Summary of Federal Laws
Employment
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.
Significant Cases
Carroll College Inc. v. NLRB (3-13-09)
No. 07-1315 United States Court of Appeals for the DC Circuit
In this case the court held the Board had no jurisdiction to order Carroll College to bargain with the union, and that the court had authority to invalidate the Board's order even though the college did not raise its jurisdictional challenge in the earlier proceedings. The court cited University of Great Falls v NLRB and held the Board's approach had involved the sort of intrusive inquiry that the Supreme Court had sought to avoid in NLRB v. Catholic Bishop of Chicago. The three part test from Great Falls states that a school is exempt from NLRB jurisdiction if it 1) holds itself out to students, faculty and the community as providing a religious educational environment; 2) is organized as a *nonprofit*; and 3) is affiliated with or owned, operated or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.
This test is found to "ensure that schools claiming the Catholic Bishop exemption are bona fide religious institutions, while avoiding the Board inquiry into the substance and contours of their religious beliefs and missions."
Brown University, 342 NLRB No. 42 (7/13/04)
In this case the NLRB held that graduate students assistants are not employees under Section 2(3) of the NLRA. The case addresses graduate students for whom teaching or research is an integral component of their academic development. This returns the Board to pre-NYU precedent. (See New York University, 332 NLRB 1205 (2000)) The Board found key facts to be as follows:
This interpretation of Section 2(3) followed the fundamental rule that “a reviewing court should not confine itself to examining a particular statutory provision in isolation.” We follow that principle here. We look to the underlying fundamental premise of the Act, viz. the Act is designed to cover economic relationships. The Board’s longstanding rule that it will not assert jurisdiction over relationships that are “primarily educational “ is consistent with these principles.
We emphasize the simple, undisputed fact that all the petitioned-for individuals are students and must first be enrolled at Brown to be awarded a TA, RA, or proctorship. Even students who have finished their coursework and are writing their dissertation must be enrolled to receive these awards. Further, students serving as graduate student assistants spend only a limited number of hours performing their duties, and it is beyond dispute that their principal time commitment at Brown is focused on obtaining a degree and, thus, being a student. Also, as shown below, their service as a graduate student assistant is part and parcel of the core elements of the Ph.D. degree. Because they are first and foremost students, and their status as a graduate student assistant is contingent on their continued enrollment as students, we find that that they are primarily students.
We also emphasize that the money received by the TAs, RAs, and proctors is the same as that received by fellows. Thus, the money is not “consideration for work.” It is financial aid to a student.
The Board noted that funds for the students came from the financial aid budget, and not from the instructional budget, and concluded that the overall relationship is primarily an educational one, rather than an economic one. Also of import to the Board was the desire not to infringe upon the traditional academic freedoms of the school. Note that under some state laws, collective bargaining at public universities is permitted.
NLRB: IBM Corporation v. Kenneth Paul Schult
In this June 9th, 2004 decision and order, the NLRB overuled the earlier decision (see below) of Epilepsy Foundation of Northeast Ohio, holding that employees in a non-unionized workplace have no right under Section 8(a)(1) of the NLRA to have a coworker present during investigatory interviews that an employee reasonably believes might end up in discplinary action. Text from NLRB decision:
A careful analysis demonstrates that it was the existence of the collective-bargaining agreement in Weingarten which allowed the Supreme Court to presume, if you will, concerted activity for mutual aid and protection whenever an employee requests the presence of the employee’s Section 9 (a) union representative at a predisciplinary investigatory interview. By purporting to extend Weingarten to the nonunion setting, the Epilepsy Board engaged without warrant in the same presumption, ignoring the case-by-case evidentiary demonstration required under Meyers I and II. Further, the Epilepsy Board turned a deaf ear to the link to “the interests of the entire bargaining unit” emphasized by the Board in its argument to the Weingarten Court and the Court’s subsequent decision. Finally, the Epilepsy Board failed to address a nonunionized employer’s inherent rights to manage its business as it sees fit and to deal with its employees individually, rights left intact in the absence of a collective-bargaining agreement and union representation.
University of Great Falls v. National Labor Relations Board, No. 00-1415, (Feb. 12, 2002) (D.C. Cir.), 2002 U.S. App. LEXIS 2244. This case came up on petition for review from an NLRB Decision and Order in an unfair labor practice proceeding against the University of Great Falls. The University had declined to recognize the Montana Federation of Teachers, AFT, AFL-CIO as the collective bargaining agent for the faculty at the University of Great Falls. The University is owned by the Sisters of Providence, a Roman Catholic religious order. The University argued, that as a religious educational institution, it is exempt from NLRB jurisdiction under the doctrine of NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). and the Religious Freedom Restoration Act, 42 U.S.C. ss 2000bb et seq. (1994). The NRLB Regional Director, after a long discussion of religion and faith at the University, issued a decision stating that the propagation of faith is not the primary purpose of the University, and that the university was primarily secular, and thus subject to the purview of the NLRB. Ultimately the litigation led to a finding by the NLRB that the University had committed an unfair labor practice by its refusal to bargain with the union.
The case was appealed to the United States Court of Appeals for the DC Circuit, with the appeal supported by religious institutions (including The Catholic University of America), which also claim exemptions from NLRB jurisdiction under Catholic Bishop, supra. The University and amici claimed that the very inquiry by the NLRB into the University's religious character, and resulting determination that the University was primarily secular, were in violation of the principles of the Supreme Court decision in Catholic Bishop. The Court of Appeals agreed with the University, noting that in Catholic Bishop the Supreme Court construed the NLRA so as to avoid deciding whether jurisdiction "was constitutionally permissible under the religion clause of the First Amendment".
In a decision resoundingly in favor of the University, the Court of Appeals stated that in this instance, the "Board has engaged in the sort of intrusive inquiry that Catholic Bishop sought to avoid". The Court went on to note more recent case law, including Mitchell v. Helms, 530 U.S. 793 (2000). at p. 828, in which a plurality of the Court rejected inquiry into religious views as "not only unnecessary but offensive", declaring that "court's should refrain from trolling through a person's or institution's religious beliefs." The Court also invoked the 1st Circuit decision authored by then Judge Breyer in Universidad Central de Bayamon v. NLRB, 793 F. 2d 383 (1st Cir. 1986) (en banc) in which Breyer noted that the analysis in Catholic Bishop applies equally well not just to "pervasively sectarian institutions' but also to colleges primarily sectarian but with a "subsidiary religious mission." The Court of Appeals, in approving the reasoning of Breyer in Bayamon, stated "This conclusion is unsurprising; an exemption solely for 'pervasively sectarian' schools would itself raise First Amendment concerns-discriminating between kinds of religious schools. "
The Court then went on to adopt, at least in part, the approach suggested by Amici Curiae for applying Catholic Bishop. Under this approach, an institution would be exempt from NLRB jurisdiction if it
- Holds itself out to students, faculty and community as providing a religious educational environment; and
- Is organized as a non-profit; and
- Is affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.
The Court noted that since The University of Great Falls is undisputedly affiliated with a recognized religious organization, the Board need not determine whether the full expanse of the third prong would be part of the test.
The Court thus adopted a test that does not intrude upon the free exercise of religion, nor subject the institution to questioning about its motives or beliefs, noting that public identification of an institution is in itself an affirmation that the views held are sincere. In closing, the Court stated the following: "If the University is ecumenical and open-minded, that does not make it any less religious, nor NLRB interference any less a potential infringement of religious liberty. To limit the Catholic Bishop exemption to religious institutions with hard-nosed proselytizing, that limit their enrollment to members of their religion, and have no academic freedom, as essentially proposed by the Board in its brief, is an unnecessarily stunted view of the law, and perhaps even itself a violation of the most basic command of the Establishment Clause-not to prefer some religions (and thereby some approaches to indoctrinating religion) to others."
While the Court did not reach the RFRA claim, it noted that "a ruling that an entity is not exempt from Board jurisdiction under Catholic Bishop may not foreclose a claim that requiring that entity to engage in collective bargaining, or to remedy a particular NLRA violation would 'substantially burden' its 'exercise of religion'.
Note: See above case of IBM Corporation for contra:Epilepsy Foundation of N. E. Ohio v. NLRB, No. 00-1332, Nov. 2, 2001 (D.C. Cir.) 2001 U.S. App. LEXIS 23722. This is the latest in NLRB positions on whether or not the Weingarten rule extends to non-union employees. In the case of NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) the Supreme Court held that employees in a unionized workplace may request the presence of a union representative at an investigatory interview which the employee reasonably believes might result in disciplinary action. This right arises from § 7 of the National Labor Relations Act, which states in relevant part that "employees shall have the right … to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. "
Both union and non-union employees fall under the protection of § 7 of the Act, but the Weingarten decision did not reach the issue of whether or not the right extended to employees in nonunion workplaces. The NLRB has gone back and forth on this issue. In the most recent case, Epilepsy Foundation, the Court held that employees in non-union settings have the right, upon request, to have a coworker present at investigatory interviews if the employee reasonably believes the interview may result in disciplinary actions.
Updated 03/17/2009 PK
5/12/09 compliance partner added mlo and links checked
compliance box links updated 6/9/09 rab
Last Revised 09-Jun-09 02:38 PM.
