This past Monday, April 30, marked the conclusion of a weeklong strike conducted by Columbia graduate students at the University’s campus. Timing, as people say, is sometimes everything – especially in an ongoing labor dispute – and here these graduate students scheduled a strike for the last – and busiest – week of the semester.

As such, the strike was expected to be problematic for both professors who rely on graduate students to teach classes, perform research, and grade papers and exams, and for undergraduate students who attend these classes and anticipate receiving grades in a timely fashion. Indeed, there is no denying that the strike was at least somewhat disruptive as reports indicated that several hundred students and professors either moved classes off campus or cancelled them altogether. This, coupled with the fact that the turnout for the strike was greater than expected, is something the union likely considers a victory (in addition to the outside support received from the likes of President of Ireland Michael Higgins, U.S. Congressman Jerry Nadler, and Sex and the City alumna turned NY gubernatorial candidate Cynthia Nixon). In fact, according to an article by the Columbia Daily Spectator (the weekly student newspaper of the University), union organizers and graduate student leaders have already pledged to strike again at some point in the next academic year and have even discussed possible public demonstrations during graduation ceremonies.

Still, the University did not blink and it proceeded with business as usual over the course of the strike. However, as explained in a prior blog post by my colleagues, the University is still currently waiting – and likely hoping – for the graduate students’ union (Graduate Workers of Columbia-United Automobile Workers) to file unfair labor practice charges against it for refusing to bargain over an initial contract. This would then start a litigation and appeals process before the Board and federal court of appeals on the issue of whether graduate students are statutory employees under the Act and, perhaps, even lead to a Supreme Court decision that would settle this matter once and for all. But, doing all of this takes a lot of time and money and that, as well as the fear of an adverse decision, are likely to blame for the union’s failure to file any ULP charges.

Moving forward, unless the University changes its tune and decides to start bargaining with the union (which, at this point, there is a better chance of the Jets winning the Super Bowl!), do not be surprised if similar actions are undertaken by these graduate students down the road. All of this, however, may end up being inconsequential if the proper case comes before the Republican-controlled NLRB and the 2016 Columbia University Board decision that started this mess is overturned. But, with more and more graduate student unions across the country withdrawing their petitions in order to avoid becoming such a vehicle for overturning precedent, it is unclear exactly when this will happen.

Nevertheless, good things do come to those who wait, and ultimately I believe Columbia University – along with the several other private institutions across the country refusing to bargain with their respective graduate student unions – will see the fruits of their labor rewarded when this Board reverses course once again and finds that graduate students are not employees under the Act. 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.

What goes around, comes around, they say, right? Not so fast said one NLRB Administrative Law Judge on November 22, 2017, when she held that the Communication Workers of America, Local 1101, violated Sections 8(b)(1)(A) and 8(b)(2) by attempting to cause Verizon Communications, Inc. to discriminate against former union member Sidra Epps for crossing the picket line. The Union and Company had a collective bargaining agreement that expired in August 2015 and, after not coming to terms on a successor agreement, the Union began a strike in April 2016 that involved nearly 40,000 employees stretching from Maine to Virginia. Expectedly, Ms. Epps, who had been a Union member since 1996, was assigned picket duty but she found this task to be too arduous due to her various health conditions. Unexpectedly, however, the Union decided that this 20-year member’s strike activity was not sufficient to warrant her receipt of strike benefits, effectively leaving Ms. Epps without any resources during the unknown duration of the strike (it lasted approximately seven-weeks and was considered a success by both the local and international). As a result, Ms. Epps resigned from the Union and crossed the picket line.

In the weeks following the conclusion of the strike, several Union officials attempted, either in person or by phone, to get Verizon to transfer Ms. Epps from the Company’s Manhattan location where she worked throughout her time with the Company. Ultimately, while the ALJ recognized that the record was devoid of direct evidence showing the Union attempted to cause Ms. Epps’s transfer, the ALJ credited the testimony of the Verizon official repeatedly solicited to move Ms. Epps over the inconsistent testimony proffered by Union officials. Notably, the ALJ also relied on inconsistencies between the Union’s position statement provided to the Region in response to the unfair labor practice charge and the Union’s testimony offered on the day of trial.

Simply put, the Union was caught red handed in attempting to persuade Verizon to transfer Ms. Epps for crossing the picket line after she was denied the most important benefit afforded to her during a strike as a bargaining unit member: a benefit to subsidize her loss of wages. Making matters worse, the Union apparently failed to have a full grasp of the facts before submitting their position statement and these inconsistencies were highlighted at the hearing. It should also be noted that Verizon would have been in violation of Section 8(a)(3) of the Act if it acquiesced to the Union’s transfer requests of Ms. Epps.

In sum, this ALJ decision may not deter this type of union misconduct that occurs more often than labor bosses are willing to admit, but hopefully this case does shed some light on how resentful and spiteful some unions can be (even towards their own).

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

Racist comments, similar to other forms of employee misconduct (e.g., workplace violence or theft), usually result in termination. Anyone with an ounce of common sense knows this. The National Labor Relations Board, however, upheld an Administrative Law Judge’s prior decision declining to follow an arbitrator’s ruling and ordered Cooper Tire & Rubber Co. reinstate an employee, with back pay, after he was terminated for making racist statements on a picket line. This untenable Board decision was previously blogged about here. Fast forward to August 8, 2017, where a divided Eighth Circuit Panel, in a 2-to-1 ruling, upheld this NLRB decision.

The facts are straightforward: the Company, after failing to negotiate a new contract, locked out its employees and hired temporary replacement workers, many of whom were African-American, to resume operations during the lockout. As a result, the locked out employees began picketing. One night, picketer Anthony Runion (“Runion”) made racist comments aimed towards replacement workers travelling in a van across the picket line. Specifically, Mr. Runion yelled, “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.” After the resolution of this labor dispute, the Company refused to reinstate Mr. Runion because of these racist comments. The union subsequently grieved this matter and an arbitrator upheld the Company’s decision.

Picketing ImageThe split Court, in agreement with the Board, rationalized Mr. Runion’s comments by relying on case law that tolerates racist conduct by employees if done during a labor dispute and, significantly, is unaccompanied by any threats or violence. The Court, in deferring to the Board’s illogical precedent protecting this type of action, agreed that Mr. Runion’s comments were:

[N]ot violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.

The Court also rejected the Company’s reliance in terminating Mr. Runion “for cause” under Section 10(c) of the Act as it differentiated between “for cause” and “just cause” when dealing with a “prohibited reason” and “loss of employment stem[ming] directly from an unfair labor practice.” The Court deferred to the Board’s rationale by holding “that ‘Runion was discharged for a prohibited reason—the protected activity of engaging in picketing.’ Since Runion was discharged for a ‘prohibited reason,’ Cooper did not fire Runion ‘for cause’ under Section 10(c).” Notably, the Court also found that the Board had not abused its discretion by disregarding the arbitrator’s decision as the NLRB is free to overturn arbitrator rulings that are “clearly repugnant” to the Act.  Critically, the Court held that restraining picket line speech such as Mr. Runion’s would fly in the face of “well-established precedent giving greater protection to picket-line misconduct.”

The Court here had the opportunity to denounce racist comments such as Mr. Runion’s, but instead, decided to affirm this behavior when arising in the midst of a labor dispute. Employers, specifically in the Eighth Circuit, must somehow strike a balance between condemning racist comments made by its employees and respecting employees’ rights during lockouts and strikes. This task, however, has become much harder after this decision and I, like many others on the management-side bar, am in complete agreement with Judge C. Arlen Beam, the lone dissenter, when he stated, “the Board repeatedly broadens the protections for such repulsive, volatile, incendiary, and heinous activity time and again in cases such as these.”

In the end, it is readily admitted that protected activity such as picketing can lead to heated words, insults and, generally speaking, an apprehensive and tense environment. This industrial reality, however, should not give employees a pass on racist and discriminatory remarks. An employee can utilize their Section 7 rights and advocate for their side without spewing dangerous and bigoted comments at a specific group. This decision, like several others the Board has issued, downplays this commonsense notion and condones racist behavior as long as it occurs on a picket line. No employer should be forced to tolerate and employ individuals who engage in such behavior. Sadly, as attainable as this feat may seem (i.e., an employer should be able to terminate a racist employee), that is not the world we live in today.

Accordingly, employers should continue to seek legal counsel before disciplining employees for any conduct related to a labor dispute – picketing, lockouts, or strikes – or any action an employee takes concerning their terms and working conditions.

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