NLRA 101

Post ─ Northwestern University:
What’s Next?
Union Elections 101
1A Faculty Athletics Representatives
Sunday, September 21, 2014
Presented by:
Art Carter
Littler Mendelson P.C.
Dallas Office
• 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?
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 &
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
• Section 9 specifies how unions become the
representative of the employees and the rules on
• 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
– 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
– 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
Request for Review
Election Proceeds 1.
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
Employer duty to bargain
Regional Director investigates
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.
Post ─ Northwestern
What’s Next?
Union Elections 101
September 2014
Art Carter
Littler Mendelson P.C.
Dallas Office