Labor Relations Today

Labor Relations Today

Labor Relations Today Issues ‘Labor Law 2016: Year in Review’

Posted in Alternative Labor Law Reform, Department of Labor, Division of Advice, Executive Orders, Expedited Elections, Federal Court Litigation, Government Contracting, Government Contracts, House of Representatives, Joint Employer, Legislation, MLA Media, Negotiations, NLRA, NLRB, NLRB Administration, NLRB Decisions, NLRB Rule-Making, Persuader Rules, Presidential Appointments, Remedies, Representation Elections, Right to Work, SCOTUS, Senate, Social Media, State/Local Issues, Unfair Labor Practices, Unions, White House, Workplace Rules

UntitledMcGuireWoods labor attorneys and the editors of Labor Relations Today are pleased to announce the publication of Labor Relations 2016: Year in Review.

In the final year of his two-term tenure, President Barack Obama’s National Labor Relations Board and Department of Labor continued their double-barreled efforts to remake labor law to benefit labor unions. Throughout the year, the agencies issued case decisions casually casting aside decades of precedent and engaged in aggressive – and unconstitutional – administrative rulemaking in pursuit of this agenda.

We submit this Year in Review to summarize the most noteworthy developments in 2016 – as we emerge from a wildly unusual political year, and head into a new year potentially bringing even more mystery with it.  Additional information on these topics and more is available at our Labor Relations Today blog (laborrelationstoday.com), where we will continue to chronicle and alert readers to significant changes in the law as they unfold in 2017 and beyond.

We hope you find it a helpful resource as we head into what will undoubtedly be another active year in labor-management relations.

Click here to download Labor Law 2016: A Year in Review.

To order hard copies of Labor Law 2016: A Year in Review, e-mail John Williams here.

Member Miscimarra Finds “Common Sense Is Not So Common” in NLRB’s Latest Supervisor Determination

Posted in NLRB Decisions, Representation Elections

In a 2-1 decision, the National Labor Relations Board elected to deny the employer’s request for review of the Regional Director’s Decision and Direction of Election in Chi LakeWood Health, 365 NLRB No. 10 (Dec. 28, 2016), a case where the employer asserted that its patient care coordinators (PCCs) are supervisors under the National Labor Relations Act. Member Miscimarra dissented as he believed substantial questions existed regarding whether the PCCs possess authority to assign and responsibly direct other employees, and he took issue with the fact that “many of the Board’s supervisor determinations have become increasingly abstract and out of touch with practical realities of the workplace.”

The employer in Chi LakeWood Health is a small but full-fledged acute care medical facility operating 24 hours a day, 7 days a week with 15 in-patient beds and a nursing staff that includes 6 PCCs (who are registered nurses) and their subordinates: 8-9 registered nurses, three licensed practical nurses, and one certified nurse assistant. The employer created the PCC position just four months before the NLRB hearing because it wanted to ensure that someone was accountable for the shift-by-shift work flow of the department in addition to supervising the employees on their shift. The PCC job description included, among others, the following duties:

  • Responsible for Daily Nursing Assignments–assesses, identifies and communicates unit staffing needs for current and oncoming shifts and assigns admissions and/or transfers based on patient activity level, nurse/patient ratio, and nursing skill levels;
  • Coordinates daily patient care activities with acute care nursing staff and other related services;
  • Communicates with staff to assure assignment made is appropriate to promote team building and cohesiveness; and
  • Retains overall accountability for the workflow for their shift, and remains unaccountable if duties are delegated to another qualified staff member.

In addition, the evidence established that PCCs provide overall supervision of staff and patient care during shift and serve as the bedside leader for the nursing team during shift. Moreover, from 7 p.m. to 8 a.m. Monday through Friday, and every weekend from 5 p.m. Friday through 8 a.m. Monday, the PCC is the only person present most of the time who can give directions and assignments to the nursing staff.

Despite these facts, the Board majority affirmed the Regional Director’s finding that the PCCs do not exercise any supervisory functions:

The Board has consistently held that Sec. 2(11) supervisory status cannot be established merely by ‘paper’ authority or conclusory testimony. … Rather, ‘what the statute requires is evidence of actual supervisory authority visibly translated into tangible examples demonstrating the existence of such authority.’

Disagreeing, Member Miscimarra took the Board majority to task. First, Miscimarra found sufficient evidence demonstrating that the PCCs have authority to make assignments and that they exercise independent judgment in doing so.

PCCs take into account the needs of the patient and the skill of the nurses, but the Regional Director dismissed this testimony because no one specifically testified that nurses have differing levels of skill and ability. … I do not believe that specific testimony is needed to establish the commonsense fact that some employees are more skilled than others, which in any event is implied by the undisputed testimony that skill level is taken into account. As I have previously explained, the Board should not disregard unrebutted evidence ‘merely because it could have been stronger, more detailed, or supported by more specific examples.’

Miscimarra also disagreed with the Regional Director’s finding that the PCCs were not accountable for the performance of the nurses given the undisputed testimony that the employer created the position to ensure that there was accountability for how the department operated on a day-to-day basis.

Miscimarra pointed to additional factors evidencing the PCCs’ supervisory status, primarily that the PCC is the highest-level official at the hospital 13 hours of each day and approximately 63 hours straight each weekend:

The Regional Director determined that the PCCs are not supervisors, so the question arises, who is in charge in this life-or-death situation? If there are four acute in-patients at the time a critical patient arrives and two nurses on duty, who decides which nurse will take care of which patient? Who decides what treatment to begin? Who evaluates the condition of the patients and the abilities of each nurse? To state the obvious, these are not appropriate judgments to resolve by a coin toss or drawing straws. Someone has to be in charge at this facility at all times, including times when no manager and perhaps no physician is present.

[T]he notion that nobody exercises ‘supervisory’ authority in this type of work setting for such extended periods of time fails the ‘test of common sense.’ The Regional Director and my colleagues endeavor in this case to ensure that the Board’s supervisory determinations are consistent with our statute. However, I believe the finding that PCCs are not supervisors under Section 2(11) provides yet another illustration of the principle that ‘common sense’ is not so common.

In addition to the points addressed by Miscimarra’s dissent, it is interesting to note that the majority refused to rely on the PCC job description in its decision (especially where the position was brand new) given the Board’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), where the Board placed great emphasis on “paper authority” in its new joint employer standard:

[The Board no] longer require[s] that joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority. Reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employer inquiry. 

(emphasis added).

Columbia University Grad Students Vote To Unionize

Posted in Bush Board Reversal, NLRA, NLRB Decisions, Representation Elections

On August 23, 2016, in a 3-to-1 decision, the National Labor Relations Board (“the Board”) overturned long-standing precedent to hold that graduate student teaching assistants  are statutory employees under the National Labor Relations Act (“NLRA”).  The decision in Columbia University, 364 NLRB No. 90, marks yet another major change in United States labor law reversing the standards set forth in Brown University, 342 NLRB 483  (2004).

In an election held this week at a number of campus locations, the eligible voters selected representation by the United Auto Workers (UAW).  The December 9, 2016 Tally of Ballots indicated that out of approximately 4,256 eligible voters: 1,602 votes were cast in favor of UAW representation; 623 votes were cast against; and 647 ballots were challenged.  The UAW union at Columbia now joins the voluntarily recognized union at New York University as the only two graduate student teaching assistant unions in the country.

What’s next?  According to an account in the New York Times:

Gary N. Chaison, a professor of industrial relations at Clark University in Worcester, Mass., said the university might delay negotiating until President-elect Donald J. Trump appoints members to the labor board, which could reverse itself again on the issue.

“Delay is the employer’s favor,” he said. “The administration is not going to be a union-friendly administration.”

A spokeswoman for Columbia did not respond to a question about whether it might delay negotiations.

As this issue has ping-ponged back and forth from presidential administration to administration, it is not out of the question that the school might challenge an ultimate certification by refusing to bargain.  That charge would be unlikely to reach the National Labor Relations Board for resolution until well into the first year of the President-Elect’s term.

More commentary and resources:

President-Elect Announces Fast Food CEO Andrew Puzder For Secretary of Labor Post

Posted in Department of Labor, Joint Employer, Presidential Appointments

On December 8, President-elect Donald Trump named CKE Restaurants CEO Andrew Puzder to serve as Secretary of Labor in his upcoming administration. Mr. Puzder, also an attorney, has consistently been a vocal critic of the proliferation of government regulation during President Obama’s tenure.  There is no shortage of Obama administration labor law regulations that the incoming DOL leadership might very well rescind — including the Department’s Persuader Rules, and the Department’s & FAR Council’s Fair Pay & Safe Workplaces Regulations.

Because the Democrats will still hold sufficient Senate seats to filibuster legislative action to reverse these policies, any such rescissions will likely need to go through the extensive rulemaking process.  The DOL rulemaking process will require a notice and comment period, the need for a reasoned analysis for why the repeal or revision was necessary, and a 60-day waiting period.  It will take time and will likely be subject to judicial challenge by pro-labor entities.  Alternatively, it is possible that the incoming administration could decide not to defend these rules, to the extent they are currently enjoined and being litigated, and could consent to a settlement and court order reversing the implementation of these rules.

As the chief executive of the company that owns the Carl’s Jr. and Hardee’s fast-food brands, Mr. Puzder actively opposed the National Labor Relations Board’s agenda to overhaul long-standing joint employment standards. In July 2014, Mr. Puzder testified at a subcommittee hearing of the House Committee on Education and the Workforce, “What Should Workers and Employers Expect Next From the National Labor Relations Board” (along with one of our editors).  The Democrats on the panel spent most of the hearing — about the NLRB — attacking Mr. Puzder regarding his opposition to raising the minimum wage.  But he managed all the same to address the issue he was invited to discuss, namely: “the NLRB potentially adopting a new joint employer standard that would consider franchisors employers of their franchisee’s employees.”  Mr. Puzder testified:

Such a standard would threaten the very successful franchisor- franchisee relationship that has been generating jobs and economic growth for decades. I can’t see the logic of the labor laws requiring or even permitting this.

*  *  *

[E]xtending the joint employer standard to franchising would not further any purpose of the labor laws. Rather, it would unnecessarily require systemic changes in the franchisor-franchisee relationship, impairing the viability of this very successful business model that has created so many jobs and so much economic growth.

Should the incoming NLRB Members share his views, it may bode well for a return to the reasonable, straight-forward standards that governed these relationships for decades prior to the Board’s Browning-Ferris decision and ongoing McDonald’s litigation.

More resources and commentary:

District Court Permanently Enjoins Department of Labor’s Persuader Rule

Posted in Beyond EFCA: Labor's Agenda, Department of Labor, Federal Court Litigation, Representation Elections, Unions

The United States District Court for the Northern District of Texas has made permanent its June 27, 2016 nationwide preliminary injunction against the Department of Labor’s March 2016 Persuader Rule. The rule would, among other things, require financial reporting and disclosure by employers and their consultants of any agreement or arrangement by which the consultant will undertake activities, directly or indirectly, to persuade employees whether or not to exercise their right to organize and bargain collectively. Contrary to decades of precedent, and the sanctity afforded the attorney-client relationship, the new rule would require extensive reporting by employers and their lawyers regarding the nature of their relationship and the content of the legal services provided. The June 2016 temporary injunction branded this new rule “not merely fuzzy around the edges,” but rather, “defective to its core….” National Federation of Independent Businesses et al. v. Perez, 5:16-cv-66 (N.D. Tex. June 27, 2016).

The Department of Labor filed an interlocutory appeal to the Fifth Circuit challenging the preliminary injunction order. On August 22, 2016, Plaintiffs, consisting of business federations, national trade associations, and other employer organizations, filed for summary judgment, seeking a judgment declaring the new Persuader Rule unlawful and a permanent injunction against Defendants on a nationwide basis preventing them from enforcing the rule. Then, on September 28, 2016, ten states, who intervened as Plaintiffs in the action, also filed a motion for summary judgment seeking a permanent injunction against the rule. In their motion for summary judgment briefing, the states argue that the new rule unconstitutionally invades a state’s right to regulate the practice of law:

[T]he New Rule goes well beyond what Congress ever envisioned and presents the classic case of an administrative diktat in search of a problem that the law never sought to solve. In a time of labor relations far removed from the 1950’s, the New Rule turns LMRDA on its head and now functionally enjoins the guarantees of confidentiality, loyalty, and candor that are central to the very existence of attorney-client relationships. Though LMRDA expressly exempts from its scope an intent to interfere with the attorney-client relationship, the New Rule breaches that accord by classifying as public the information shared only between attorney and client, creating impossible circumstances of conflict, and transforming lawyers into vending machines of law rather than the confidants, counsellors, and advisors required by the canons.

In its quest for “transparency,” the New Rule runs roughshod over the foundations of the legal profession and the fundamental right of everyone to be able to confidentially consult with counsel about anything….

In a brief Order, dated November 16, 2016, the Court has denied the Government’s motion, and has granted summary judgment to the Plaintiffs and Intervenors.  Incorporating its Preliminary Injunction Order by reference, the Court has ruled that the March 24, 2016 “Persuader Advice Exemption Rule” should “be held unlawful and set aside,” and has converted the injunction into “a permanent injunction with nationwide effect.”  Presumably withdrawal of all appeals by the incoming administration would effectively terminate the rule once and for all, but either way, for the time being, there is no need for employers – or their counsel – to comply with the enjoined regulations.

Does Trump’s Election Signal the Demise of Recent Labor Regulations?

Posted in Department of Labor, NLRB, NLRB Administration, NLRB Rule-Making, Persuader Rules, White House

The election of Donald Trump places numerous regulations issued under the Obama administration in jeopardy, including the Department of Labor’s Persuader Rules, the National Labor Relations Board’s “Quickie” Election Rules, and the Department of Labor & FAR Council’s Fair Pay & Safe Workplaces Regulations.

Currently, these rules are essentially immune from Congressional challenge given President Obama’s veto power. Although the Congressional Review Act (“CRA”) gives Congress 60 legislative days after the effective date of a new rule to invalidate the rule, any Congressional action under the CRA can be vetoed by the sitting President.  Similarly, although Congress can overturn agency rulemaking through explicit statutory mandates, any such measures will again be subject to President Obama’s veto.  The President has already exercised his veto power to block Congressional attempts to invalidate the Board’s modified election rules.  It is unlikely that Republicans could muster the 2/3rds vote required in both chambers to overcome a Presidential veto.

Once President-Elect Trump takes office in January, these rules can be more easily removed through either Congressional action or agency action. As discussed above, Congress can overturn agency rulemaking through the CRA or through explicit statutory mandates.  With Republicans dominating both houses and Trump in office, successful Congressional reversal is more likely — although still subject to the political pressure of the filibuster in the Senate where Democrats will hold 48-49 votes in their caucus.

Trump can also rescind any executive orders issued by Obama, including the Fair Pay & Safe Workplaces Executive Order; however, such rescission has no effect on the rules which implement the executive orders. For rules that have not yet gone into effect, Trump can suspend them, essentially postponing their effective date.  Unfortunately, the official effective dates for the Persuader Rules, the NLRB Election Rules, and the Fair Pay & Safe Workplaces Rules have passed.  For these and other similar rules, the Trump Administration can reverse or revise them, but must do so through the extensive rulemaking process, which includes a notice and comment period, the need for a reasoned analysis for why the repeal or revision was necessary, and a 60-day waiting period.  The rulemaking process will take time and will likely be subject to judicial challenge by pro-labor entities.  In the meantime, the Obama Administration rules remain “on the books,” subject to judicial review.

Both the Persuader Rules and the Fair Pay & Safe Workplaces Rules are currently being challenged through court litigation and have been preliminary enjoined.  Once Trump takes office, the Department of Justice could decide not to defend these rules and could consent to a settlement and court order reversing the implementation of these rules.

Ultimately, the lengthy list of regulations finalized during the Obama presidency are at risk of being undermined, and it remains to be seen what major labor law changes might result from a Trump presidency.

Despite Injunction of the Blacklisting Rule’s Reporting Requirements, NLRB Will Continue to Request ‘Blacklisting Information’ from Employers

Posted in Executive Orders, Federal Court Litigation, Government Contracting, Government Contracts, NLRB, NLRB Administration

As we noted this summer, on July 1, 2016, the National Labor Relations Board issued Memorandum OM 16-23 specifying that it would begin collecting data for a federal database to comply with the Fair Pay and Safe Workplaces Executive Order despite the fact that the final rule implementing the EO had not been approved. Specifically, the NLRB announced that, beginning July 1, it would request the following information from employers once the Regional Director decided to issue a complaint based on an unfair labor practice charge:

  1. Is the charged party employer a federal contractor now or in the past? If so, its Commercial and Government Entity (“CAGE”) number;
  2. The charged party employer’s Data Universal Numbers System (“DUNS”) number, if it has one;
  3. The charged party employer’s four-character DUNS number suffix (DUNS+4), if it has one; and
  4. The charged party employer’s Employer Identification Number (EIN) or Taxpayer Identification Number (TIN).

On August 24, 2016, the administration published the Federal Acquisition Regulatory (FAR) Council’s final rule implementing the EO with an effective date of October 25, 2016. However, on October 24, 2016, a federal judge in Texas enjoined the reporting requirements of the final rule pending further litigation.

Despite that injunction, on November 7, 2016, the NLRB’s General Counsel issued Memorandum OM 17-03 expressing its intent to continue collecting the four data points from employers:

On October 24, 2016, the United States District Court for the Eastern District of Texas issued an order, preliminarily enjoining implementation of key aspects of EO 13673 (Fair Pay and Safe Workplaces). While the eventual outcome of the underlying suit in that case, Associated Builders and Contractors of Southeast Texas v. Rung, Civil Action No. 1:16-CV-425, is unknown, the Agency is not proceeding with sharing information with other Agencies in the manner contemplated by the Executive Order while the injunction is in effect.

Having developed an infrastructure to collect and enter the CAGE, DUNS,DUNS+4, and EIN/TIN, and since such information is useful for internal Agency purposes, Regions should continue to request that employers, other than the United States Postal Service, complete and return Form NLRB-5554. Regions should also enter responses they receive into the NxGen electronic case-management system. The language attached should be used to solicit employers to complete Form NLRB-5554. If you have any questions regarding the foregoing, please contact your Deputy or AGC.

The memorandum, however, does not specify how the requested information is “useful for internal Agency purposes,” but the supplied transmittal language for Form NLRB-5554 suggests that the usefulness is very limited:

Greetings – The Region has made a determination to issue a complaint in the above-referenced case, absent prompt settlement. You are requested to complete the Form 5554 and submit it to the Agency, preferably through the Agency’s e-filing portal. This information will help the Agency avoid confusing similarly-named entities.

(emphasis added).

Federal District Court Enjoins Reporting and Arbitration Requirements in Administration’s Contractor Blacklisting Rules; Allows Paycheck Transparency Provisions to Stand

Posted in Davis-Bacon, Department of Labor, Executive Orders, Federal Court Litigation, Government Contracting, Government Contracts, NLRA, White House

On the eve of its effective date, a federal judge in Texas has enjoined most parts of the Federal Acquisition Regulatory (FAR) Council’s final rule implementing President Obama’s “Fair Pay and Safe Workplaces” executive order.  The court’s Order in Associated Builders and Contractors of Southeast Texas et al. v. Rung et al., Case No. 1:16-cv-00425 (E.D. Tex. Oct. 24, 2016) blocks the reporting and arbitration agreement provisions, pending further litigation of the case; but, declines to enjoin the “paycheck transparency” provisions of the rule.

As outlined in greater detail here, the rule would require offerors on contracts or subcontracts estimated to exceed $500,000 to disclose “any administrative merits determination, arbitral award or decision, or civil judgment” against the contractor under fourteen enumerated labor and employment statutes and Executive Orders (“labor law violations”), for the three years preceding the contract bid. These disclosures, and any additional information supplied, would be taken into account by contracting officers in making responsibility determinations and awarding contracts.

In issuing the injunction, U.S. District Judge Marcia Crone asserted that Plaintiff’s enjoy a likelihood of success on the merits insofar as the implementation of this regulatory scheme exceeds the authority granted to the President and executive branch agencies. Not only do the named labor laws provide their own respective enforcement procedures and penalties, the Judge noted:

The Order and Rule appear to conflict directly with every one of the labor laws they purport to invoke by permitting disqualification based solely upon ‘administrative merits determinations’ that are nothing more than allegations of fault asserted by agency employees and do not constitute final agency findings of any violation at all.

The Judge found merit too in the Plaintiffs’ arguments that the rule violates a contractor or bidder’s First Amendment rights to be free from “compelled speech,” and their Due Process rights, including under the Fifth Amendment to the U.S. Constitution. The court found infringement of these constitutional rights sufficient to establish irreparable harm, while noting the government will suffer no harm by simply being required to continue to administer the procurement process in the same manner as it has for decades.   Moreover, Judge Crone held that the rule’s prohibition against arbitration agreements likely conflicts with the Congressional enactments contained in the Federal Arbitration Act. Thus, all these provisions are enjoined by the Order.

Without much further detailed explanation, the Order simply indicates that the Plaintiffs failed to establish a substantial likelihood of success on their challenge to the paycheck transparency provisions, on the other hand, and thus, an injunction was denied as to that portion of the final rule.  Accordingly, contractors should prepare for the January 1, 2017 effective date of those provisions barring further address by the court.  These provisions of the final rule require the contractor to provide a wage statement document each pay period to each employee showing:

  • The total number of hours worked in the pay period;
  • The number of those hours that were overtime hours;
  • The rate of pay;
  • The gross pay; and
  • Any additions or deductions, itemized and separately identified.

Moreover, if the contractor is treating an individual performing work as an “independent contractor” as opposed to an employee, the contractor must provide a separate written document to the individual notifying the individual of this classification by the contractor.  The full text of the paycheck transparency provisions is located at Section 52.222-60 of the Federal Acquisition Regulation.

ALJ Strikes Down (Another) Workplace Civility Rule and Ban on Photographs at Las Vegas Casino

Posted in NLRA, Unfair Labor Practices, Workplace Rules

On September 26, 2016, an ALJ struck down several workplace rules at a casino in Las Vegas, including two rules that prohibited “inappropriate conduct” and taking photographs on the casino floor.  The ALJ found that, although the rules did not violate Section 7, a reasonable employee could interpret the rules as prohibiting them from engaging in concerted, protected activity and, therefore, were unlawful under the Act.

This decision marks yet another ruling striking down workplace civility rules. In this latest case, the ALJ found that the casino’s rule encouraging employees to “[d]isplay[] appropriate behavior at work” and prohibiting employees from “engaging in misconduct on or off-duty that (as determined by [the casino]) materially and adversely affects job performance or tends to bring discredit to [the caisno]” was ambiguous and overbroad.

The ALJ found the a reasonable employee could construe the rule as prohibiting discussions about supervisory or management decisions and could ultimately “chill” employees’ Section 7 rights.  The ALJ further found that the rule contained a “patent ambiguity.” The ALJ reasoned that the rule could be “easily interpreted” to prohibit an untold number of activities that might “affect job performance” or “bring discredit to the casino,” including protesting working conditions or talking about terms and conditions of employment.  Although the ALJ recognized that some forms of speech can be prohibited – such as abusive, injurious, or threatening language – the ALJ found that this rule failed to make clear that it was limited to such non-protected speech.

The ALJ also found that the casino’s rule prohibiting employees from taking photographs or making recordings on the casino floor was overbroad and not narrowly tailored.  The rule prohibited employees from actively taking photos and from using personal devices, such as cell phones with cameras, while on duty.  The ALJ found that employees have a right to photograph working conditions in furtherance of concerted activity, including, among other things, to record images of protected picketing, document unsafe workplace equipment or hazardous working conditions, document and publicize discussions about terms and conditions of employment, document inconsistent application of employer rules, or record evidence to preserve it for later use in administrative or judicial forums in employment related actions.

Although such bans on photographs are common at casinos to protect patron privacy, the ALJ found that the rule was not narrowly tailored to protecting patron privacy.  Instead, the ALJ found that the rule was overbroad and would lead a reasonable employee to interpret the rule as prohibiting photographs of working conditions.

NLRB’s Coffin Corner Punt Pins Private Universities’ Sports Programs in Perilous Spot

Posted in NLRA, Social Media, Unfair Labor Practices

In an advice memorandum issued on September 22, 2016, the National Labor Relations Board’s Office of the General Counsel declined to issue a complaint against Northwestern University for certain football team rules despite finding those rules violative of the National Labor Relations Act. Unlike the Board’s decision not to assert jurisdiction over the unionization effort of scholarship football players at Northwestern University last year, the General Counsel’s Division of Advice’s decision does not purport to be based on the potential complexities created by finding student athletes to be statutory employees under the Act. Instead, the Division of Advice asserts that “it would not effectuate the policies and purposes of the NLRA to issue complaint in this case because the Employer, although still maintaining that athletic scholarship football players are not employees under the NLRA, modified the rules to bring them into compliance with the NLRA and sent the scholarship football players a notice of the corrections, which sets forth the rights of employees under the NLRA.”

The rules at issue were a social media policy, a policy limiting disclosure of strategies and player injuries, a dispute resolution procedure, and a rule for communicating with the media set forth in the University’s Football Handbook applicable to members of the team. The Division of Advice, assuming for purposes of its memorandum that scholarship athletes are statutory employees, found that each policy as originally drafted violated the Act. While the Division of Advice found that the university corrected the violations by revising or striking the policies in response to the unfair labor practice charge, the Division of Advice concluded that the university did not adequately repudiate the unlawful rules under the Board’s Passavant standard. Nevertheless, the General Counsel’s Division of Advice advised the regional office to dismiss the unfair labor practice charge.

Given that the General Counsel believed that it had sufficient basis to issue a complaint, what might explain this uncharacteristic decision? First, given that such gracious gestures by the NLRB are few and far between (as evidenced by its aggressive tactics), the reason may be that the NLRB remains hesitant, for the time being, to find that student athletes are statutory employees given that it is an election year. Second, the NLRB may be battling for field position by using this advice memo to set up such a decision in the future, as the advice memo certainly puts private universities on notice that while the NLRB may not be willing to let student athletes unionize–at least not yet–the NLRB is poised to treat student athletes as statutory employees for all other purposes under the Act. Accordingly, while private universities currently do not have to worry about unionization of their scholarship athletes, they should prepare themselves for potential challenges under the NLRA to their rules governing the conduct of student athletes, as well as how the NLRB’s position might impact other aspects of their relationships with student athletes (e.g., wage and hour issues, workers’ compensation, etc.).