Tag Archives: collective bargaining

October 29, 2015

NLRB To Revisit Whether Graduate Teaching Assistants May Collectively Bargain

Seeking to overturn long-standing precedent, the National Labor Relations Board (NLRB or Board) recently agreed to review whether graduate students who work as teaching or research assistants at universities are “employees” for purposes of voting for a union. The United Auto Workers (UAW) is seeking to represent student employees at The New School, a not-for-profit operator of higher education institutions in New York. Like a dog with a bone, the current NLRB is unwilling to give up on finding coverage for grad student assistants, despite two rejections of the representation petition by the Regional Director.

Is It Work or Educational?

The UAW petitioned to represent all student employees who provide teaching or research services at The New School. The proposed bargaining unit includes teaching assistants, fellows and tutors, as well as research assistants and associates.

The facts related to these positions are as follows:

About 350 individuals work in the proposed bargaining unit
The positions typically require between 10 and 20 hours of work per week
Each graduate assistant position typically lasts for one 15-week semester, but many graduate assistants are renewed for multiple semesters
The New School provides approximately $5 million annually to grad students in these positions
Each faculty member is allotted up to $5,100 per year to be used for student assistants
Teaching assistants are paid $4,500 per semester; teaching fellows receive $5,500 per semester, and tutors are paid an hourly rate, typically $17.00 per hour
Research associates can receive stipends of up to $40,000 per year due to grants from the federal government
Graduate assistants must provide I-9 forms to be eligible for the positions
Payments to the graduate assistants are made through a payroll account and taxes are withheld
Payments are disbursed biweekly but do not vary based on the number of hours worked (except for tutors)
Graduate assistants are not required to track, and the university does not monitor the amount of time spent on their duties
Applicants for these positions must maintain a minimum GPA
Some are selected using a formal process of interviews and appointment letters from the Human Resources department while others are offered positions more informally directly from a professor
Selection for the position is not dependent on financial need

When the UAW first petitioned to represent this group of student employees in December 2014, the Regional Director for the New York region dismissed the petition based on the NLRB’s 2004 decision in Brown University, which held that graduate student assistants were not “employees” under the National Labor Relations Act, and therefore, could not be unionized. The 2004 Board had decided that the graduate assistants had a primarily academic relationship with their school, not an economic, work-related one. Case closed, right? Wrong.

Will Graduate Assistant Precedent Be Overturned?

In March 2015, the Board reviewed the initial dismissal of the petition and sent it back to the region for a hearing. The Hearing Officer heard testimony and received evidence during a seven-day hearing, but in late July, the Regional Director found that Brown University still controlled, and dismissed the petition again.

The UAW requested (again) that the Board review the dismissal of its representation petition. On October 21, 2015, on a 3-1 vote, the Board granted the request for review, finding that it “raises substantial issues warranting review.”

The vote goes along political lines, with the three democratic members voting to review the graduate assistant issue and the sole republican member dissenting. (Note: the Board is currently short one member.) In his dissent, member Philip Miscimarra wrote that the sole basis for the UAW to seek review is its desire to have the Board overrule Brown University. Miscimarra believes there is no reason to overturn Brown University, pointing, in part, to the prevailing view for more than 40 years that graduate student assistants are not statutory employees, except for a four-year period from 2000-2004 when the ruling flip-flopped in favor of finding they were employees.

Is another flip-flop likely? It very well could be, given that the current majority of the Board continues to look to expand the reach of the NLRA. But even if the Board should find that graduate student assistants are statutory employees, it will need to address an argument by The New School that they are “casual” or “temporary” employees which would still deny them union representation.

We will continue to follow this case and pass along any developments as they occur.

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October 28, 2014

Defeating Micro-Units: Employer Strategies to Challenge Smaller Bargaining Units

By Brian Mumaugh

Unions are organizing smaller segments of an entire workforce in order to get their foot in the door and keep organizing efforts alive. The National Labor Relations Board (NLRB or Board) has approved so-called micro-units, setting employers up for difficult battles over appropriate bargaining units in the future. Employers should think about the possibility of seeing a micro-unit proposed in their workforce—and how to avoid them.

Unions Can More Easily Win Representation For Smaller Groups

As unions press to increase their membership in the United States, unions are looking for new ways to organize workers and remain relevant. Organizing large workforces requires unions to expend significant resources – money, personnel and time – to collect signatures from at least 30% of the proposed bargaining unit to trigger an election (some unions want to see upwards of 70% signing authorization cards before petitioning for an election). Then additional resources are needed to get out the vote to ensure a majority of votes cast are in favor of the union. Large organizing campaigns also give the company time to mount an anti-union campaign.

Organizing micro-units, however, can be done relatively quickly, cheaply and often without much response from the company. Think about it – organizing a unit of 30 workers in a single department may need only one or two union organizers to persuade the 15 to 20 employees needed to win the organizing campaign. Before you know it, you’ve got a segment of your workforce represented by a third party with whom you must collectively bargain. This can lead to multiple micro-units at your company represented by different unions and the headaches multiply.

Parameters For Micro-Units Are Evolving

The NLRB has discretion in representation cases to determine the appropriate bargaining unit, whether an employer unit, craft unit, plant unit or subdivision thereof, pursuant to section 9(b) of the NLRA. Although decided on a case-by-case basis, the main, long-standing factor for determining an appropriate unit was the “community of interest” of the employees involved. In 2011, however, the Board significantly changed that analysis in a case called Specialty Healthcare, allowing the unit petitioned-for by the union to govern except in those situations where the employer can establish by “overwhelming evidence” that the requested unit is inappropriate. This new approach places a high burden on employers who wish to challenge the make-up of the unit proposed by the union.

In recent months, the Board has decided a couple of micro-unit cases that offer some guidance on what it takes to challenge a micro-unit. In a case involving a Macy’s Department store in Massachusetts, the Board deemed appropriate a micro-unit made up of only cosmetics and fragrances employees at the store. Macy’s Inc., 361 NLRB No. 4 (July 22, 2014). The store argued that the unit was too narrow and that the appropriate unit in a retail store context is a “wall-to-wall unit” or, alternatively, all selling employees at the store. The Board did not agree. It concluded that the cosmetics and fragrances employees were a readily identifiable group that shared a community of interest not shared by other store employees. Factors weighing in favor of the micro-unit included the fact that the cosmetics and fragrances employees were in the same department and were supervised by the same managers. In addition, there was little regular contact between the cosmetics and fragrances employees and other store employees. The NLRB found that Macy’s had not met the high burden of showing that other employees should be included in the unit because they did not share an “overwhelming community of interest.”

Coming to the opposite conclusion, however, the Board rejected a micro-unit of sales associates who sold shoes at the Manhattan Bergdorf Goodman store. The union had petitioned for the unit to be made up of 35 women’s shoes sales associates in the Salon shoes department (high end designer shoes) and 11 women’s Contemporary shoes sales associates in the Contemporary Sportswear department (modestly priced shoes). The Board concluded the proposed unit was inappropriate because the two shoe departments were located on separate floors, did not share the same supervisors and managers, did not have any cross-over or interchange between employees and did not have much contact with employees in other departments storewide. The Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, 361 NLRB No. 11 (July 28, 2014).

Strategies for Attacking Micro-Units

The Macy’s and Bergdorf Goodman cases offer some guidance to help employers avoid union organizing of micro-units. Strategies to consider now, before a union organizing campaign begins, include:

Combining departments or job classifications that share skills or tasks
Cross-training and cross-utilizing workers across departments, classifications or locations
Allowing for promotional and transfer opportunities across department and organizational lines
Revising supervisory and managerial structures so that more employees report to the same managers
Maintaining pay and bonus structures common to all employees or for all in a larger unit.

Micro-units can be a game-changer when it comes to union organizing so employers have to change their own tactics to combat such bargaining units. Taking time now to change organizational and reporting structures can go a long way in overcoming a proposed micro-unit in the future.

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June 6, 2011

Newspaper Loses Arbitration Argument, but Can Hold Employee to His Word

By Jude Biggs

Introduction

Unionized employees file grievances when they believe their employer has not followed the collective bargaining agreement (CBA”); usually such an employee argues the employer did not have “just cause” to discipline, demote, or fire him. If the grievance is not decided in favor of the employee, the employee can take the grievance to arbitration. In most cases, however, union employees need not grieve or arbitrate their statutory discrimination claims; they still have a right outside of the CBA to claim discrimination, just as a non-union employee does, so they can still litigate the claim in court. In 2009, the Supreme Court muddied the waters and said some CBAs may be worded clearly enough that a union employee may only arbitrate a discrimination or retaliation claim through the CBA process. Since then, courts have attempted to sort out just what “clearly enough” means. Courts have also struggled with what to do when an employee says he is disabled when he applies for social security benefits, but then claims he was qualified for a job and should be allowed to sue for discrimination. The following case is the latest word from the Tenth Circuit on both of these issues.

Background

John Mathews, a unionized employee of the Denver Newspaper Agency (the “Agency”), worked for the Agency from 1983 through 2005. At the time his claims arose, he was a Unit Supervisor (but still a union employee). In June 2005, a female employee complained that Mathews had made inappropriate comments; Mathews was placed on paid leave while the complaint was investigated. Once the investigation was completed, the union filed a grievance against Mathews on behalf of the complaining employee, and the Agency demoted him from his Unit Supervisor position on July 1, 2005. That same day, Mathews obtained a doctor’s note saying he could not return to work for medical reasons.

Mathews was originally from southern India. He filed a grievance against the Agency, claiming his demotion was due to his national origin and it violated the union contract’s anti-discrimination provision. He also claimed he was demoted in retaliation for complaints of race, color, and national origin discrimination that he had made in May and June of 2005. He later amended the grievance to remove any reference to a violation of anti-discrimination statutes, but he still claimed he was “discriminated” against when he was demoted. Under the CBA, Mathews could choose to arbitrate his grievance or litigate it in court; in this case, he chose to pursue arbitration. The arbitrator held a 4-day evidentiary hearing on the claims and ruled against Mathews. Mathews then filed a claim for disability benefits with the Social Security Administration (“SSA”), alleging complete and total disability beginning on June 11, 2005 (the date of the alleged comments that led to his demotion).

Mathews filed a lawsuit in district court, claiming he had been discriminated and retaliated against, in violation of Title VII of the Civil Rights Act and §1981 (another civil rights statute that prohibits race discrimination). The district judge ruled Mathews’s decision to arbitrate his claims prevented him from doing so again in court; in other words, he could not have two bites at the apple. In addition, the judge ruled that Mathews’s statement to the SSA that he was totally disabled and unable to work prevented him from claiming he could still do the job he held before. Hence, he was “judicially estopped” or prevented from maintaining a claim for discrimination, as he could not prove he was qualified for the job. Mathews then appealed to the Tenth Circuit.

The Tenth Circuit Says Mathews Gets Two Bites at the Apple

The Tenth Circuit looked first at when a union employee is limited to bringing a statutory discrimination claim under the arbitration procedure in a CBA, and when a union employee may file the discrimination claim under the CBA (if he wishes) and also in court. The Tenth Circuit explained that, based on a 2009 Supreme Court decision (Penn Plaza v. Pyett, 129 S. Ct. 1456 (2009)), a CBA may be worded in such a way as to be the exclusive remedy for claims based on anti-discrimination and anti-retaliation statutes. However, normally, a union employee has both contractual rights under the CBA and statutory rights not to be discriminated or retaliated against. The CBA preempts statutory rights only when the CBA expressly says that statutory claims are to be arbitrated under the CBA. In Mathews’s case, the CBA did say the company and union would not discriminate “in accordance with and as required by applicable state and federal laws.” That language, to the Tenth Circuit, meant only that the company and union agreed discriminatory conduct could violate both the CBA and anti-discrimination statutes; it did not mean submitting a claim of discrimination to arbitration waived the right to sue in court. In addition, Mathews had amended his initial grievance to delete any reference to statutory claims. As a result, the Tenth Circuit held the CBA arbitration process was not Mathews’s exclusive remedy and Mathews could also sue in court.

But the Tenth Circuit Says Mathews Can’t Have It Both Ways

The Tenth Circuit then turned to Mathews’s claim that he could be totally disabled for purposes of getting social security disability benefits but not disabled for purposes of claiming he could still do his job. The Tenth Circuit pointed out that Mathews had to prove he could do the job before he could prove he was discriminated against. Mathews admitted he could not do the job anymore, but blamed the company for his disability. Since the company caused his disability, he argued, it should not escape liability. The Tenth Circuit did not buy his arguments.

In reaching that conclusion, the Tenth Circuit confirmed that, just because an employee claims to be disabled for purposes of gaining social security disability benefits, he is not necessarily estopped (or prevented) from saying he was qualified for a job in a subsequent lawsuit. However, such an employee must explain why he has taken inconsistent positions.

Looking at the medical evidence, the Tenth Circuit saw that Mathews had persuaded the social security judge that he was disabled due to a bulging disc of the cervical spine and an affective disorder as of June 11, 2005. In the discrimination case, he claimed “to the best of his recollection,” his disabling depression occurred after the Agency placed him on administrative leave on June 17, 2005. The two positions were entirely inconsistent, and he made no effort to explain the discrepancy. Mathews’s inconsistent statement to the SSA gave him the benefit of significant disability payments, and allowing him to recover for a lawsuit based on inconsistent statements would give him an unfair advantage. As a result, the Tenth Circuit concluded that the district judge had not abused his discretion by concluding Mathews could not establish a claim of discriminatory demotion.

Retaliatory Demotion Claim Still Survives

The court then reviewed whether Mathews could still sue for retaliatory demotion. Since that claim was not waived in the arbitration process, the court looked at the evidence supporting such a claim, and concluded a jury might rule in Mathews’s favor. The record showed Mathews was placed on leave on June 17, 2005, but he had made complaints to his supervisors on May 31 and sometime after June 17 but before his July 1 demotion. Given that timing, it was possible a jury might conclude the demotion was due to his complaints. As a result, the court remanded the case for further proceedings on the retaliatory demotion claim.

Lessons Learned

The Mathews case teaches union employers in Colorado (and other states within the Tenth Circuit’s reach) that, if they want employees’ statutory discrimination claims to be resolved only through the arbitration process under the CBA, the CBA must say clearly that the arbitrator has the exclusive authority to hear statutory claims. It also helps if the employee says in the grievance that he believes the conduct he is complaining about violates the CBA and anti-discrimination statutes. To avoid the Mathews result, union employers may consider negotiating provisions in their CBAs stating not only that the arbitrator has exclusive authority to hear statutory claims, but also that any general claim of “discrimination” will be deemed both a contract and statutory violation. That may often be impractical, given the dynamics of negotiations, but it may work with some unions.

For more information on this case or arbitration law in general, please contact Jude Biggs at jbiggs@hollandhart.com.

This article is posted with permission from Colorado Employment Law Letter, which is published by M. Lee Smith Publishers LLC. For more information, go to www.hrhero.com.