Post ─ Northwestern University: What’s Next? Union Elections 101 1A Faculty Athletics Representatives Sunday, September 21, 2014

Art Carter Shareholder Littler Mendelson P.C. Dallas Office Presented by:

Agenda Northwestern Decision: How Did We Get Here? NLRA Basics How Unions Organize & Become Bargaining Reps Procedural Status & Possible Outcomes

Northwestern University Decision: Why Are We Here? How did we get here?

NW Decision: How Did We Get Here? Timeline 1/28/14 – Petition Filed 2/12/14 - 2/25/14 – Hearing 3/17/14 – Post-Hearing Briefs Submitted 3/26/14 – Decision & Direction of Election 4/24/14 – Request for Review Granted (Order to Vote & Impound) 4/25/14 – Election 5/12/14 – Amicus Briefing Permitted 7/31/14 – Briefing Due Date for Request for Review Decision pending

NW Decision – How Did We Get Here? Regional Director found that football players receiving grant- in-aid scholarships from Northwestern University (“employer”) are “employees” under Section 2(3) of the Act. Employee is defined broadly in the Act. US Supreme Court says to consider common law definition Common law definition: “a person who performs services for another under a contract of hire, subject to other’s control or right of control, and in return for payment.” Brown University, 342 NLRB 483 (2004).

NW Decision – How Did We Get Here? Other groups previously reviewed by Board: –Graduate research assistants –Graduate students Regional Director ruled FB players receiving scholarships (but not walk-ons) were employees because they meet statutory and common law definition of employees. –Scholarships = Compensation –FB players = Subject to employer’s (university’s) control –FB players = Performed duties as FB players –Tender process and obligations under scholarships were the functional equivalent of contract for hire.

NLRA Basics: National Labor Relations Board Two basic functions: –Determine and implement through secret ballot election choice by employees to be represented –To prevent and remedy unfair labor practices (ULPs)

NLRA Basics: NLRB’s Organization Structure NLRB divided into 2 branches –Board –Office of General Counsel Board –5 members –Reviews cases decided by ALJs –Reviews some ULP and representation cases via direct reviews –This is where NW case is right now Office of General Counsel –Various Divisions –Field Offices/Regional Offices (26) –NW Case from Region 13 located in Chicago, IL

NLRA Basics: The National Labor Relations Act – The Law The Law’s Basic Purpose: To protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of bargaining. Section 9 specifies how unions become the representative of the employees and the rules on unionization Protects rights of employees to engage in or refrain from union activity Encourages collective bargaining

NLRA Basics: The National Labor Relations Act – The Law Administered by NLRB Generally, two types of cases –ULP –Representation Judicial review of NLRB decisions goes to US Courts of Appeal Representation cases are reviewed differently from ULP, which will be explained later

NLRA Basics: Representation Cases 101 Majority Rule –An exclusive bargaining representative must have the support of a majority of the employees in the appropriate unit –Board determines an appropriate unit –Resolves such issues as scope and composition (inclusion or exclusion) –The issue in the NW case was composition (whether scholarship FB players were employees) Outcome determined by the number of employees voting in the election Once selected, union represents all employees in bargaining unit

The Representation Process – Overview Petition filed with NLRB Regional Office Investigation and regional determination Organizing & solicitation of cards Parties can agree to all unit issues and time and place of election.

The Representation Process – Overview Formal Hearing (if necessary) Regional Director Decision Denial of Petition Decision & Direction of Election Request for ReviewVote Request for Review Denied Granted 1.Vote & impound 2.Election stayed 3.Election proceeds Election Proceeds

Election Conducted by Regional Director Pending Request for Review (previous slide) If majority (50% + 1 votes) are in favor of union, certification issued Regional Director investigates objections/challenges Hearings to resolve factual issues 1.Board/Regional Director considers reports, 2.May issue supplemental decision (subject to request for review process), or 3.Certifies representation/results If objections or determinative challenges Ballot box opened & votes tallied; potential challenges may be determinative Employer duty to bargain Employer may obtain judicial review by refusal to bargain Defend ULP on grounds that union improperly certified The Representation Process – Overview

Procedural Status & Possible Outcomes Request for Review – Decision Pending If RD decision upheld, votes will be counted. –If majority, CAPA will be certified as representative. Duty to bargain NW can obtain judicial review by refusal to bargain. –If no majority, and no objections or challenges, results will be certified. NW will not have a duty to bargain. If RD decision reversed, case at end. –No method of further review.

Questions?

Post ─ Northwestern University: What’s Next? Union Elections 101 September 2014 Art Carter Shareholder Littler Mendelson P.C. Dallas Office