Tag Archive: NLRB

Nov 16

NLRB Adjusts Reimbursement Calculation for Unlawfully Discharged Employees

By Natalie Russell.

In a recent decision issued by the National Labor Relations Board (the “Board”), King Soopers, Inc. and Wendy Geaslin, persons who were wrongfully terminated may receive full reimbursement of search-for-work and interim employment expenses. Case 27-CA-129598 (2016). For over 80 years, the Board has awarded search-for-work damages. However, the Board’s traditional calculation of these damages failed to make a dischargee whole because the search-for-work damages were considered offsets to a dischargee’s interim earnings. This meant that if a dischargee spent more money searching and relocating for an interim job than they actually earned at that job, they would only be repaid up to the amount of the interim wages they earned. Id. at 5. In King Soopers, Inc., the Board found that the traditional approach, which limited the damages, not only “fail[ed] to make victims of unlawful discrimination whole . . . [but also] discourage[d] discriminatees in their job search efforts.” Id. at 5.

Faced with the challenge of balancing fairness to the wrongfully terminated with the authority granted to the Board through Section 10(c) of the National Labor Relations Act (the “Act”), the Board concluded that it has “ ‘broad discretionary’ authority to order remedies that will ‘effectuate policies’ of the Act.” Id. at 3 (quoting NLRB v. J.H. RutterRex Mfg., 396 U.S. 258, 262–63 (1963)). The Board not only has a duty to the wrongfully terminated, but also must create deterrents so that employers are discouraged from engaging in unlawful and discriminatory conduct. Id. at 3. By granting make-whole relief in the form of full reimbursement of search-for-work and interim-employment damages, the Board has fulfilled its duty.

The story of Juana Perez is a primary example of the positive impact make-whole relief will have on the wrongfully terminated. Ms. Perez worked at a location, earning $1,000 per month prior to her unlawful discharge. In seeking interim employment, Ms. Perez spent $6,000 on relocation costs, training, and job searching. She ultimately found employment, earning $750 per month for two months. Under the Board’s traditional reimbursement approach, Ms. Perez would receive only $1,500 because the search-for-work expenses would only be offset against the interim earnings. Id. at 5. However, under the new make-whole formula, Ms. Perez would be reimbursed for the full $6,000 of search-for-work expenses, regardless of how much she earned from her interim employment.

By providing full reimbursement of search-for-work and interim employment benefits, the Board assures that the wrongfully terminated employees are made whole.

Oct 12

Columbia University: Board Overrules Brown University and Classifies Student Assistants as Employees

By Divya Acharya.

Section 2(3) of the National Labor Relations Act (the “Act”) broadly defines an employee as “any employee,” subject to specified exceptions. Additionally, the Supreme Court has noted that the definition encompasses “any person who works for another in return for financial or other compensation.” Tasked with interpreting the wide-ranging breadth of this definition, the National Labor Relations Board (the “Board”) has rendered pendular decisions in cases such as New York University (2000), Brown University (2004), and, most recently, Columbia University (2016).

The Board issued a 3-1 decision in Columbia University, holding that student assistants working at private and nonprofit universities classify as employees pursuant to § 2(3) of the Act. In Columbia University, the Board revisited its earlier decisions in Brown University and New York University, which led to overturning the former and reinstating the latter.

In Columbia University, the majority reversed Brown University, which held that student assistants were primarily students and, therefore, had an educational, rather than an economic, relationship with the school. The Board found that it “deprived an entire category of workers of the protections of the Act without a convincing justification.” In Columbia University, we observe the Board embracing the rationale it applied in New York University, where it found that graduate assistants were employees pursuant to both § 2(3) of the Act and the common law agency doctrine.

Here, the Board did not find a compelling reason to exclude student assistants from the protections afforded by the Act. It is within the Board’s authority to treat student assistants as statutory employees when they are directed by the university to perform work for which they are compensated. In this case, the common law agency doctrine reflects a master-servant relationship between the student assistants and Columbia University: the university-employer has the right to control the student assistant-employee’s work, and the work is performed in exchange for compensation. Thus, since the standards for an employer-employee relationship are met under the common law test, it is sufficient to establish that the student assistant is a § 2(3) employee for all statutory purposes.

The Board reasoned that extending student assistants the right to engage in collective bargaining would not only preserve, but also advance the policies of the Act: to encourage collective bargaining and to protect a worker’s rights to freedom of association, self-organization, and designation of representatives of their own choosing.

It is important to note that when the New York University and Brown University decisions were rendered, the Board’s composition changed from that of a democratic majority to a republican majority. The Columbia University decision is the product of today’s democratic majority Board. Given that its changing members directly influence the Board’s decisions concerning this issue, it will be interesting to observe whether the looming presidential election will keep the pendulum swinging.

Sep 12

National Labor Relations Board Favors Fast-Food Unionizing Efforts in a 3-to-2 Ruling

At the end of the summer, the National Labor Relations Board (the “Board”) came down with a game-changing decision that affected fast-food chains and related companies dealing with contractors and franchisees. The decision heavily favored unions because it changed the meaning of an employer-employee relationship by including a staff contractor—a person hired to staff the parent company’s facilities—within the concept of a joint employer. Therefore, because a staff contractor is employed by the parent company, a union is legally entitled to bargain directly with the parent company, bypassing any bargaining relationship with the staff contractor at that specific facility. Previously, employees in this line of work rarely succeeded in union organizing, which, in some degree, was due primarily to their weak negotiating leverage against franchisees and staff contractors. Now, however, the Board significantly made union representation easier through an “indirect test” that establishes a greater number of bargaining relationships through an “ever-widening circle of employers.” For example, if fast-food employees at a particular restaurant choose to become unionized, this decision gives union representatives the opportunity to negotiate not just with the franchisee or contractor of that particular restaurant, but also with the corporate headquarters. For more information on this decision and how it may impact companies beyond fast-food restaurants, check out this article from The New York Times!

Mar 03

Events and Photo’s – Distinguished Speaker Series

On February 19, 2014, the Center for Labor and Employment Law hosted a Distinguished Speaker Series event- A Conversation with Harry I. Johnson, III, member of the National Labor Relations Board. This
event was held in the Mattone Family Atrium, where Mr. Johnson was joined by students, alumni and friends to tell about his experience and perspective on his role at the National Labor Relations Board. Mr. Johnson was introduced by alumni and former co-presidents of the LRELS, Sean Conroy ’95 and Michael Masri ’95. Students at the event felt that this was one of the best events and most engaging speaker series that they have attended in law school. Mr. Johnson spoke about recent decisions including cases on social media and employee handbook, and the tremendous workload of cases for the agency. Law student Josephine McGrath ’15 said, “the content and presentation of the speech was fascinating and gave an inside view of the challenges that the NLRB navigates.” Dinner at Alberto’s followed the event and the students in attendance were able to speak with Mr. Johnson and other alumni guests.

The next morning, Mr. Johnson addressed Professor Gregory’s labor law class, which started with the presentation of Professor Gregory’s labor law book. Mr. Johnson taught the class before returning to his busy schedule in Washington DC. Overall, this visit was a great learning opportunity and an amazing chance for students to get an inside view of the workings of the NLRB. Thank you to Mr. Johnson and Mr. Conroy for visiting us and we hope to have you back soon!

Click through the photo gallery to view photos from the event.

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Feb 20

What’s New With the CLEL – Spring Update

The Center for Labor and Employment works closely with the Labor Relations and Employment Law Society at St. John’s. The LRELS is the student-run arm of the Center and is headed by President May Mansour ‘14, Co-Vice Presidents Sarah Mannix ‘15 and Rich Berrios ‘14, Treasurer Monica Hincken ’14 and Secretary Samantha Kimmel ‘15. Next year, Cynthia Vella ’16 and Stephen Halouvas ’15 will join the board. In addition to the many opportunities offered by he LRELS and the Center for Labor and Employment, there are several exciting events taking place this semester.

The first event was a Distinguished Speaker Series, A Conversation with Harry I. Johnson III, a former partner at Arent Fox and a current NLRB Member appointed by President Obama. This event took place on February 19 and Mr. Johnson joined Professor Gregory’s labor law class on February 20 as well to give a speech about recent NLRB decisions, the decision making process and how the agency operates. Mr. Johnson graciously spoke to the attendees and provided fascinating and entertaining insights into the NRLB. (Stay tuned for pictures of the event!)

Next up, he Center for Labor and Employment will co-host a symposium entitled Title VII at 50, with NYU Law School, The Ronald H. Brown Center for Civil Rights and Economic Development and the Journal of Civil Rights and Economic Development, on April 4-5, 2014. 2014 is the 50th anniversary of the enactment of the Title VII of the Civil Rights Act of 1964 and the programs will celebrate the evolution of Title VII over the years and the current state of the law. In attendance will be some of our most distinguished alumni as well as very prominent academics and practicing attorneys in the field. Some of the presenters will include: Paulette Brown, President-Elect of the ABA; Amanda Jaret ’13, Law Fellow AFL-CIO; Samuel Estreicher, Director of the Center for Labor and Employment Law at New York University; as well as other NLRB directors, and Professors. Over Friday and Saturday there will be roundtables and panel discussions covering a variety of topics including Professor Gregory’s forthcoming paper, “Past as Prologue in the Affirmative Action Jurisprudence of the Supreme Court: Reflections on Fisher v. University of Texas.” The conference will be an exploration of the living history of Title VII while looking ahead to what the next fifty years will bring. The winners of the inaugural Edwards Wildman Palmer Prize and the 2014 Coca-Cola Refreshments Scholar will be announced at the conference.

There are many opportunities to get involved with the Center for Labor and Employment and the Labor Relations and Employment Law Society. Please follow the TWEN page or visit stjclelblog.org to stay updated on the happenings and scholarship opportunities.

Feb 18

Special Event Tomorrow! A Conversation with Harry I. Johnson, III, member of the National Labor Relations Board

Join the Center for Labor and Employment and the Labor Relations and Employment Law Society for a special event tomorrow, February 19, at 5:00pm for, A Conversation with Harry I. Johnson, III, member of the National Labor Relations Board. This event will be part of the Distinguished Speaker Series and will be held in the Mattone Family Atrium. Along with Mr. Johnson, we will be hosting Sean Conroy ’95, and Michael Masri ’95. The event will be a conversation with Mr. Johnson and an opportunity for students and attendees to ask questions.

This event is open to any student and all are encouraged to attend.

Add this event to your calendar.

Feb 04

Northwestern Football Players Petition NLRB for Election

The football team at Northwestern University is fighting to create a labor union. The players are hoping to get a cut of the very lucrative NCAA revenue as well as make arrangements for their safety on the field and after they graduate.

NCAA rules prohibit athletes from being paid to play college sports, but they may receive compensation in the form of scholarships and living expenses. The players at Northwestern hope that collective bargaining will help them get more of a cut from the profits in the form of a salary. With the recent news about the devastating, cumulative injuries that football players can suffer after years of getting hit in the head, player are also focused on getting better health benefits as well as money to pay for the healthcare later in life.

Stay tuned to this story, which is sure to lead to contention between the players, the school and the NCAA.

Nov 19

NLRB Authorizes Charges Against Wal-Mart

http://www.flickr.com/photos/walmartcorporate/sets/On November 18, the National Labor Relations Board (NLRB) announced that it would be pursuing charges against Wal-Mart. The agency’s general counsel reportedly investigated workers claims that Wal-Mart had threatened employees for taking part in walkouts surrounding last year’s Black Friday shopping season. According to the NLRB, in several states, Wal-Mart unlawfully threatened, surveilled, disciplined or terminated employees as a response to or in anticipation of legally protected worker activities. The Wal-Mart stores were in a waide range of states, including: California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington. Despite authorizing these claims, the NLRB found no merit in other violations alleged. The NLRB found no merit in claims that alleged that worker’s were told to leave private property and changing work schedules. This case will be interesting to see unfold, as Wal-Mart is the largest employer in America, with over 2.2 million employees. 1 Black Friday 2013 is right around the corner and workers are planning other protests of Wal-Marts practices; this authorization of a complaint will give some publicity to the ongoing struggle between Wal-Mart and their employees. 2 For the official release from the NLRB, click here.

Notes:

  1. http://news.walmart.com/walmart-facts/corporate-financial-fact-sheet
  2. http://online.wsj.com/news/articles/SB10001424052702303985504579206412630293566

Oct 26

15th Annual Worker’s Rights Conference

On October 25th and 26th, I had the privilege of attending the Peggy Browning Fund’s 15th Annual National Law Students Worker’s Rights Conference in Linthicum Heights, Maryland.  The event brought together law students across the country interested in the future of workers’ rights. The conference gave a greater understanding of the issues facing American workers, and was an opportunity to network with fellow students, and top practitioners in the field.

On Friday evening, conference attendees were treated to a showing of Trash Dance.  The film explored an artist’s organization of sanitation workers in Austin, Texas for a performance piece.  After the film, students offered opinions about the film’s metaphors for worker organization.

On Saturday morning, AFL-CIO General Counsel and former NLRB Member Craig Becker delivered the conference’s keynote address.  Mr. Becker reflected on his own experiences when speaking about unions’ future challenges.  He also offered insights into labor cases on the Supreme Court’s current docket and organized labor’s reception of the Affordable Care Act.

Students then participated in workshops that covered various salient issues. I attended three different workshops, all led by prominent figures in organized labor. Dennis Walsh, Regional Director of Region 4 of the NLRB, discussed the NLRA’s nuances in “Introduction to Basic Labor Law”. Fred Feinstein, former General Counsel to the NLRB, detailed how anti-union consultants grew from cottage industry to well-oiled machine in “Future of Worker Mobilization”. Baldwin Robertson, partner of Woodley & McGillivary, summarized issues facing state and municipal union members in “Public Sector Labor Law”.

In the plenary session on Saturday afternoon, panelists Leon Dayan, Jessica Robinson, and Peggy Shorey summarized new assaults on collective bargaining rights in the states, including new right-to-work initiatives and movements to end dues check-offs.  In closing remarks, Dennis Walsh, Marley Weiss and Joe Lurie thanked all conference organizers for their hard work in putting together the engaging and educational programming. It was my pleasure to represent St. John’s University School of Law at the conference.  The Peggy Browning Fund’s programs contribute greatly to the labor law community, and I was fortunate to be a part of this year’s conference.

Panelists (L to R): Peggy Shorey, Leon Dayan, Jessica Robinson, and Matthew Ginsburg.

Panelists (L to R): Peggy Shorey, Leon Dayan, Jessica Robinson, and Matthew Ginsburg.

Jul 22

David L. Gregory on NLRB

In an article titled “Vacancies and Partisan Fighting Put Labor Relations Agency in Legal Limbo” written by Mark Landler and Steven Greenhouse and published in The New York Times on July 15, 2013, Professor Gregory offers context for the situation which has arisen in the National Labor Relations Board.

The NLRB has been functioning without a quorum of members (a full slate is five members) and President Obama’s NLRB recess appointments have been the subject of an acrimonious court battle set to go before the Supreme Court next term.

Experts, like Professor Gregory, say that these issues have cast doubt upon the rulings of the NLRB and without a clear sense of direction in solving labor disputes.

Here is an excerpt from the article:

“The situation we’re seeing now is really unprecedented,” said David L. Gregory, a professor of labor law at St. John’s University. “There was a period of chronic vacancies that was as much the fault of the Democrats as the Republicans. But we really haven’t seen a showdown like this in modern history.” The White House reiterated Monday that Republicans were “needlessly and systematically” obstructing the president’s nominees, arguing that he had put forward a full bipartisan set of candidates in April.

Click to Read More

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