Category: Labor Law

October 22, 2019

NLRB Proposes to Keep Students Out of Unions

On September 23, 2019, the National Labor Relations Board (NLRB) issued a proposed rule that would address whether college and university students who work for their schools can join unions. This rulemaking is a new approach to resolving a labor law question that has not had a consistent answer in recent decades. The proposed rule would enable institutions of higher education to keep their students out of unions.

Are Students Employees?

Many students hold jobs with their schools. For example, many graduate students serve as teaching assistants. The students often receive compensation for this work, whether direct compensation or credit toward their education costs.

The question of interest under the National Labor Relations Act (NLRA) is whether these students qualify as “employees” who have the right to form or join a union. Specifically, that is, a union that would negotiate on their behalf with the school over the terms and conditions of their employment.

This question has even come up in recent years regarding college football players. Should they be able to unionize because they receive a scholarship to play football?

(Note: The NLRB only has jurisdiction over private, non-governmental employers. Accordingly, public colleges and universities are outside its jurisdiction. However, the many private schools in the country are within its purview.)

Historical Approach

For many years, the NLRB has interpreted the NLRA primarily through adjudicating cases. It rarely used formal rulemaking to establish legally binding interpretations of the law. The Board’s adjudicative approach has increasingly produced a back-and-forth pendulum on many contentious issues. As a result, the labor law’s protections depend more and more on which party controls the NLRB.

In 1974, the NLRB ruled in a case involving Stanford University that graduate student research assistants are not “employees”. Instead, the Board ruled, they were “primarily students”. This decision kept college students out of unions for more than 25 years.

Then, in 2000, the NLRB held for the first time that certain New York University graduate students were employees under the NLRA. That conclusion was reversed, however, just 4 years later in a case involving Brown University.

Most recently, the NLRB went back in the direction of its NYU decision, and beyond. In 2016, the Board ruled that both graduate and undergraduate students at Columbia University could qualify for the NLRA’s protections as employees, even if their positions were externally funded.

Proposed Rule to Exclude Students from Unions

Seeking to stop the bouncing ball, the current NLRB has shifted toward rulemaking on significant labor policy issues. On the student-employee issue, the Republican Board majority takes a position that would keep students out of unions. In other words, the NLRB would not assert jurisdiction over them under the NLRA.

As an exception to standard jurisdiction over private colleges and universities, the proposed rule provides:

“Students who perform any services, including, but not limited to, teaching or research assistance, at a private college or university in connection with their undergraduate or graduate studies are not employees within the meaning of Section 2(3) of the [NLRA].”

Comment Period

As required under federal law, the NLRB has allowed time for the public to comment on the proposed rule.

Interested parties can file comments up until December 16, 2019. In addition, comments responding to other comments can be filed until December 30, 2019.

Given these deadlines, the NLRB will not be able to issue a final rule this year. However, it is likely there will be a final rule that will keep college and university students out of unions beginning in 2020.

What This Means for Employers

If you work for a private college or university, the potential impact is somewhat apparent . . . at least in the short term. With this change, students who work for the school will not have rights under the NLRA to engage in collective activity for their mutual aid and protection. They will not be able to join unions if the employer objects. But, if the political tides shift in Washington, the rule could be eliminated or revised in the future.

For other private employers, this signals a trend toward pro-employer rulemaking by the NLRB. Generally, this is a positive sign of greater leeway to run your business. But, again, the trend could be shortlived. Employers will continue to be at the mercy of the party that controls the NLRB–generally, the one that holds the Presidency. So, you can never get too comfortable in your understanding of the NLRA’s impact on your workplace.

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February 8, 2019

Will the NLRB Expel Charter Schools?

On February 4, 2019, the National Labor Relations Board (NLRB) set the stage to review whether it should exercise jurisdiction over charter schools. In two 2016 cases, the NLRB agreed to cover charter schools that are not political subdivisions–i.e., that are not traditional public school districts. At that time, the Board consisted of a majority of Democratic members who favored expanding protections for unions and employees. The NLRB now has a Republican majority.

[For more general information, read: NLRB Jurisdiction: Are We Covered?]

What’s the Issue?

The NLRB has the authority to enforce the National Labor Relations Act (NLRA). This law applies to private, but not governmental employers. Some states have their own similar laws and agencies related to labor relations rights and unionization among public employers. Charter schools have raised questions of the boundaries between these separate legal regimes.

Charter schools are still a relatively new concept. The first ones opened less than 30 years ago. Their exact organization and structure vary based both on applicable state laws and the way the school themselves choose to operate. As their name suggests, these schools typically operate under a “charter” and receive state educational funding. Parents usually have greater freedom in choosing among charter schools, whereas public school “selection” depends primarily on where the students live.

“Political subdivisions” are exempt from coverage under the NLRA. Thus, whether charter schools are “public subdivisions” determines whether the NLRB has jurisdiction over their union-related disputes.

2016 Charter School Decisions

On August 24, 2016, the NLRB issued two decisions finding charter schools to be private corporations serving as government contractors. In other words, they were not political subdivisions. The cases involved Hyde Leadership Charter School in Brooklyn, New York, and Pennsylvania Virtual Charter School, a home-based school headquartered in King of Prussia, Pennsylvania.

Before these cases reached the Board itself, two Regional Directors of the NLRB had respectively applied a 1971 legal standard and found that the schools were not political subdivisions. The Board agreed in separate split decisions featuring dissenting opinions by the lone Republican member at the time.

Of note, among many other considerations, New York law states that charter schools are “within the public school system”. But the 2016 NLRB did not accept the state’s description as deciding federal law.

Hawkins County Test

In the 1971 Supreme Court case of NLRB v. National Gas Utility District of Hawkins County, 402 U.S. 600, the NLRB relied on a two-part test to determine whether an employer is a political subdivision excluded from NLRA coverage. The Board maintained that an entity was a political subdivision if it is “either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.” In Hawkins County, the Supreme Court rejected the NLRB’s conclusion that the utility company in question was not a political subdivision. In other words, the Court held, the Board did not have jurisdiction. The Court observed that the employer was a political subdivision under the second prong of the NLRB’s test, among other factors.

To be clear, Hawkins County did not involve a charter school. Minnesota created the first U.S. charter school law 20 years later in 1991. The Supreme Court has not yet weighed in on the question of NLRA jurisdiction of these “new” educational institutions.

Kipp Academy Charter School

A pending NLRB case involves Kipp Academy Charter School in Bronx, New York. A union currently represents the school’s teachers among other categories of employees. In January 2017, two teachers filed a petition with the NLRB seeking to decertify the union. The union argued the NLRB did not have jurisdiction. Following the Hyde Park and Pennsylvania Virtual charter school cases, the NLRB Regional Director exercised jurisdiction and directed the election.

Board Agrees to Review

On appeal, NLRB Chairman John Ring and fellow Republic Members Marvin Kaplan and William Emanuel voted to review whether the NLRB should exercise jurisdiction over charter schools. In doing so, they issued a public request for legal briefs from any interested parties.

Notably, the Republican majority acknowledged that the Regional Director had correctly applied the two-part Hawkins County test. Nonetheless, they want to reconsider whether, as a policy matter, the Board should exercise their jurisdiction, which is discretionary. They might, for example, share the view that former NLRB Chairman Philip Miscimarra noted in his 2016 dissents:

“Based on the approach embraced by my colleagues today, employees concerned about their working conditions will not know what set of rules apply to them or to whom to turn if the employer infringes on their rights, and employees are likely to face years of delay if they try to secure relief from the NLRB. Unions and employers will have difficulty understanding their respective rights and obligations, given the uncertainty about whether federal, state, or local laws apply. Most poorly served will be the students whose education is the primary focus of every charter school. In most instances, the likely result will be protracted disputes that are not definitively resolved until many or most students (and many teachers and other employees) have come and gone.”

…But Not Everyone Is on Board

The lone Democrat currently on the NLRB, Lauren McFerran, participated in the majority decisions to exercise jurisdiction over Hyde Park and Pennsylvania Virtual Charter Schools. Therefore, it is no surprise that she disagreed with the decision to review the Regional Director’s decision regarding Kipp Academy.

Member McFerran contends:

“There are not new policy justifications or legal grounds to revisit the Board’s approach to analyzing jurisdictional questions involving charter schools. Indeed, the majority identifies no specific reasons at all for granting review here. Certainly, a change in the composition of the Board is not a reason for revisiting precedent, as the Board itself has made clear.”

Invitation to File Briefs

The public has until March 6, 2019, to submit briefs arguing their views on the exercise of NLRB jurisdiction over charter schools. Submissions may not exceed 25 pages in length. They must be filed electronically through the NLRB’s website, and copies must be sent to all case participants.

How Will This Affect Charter Schools?

The Board majority emphasizes that they “have made no judgments about the ultimate merits but choose to review the briefs before arriving at any conclusions”. However, it is fair to guess that they might at least be leaning toward declining jurisdiction. That outcome, however, won’t affect all charter schools equally.

In some states, like New York, charter school employees and unions already have strong alternative legal protections under state law. If the NLRB does not exercise jurisdiction, state agencies still might (and, generally, probably would) step in and do so. In other states, however, no NLRB jurisdiction would effectively eliminate the right to unionize for charter school employees.

And even where alternative state laws apply, the specific rights and procedures available might differ in relevant ways. This reality could be motivating parties in the Kipp Academy case itself.

Individual charter schools curious about the potential impact on them should consult directly with experienced labor counsel.

For more on the NLRB’s jurisdiction over employers generally, click here.

December 28, 2018

NLRB Strategic Plan 2019-2022

On December 7, 2018, the National Labor Relations Board (NLRB) issued its Strategic Plan for Fiscal Years 2019-2022. The NLRB Strategic Plan provides data about the agency’s fiscal year 2018 operations and outlines four overarching goals to support its mission and vision. It was co-authored by NLRB Chairman John Ring and General Counsel Peter Robb.

2018 Operations

Over 20,000 new cases were filed with the NLRB in its fiscal year ending September 30, 2018. This includes 18,870 unfair labor practice charges and 2,090 representation petitions.

The NLRB received 51,613 public inquiries in FY 2018.

It ended the fiscal year with a staff of approximately 1,327 employees.

Strategic Goals

The NLRB’s stated mission is

Protecting workplace democracy by promoting and enforcing the rights and obligations of employees, unions and employers under the National Labor Relations Act, in order to promote commerce and strengthen the Nation’s economy.

Toward achieving those goals the new NLRB Strategic Plan identifies four goals:

Goal #1: PROMPTLY AND FAIRLY RESOLVE THROUGH INVESTIGATION, SETTLEMENT OR PROSECUTION, UNFAIR LABOR PRACTICES UNDER THE NATIONAL LABOR RELATIONS ACT

Nothing groundbreaking here. As the statistics above show, the overwhelming majority of the NLRB’s workload is the handling of unfair labor practice cases. The NLRB Strategic Plan does, however, further enumerate this goal with more specific case-handling targets.

For example, the NLRB seeks to “achieve a 20% increase in timeliness of case processing . . . for the resolution of all meritorious unfair labor practice charges.” To accomplish this, the agency seeks to decrease average time between four different procedural milestones by 5% each over a four-year period.

An appendix to the NLRB Strategic Plan identifies the annual targets for each of the measures over the course of the years in the plan.

Goal #2: PROMPTLY AND FAIRLY INVESTIGATE AND RESOLVE ALL QUESTIONS CONCERNING REPRESENTATION OF EMPLOYEES

The other primary NLRB function is overseeing representation disputes, often including organizing and conducting employee elections.

The agency has set less-specific sub-goals in this area, but emphasizes that it will “continually review staff suggestions for improvement and modify case processing procedures to ensure more timely and efficient resolution of cases.”

Goal #3: ACHIEVE ORGANIZATIONAL EXCELLENCE AND PRODUCTIVITY IN THE PUBLIC INTEREST

To achieve this “support” goal, the NLRB says it will “Recruit, develop, and retain a highly motivated, productive, talented, and diverse workforce to accomplish our mission.” It will also “Promote a culture of professionalism, mutual respect, and organizational pride.”

Goal #4: MANAGE AGENCY RESOURCES EFFICIENTLY AND IN A MANNER THAT INSTILLS PUBLIC TRUST

This fourth goal recognizes a general trend toward reduction of the NLRB’s budget (especially under the current Republican administration).

The NLRB Strategic Plan identifies three objectives under this goal:

Use information and technology to monitor, evaluate, and improve programs and processes in order to accomplish the agency’s mission and increase transparency.
Evaluate and improve the Agency’s Outreach Program.
Conduct all internal and external Agency business in an ethical and timely manner.

Obstacles to the NLRB Strategic Plan for 2019-2022

The NLRB Strategic Plan recognizes some factors beyond the agency’s control that might impede progress toward the stated goals.

Budget

The agency disclaims that its ability to achieve its goals assumes appropriate funding from the President and Congress. The Trump administration has proposed lower funding of the NLRB than the Obama administration afforded. The NLRB General Counsel has proposed making reductions to the regional office staffs as a cost-saving mechanism. But the NLRB Strategic Plan acknowledges that staffing reductions could impact agency operations.

Case Intake

The NLRB projects overall case intake to decrease by 500-1,000 cases in FY 2019. But the NLRB does not control the number of cases actually filed in a given year. Moreover, individual cases vary in complexity and, hence, the resources demanded to investigate and resolve them.

Settlements

The NLRB plans to “make early settlement of cases more of a priority.” But it notes that even a “one percent drop in the settlement rate will cost the Agency more than $2 million as the process becomes formal and litigation takes over.”

The complete 2019-2022 NLRB Strategic Plan is available here.

Avoiding the NLRB in 2019

Most employers don’t want to become part of the NLRB’s statistics. Though more commonly alleged in unionized workplaces. unfair labor practices can occur even when no union is involved. So all private employers covered by the National Labor Relations Act should familiarize themselves with the law’s protections.

If you do have a union representing some of your employees, you might want to review our earlier webinar on Union Basics for Employers: What Every Company Should Know.

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