This week, the National Labor Relations Board (NLRB) exercised its discretion to decline jurisdiction in a case involving Northwestern University scholarship football players.  The union representation petition filed by the College Athletes Players Association was dismissed.

Over 25 amici briefs were filed with the NLRB for consideration in this case.  Clearly, the potential unionization of scholarship college athletes is a big deal and could have ramifications throughout the country.  Northwestern University, as well as several of the amici briefs argued the NLRB should exercise its discretion to decline jurisdiction over college athletics, because it would not accomplish the basic purposes of the National Labor Relations Act (Act).

In its analysis of the facts, the NLRB indicated although Northwestern University is an “employer” as defined by the Act, the other 13 colleges included in the Big Ten Conference are all state-run institutions over which the NLRB has no authority because they are not considered “employers” under the Act.  Additionally, the NLRB stated, “…the scholarship players do not fit into any analytical framework that the Board has used in cases involving other types of students or athletes…”  Therefore, the NLRB concluded asserting jurisdiction in this case would not serve to promote stability in labor relations.

The NLRB was very clear its decision to decline jurisdiction was strictly based on the facts before them, and any changes in the treatment of scholarship football players could outweigh the factors applicable to the current decision, and the issue could be reconsidered in the future.  Nice to see some common sense from the NLRB.

On December 16, 2014, the National Labor Relations Board (NLRB) issued a decision reexamining two significant bodies of case law concerning collective bargaining rights.  First, it reviewed the standard used to determine when the Board should decline jurisdiction over faculty employed at religious colleges and universities, and also reevaluated the standard used to determine when faculty members are managerial, and therefore not covered by the National Labor Relations Act (NLRA).

In Pacific Lutheran University and Service Employees International Union, Local 925, the NLRB issued a new standard.  The Board decided the NLRA,

“… permits jurisdiction over a unit of faculty members at an institution of higher learning unless the university or college demonstrates, as a threshold matter, that it holds itself out as providing a religious educational environment, and that it holds out the petitioned-for faculty member’s as performing a specific role in creating or maintaining the school’s religious educational environment.”

The Board held with respect to Pacific Lutheran University that although the university did meet the threshold requirement of holding itself out as creating a religious education environment, it did not consider the petitioned-for faculty members as performing a religious function in support of that environment.  Therefore, the Board had jurisdiction over those faculty members.

The Board also changed the analysis it applies when determining the managerial status of university faculty.   In determining whether or not a faculty member is actually or effectively “management,” the Board will examine faculty’s participation decision-making in the areas of: 1) academic programs, 2) enrollment management policies, 3) finances, 4) academic policies, and 5) personnel policies and decisions.  If faculty do not exercise control in these areas, then they do not exercise managerial authority on behalf of their employer, and can be included in a bargaining unit.

This decision greatly expands the ability of faculty at religious-affiliated colleges and universities to unionize.  This decision, in conjunction with the on-going movement of adjunct faculty petitioning to unionize, stands to change the future of labor relations on college campuses.   


The Government is certainly using new technology to get the word out to citizens on a variety of topics. Previously, I blogged about two apps the U.S. Department of Labor had developed; one allows consumers to determine if a business is in compliance with federal labor laws and another that allows employees to track their work hours. Now, the National Labor Relations Board (NLRB) has created its own app about the National Labor Relations Act (NLRA).

The NLRB’s app was actually rolled out in August of last year, but has been flying under the radar. The purpose of the app is to educate, employers, employees, and unions on their rights under the NLRA. I have downloaded the app to my android phone to give it a test drive. It basically provides a breakdown of the law in layman’s terms. It also allows you to use your GPS to find the NLRB office nearest to your location, and gives you the numbers to call if you have additional questions or want to file a claim.

Just earlier this month, the NLRB acknowledged employers were not required to post a notice advising employees about their rights in the workplace. However, that doesn’t mean the NLRB isn’t still trying to get their message out to workplaces (i.e. this new app). It is important for employers to be aware of what information is available out there for employees. Employers should check out the NLRB’s app, they might find it informative.

This week the National Labor Relations Board ruled in favor of Knauz BMW over its firing of a salesman, Robert Becker, who posted pictures related to work on his personal Facebook page. The photos were of an embarrassing accident at the neighboring Land Rover dealership (also owned by Knauz) and photos of co-workers serving hotdogs, water and chips at a luxury BMW car event. The car accident and hot dog pictures were posted by Mr. Becker on the same day. Mr. Becker alleged his actions were protected, concerted activity under the NLRA. Knauz BMW indicated Mr. Becker was solely terminated for the posting of pictures of the accident at the Land Rover dealership, and not because of the pictures and comments regarding the food served at the marketing event.

An Administrative law judge and the NLRB upheld the termination of Mr. Becker. The ALJ found the employers witnesses more credible, and agreed the termination was based on Mr. Becker’s posting of the pictures of the Land Rover accident. The Judge and the Board did not discuss whether or not the pictures of the food served at the marketing event were protected, because the Judge had already determined those pictures were not part of the Employer’s rationale for termination.

The Board in a split decision did order Knauz BMW to remove a “Courtesy” policy from the employee handbook. The language in question could lead employees to reasonably believe the policy prohibits any statements of protest or criticism, including those protected by the NLRA.

Employers should keep in mind the social media cases before the Board are very fact-specific, but every decision provides us with a little more guidance.

Most individuals and businesses at this time of year are more focused on the tax deadline that is quickly approaching next week, April 17th to be exact, than other deadlines which maybe on the horizon. Well, this month there is one other deadline which is quickly approaching for most employers, the requirement to post the Employee Rights under the National Labor Relations Act poster. Last year, the National Labor Relations Board (NLRB) announced it would be requiring both unionized and non-unionized employers to post an employee rights poster in the workplace. Originally, employers were going to be required to hang the poster effective November 14, 2011, but that deadline was delayed several times. Well, now the deadline is fast approaching (April 30th) and it doesn’t appear that it will be postponed this time.

Some changes have been made to the poster since it was originally proposed by the NLRB. It is no longer an automatic unfair labor practice to not hang the poster, nor is there an indefinite extension of the statute of limitations for filing an unfair labor practice charge.

If you haven’t already done so, go to the NLRB website and download the poster for free. Remember the poster is required to be 11 x 17 inches in size, so if you don’t have the capabilities to print on 11 x 17 paper, then print the two page 8.5 x 11 version, and tape the pages together. Also, if 20% of your workforce speaks a foreign language, the poster must be posted in both English and that foreign language. The NLRB has foreign language versions also available on its website. Additionally, if your business regularly posts policy updates electronically on a company intranet page, you are required to include this notice there as well. 

Steps to take now:

1) Research to determine if you are one of the employers required to hang this new poster.
2) Train your managers/supervisors so they are aware of the new poster, and know how to respond to employee questions.
3) Hang the poster by the April 30, 2012 deadline.


Apparently, the National Labor Relations Board (NLRB) can’t seem to make up their mind, because just before the holiday weekend it announced another postponement of the effective date for private sector employers to post the notice about employee rights. This is the third time the NLRB has delayed the effective date for the employee rights posting. Most private sector employers whether or not they have a union, were initially required to post the notice effective November 14, 2011. That date was later changed to January 31, 2012, and now the deadline is April 30, 2012.

Here is a link to the poster, which can be downloaded for free from the NLRB website. The poster is required to be 11 x 17 inches in size, so if you don’t have the capabilities to print on 11 x 17 paper, then print the two page 8.5 x 11 version, and tape the pages together. The NLRB also has the posting available in 26 other languages for download from their website. If 20% of your workforce speaks a foreign language, the poster must be posted in both English and that foreign language.

This employee rights posting covers employee rights to act together to improve wages and working conditions, to form and join unions, and bargain collectively. The posting will include examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints.

My law partner, Marylee Abrams and I will be presenting to the White Bear Area Chamber of Commerce on Thursday, February 2, 2012, “Did You Know, Even If Your Employees Are Non-union the National Labor Relations Act, May Apply To Your Business?” We will be discussing who the National Labor Relations Act applies to, the NLRB’s new posting requirement on employee rights, and updates on recent litigation regarding employee use of social media. If you want to learn more about this posting requirement and whether or not your business is required to post the employee rights poster on April 30, 2012, please join us.

Mark your calendars for April 1, 2012 to research if you are required to post the NLRA’s employee rights poster at your workplace.  If so, be sure to download and hang the poster prior to the April 30, 2012 deadline.

The facts in this case are quite unique. Twenty non-union employees of Hmong or Spanish descent were terminated when they refused to sign away their rights under the NLRA by signing up for Supply Technologies LLC’s new Total Management System. The Total Management System (TSM) created an internal process for comprehensive grievance resolution. The TSM would require employees to use a 3-step procedure as its sole means for resolving any and all claims against the Company except workers compensation, unemployment, and criminal claims.

Prior to the twenty employees beginning terminated the National Labor Relations Board (NLRB) had conducted an election to see if the employees of Supply Technologies LLC wanted to join the International Brotherhood of Teamsters. The employees vote was a split decision and therefore the Union did not prevail. Supply Technologies LLC, Total Management System was introduced to employees only three days after the Union was voted down. The employees who refused to sign were immediately told to leave the facility and not return.

The unique twist in this case is that the International Brotherhood of Teamsters, even though it did not represent the twenty terminated employees, filed charges with the NLRB, concerning the new grievance procedure and the termination of employees, alleging the actions constituted an unfair labor practice.

Administrative Law Judge Alemán agreed with the Union and ordered Supply Technologies, Inc. to discontinue its new grievance procedure in all its locations and reinstate the twenty discharged employees with full back pay.

Consider this a word of caution; if your employees are considering unionizing everything needs to stay status quo. Even if the Union doesn’t prevail in the election, don’t take that as an opportunity to immediately change policies and terminate employees.