In a somewhat surprising decision, the Board decided to dismiss a representation petition filed by Northwestern University’s football players. In a unanimous decision issued on August 17, 2015, the NLRB declined to assert jurisdiction over the players, but stopped short of deciding whether the players qualified as “employees” under the  NLRA. The Agency said that asserting jurisdiction would not promote labor stability, but made clear that it was not making a blanket ruling that the Board would not assert jurisdiction over scholarship players in general, saying that was a question “[the Board] need not and do[es] not address at this time.”

Northwestern applauded the decision, stating in part that the university “believe[s] strongly that unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes.”

As a result of the Board’s decision, the impounded ballots cast by the players will not be counted.

What Does the Decision Mean?

After sitting on this case for over a year, it is apparent that the Board wanted nothing to do with this case. This is especially true given the “no decision” ruling by the Agency, simply ignoring the merits and simply finding that asserting jurisdiction would not effectuate the policies of the Act. Regardless, the proverbial cow is out of the barn now and the focus will return on the pending antitrust cases brought in California, which threaten to take down the entire NCAA regulatory structure.

In the future, one might envision a multi-employer association of schools or the NCAA bargaining with union(s) for a system-wide, collectively bargained labor- management relationship, akin to the arrangement between the NFL and the NFLPA.

Court’s Refusal to Reverse “Quickie” Election Rules Unlikely to End Litigation

Despite the fact that the new election rules have withstood two U. S. District Court challenges, it is unlikely that litigation over the rules are over permanently. This is especially true given that the district court decisions are appealable and that the hostile U. S. Congress intends to try and stop the rules from being enforced.

The district courts, so far, have found that the statutory and constitutional challenges to the new rules are without merit; however, there remain the “as-applied” challenges that will address the practical impact of the quicker elections on an individual employer by the affected company. Expect these challenges to be very fact specific and claim that the shortened time from petition to election negatively impacted an employer’s ability to communicate effectively with employees, thus raising due process issues.

A Texas district court’s denial of a request for an injunction against implementation of the election rule changes have been appealed to the Fifth Circuit Court of Appeals. Several amici curiae briefs have been filed in support of the appealing party’s request for review.

Congressional Action

In addition to the court challenges to the new rules, the Congress has introduced bills to roll back the NLRB’s election rules and require a secret ballot elections be held before employees can unionize or go on strike.

Brian Hayes, a former Board member and now a management representative in private practice, stated that “if [the district court] shut the legal door on [employers] by saying it’s not a legal question, that opens the policy door” for Congress.

The Bottom Line

While the fight continues, employers should use every tool at their disposal to resist application of the new rules to their situation, but should still proceed as if the new rules are here to stay in the foreseeable future. Thus, employers must be prepared to adjust to the shortened time frames that unions have to elections and be prepared to run a compressed campaign (and preferably to be more pro-active in addressing workplace issues) that convinces employees that unionization is not the answer to perceived workplace problems.

In the first month under the new rules, the NLRB reported the median time from the filing of a petition to the conducting of an election has dropped from 38 to 23 days. The early results may not hold, but they do suggest that employers may expect more union elections, in a shorter time period, and ultimately more victories by unions trying to organize if the rule changes stand.

NLRB Extends the Deadlines for Filings in the Miller & Anderson, Inc. Case

The Board, in an unpublished order in Miller & Anderson, Inc. (2015), granted review of a Regional Director’s dismissal of a RC petition and extended the deadline for the filing of briefs in the case until September 4, 2015. The Board appears to be on the verge of including jointly employed temporary employees in a single unit with employees solely employed by one of the joint employers.

Under the old rule in Oakwood Care Center, 343 NLRB 659 (2004), a union may organize a bargaining unit of temporary employees, and the user employer’s solely employed regular employees, but only if both employers consent.

If Oakwood is overturned, the ruling would allow unions to organize temporary employees, and employees not employed by both joint employers, into a single unit when at least some of the impacted employees are jointly employed. This loosened standard makes it easier for unions to overcome the threshold test for joint employment of the temporary employees, which leads to the inclusion of the solely employed user employees in the same unit.

Overturning Oakwood would result in a system of competing interests, within the same bargaining unit, between employers and between competing groups of employees with different terms and conditions of employment.

ALJ Bets That Board Will Follow Previously Issued Decision in Alan Ritchey

An Administrative Law Judge (ALJ) has ignored still- standing Board precedent and applied the Alan Ritchey determination, even though the Alan Ritchey  decision was invalidated by the Supreme Court in Noel Canning, which held that the January 2012-August 2013 decisions of the NLRB are invalid because the Board did not have a quorum during that time.

The Alan Ritchey Decision - Summarized

In this decision, the Board concluded that discretionary discipline was a mandatory subject of bargaining where imposition of such discipline had the potential to alter employees´ terms and conditions of employment. The Board decided that employers had both a duty to maintain an existing policy governing terms and conditions of employment and bargain over certain discretionary decisions when applying an existing policy. Thus, when a union has yet to attain an initial contract, or as in Alan Ritchey, has an expired contract, or has failed to reach an agreement on the grievance procedure that addresses discipline, then the employer must, absent exigent circumstances, give the union notice and an opportunity to bargain over the discretionary aspects of the decision to impose discipline. The bargaining must occur before the discipline is implemented if decision to discipline affects tenure, status, or earnings.

The Board articulated two policy reasons to impose a pre- agreement bargaining obligation upon an employer:

  1. Requiring bargaining before discipline issued precludes the “harm  caused to the union’s effectiveness” if the bargaining occurred after the imposition of discipline, and therefore prevents the employer from undermining a newly-certified union.
  2. Bargaining before discipline occurs allows the union to present additional evidence or facts that could mitigate the contemplated discipline, resulting in a potentially better result.

This same rationale applies after impasse has been reached and the employer has lawfully implemented a disciplinary procedure but refuses to arbitrate a grievance under the imposed system. Therefore, where an employer unilaterally implements a policy after impasse is reached, and the policy provides the employer with discretion to discipline, the employer must still continue to bargain over discretionary disciplinary decisions since there is not a “binding agreement” to resolve disputes.

The ALJ’s Bet

While the Judge is correct that the Board’s, along with the General Counsel’s Division of Advice, views on imposing pre-contract bargaining over discipline have not likely changed, it nevertheless remains incumbent on the ALJ to allow the Board to change precedent, not the ALJ. Ignoring a valid precedent in Fresno Bee, 337  NLRB 1161 (2002), and admitting that his decision was a “gamble” on the views of the current Board, the ALJ applied Alan Ritchey and found that Kitsap Tenant Support Services, Inc. violated the Act when it disciplined employees without bargaining with a newly certified union. In his decision, the Judge stated:

I have decided to place the “chips” on the table, so to speak, on the course of action I reasonably suspect the Board will ultimately adopt.

Stayed tuned as the ALJ decision will undoubtedly progress through the appeals process, thus providing the Board and the Courts a vehicle for deciding the validity of the Alan Ritchey rationale.