Post ─ Northwestern University:What’s Next?

Union Elections 101

1A Faculty Athletics Representatives

Sunday, September 21, 2014

Art CarterShareholder

Littler Mendelson P.C. Dallas Office

214.880.8105 atcarter@littler.com

Presented by:

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

• 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

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 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

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

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.

The Representation Process – Overview

Formal Hearing (if necessary)

Regional Director Decision

Denial of Petition Decision & Direction of Election

Request for Review Vote Request for Review

Denied Granted

1. Vote & impound2. Election stayed3. Election proceeds

Election Proceeds

Election Conducted by Regional DirectorPending 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

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 CarterShareholder

Littler Mendelson P.C.Dallas Office214.880.8105

atcarter@littler.com