Opinion affirming dismissal. Plaintiffs are six full-time instructional staff members at the City University of New York (CUNY) who resigned from the Professional Staff Congress (PSC) of CUNY (their state-mandated exclusive bargaining representative) as they “vehemently disagree” with its political activity related to Israel and Palestine and believe it unfairly prioritizes the interest of part-time instructors over theirs. Plaintiffs brought First Amendment claims against PSC, CUNY, and the City of New York, challenging provisions of a New York state law (1) requiring that a union certified as the exclusive bargaining unit of public employees be the exclusive bargaining representative even for non-union employees and (2) limiting that union’s duty of fair representation to collective bargaining, thus permitting it to decline to represent non-members in individual disciplinary proceedings. The Second Circuit affirmed dismissal of the challenge to the exclusive bargaining provision, finding “the First Amendment does not guarantee public employees the right to engage in collective bargaining with their employer.” The court also upheld the limitation on the union’s duty of fair representation to collective bargaining, reasoning that while Janus v. AFSCME, 585 U.S. 878 (U.S. 2018) rejected mandatory payment of union fees by non-members, it allowed that unions could choose to offset financial burdens by declining to represent non-union employees in collateral proceedings.
Topics:
Collective Bargaining | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech
Opinion and Order granting Plaintiffs’ Motion for Summary Judgment and vacating the NLRB’s 2023 Final Rule, Standard for Determining Joint Employer Status. Plaintiffs, the U.S. Chamber of Commerce and other business organizations, challenged the National Labor Relations Board’s 2023 Final Rule establishing a new standard for determining when two entities may be treated as joint employers under the National Labor Relations Act. Subsections of that Rule enumerate seven “essential terms and conditions of employment” and provide that it is sufficient to establish an entity’s status as a joint employer if it (1) possess “the authority to control one or more essential terms and conditions of employment,” even if that authority is reserved and not exercised, or (2) exercises “the power to control indirectly (including through an intermediary) one or more essential terms and conditions of employment.” The court held that those provisions are inconsistent with the common-law agency principles incorporated in the National Labor Relations Act and, accordingly, exceed the limits of the Board’s regulatory authority. The court then found the Board’s reasoning in its 2023 rulemaking for rescinding the 2020 version of the regulation was arbitrary and capricious and ruled that the 2020 Final Rule will remain in place.
Topics:
Collective Bargaining | Faculty & Staff
Statement from the American Council on Education and five other higher education associations to a joint congressional hearing titled “Safeguarding Student-Athletes from NLRB Misclassification” conducted by subcommittees of the House Health, Employment, Labor, and Pensions and Education and Workforce Development committees on the National Labor Relation Board’s decision to recast collegiate student-athletes as employees. The statement foregrounds that “[t]he vast majority of college and university athletic programs are not revenue generating enterprises for their institutions” and identifies potential consequences of recategorizing student-athletes as employees for both institutions that might need to eliminate fiscally unsustainable teams and aspiring collegiate athletes who might not have the opportunity to participate in intercollegiate athletics.
Topics:
Collective Bargaining | Faculty & Staff | Student Athlete Issues | Students
Decision and Direction of Election from the National Labor Relations Board (NLRB) Region 1 Director re: the Dartmouth College men’s varsity basketball team. Service Employees International Union, Local 560, which represents some College employees, petitioned the NLRB to represent “a bargaining unit comprised of the approximately fifteen students enrolled at Dartmouth who comprise the men’s varsity basketball team.” The Regional Director found that “because Dartmouth has the right to control the work performed by the men’s varsity basketball team, and because the players perform that work in exchange for compensation, the petitioned for basketball players are employees within the meaning of the [National Labor Relations] Act,” and directed that the NLRB will conduct an election on whether they wish to be represented by the petitioner for collective bargaining purposes.
Topics:
Collective Bargaining | Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees | Student Athlete Issues | Students
Guidance Memorandum from the General Counsel (GC) of the National Labor Relations Board (NLRB) on the 2023 Updated Representation Case Procedures. The memo offers guidance on the implementation of the 2023 Final Rule on Representation Case Procedures, which goes into effect on December 26, 2023. The memo describes how the 2023 Rule differs from the 2019 Rule and the ways in which the new rule will “meaningfully reduce the time from petition filing to election and expedite the resolution of any post-election litigation.”
Topics:
Collective Bargaining | Faculty & Staff
Memorandum Opinion granting Defendants’ Motion for Summary Judgment. Plaintiff, a former professor at the University of the District of Columbia, brought a due process claim against University officials after he was terminated for failing to submit a required cumulative evaluation portfolio. Under the collective bargaining agreement, after an appeal to the University President plaintiff was permitted to file a grievance with the Union, though the Union was not obligated to arbitrate the case. Plaintiff, however, did not file a grievance after his appeal was denied. In granting summary judgment in favor of the University defendants on plaintiff’s due process claim, the court found that the procedures outlined in the collective bargaining agreement provided an adequate post-deprivation opportunity to be heard and that plaintiff had not otherwise identified any necessary additional procedural safeguards.
Topics:
Collective Bargaining | Constitutional Issues | Due Process | Faculty & Staff
National Labor Relations Board (NLRB) Final Rule on Standard for Determining Joint Employer Status. Under the new standard, an entity may be considered a joint employer if each entity has an employment relationship with the employee and if the entities share or codetermine one or more of the employee’s essential terms and conditions of employment, defined as “(1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to safety and health of employees.” The NLRB also released a Fact Sheet on the Final Rule. Update: On November 22, 2023, the NLRB published a Notice in the Federal Register delaying the effective date of the regulation to February 26, 2024 “to facilitate resolution of legal challenges with respect to the rule.”
Topics:
Collective Bargaining | Faculty & Staff
Memorandum of Understanding (MOU) between the National Labor Relations Board (NLRB) and the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to facilitate interagency cooperation and coordination. The MOU establishes “a process for information sharing and referrals, training, and outreach between the agencies” aimed at enhancing enforcement of the National Labor Relations Act and the Occupational Safety and Health Act. The agencies also co-released a resource on Building Safe & Healthy Workplaces that Promote Worker Voice to provide guidance to employers and employees on establishing collaborative safety and health programs in the workplace.
Topics:
Collective Bargaining | Compliance & Risk Management | Faculty & Staff
Memorandum from the General Counsel (GC) of the National Labor Relations Board (NLRB) re: Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC. In the memo, the NLRB General Counsel reviews the framework adopted by the Board in its recent Cemex decision for resolving questions concerning employee representation and offers guidance on the process by which the Board will review charges of unfair labor practices while a representation question is pending to determine whether to issue a remedial bargaining order. The memo also notes situations in which an employer may forfeit or waive its option to seek a Board-conducted election that are not addressed by the Cemex decision.
Topics:
Collective Bargaining | Faculty & Staff
National Labor Relations Board (NLRB) Final Rule on the Standard for Determining Joint Employer Status. Under the new standard, an entity may be considered a joint employer if each entity has an employment relationship with the employee and if the entities share or codetermine one or more of the employee’s essential terms and conditions of employment, defined as “(1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to safety and health of employees.” The NLRB also released a Fact Sheet on the Final Rule. The Final Rule becomes effective on December 26, 2023.
Topics:
Collective Bargaining | Faculty & Staff
