Post Northwestern University: Whats Next? Union Elections 101
1A Faculty Athletics Representatives Sunday, September 21,
2014
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Art Carter Shareholder Littler Mendelson P.C. Dallas Office
214.880.8105 [email protected] Presented by:
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Agenda Northwestern Decision: How Did We Get Here? NLRA Basics
How Unions Organize & Become Bargaining Reps Procedural Status
& Possible Outcomes
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Northwestern University Decision: Why Are We Here? How did we
get here?
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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
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NW Decision How Did We Get Here? Regional Director found that
football players receiving grant- in-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 others control or right of control, and in return
for payment. Brown University, 342 NLRB 483 (2004).
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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 employers (universitys) control FB players = Performed
duties as FB players Tender process and obligations under
scholarships were the functional equivalent of contract for
hire.
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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)
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NLRA Basics: NLRBs 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
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NLRA Basics: The National Labor Relations Act The Law The Laws
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
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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
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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
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The Representation Process Overview Petition filed with NLRB
Regional Office Investigation and regional determination Organizing
& solicitation of cards Parties can agree to all unit issues
and time and place of election.
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The Representation Process Overview Formal Hearing (if
necessary) Regional Director Decision Denial of Petition Decision
& Direction of Election Request for ReviewVote Request for
Review Denied Granted 1.Vote & impound 2.Election stayed
3.Election proceeds Election Proceeds
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Election Conducted by Regional Director Pending Request for
Review (previous slide) If majority (50% + 1 votes) are in favor of
union, certification issued Regional Director investigates
objections/challenges 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 If objections or determinative
challenges Ballot box opened & votes tallied; potential
challenges may be determinative Employer duty to bargain Employer
may obtain judicial review by refusal to bargain Defend ULP on
grounds that union improperly certified The Representation Process
Overview
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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.
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Questions?
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Post Northwestern University: Whats Next? Union Elections 101
September 2014 Art Carter Shareholder Littler Mendelson P.C. Dallas
Office 214.880.8105 [email protected]
