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
atcarter@littler.com
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
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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.
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–
–
–
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
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–
–
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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
atcarter@littler.com