Post ─ Northwestern University: What’s Next? Union Elections 101 1A Faculty Athletics Representatives Sunday, September 21, 2014
Presented by:
Art Carter Shareholder Littler Mendelson P.C. Dallas Office 214.880.8105
[email protected]
Agenda • Northwestern Decision: How Did We Get Here? • NLRA Basics • How Unions Organize & Become Bargaining Reps • Procedural Status & Possible Outcomes
Northwestern University Decision: Why Are We Here? How did we get here?
NW Decision: How Did We Get Here? Timeline • • • • • • • • •
1/28/14 – Petition Filed 2/12/14 - 2/25/14 – Hearing 3/17/14 – Post-Hearing Briefs Submitted 3/26/14 – Decision & Direction of Election 4/24/14 – Request for Review Granted (Order to Vote & Impound) 4/25/14 – Election 5/12/14 – Amicus Briefing Permitted 7/31/14 – Briefing Due Date for Request for Review Decision pending
NW Decision – How Did We Get Here? • Regional Director found that football players receiving grantin-aid scholarships from Northwestern University (“employer”) are “employees” under Section 2(3) of the Act. • Employee is defined broadly in the Act. • US Supreme Court says to consider common law definition
• Common law definition: “a person who performs services for another under a contract of hire, subject to other’s control or right of control, and in return for payment.” Brown University, 342 NLRB 483 (2004).
NW Decision – How Did We Get Here? • Other groups previously reviewed by Board: – Graduate research assistants – Graduate students
• Regional Director ruled FB players receiving scholarships (but not walk-ons) were employees because they meet statutory and common law definition of employees. – – – –
Scholarships = Compensation FB players = Subject to employer’s (university’s) control FB players = Performed duties as FB players Tender process and obligations under scholarships were the functional equivalent of contract for hire.
NLRA Basics: National Labor Relations Board • Two basic functions: – Determine and implement through secret ballot election choice by employees to be represented – To prevent and remedy unfair labor practices (ULPs)
NLRA Basics: NLRB’s Organization Structure • NLRB divided into 2 branches – Board – Office of General Counsel
• Board – – – –
5 members Reviews cases decided by ALJs Reviews some ULP and representation cases via direct reviews This is where NW case is right now
• Office of General Counsel – Various Divisions – Field Offices/Regional Offices (26) – NW Case from Region 13 located in Chicago, IL
NLRA Basics: The National Labor Relations Act – The Law • The Law’s Basic Purpose: To protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of bargaining. • Section 9 specifies how unions become the representative of the employees and the rules on unionization • Protects rights of employees to engage in or refrain from union activity • Encourages collective bargaining
NLRA Basics: The National Labor Relations Act – The Law • Administered by NLRB • Generally, two types of cases – ULP – Representation
• Judicial review of NLRB decisions goes to US Courts of Appeal • Representation cases are reviewed differently from ULP, which will be explained later
NLRA Basics: Representation Cases 101 • Majority Rule – An exclusive bargaining representative must have the support of a majority of the employees in the appropriate unit – Board determines an appropriate unit – Resolves such issues as scope and composition (inclusion or exclusion) – The issue in the NW case was composition (whether scholarship FB players were employees)
• Outcome determined by the number of employees voting in the election • Once selected, union represents all employees in bargaining unit
The Representation Process – Overview Organizing & solicitation of cards
Petition filed with NLRB Regional Office
Investigation and regional determination
Parties can agree to all unit issues and time and place of election.
The Representation Process – Overview Formal Hearing (if necessary)
Regional Director Decision
Denial of Petition
Request for Review
Decision & Direction of Election
Vote
Request for Review
Denied
Granted
Election Proceeds 1. 2. 3.
Vote & impound Election stayed Election proceeds
The Representation Process – Overview Election Conducted by Regional Director Pending Request for Review (previous slide) Ballot box opened & votes tallied; potential challenges may be determinative
If majority (50% + 1 votes) are in favor of union, certification issued
If objections or determinative challenges
Employer duty to bargain
Regional Director investigates objections/challenges
Employer may obtain judicial review by refusal to bargain
Defend ULP on grounds that union improperly certified
Hearings to resolve factual issues
1. Board/Regional Director considers reports, 2. May issue supplemental decision (subject to request for review process), or 3. Certifies representation/results
Procedural Status & Possible Outcomes Request for Review – Decision Pending • If RD decision upheld, votes will be counted. – If majority, CAPA will be certified as representative. • Duty to bargain • NW can obtain judicial review by refusal to bargain.
– If no majority, and no objections or challenges, results will be certified. • NW will not have a duty to bargain.
• If RD decision reversed, case at end. – No method of further review.
Questions?
Post ─ Northwestern University: What’s Next? Union Elections 101 September 2014
Art Carter Shareholder Littler Mendelson P.C. Dallas Office 214.880.8105
[email protected]
