Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, February 1, 2017

NLRB General Counsel Issues Memo Concerning Students and Religious Universities

On January 31, 2017, the  NLRB General Counsel issued the attached Memo Download GC 17_01 Report on the Statutory Rights of University on the statutory rights of university employees and students.

As readers may be aware, the Board  recently issued several significant cases related to university employees and students in representation cases. The Memo essentially states that the General Counsel will continue to determine whether discriminatees are employees protected by the Act.  The Memo also states that the GC will  consider whether scholarship football players at private universities employees under the Act (a question left open by Northwestern).  

Of course, this Memo was issued at an unusual time as it is very likely that the law may change after Trump makes his appointments to the NLRB.

Mitchell H. Rubinstein

February 1, 2017 in NLRB | Permalink | Comments (0)

Thursday, January 26, 2017

President Trump Appoints Philip A. Miscimarra NLRB Acting Chairman

The NLRB just released a Press Release which states in part:

President Donald J. Trump has named Board Member Philip A. Miscimarra Acting Chairman of the National Labor Relations Board. 

“It is an honor to be named NLRB Acting Chairman by the President,” Miscimarra said. “I remain committed to the task that Congress has assigned to the Board, which is to foster stability and to apply the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country.”

Miscimarra also recognized former Chairman Mark Gaston Pearce for his service on the Board. Pearce will continue as a Board Member in a term expiring on August 27, 2018 and has served as a Board Member since 2010 including Chairman since 2011. The Board also currently includes Board Member Lauren McFerran, whose term expires on December 16, 2019. Two Board Member seats are currently vacant

Chairperson Miscrimarra is of course, a Republican.

Mitchell H. Rubinstein


January 26, 2017 in NLRB | Permalink | Comments (0)

Saturday, December 10, 2016

Columbia University Grad Students Form Union

No surprises here. After the NLRB ruled that graduate students were employees, Columbia University students voted by a margin of more than 2-1  in favor of unionization. here

Of course, within 2 or 3 years it is very likely that the "Trump Board" will reverse Columbia University and return to the holding in Brown University (that students are not employees). 

Welcome to politics as usual at the Labor Board. My students are all very familar with political influence in  NLRB cases. This is just another illustration of why elections matter.

Mitchell H. Rubinstein

December 10, 2016 in News, NLRB, Unions | Permalink | Comments (0)

Monday, December 5, 2016

2d Circuit Holds That Employees Have Right To Union Representative Before Consenting To Drug Test

Although unreported, Manhatten Beer v. NLRB, ____F.3d____(2d Cir. Nov. 16, 2016), may turn out to be a significant decision concerning Weingarten rights. With very little analysis, the court stated:

Here, the Board reasonably construed the NLRA, in light of relevant judicial and administrative precedent, in determining that Diaz had the right to the physical presence of a union representative before consenting to take a drug test in the context of an investigation that he reasonably believed would result in discipline. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 260, 262 (1975). Therefore, we uphold the Board’s conclusion that Manhattan Beer violated Section 8(a)(1) of the NLRA. In addition, we uphold the Board’s award of the make-whole remedy of reinstatement and backpay. Such relief is available when there is “a sufficient nexus between the unfair labor practice committed (denial of representation at an investigatory interview) and the reason for the discharge.” Taracorp Indus., 273 N.L.R.B. 221, 223 (1984); see also 29 U.S.C. § 160(c). Here, the Board reasonably determined that Manhattan Beer’s discharge of Diaz resulted from Diaz’s assertion of his Weingarten rights. See Ralphs Grocery Co., 361 NLRB No. 9 (2014); Int’l Ladies’ Garment Workers’ Union v. Quality Mfg. Co., 420 U.S. 276, 280 (1975). In particular, Manhattan Beer’s documentation supporting Diaz’s termination stated that Diaz was terminated because he “[r]efused to go for drug testing under the reasonable suspicion of substance abuse.” J.A. 264. Consequently, we uphold the Board’s conclusion that Diaz was entitled to reinstatement and backpay.

Mitchell H. Rubinstein


December 5, 2016 in Labor Law, NLRB | Permalink | Comments (0)

Tuesday, October 25, 2016

Breaking News! Court Enjoins Obama Executive Order Requiring Disclosure of Labor Law Violations

On July 31, 2014, President Obama issued Executive Order 13673 which requires federal contractors to disclose labor law and employment discrimination violations. This Executive Order also precludes certain contractors from entering into predispute arbitration agreements concerning employment discrimination claims. The Office of Federal Procurement and the Department of Labor in turn issued regulations which were enjoined in Associated Builders and Contractors v. Rung, ___F.Supp. 2d___, 1:16-CV-425 (E.D. Tx. Oct. 24, 2016),  Download ABC PI 10-14-16 This disclosure could result in the contractors being debarred from federal contracts. 

In a lengthly decision, the court preliminary enjoined these regulations as compelled speech in violation of the First Amendment and because they conflicted with Congressional statutory mandates which specified how labor law violations needed to be addressed. The court reasoned in part:

                                Finally, even if federal agencies could properly disqualify government contractors based
                                upon final administrative decisions, arbitration awards, and court orders enforcing one of the
                                fourteen labor laws at issue, the Executive Order and FAR Rule should not be allowed to go into
                                effect because they extend their reach far beyond those limited circumstances. 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. As noted above in the Findings of Fact, agency employees who are
                                assigned to administer these labor laws issue thousands of complaints, cause findings, wage
                                notices, and citations each year, many of which are dismissed or significantly reduced after they
                                are contested, often after lengthy proceedings. There is no statutory basis to treat these
                                “administrative merits determinations” as final and binding while they are still being contested or
                                when they are settled without admission of fault. Thus, it appears to be a denial of fundamental
                                statutory and constitutional rights for the Executive Order and FAR Rule to so act.

Labor laws in this country have been widely criticized for being ineffective. This is an important case because it concerns whether it could regulate who it contracts with. This decision will surely be appealed. Law review commentary on this important topic would be most welcome.

Mitchell H. Rubinstein

October 25, 2016 in Discrimination Law, Labor Law, Law Review Ideas, Legislation, Litigation, NLRB | Permalink | Comments (0)

Tuesday, October 18, 2016

TV Producers Are Employees

I bring Peacock Productions, 364 NLRB No. 104 (Aug. 26, 2016), to your attention because the NLRB did a nice job of summarizing the applicable supervisory test. The Board held that the employer did not meet its burden of  establishing that certain NBC producers were exempt from the NLRA as supervisors, reasoning:

Section 2(11) defines a supervisor as any individual having the authority, in the interest of the employer, to (among other functions) hire, assign, or responsibly direct employees, so long as the individual exercises independent judgment in doing so. The burden of establishing supervisory status lies with the party asserting it. NLRB v. Kentucky River Community Care, 532 U.S. 706, 711–712 (2001). Conclusory evidence, in the absence of specific examples of the exercise of supervisory authority, does not satisfy that burden. See, e.g., Lynwood Manor, 350 NLRB 489, 490–491 (2007); Golden Crest Healthcare Center, 348 NLRB 727, 731 (2006). The party asserting supervisory status must show that the individuals in question have the authority to engage in at least one of the supervisory functions set forth in Section 2(11), that their exercise of that authority is not simply routine or clerical but requires the use of independent judgment, and that their authority is exercised in the interest of the employer. Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006).6 Supervisory status is not proven where the record evidence “is in conflict or otherwise inconclusive.” Republican Co., 361 NLRB No. 15, slip op. at 5 (2014) (citing Phelps Community Medical Center, 295 NLRB 486, 490 (1989)).

Mitchell H. Rubinstein

October 18, 2016 in NLRB | Permalink | Comments (0)

Tuesday, October 11, 2016

NLRB Finds That Security Instructors Are Not Managerial Employees

I bring Wolf Creek Nuclear Operating Corp., 364 NLRB No. 111 (Aug. 26, 2016), to your attention because the Board does a nice job in summarizing the criteria for an individual to be excluded from the protection of the Act because he or she is a managerial employee. As the Board explained:

          “Managerial employees are defined as those who formulate and effectuate high-level employer policies or ‘who have discretion in the performance of their jobs independent of their employer's established policy.’” The Republican Co., 361 NLRB No. 15, slip op. at 3 (2014) (quoting General Dynamics Corp., 213 NLRB 851, 857 (1974)); see generally NLRB v. Yeshiva University, 444 U.S. 672, 682 (1980). “Although the Board has no firm criteria for determining managerial status, an employee will not ordinarily be excluded as managerial unless he represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy.” The Republican Co., supra, slip op. at 3–4. The party asserting managerial status bears the burden of proof. See id., slip op. at 4. The fact that employees train or instruct other employees does not, in itself, make them managerial employees. To the contrary, the Board has found that employees who train or instruct other employees are not managerial employees if they do not exercise sufficient independent discretion or judgment in carrying out those duties.

Mitchell H. Rubinstein

October 11, 2016 in NLRB | Permalink | Comments (0)

Thursday, February 4, 2016

Kentucky Right To Work Municipal Ordinance Preempted By NLRA

UAW v. Hardin County, ___F. Supp. 2d ___(W.D. Kentucky, Feb. 3, 2016), is an important case.  Download Hardin County Order

A federal court held that a municipal ordinance which mandated right to work and limited union hiring halls and due-checkoff provisions was preempted by the NLRA. The NLRA, of course and most notably in Section 14(b), permits STATES to enact Right to Work laws. 

The decision, which spans 14 pages, is well written and provides a nice summary of the NLRA and existing precedent in this area. As the court explains:

Section 14(b) provides that nothing in the NLRA shall be read to authorize the execution or application of union-security agreements “in any State or Territory in which such execution or application is prohibited by State or Territorial law.” 29 U.S.C. § 164(b). As the plaintiffs observe, it makes little sense to read “State or Territorial law” as encompassing local law in light of the statute’s previous reference to “any State or Territory”—if “State or Territorial law” includes the laws of political subdivisions, then the statute must be read “in any State or Territory [or political subdivision thereof]” to avoid assigning two different meanings to “State” in the same sentence. This is not a logical reading; “[a] standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning.”

Law review commentary would be most welcome. 

Mitchell H. Rubinstein




February 4, 2016 in Labor Law, Law Review Ideas, NLRB, Recent Developments, State Law, Unions | Permalink | Comments (0)

Wednesday, August 19, 2015

NLRB Declines To Assert Jurisdiction Over Northwestern Football Players


In a widely watched decision, the NLRB ruled on August 17, 2015 that it would not assert jurisdiction in an election petition filed by Northwestern student football players. Northwestern University, 362 NLRB No. 167 (Aug. 17, 2015).

The NLRB Regional Director found, in a March 26, 2014 decision, that grant-in-aid scholarship players were employees under Section 2(3) of the National Labor Relations Act (NLRA), and directed the holding on an election, which took place on April 25, 2014.

In this week's decision, the NLRB Board concluded that even if the at-issue scholarship players were employees under the NLRA, it would not effectuate the policies of that law to assert jurisdiction in what the NLRB described as a novel and unique case involving college football players:

                        In declining jurisdiction, the NLRB Board noted that it has never heard a prior case                         involving college athletes or a representation petition seeking a unit of a single college                         team or a group of college teams.  In addition, the NCAA's uniform rules, regulations                         and standards regarding collegiate sports results in "a substantial degree of [NCAA]                         control over the operations of individual member teams, including many of the terms                         and conditions under which the scholarship players (as well as walk-on players) practice                         and play the game."  

In its August 17, 2015 decision, however, the NLRB Board distinguished the college football players from graduate student assistants in Brown University and New York University, 332 NLRB 1205 (2000) because the at-issue players are undergraduates who receive sports scholarships and their extracurricular football activities are generally unrelated to their studies.  Lastly, it expressly chose not to determine whether the at-issue players were employees under the NLRA.

The decision is significant for a number of reasons. First, it is extremely rare for the NLRB to decline jurisdiction on the basis of public policy. Indeed in a footnote the Board only cited to one other decision where it declined jurisdiction. Second, this case was 5-0. I do not recall any recent 5-0 decisions over controversial issues and this issue is certainly controversial and generated a lot of media attention. Query, whether this decision would have any impact over whether graduate students (aka Brown University) or medical interns ( aka Boston Medical) are students under the NLRA.

Law review commentary on this important topic is certainly welcome.

Mitchell H. Rubinstein

August 19, 2015 in NLRB | Permalink | Comments (0)

Thursday, July 2, 2015

Captains Are Not Supervisors

The Board recently held in Cook Inlet Tug & Barge, Inc., 362 NLRB No. 111 (2015),  that captains of tugboats are not supervisors.  Despite arguments by the company that the captains are supervisors because they exercise assignment authority on the boat, the Board found that any instructions given by the captains were not the result of “independent judgment” and therefore could not be an “assignment in the statutory sense.”  Instead, the alleged assignments by the captains were “ad hoc instructions,” such as closing a hatch, that naturally arise out of having one deckhand accompany a captain on a boat.

As you could expect, Member Miscimarra dissented, asserting that the captains were “ultimately accountable for everything that happens on [the boats].”

 This case may have implications in other industries.

Mitchell H. Rubinstein



July 2, 2015 in NLRB | Permalink | Comments (1)

Thursday, March 12, 2015

Graduate Assistant Strike at NYU

Graduate Assistants at NYU have been on strike for awhile. An article discussing the strike and NYU's recent threats from Inside Education can be found here

As readers to this blog as well as my former students all know, in Brown University, the NLRB held that Graduate Assistants were not employees; rather they were primarily students and therefore not protected under the NLRA.

This issue is again pending before the NLRB and I would not be surprised if the Obama Board reverses the Bush Board's Brown decision. But, we will have to wait and see.

Mitchell H. Rubinstein


March 12, 2015 in Labor Law, News, NLRB | Permalink | Comments (0)

Sunday, June 22, 2014

House to Hold Hearings on NLRB


On Tuesday, June 24, 2014 beginning at 10:00 a.m., House Republicans will hold their latest oversight hearing on the National Labor Relations Board.  Titled “What Should Workers and Employers Expect Next from the National Labor Relations Board,” the hearing will feature three witnesses chosen by Republicans and one chosen by Democrats.  AFL-CIO Associate General Counsel Jim Coppess will be the Democrats’ witness.  For more information and to watch a webcast of the hearing go to:

June 22, 2014 in NLRB | Permalink | Comments (0)

Thursday, March 27, 2014

College Football Players Can Unionize!

An NLRB Regional Director ("RD")in Illinois just directed an election in a unit involving college football players.  Download Northwestern University RD Decision

The Regional Director held that football players who were given scholarships were employees and not students. The RD applied the common law right to control test.

Of significance is that the RD distinguished Brown University which held that graduate students were not employees. Rather, they were students. According to the RD, graduate assistant responsibilities were inextricabley related to there graduate studies. Additionally, unlike Brown, the RD concluded that the football players were not primarily students, the scholarship was not a core element of their degree, the academic faculty did not supervise the football players and the scholarship was not a form of financial aid.

Those of you who know me, know that I believe that Brown University was wrongly decided and that the Board erred in Brown by not applying the common law right to control test. However, Brown remains the law until it is over-ruled by the Obama Board (which I expect to happen), and I find the RD decision poorly reasoned and disingenous. The basis which the RD used to distinguish Brown make no sense.

The football players are enrolled in the college and they are getting a degree. No doubt they generate income for the college, but so do graduate assistants. The fact that they are not supervised by the academic faculty and that playing football is not financial aid is totally irrelevant. The football players all must be enrolled in the college and I believe the NCAAA even sets academic standards that they must meet.

I doubt however, that this case will be reversed on appeal. As I said, Brown was wrongly decided and this decision may give the Board the opportunity to over-rule it for once and for all.

Mitchell H. Rubinstein 


March 27, 2014 in NLRB | Permalink | Comments (1)

Monday, February 10, 2014

NLRB soliciting Briefs re: Olin/Spielberg Post-Arbitral Deferral

The NLRB is soliciting briefs regarding its Olin Corp./Spielberg post-arbitral deferral standard. You can view the announcement here:

February 10, 2014 in NLRB | Permalink | Comments (0)

Thursday, February 6, 2014

Breaking News. Important District Court Decision Concerning Graduate Students

A United States District Court recently held ruled that legislation seeking to
prohibit Graduate Student Research Assistants from forming labor
organizations was invalid because it was adopted in violation of the
Michigan Constitution . The decision will open the door for GSRA in the
State of Michigan to decide if they wish to be represented by a union.

A copy of the decision can be downloaded by clicking  Download Decision

It will be interesting to see what effect this decision may have on the pending NLRB decision concerning the statutus of graduate students under the NLRA.

Mitchell  Rubinstein

February 6, 2014 in Law Review Ideas, NLRB, Public Sector Labor Law | Permalink | Comments (0)

Wednesday, January 8, 2014

NLRB Recently Reaffirms DFR Standards


Local 471, 359 NLRB No. 166 (2013) is being brought to your attention not because it breaks any new ground, but because it is a recent decision which summarizes applicable case law. As the Board stated:

The Board has held that a union’s breach of its duty of
fair representation violates Section 8(b)(1)(A). Miranda
Fuel Co., 140 NLRB 181, 184–185 (1962), enf. denied
326 F.2d 172 (2d Cir. 1963). A breach occurs when a
union’s conduct toward a bargaining unit member is “arbitrary,
discriminatory, or in bad faith.” Vaca v. Sipes,
386 U.S. 171, 190 (1967). In collective bargaining, a
union’s actions are arbitrary “only if, in light of the factual
and legal landscape at the time of the union’s actions,
the union’s behavior is so far outside a ‘wide range
of reasonableness’ as to be irrational.” Air Line Pilots
Assn. v. O’Neill, 499 U.S. 65, 67 (1991) (quoting Ford
Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)).
The broad deference granted to a union’s actions in
negotiations comes from an understanding that, as the
exclusive representative of bargaining unit employees
under Section 9(a) of the Act, a union is frequently required
to balance competing interests of the employees it
represents. Ford Motor Co. v. Huffman, supra, 345 U.S.
at 337–339. The negotiation of seniority provisions often
gives rise to claims that the union failed in its responsibility
toward some segment of its constituents. . . .

Mitchell H. Rubinstein

January 8, 2014 in NLRB | Permalink | Comments (1)

Wednesday, October 9, 2013

NLRB Shutdown


I get it that the government is shutdown and the NLRB is a non-essential agency. But, why is the NLRB web site just about shut down.

I do not understand why the NLRB did not simply leave their web site up. This would allow researches, professors and lawyers to continue to research issue and download important documents. Come on!! Who made this decision!!

Mitchell H. Rubinstein

October 9, 2013 in NLRB | Permalink | Comments (1)

Sunday, August 4, 2013

Justice Department, NLRB Enter Agreement on Collaboration in Some Employment Cases

The Justice Department announced July 8 that the Office of Special Counsel for Immigration-Related Unfair Employment Practices has entered into a memorandum of understanding with the National Labor Relations Board that will allow the agencies to share information, coordinate investigations, and refer matters to one another.

August 4, 2013 in NLRB | Permalink | Comments (2)

Monday, July 29, 2013

NLRB Re-affirms Pre-arbitration Deferral Standards

Sheet Metal Workers, 359 NLRB No. 121 (May 13, 2013), is an important case because the NLRB reaffirms Collyer pre-abitration deferral standards. The case involved an alleged refusal to bargain by the Union in violation of Section 8(b)(3). As the Board explained:

Under established precedent, which
the judge’s decision does not address, the Board finds
deferral appropriate when the following conditions are
met: the parties’ dispute arises within the confines of a
long and productive collective-bargaining relationship;
there is no claim of animosity to employees’ exercise of
Section 7 rights; the parties’ agreement provides for arbitration
in a broad range of disputes; the parties’ arbitration
clause clearly encompasses the dispute at issue; the
party seeking deferral has asserted its willingness to utilize
arbitration to resolve the dispute; and the dispute is
well suited to resolution by arbitration. United Technologies,
268 NLRB 557, 558 (1984); accord: Collyer
Insulated Wire, 192 NLRB 837, 842 (1971).
We find that the criteria outlined in Collyer Insulated
Wire and United Technologies are satisfied in this case.
The Respondent and Charging Party have been parties to
a long and productive collective-bargaining relationship
dating back to at least 1984. Neither party alleges that
the other has exhibited animosity to employees’ exercise
of Section 7 rights. The grievance-arbitration procedure
in the 2009 agreement provides for the resolution of contract
interpretation disputes, which can be initiated by
either party. The Respondent has expressed its willingness
to arbitrate the dispute. Finally, resolution of the
substantive question in this case—whether the 2009
agreement was automatically extended for 1 year by its
terms because no party provided sufficient and timely
written notice of an intent to modify or terminate the
agreement—is a question of contract interpretation that is
well suited for resolution through arbitration. See Tri-
Pak Machinery, Inc., 325 NLRB 671, 673 (1998) (disputes
concerning the renewal or termination of an
agreement are appropriate for arbitration).
We find no merit in any of the judge’s reasons for declining
to defer. First, we disagree with the judge’s finding
that the Respondent’s conduct amounts to a rejection
of collective-bargaining principles. To the contrary, the
Respondent is taking the position that the parties’ collectively
bargained 2009 agreement remained in effect.
Second, the Respondent’s request for deferral, 5 days
before the hearing commenced, was not untimely. Deferral
to arbitration is an affirmative defense that may be
raised in the answer or even at the hearing. See, e.g.,
Hospitality Care Center, 314 NLRB 893, 894 (1994).
Although we share the judge’s concern about potential
delay, it does not outweigh our findings that the Respondent
timely raised a deferral defense and the long established
criteria set forth in Collyer and its progeny are
satisfied here. Finally, the judge erred in deciding the
case on the merits before determining whether deferral
was appropriate—and, a fortiori, in basing his refusal to
defer in part on his decision on the merits. The Board
has long held that while a deferral defense and the merits
may be addressed in the same hearing and the same decision,
“[w]hether deferral is appropriate is a threshold
question which must be decided in the negative before
the merits of the unfair labor practice allegations can be
considered.” L.E. Myers Co., 270 NLRB 1010, 1010 fn.
2 (1984).

Mitchell H. Rubinstein

July 29, 2013 in NLRB | Permalink | Comments (0)

Thursday, July 25, 2013

Fourth Circuit Nixes NLRB Notice Rule, Finding It Not Authorized by Law

Ok, this is old news, but we have not reported on it before. The Fourth Circuit becomes the second appellate court to strike down the National Labor Relations Board's August 2011 regulation requiring businesses to post notices of worker rights, findingthat the National Labor Relations Act never authorized or empowered the federal agency to promulgate such a notice-posting requirement (Chamber of Commerce v. NLRB, 4th Cir., No. 12-1757, 6/14/13).

July 25, 2013 in NLRB | Permalink | Comments (0)