Wyatt Employment Law Report


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Northwestern Football Players Cast Votes On Union

By R. Joseph Stennis

helmutThis morning at Northwestern University’s campus located in Evanston, Illinois, players from the school’s football team cast secret ballots to determine whether to form the nation’s first union for college athletes.  A total of seventy six football players were eligible to vote, but none were required to do so.  It is uncertain at this juncture how many of the seventy six eligible players actually voted.   For those players who did,  a majority of them must have voted in favor of unionizing and allowing the College Athletes Players Association (“CAPA”) to represent them for collective bargaining purposes.  The election stems from a ruling made by the NLRB’s regional director in its Chicago Office, Peter Sung Ohr, last month.   In his ruling, Mr. Ohr concluded that Northwestern University football players  presently on scholarship at the school are “employees” as that term is defined under the National Labor Relations Act and federal common law, and could therefore conduct elections to determine whether or not they want to be represented by CAPA.

Earlier this month, Northwestern appealed Mr. Ohr’s decision to the NLRB in Washington, D.C.  Yesterday, the Board granted Northwestern’s request for review and has ordereed that the ballots from today’s vote be impounded until it reaches a decision.  In its request, Northwestern is seeking a reversal of Mr. Ohr’s decision.  We will not know whether the players voted to unionize or not until and if the Board issues a decision approving the Regional Directors’ ruling that allowed the election to take place.  So, although today’s vote by Northwestern’s players was a historic moment for private college student-athletes, whether they ultimately will—or have the ability to— unionize is still very much uncertain.


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NLRB Regional Director Rules Northwestern University Football Players Have the Right to Unionize

By R. Joseph Stennis

helmutYesterday afternoon the Director of the NLRB’s regional office located in Chicago, Illinois ruled in a landmark decision that Northwestern University football players presently on scholarship at the school are an “employee” as that term is defined under the National Labor Relations Act (“NLRA”) and federal common law. As a result, the Director’s decision Continue reading


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NLRB Chairman Outlines Intention to Push for More Election Changes

By Edwin S. Hopson

On January 26, 2012, Sam Hananel of the Associated Press reported that Mark Pearce, Chairman of the National Labor Relations Board, plans to push for the issuance of more rules making it easier for unions to organize employers under the National Labor Relations Act.  The Board in December, 2011, had already issued final rules regarding election procedures to, in a limited way, eliminate some of the delays in the union representation election process, to take effect at the end of April 2012.  Earlier in the year, before Chairman Wilma Liebman’s term expired, the Board had laid out a broader agenda to speed up representation elections. 

Early this month, President Obama had made three recess appointments to the Board that have been controversial.  Republicans and business groups are contending that the appointments were unconstitutional since the Senate was not in recess. If they are right, all actions taken by the Board since that date may be void.

Pearce stated “[o]ur goal is to create a set of rules that eliminate a lot of waste of time, energy and money for the taxpayer” and “[m]y personal hope is that we take on all of these things and consider each one of these rules. We presume the constitutionality of the president’s appointments, and we go forward based on that understanding.”

The changes Pearce may be seeking in addition to those announced in December, 2011, are shown below in a chart used in June 2011, that also shows current procedure:

Current procedures Proposed procedures
Parties or the Board cannot electronically file or transmit important representation case documents, including election petitions.  Election petitions, election notices, and voter lists could be transmitted electronically.  NLRB regional offices could deliver notices and documents electronically rather than by mail, and could directly notify employees by email, when addresses are available.
The parties cannot predict when a pre- or post-election hearing will be held because practices vary by Region.   The Regional Director would set a pre-election hearing to begin seven days after a hearing notice is served (absent special circumstances) and a post-election hearing 14 days after the tally of ballots (or as soon thereafter as practicable.)
In contrast to federal court rules, the Board’s current procedures have no mechanism for quickly identifying what issues are in dispute to avoid wasteful litigation and encourage agreements. The parties would be required to state their positions no later than the start of the hearing, before any other evidence is accepted.  The proposed amendments would ensure that hearings are limited to resolving genuine disputes.
Encourages pre-election litigation over voter-eligibility issues that need not be resolved in order to determine if an election is necessary and that may not affect the outcome of the election and thus ultimately may not need to be resolved. The parties could choose not to raise such issues at the pre-election hearing but rather via the challenge procedure during the election. Litigation of eligibility issues raised by the parties involving less than 20 per cent of the bargaining unit would be deferred until after the election.
A list of voters is not provided until after an election has been directed, making it difficult to identify and resolve eligibility issues at the hearing and before the election.  The non-petitioning party would produce a preliminary voter list, including names, work location, shift, and classification, by the opening of the pre-election hearing.
The final voter list available to all parties contains only names and home addresses, which does not permit all parties to utilize modern technology to communicate with voters. Phone numbers and email addresses (when available) would be included on the final voter list.
Deadlines are based on outdated technology, for example, allowing seven days after the direction of election for the employer to prepare and file a paper list of eligible voters. The final voter list would be produced in electronic form when possible, and the deadline would be shortened to two work days.


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NLRB Proposes to Require All Covered Employers to Post a Notice Containing NLRA Rights

By Edwin S. Hopson

In a press release dated December 21, 2010, the National Labor Relations Board (in a 3 to 1 decision) announced that on December 22, 2010, it would publish in the Federal Register a Notice of Proposed Rulemaking which rule would require all employers subject to the National Labor Relations Act (“Act”) to post a notice advising employees of their rights under the Act.  The Notice of Proposed Rulemaking provides for a 60-day comment period. Continue reading


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NLRB CELEBRATES 75TH ANNIVERSARY

By Edwin S. Hopson

On July 6, 2010, the National Labor Relations Board celebrated 75 years of its existence as the federal agency tasked with enforcing the National Labor Relations Act.  The primary law governing relations between employers and employees in the private sector was signed into law by President Franklin D. Roosevelt on July 5, 1935.

 In a signing statement, President Roosevelt stated at the time that the NLRA sought to achieve “common justice and economic advance.” In its July 6, 2010, press release noting the occasion, the NLRB stated that “[s]ince then, through the Second World War and the economic growth and challenges that followed, millions of employees have voted in NLRB-conducted workplace elections and millions more have bargained collectively with their employers under the NLRB’s protection.”

 According to that same press release, the NLRB noted that “[i]n fiscal year 2009 alone, the Agency conducted 1.690 representation elections, received 22,941 charges of unfair labor practices, recovered more than $77 million in back pay and ensured that more than 1,500 wrongfully discharged employees were offered reinstatement to their jobs.”

 The NLRB has also put up a commemorative website (http://www.nlrb.gov/75th/index.html) that has links to YouTube, and will sponsor events across the country, culminating in a two-day symposium in late October, 2010, in Washington, D.C. on the NLRA’s legacy and prospects for its future, co-sponsored by the NLRB and the George Washington University School of Law.