Today’s Labor Updates:
Labor board: Northwestern football players can’t unionize
USW: Fight for Scholarship Athletes Will Continue Despite NLRB Ruling
Poll: Americans’ view of labor unions improving
NLRB Wants Employer to Pay Union’s Bargaining Expenses – Aggressive Push for Broader Use of “Enhanced Remedies” Continues
Labor board: Northwestern football players can’t unionize
By Megan R. Wilson – 08/17/15 01:24 PM EDT
The National Labor Relations Board (NLRB) on Monday unanimously discarded a bid from Northwestern University football players seeking to form a union, overturning a 2014 ruling and effectively shutting down any avenue for appeal.
In its 16-page ruling, the NLRB declined to take jurisdiction over the request from a single collegiate team, saying that doing so “would not promote stability in labor relations across the league.”
The board argued that changing the rules within one team wouldn’t make a difference for far more athletes who play for other state-run teams that aren’t governed by NLRB rulemakings.
Players at Northwestern, a private university, are able to petition the federal regulator. However, state law governs collective bargaining at public universities, which make up a larger number of its competitors in Division I collegiate sports.
Only 20 universities in the Division I football bracket are private institutions, which would potentially leave 108 public universities without ability to gain the same access to the NLRB.
Furthermore, every school in the Big Ten, with the exception of Northwestern, is a public university, the NLRB pointed out.
The decision reverses a ruling from a regional director of the NLRB in March 2014.
The ruling put holes in the National Collegiate Athletic Association’s (NCAA) idea that student athletes should, at most, receive scholarship money in exchange for their time at practice and games.
“It cannot be said that the employer’s scholarship players are ‘primarily students,’” Peter Sung Ohr, regional director of NLRB, said in the ruling.
The NCAA, which petitioned against the ruling, and its largest conferences earn billions of dollars from merchandise sales, television deals and advertising contracts, predominantly connected to men’s football and men’s basketball.
The television contract for the new college football team playoff system is worth $7.3 billion over 10 years.
While Monday’s decision strikes down the regional ruling, the labor board did not address the weightier issue of whether student athletes should be treated like employees.
The players at Northwestern are also not able to appeal.
In the wake of the petition and other lawsuits seeking more protection of athletes, NCAA and its conferences have been making changes, including more healthcare coverage after graduation in the Pac-12 Conference and options in five of the wealthiest conferences that allow for players to receive up to $3,000 in addition to scholarship cash.
“This decision is narrowly focused to apply only to the players in this case and does not preclude reconsideration of this issue in the future,” the NLRB said in a statement on Monday.
Good use of union dues, don’t think so…..Billy
USW: Fight for Scholarship Athletes Will Continue Despite NLRB Ruling
PITTSBURGH, Aug. 17, 2015 /PRNewswire-USNewswire/ — The United Steelworkers (USW) today reiterated its support for greater protections for scholarship athletes despite the decision of the National Labor Relations Board (NLRB) to decline jurisdiction, for the time being, over college football players at Northwestern University.
“While we are disappointed by the NLRB decision, the USW remains as committed as ever to the idea that scholarship athletes deserve the same rights and protections afforded to other Americans,” said USW International President Leo W. Gerard. “We will not stop fighting until athletes secure the basic protections they so desperately need.”
Eventually, Gerard said, the players will win the right to collectively bargain. “Maybe it won’t happen in 2015,” he said, “But before today’s athletes send their children to college, every college scholarship football player and every college scholarship basketball player will be a proud union member and no longer exploited on their jobs.”
The USW provided legal aid to the Northwestern players in their attempt to join the College Athletes Players Association (CAPA), the first union seeking to represent college athletes in collective bargaining. The protections the athletes have sought include guaranteed scholarships that cover the full cost of attending school, a greater emphasis on concussion treatment and better health care for student athletes during and after their playing days.
The NLRB decided that, for now, asserting jurisdiction over players at as few as 17 of 125 college teams would not serve to promote stability in labor relations in college football. But the NLRB left the door open for reconsideration of the issue. Under federal law, the NLRB would not have authority in cases where athletes attend state-run colleges and universities. In NCAA Division I Football, 108 of the 125 schools are state-run.
The NLRB effectively sidelined a March decision by Regional Director Peter Sung Ohr that the players were employees of Northwestern with the right to join a union.
“These athletes are the reason that the NCAA is a multi-billion dollar business. All they want is a seat at the table,” said USW Political Director Tim Waters. “As it stands today, too many college athletes are in danger of losing their scholarships in an instant, with no compensation and no promise of future health care should they suffer long-term injuries.”
The players’ effort to unionize has already forced colleges and conferences into making some changes and shined a national spotlight on the unjust and hazardous conditions NCAA athletes face.
“College athletes everywhere should take note. A few dozen 18- to 21-year-old Northwestern football players joined together to challenge an unjust system, and while we hoped for a different ruling from the NLRB, we’ve succeeded in starting a conversation that is already changing the culture of college athletics as we know it,” said Kain Colter, the former Northwestern quarterback who has led the unionization effort.
CAPA President Ramogi Huma, a former football player at UCLA, said the decision is disappointing because it’s likely to delay action. “It may cause a loss of time and leverage in securing what players need for their safety,” Huma said, “And any delay can have serious ramifications for players.”
“We are on the right side of history,” he added, “It’s time we replaced the NCAA’s absolute power with shared power, where every stakeholder has a seat at the table.”
The USW is the largest industrial union in North America, representing workers in a range of industries including metals, mining, rubber, paper and forestry, oil refining, health care, security, hotels, and municipal governments and agencies.
Poll: Americans’ view of labor unions improving
By Nick Gass
8/17/15 9:01 AM EDT
Read more: http://www.politico.com/story/2015/08/poll-labor-unions-popularity-in-america-121426.html#ixzz3j6c97BiD
Nearly six in 10 Americans have a favorable view of labor unions, according to the results of a new Gallup survey released Monday.
Approval of unions jumped to 58 percent this year, an increase of five percentage points from 2014, though still well below the 75 percent organized labor enjoyed in the early 1950s but greater than the 48 percent who approved in 2009 in the grips of the recession.
Overall, 37 percent of Americans said they wanted unions to have more influence on the political process, while 35 percent wanted less influence and 24 percent wanted more of the same. The percentage of Americans saying they want more union influence on politics has slightly risen since 2009, with a similar share among Americans wanting less labor influence declining.
Regardless, the share of Americans wanting unions to maintain the same level of influence has mostly declined since the turn of the millennium.
Breaking down the results by gender, a greater share of women than men expressed approval of unions and also said they wanted them to have more influence (63 percent to 52 percent approval; 41 percent to 33 percent on influence). Young adults, aged 18 to 34, had more positive opinions about labor unions as well. On a regional basis, the South is the only area of the country where a majority of respondents said they did not approve of labor unions.
Nearly eight in ten Democrats (79 percent) approve of unions, compared to 52 percent of independents and 42 percent of Republicans.
Last week, the former secretary of state gained the support of both the International Association of Machinists and Aerospace Workers and the American Federation of Teachers, while National Nurses United declared that it was backing the Vermont senator.
The poll was conducted as part of Gallup’s annual Work and Education Survey from Aug. 5-9 via landlines and cellphones, surveying 1,011 adults nationwide, with an overall margin of error of plus or minus 4 percentage points.
NLRB Wants Employer to Pay Union’s Bargaining Expenses – Aggressive Push for Broader Use of “Enhanced Remedies” Continues
Posted on August 7th, 2015 by Donald Krueger and Steven M. Swirsky
One of the hallmark initiatives of NLRB General Counsel Richard F. Griffin Jr. has been the pursuit of more aggressive remedies in response to what the General Counsel considers to be egregious unfair labor practices (“ULP’) activity. While his predecessors and prior Board members spoke of “special remedies” that they would seek to impose in what they deemed extraordinary cases, General Counsel Griffin and today’s National Labor Relations Board (“NLRB” or “Board”) are much more frequently arguing for and directing remedies that go beyond those that the NLRB routinely imposed over the first 75 years following passage of the National Labor Relations Act (the “Act” or the “NLRA”).
The General Counsel Wants Guitar Center Stores to Pay the Union’s Bargaining Expenses
On July 24, 2015, Peter Sung Or, Regional Director Region 13 issued a Consolidated Complaint (pdf) against Guitar Center Stores, Inc., a nationwide retail chain, accusing the company of bargaining in bad faith in its negotiations with the Retail Wholesale and Department Store Union (“Union”) for contracts at the Chicago, New York and Las Vegas locations where the Union represents sales employees. The Complaint consolidates seven ULP charges involving negotiations at those locations for collective bargaining agreements. In addition to seeking the traditional remedy of an order directing the employer to bargain in good faith, the Complaint also calls for a Board order that would require the company “to reimburse the Union for its costs and expenses incurred in collective bargaining for all negotiations from July 2013 forward, including for example, reasonable salaries, travel expenses, and per diems” incurred by the Union. The Complaint does not call for a date when the obligation to pay the Union’s bargaining expenses would conclude, but apparently the General Counsel wants the employer to pay these costs until negotiations are completed and contracts are reached at each of these locations.
This Case Reflects the General Counsel’s Decision to Pursue “Enhanced Remedies” Much More Routinely
This case reflects decisions by the NLRB and its General Counsel to take a much more aggressive approach in seeking what are arguably punitive remedies against employers who are alleged to have violated the Act and to more aggressively seek injunctive relief in the federal courts against what the General Counsel and Board believe to be serious ULP activity . Section 10 of the Act gives the Board broad authority to remedy ULPs in order to effectuate the purposes of the Act and to encourage collective bargaining. However, the Supreme Court has long interpreted this authority as being entirely remedial– the Board has no authority to issue punitive remedies such as fines or damages other than back pay. Traditionally, the Board has ordered an employer who violated the Act to: (i) cease and desist the conduct found to be unlawful; (ii) cease and desist from violating the Act in any like or related manner; (iii) take appropriate affirmative action, e.g., rehire, bargain in good faith; expunge records, make employees whole, and (iv) post a notice to employees for 60 days. In truly egregious and rare cases, the Board has ordered an employer to bargain with a union without an election where an employer commits such serious unfair labor practices that a fair election cannot be held and where the union can show that a majority of employees supported the union before the unfair labor practices– so-called Gissel Bargaining Order (pdf). The Board also has authority to seek Section 10(j) injunctive relief in appropriate cases. Here too, the General Counsel is continuing to exercise his discretion to recommend (pdf) and pursue such relief far more than in the past.
Starting in 2006, the General Counsel begun a series of initiatives involving bargaining for initial contracts and undocumented aliens, in which the General Counsel has sought to expand the scope of the Board’s traditional remedies in cases of “extraordinary and flagrant violations.” See “NLRB Reiterates Its Position That Undocumented Workers Are Entitled To ‘Conditional Reinstatement’ in Unfair Labor Practice Cases. These new remedies include: (i) extension of the certification year for bargaining with a newly certified union, (ii) gaining access to the employer’s property, (iii) notice reading by Board agents or Company officials, (iv) imposing a schedule for bargaining; (v) requiring reports of bargaining status, and (vi) reimbursement of bargaining or litigation costs.
As a result of these initiatives, labor unions, as well as the General Counsel are starting to request that the Board award bargaining expenses as part of the remedy in cases where the Board finds that an employer has bargained in bad faith. NLRB General Counsel Griffin recently commented on this trend at the Annual Midwinter meeting of the ABA Labor and Employment Section when he stated that “[t]his is a continuation of previous initiatives by the Office of the General Counsel (citations omitted). The relief may be requested by the Charging Party or sua sponte by the Regional Director, when the Regional Director believes such relief may be appropriate.” See General Counsel Memorandum GC-15-05, at 25 (pdf).
It is not yet clear how the federal courts will view the Board’s increased awarding of enhanced remedies since at this point there have been very few cases in which such Board orders have been subject to judicial review. While the Supreme Court has long and unequivocally held that the Board cannot impose punitive remedies, recent court of appeals cases appear to cast doubt on where the line is drawn. On May 8, 2015 the D.C. Court of Appeals in a case entitled FallBrook Hospital Corporation v NLRB upheld the Board’s authority to award bargaining costs in a case in which the Board had found an employer to have engaged in what it referred to as an egregious case of bad faith bargaining. Citing the Board’s discretion in fashioning remedies for violations of the Act, and the great degree of deference that the Courts are to afford the Board’s interpretation of the Act, the Court noted that the Hospital had not only committed a large number of ULPs but also had acted in an “obstinate and pugnacious manner” in its negotiations with its employees’ union representative and had bargained with a “closed mind” and, in the course of the parties’ negotiations had “put up a series of roadblocks designed to thwart and delay bargaining.” For these reasons the Court deferred to the Board and enforced its order directing the Hospital to reimburse the union for its expenses and costs over the course of the negotiations.
What’s Next?
Given, all of this, it is no surprise that unions are increasingly asking for the Board to pursue these and other types of enhanced remedies when they file ULP charges and over the course of Board proceedings. Whether and where the Board will draw a bright line differentiating between what it will consider to be an egregious violation which it believes justifies and requires enhanced remedies and more routine hard bargaining cases, in which it will hold traditional remedies are adequate is yet unknown. Also unknown is whether the Board is prepared to issue orders calling for such enhanced remedies when it is a union, not an employer, that has bargained in bad faith, is also unknown at this stage.