Normally, a union must obtain a majority of votes cast by employees in an election to be certified as the employees’ bargaining representative.  However, if the employer has engaged in serious violations of federal labor law during a union organizing drive, the NLRB can order it to immediately recognize and bargain with the union even if the union lost the election.  These orders are commonly referred to as “Gissel” bargaining orders due to a U.S. Supreme Court of that name.

In a recent case, a federal appeals court emphasized that Gissel bargaining orders should only been issued in the rarest of cases where the Board’s traditional remedies – usually ordering a re-run election – are rendered ineffective by the employer’s conduct.  Novelis Corp. v. NLRB, No. 16-3076 (2nd Cir., March 15, 2018).  In Novelis, the Board found that, in the run up to the election, the employer had demoted a union supporter, threatened job loss if employees unionized, and increased certain holiday pay.  When the election was held, the Union lost in a vote of 287 to 273 in favor of the Company.   The Board, in a decision rendered two years after the election, found that these violations were serious enough to issue a Gissel bargaining order against the Company, ordering it to recognize the Union and commence bargaining.

Now, the Second Circuit has refused to enforce the Board’s Gissel Order.  The Court noted that the Board’s decision came two years after the election and the extent of employee turnover (and management turnover) would mean that about 33% of the employees had no connection to the election campaign and employer violations.  In all cases, a Gissel bargaining order must be supported by some showing that the union had the support of a majority of employees in the petitioned-for unit at some point prior to the election.  Thus, the Court found that the balancing act of preserving employee free choice by disregarding the election results could not be maintained where the workforce had undergone such change.

In addition, the Court found that the Board did not consider the effect of its own efforts to remedy the employer violations.  The Board had sought a “10(j)” injunction against the Company in federal district court that resulted in an Order for the Company to remedy the violations, which even included having a plant manager read the Court notice aloud to all employees.  According to the Court, the Board failed to consider the effect of these remedial steps taken by the Company on employee free choice in a potential re-run election.

Novelis serves as a reminder that, when considering a Gissel bargaining order, the Board is supposed to only apply the remedy in rare cases where employee free choice can only be furthered by ordering the employer to bargain irrespective of election results.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.

Undergraduate resident advisors usually wield a lot of power over university residence halls and those who occupy them. You likely know this already if you were ever a college freshman living in the dorms and received a write-up or warning from your RA. But, for those who do not know, RAs – who are often only slightly older than the college students they oversee – are essentially there to supervise their peers living in dorms and make sure nothing (too) crazy happens. Last week, however, an NLRB Regional Director decided to give RAs at Reed College a right many of them probably did not even consider until recently: the opportunity to unionize.

Pursuant to the Board’s 2016 Columbia University Decision, which entitled university student workers at private campuses – both graduate and undergraduate teaching and research assistants – the right to collectively bargaining, the Regional Director found these RAs were statutory employees under the Act and ordered an election take place. The Regional Director concluded RAs provide a service for compensation, are under Reed College’s control and supervision and, ultimately, that there is no compelling policy reason to exclude them from coverage under the Act.

On the other hand, Reed College argued that Columbia University was wrongly decided and, actually, was not applicable because RAs are not teaching or research assistants. The College also argued that the RAs’ main focus was supporting and mentoring fellow students and that this aspect of their job was inseparable from their role as students, not employees. Notwithstanding these legitimate points, the Regional Director unsurprisingly rejected the College’s arguments. This was unsurprising because Columbia University is still the law of the land and RAs, like teaching and research assistants, are paid for their services, apply and train for the position, and undergo performance reviews. Thus, RAs would have likely garnered a similar finding by the Board who decided Columbia University.

Until the Board finds the proper vehicle to overturn this Obama-era precedent, we can likely expect other subsets of students paid for services at private universities to attempt to unionize as well. Still, the clock is ticking on Columbia University and this fact is not lost on unions attempting to organize students across the country. Indeed, unions at several private universities are now electing to withdraw their representation petitions for fear that a Republican-controlled Board will use their case to overturn Columbia University. Instead, these unions will attempt to pressure these institutions and seek voluntary recognition, a somewhat baffling choice because private universities have long rejected this option and will likely continue to do so (with the exception of only one private institution).

This union action is likely only delaying the inevitable, but, in the end, only time will tell whether Board precedent concerning higher education organizing will flip-flop once again.  Stay tuned.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.

Sometimes, using only one word can make all the difference between a lawful and unlawful statement. Washington University in Saint Louis learned this lesson the hard way when in late October 2017 Associate General Counsel for the NLRB’s Division of Advice Jayme L. Sophir instructed Region 14 to issue complaint, absent settlement, against the University.

The Advice Memorandum, released to the public on February 15, 2018, found the University violated Section 8(a)(1) of the Act by threatening foreign graduate students with deportation if they elected a union and, later on, their union engaged in a strike. Specifically, the statement – “all foreign students will lose their visas and have to leave the country” – was unlawful because a strike would not automatically result with graduate students losing their visas. As labor practitioners know, employer predictions regarding unionization must be based on objective facts and, in general, be measured, reasonable and not overstate adverse consequences as such actions could be seen as restraining and coercing employees’ Section 7 rights.

Here, while a strike could potentially lead to these graduate students losing their visas and being deported, Associate General Counsel Sophir noted the University “overstated the requirements of the applicable regulations and the potential effects of those regulations on the affected graduate student employees.” Conversely, the other statements made by the University concerning immigration laws and potential consequences were found to be lawful because “they either set forth the exact language of the applicable Federal regulations or merely accurately conveyed the possibility that a strike ‘could’ lead to the loss of student visas.” Indeed, all of the statements made by the University would have likely been lawful if the word “will” was simply replaced with the word “could” in the statement at issue. The University, however, did not have to litigate the lawfulness of the statement because the Union chose to withdraw its unfair labor practice charge, resulting in the matter being closed.

Ultimately, this case serves as a helpful reminder that employers must be mindful of its communications with employees during a union organizing campaign and, particularly, seek competent legal counsel prior to taking any action during such times. If not, employers could find themselves in violation of the Act, except likely not have the good fortune of having the complaint against it withdrawn.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.

Graduate students at most private universities have been allowed to unionize since the 2016 decision of the NLRB in Columbia University.  This decision was controversial because the employee status of graduate students has flip-flopped over time, depending on whether members appointed by Democratic or Republican Presidents controlled the Board.  Since 2016, the makeup of the Board has shifted from a Democratic majority to Republican control.  While Democratic appointees generally support the notion that graduate students should be considered employees, Republican appointees do not.  Thus, it is highly likely that graduate students’ status before the eyes of the Board will change, if a University brings a challenge.

However, for Columbia University it is not that simple because the Board has already ruled on the merits of graduate student employee status, and it recently approved the election last December.  Columbia cannot simply ask the Board to reverse itself because the Board’s membership has changed.  Rather, Columbia must first refuse to bargain with the United Auto Workers Union (“UAW”), the representative of its graduate students, and rely on the UAW to file a refusal to bargain charge with the Board.  This Columbia has already done.  In a recent letter, Columbia notified the union that it will not bargain with the UAW regarding a first contract for Columbia’s graduate students.  The Board would then hear the matter, and likely conclude that Columbia did in fact violate the National Labor Relations Act (“the Act”) and order Columbia to bargain.   This in turn will permit Columbia to challenge the Board’s ruling that Columbia’s graduate students are employees under the Act before a United States Circuit Court of Appeals, presumably the D.C. Circuit.

The outcome of this looming appeal will cast a long shadow on graduate student organizing across the country.  If one of the parties to the appeal is unhappy with the result, the matter could reach the U.S. Supreme Court, which would settle this matter for good.

Regardless, how a U.S Court of Appeals decides the matter, expect the Trump Board to reverse course and once again find that graduate students are primarily students rather than employees and conclude that they are guaranteed the right to organize under the Act.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.

Chip Zuver is an associate in the firm’s Labor and Employment Department, resident in its Los Angeles office.

On February 2, 2018, a split three-member Board panel held that a prior election won by a union must be vacated and, accordingly, ordered a second election as it found merit to the employer’s objection arguing that the tardiness of the Board Agent conducting the election potentially disenfranchised a dispositive number of eligible voters.

In February 2017, employees at Bronx Lobster Place LLC voted in favor of unionization by a narrow margin of 14-12. There were 4 eligible voters that did not vote for unknown reasons but, significantly, the Board Agent running the election opened the second voting session 7 minutes after it was scheduled to begin. Notwithstanding the fact that none of the missing voters actually showed up during the Board Agent’s absence, the employer argued that this alone should be enough to set aside the election results. Indeed, the Regional Director, in adopting the Hearing Officer’s recommendation, relied on this fact – no eligible voters were actually prevented from voting due to the late opening of the polls – in certifying the election results.

But, contrary to the Regional Director and the lone dissenting (Democratic) Board member, the Board majority found that case law “rejects such an actual-disenfranchisement standard, in favor of a potential-disenfranchisement test.” Interestingly, one of the two Democratic Board members left on the panel from the Obama-era ruled in favor of undoing the election results and conducting a second election.

In the end, this Board decision reaffirms precedent dating back almost two decades by clearly articulating the applicable standard, and it is yet another example of a favorable decision for an employer under this new administration. This application is also consistent with frequent management-side requests for bright line rules that make it simpler for parties to operate under. Expect more of the same in the (somewhat) near future once the Board has a fully constituted five-member panel with a Republican majority. Stay tuned.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.

Recently, a majority of employees at the news websites DNAinfo and Gothamist decided to join the Writer’s Guild union to bargain collectively over their terms of employment. In response, the owner of the websites decided to shut down its operations completely. This begs the question: can a business close its doors in response to its employees voting to join a union? Perhaps surprisingly, the answer to that question is, with few exceptions, yes.

Picketing Image

In general, the National Labor Relations Act prevents businesses from retaliating against employees for engaging in protected activities, including voting to join a union. However, the United States Supreme Court held in 1965 that closing a business in response to union activity is “not the type of discrimination which is prohibited by the Act.” Textile Workers v. Darlington Mfg. Co., 380 U.S. 263 (1965). In Darlington, the Court essentially found that the law

does not reach the act of purposefully liquidating a business because restraining a business from taking such an action was too “startling … [to] entertain.” Fundamentally, the rule announced in Darlington is premised on the rationale that an employer that leaves the sphere of business entirely does not gain any advantage by shedding union-represented employees. While this rule may sound odd, given that employers cannot discriminate against employees for their union activities, the law simply does not prevent an employer from going out of business, even when the closing is based solely on anti-union sentiment.

As is usually the case, there are exceptions to this rule. An employer cannot close a facility due to union activity in order to inhibit unionization at other plants. One can imagine a situation where a non-union employer with multiple facilities closes the first plant to unionize in order to make a statement to all of its employees. Where a decision to close is based on anti-union animus and aimed at employees at other locations, such a closing will be deemed to be unlawful.

All that being said, the closing of a business only provides a union with limited grounds to contest a closing as unlawful. In this case of DNAinfo and Gothamist, the Writers Guild most likely need to limit any claims at the NLRB to that theory.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.

With campaigns ongoing across the country aimed at raising the minimum wage at a state and local level, one might wonder, why not apply the same pressure on local governments to create their own labor laws? The battle between Uber and the City of Seattle demonstrates the complexities surrounding any attempt to regulate labor relations on a local level.

In 2014, the Seattle City Council passed an Ordinance allowing for ride-sharing drivers, who are classified as independent contractors, to form unions and bargain with Uber and other ride-sharing companies. This arrangement is unique because the National Labor Relations Act, which governs the formation of unions for most employees in the private sector, only covers “employees” and explicitly excludes independent contractors. Thus, the Ordinance is premised on the reasoning that, if the NLRA does not cover these workers, then it should be permissible for local government to step in and provide its own collective bargaining regime. Similar reasoning provides lawful justification for minimum wage laws, and many other local employment laws, for states and municipalities all over the country.   So, what is the problem?

The issue is that the NLRA “preempts” other laws that purport to regulate labor relations for private sector workers. Essentially, it is the only law that governs this field and no other legal structure can interfere with it in any manner, with certain exceptions not relevant here. Even though the NLRA excludes independent contractors, the argument for preemption is that the NLRA must be read as prohibiting collective bargaining with these individuals. In other words, the NLRA commands that only employees can engage in collective bargaining.

Since the passage of the Ordinance in 2014, the court battle has been ongoing between the lawyers for Uber and the City of Seattle. In August 2017, a U.S. District Court Judge allowed the law to go into effect, but, on September 8, 2017, a federal Appeals Court enjoined the law pending an appeal. We will need to wait and see whether the courts will allow states and municipalities to enact local labor law covering independent contractors. If the law becomes effective, we can expect a rash of similar laws in the labor-friendly parts of this country. Stay tuned.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.