute the notice via email, voice mail, text messaging or related electronic communications if they customarily communicate with their employees in that manner. Federal contractors are covered by this requirement, which is a requirement to post the notice of employee rights physically as well as on the web site of the employer if the employer customarily communicates with employees in that manner. Copies of the required notice will be on the NLRB website by Nov. 1st. Federal contractors are already required by the DOL to post a similar notice. The DOL notice will suffice for purposes of this notice requirement. See the OGC Government Contracts page for a summary and link to the required posting. 

Significant Cases

Seattle University and Service Employees International Union, Local 925 (April 17, 2014)

The Regional Director in Seattle held non-tenure-eligible faculty (excluding faculty in the law school and college of nursing) at Seattle University are eligible to vote on whether to form a union because they are not managers and they share a community of interest. In addition, he held that this Jesuit University was not sufficiently religious to fall under the Board's substantial religious character test as he interprets NLRB v. Catholic Bishop of Chicago. Ignoring University of Great Falls and Carroll College, the Director stated as follows at page 13: 

As noted by the Employer, the D.C. Circuit has repeatedly refused to enforce Board decisions asserting jurisdiction based on the "substantial religious character" standard and instead has adopted its own three-part test. See Univ. of Great Falls, 278 F.3d at 1343; Carroll College, Inc., 588 F.3d 568. However, the Board has not adopted the D.C. Circuit's test and therefore it does not govern my decision here.

Seattle University filed a request for review.
 

Northwestern University and College Athletics Players Association (CAPA) March 26, 2014.

Decision issued by Chicago Regional Director holding grant in aid football players are employees under the NLRA and direction that an election take place. The NLRB granted Northwestern's request for review.

 Resources

ACE Amici Brief December 2016 submitted w/respect to In re George Washington University and Service Employees International Union Local 500. At issue is whether college and university resident advisors can be considered "employees" that are eligible to unionize under the National Labor Relations Act.

NACUANOTES: Volume 12, No. 4--How and Why Colleges and Universities Must Prepare Now for the NLRB'S Proposed "Quickie" Elections Rule May 1, 2014

NACUANOTES Vol. 11, No. 14 - The NLRB’s Recent Focus on Non-Union Employers and its Impact on Common Employment Policies at Colleges and Universities

 

 

 

updated 2-10-17 to submit ACE amici Brief