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As many of you may have heard and as we discussed in our August E-Update, last week in The Trustemortar-board-2-1551255es of Columbia University in the City of New York, the National Labor Relations Board reversed a twelve-year precedent in holding that student teaching and research assistants at private universities are statutory employees under the National Labor Relations Act and can therefore unionize.

There has been a flurry of employee-friendly decisions issued by the Labor Board in recent weeks to coincide with – not surprisingly – the conclusion of Member Hirozawa’s three-year term on August 27, 2016. This case, however, irks me more than most.  The Majority stated that preventing graduate assistants the right to unionize “deprived an entire category of workers of the protections of the [NLRA] without a convincing jurisdiction” because, according to the Majority, “even when such an economic component may seem comparatively slight, relative to other aspects of the relationship between worker and employer, the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship for purposes of the Act.” And yet, in 2004, the Labor Board reached a contrary conclusion – that graduate assistants are not statutory employees who have the right to unionize, because the Labor Board acknowledged that graduate assistants have a primarily academic, not economic, relationship with their universities.  So what’s changed? That is a rhetorical question.  Obviously, nothing has changed, but the make-up of the Labor Board and its current desire to expand the reach of the Act.
Continue Reading The NLRB Changes Its Mind Again

In a perplexing – if not shocking – decision, the National Labor Relations Board determined that there is substantial difference between an employee having the opportunity to vote in a mail ballot election, and his or her vote in fact being counted.

In Premier Utility Services, LLC, the employer, a utility company with 101 employees living and working in New York City’s five boroughs, participated in a mail ballot election from October 20 to November 4, 2015 to determine whether Communications Workers of America, Local 1101 would represent the petitioned-for employees.  However, as of November 4, 2015, the NLRB Regional Office had received only four (!) ballots.  As a result, the parties postponed the tally of ballots until November 12, 2015, a somewhat usual departure from the NLRB’s usual election procedures.  By November 12, 2015, the NLRB only received 34 ballots out of the possible 101.  Nevertheless, the Region counted the ballots and the Union received a majority of the votes counted, 20-14.Mail

Following the count, the NLRB Regional office received an additional 55 ballots, including 48 ballots that were postmarked before November 4, the end of the original voting period.  The Regional Director, however, refused to count the 48 ballots that were postmarked before November 4 because they were received after November 12.  As a result, the union was certified as the bargaining representative based on only 34 votes out of 101 eligible voters, even though a large number of additional ballots had been timely mailed!!!Continue Reading NLRB Refuses to Count Timely-Mailed Ballots