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Dec 2017
28
December 28, 2017

Memo's Withdrawal Suggests Fewer Faculty Members and Students Protected by NLRA

Universities may be breathing easier after the National Labor Relations Board’s (Board) General Counsel, Peter Robb, rescinded his predecessor’s “Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context” earlier this month.  

The withdrawn report reviewed two Board decisions that had expanded the set of university faculty members and students protected by the National Labor Relations Act (NLRA) for purposes of union representation. The first Board decision discussed, Pacific Lutheran University, increased the number of faculty at religious universities, as well as the number of non-managerial faculty, protected by the NLRA. The second, Columbia University, extended the NLRA’s protections to student research and teaching assistants; the report extrapolated that medical interns, residents and fellows, as well as students performing non-academic work for their universities, are likewise covered. The report specified an intention to apply the more expansive approaches espoused in Pacific Lutheran and Columbia with respect to individuals alleging unfair labor practices.  

The withdrawn report also reviewed Northwestern University, where the Board had declined to exercise jurisdiction over a petition filed by a union seeking to represent the school’s scholarship football players without addressing whether such players are employees protected by the NLRA. The withdrawn report took the position that Division I scholarship football players at private schools are employees under the NLRA, and therefore have a protected right to engage in concerted activities.      

Mr. Robb’s withdrawal of the “Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context” marks a retreat from his predecessor’s more expansive views on the number of faculty members and students protected by the NLRA. In the same memorandum rescinding this report, Mr. Robb also provided guidance on the types of cases that NLRB regional offices must submit to the Division of Advice prior to issuing complaints. Those cases include “cases over the last eight years that overruled precedent and involved one or more dissents.” The General Counsel’s move preceded a recent string of employer-friendly Board decisions regarding handbooks, unilateral actions taken after contract expiration, and joint employment.

If your organization will be directly affected by this guidance or if you have questions regarding the NLRB’s change in direction, please contact your Warner Norcross + Judd attorney or Allyson Terpsma, Pam Enslen or Karen VanderWerff.

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