Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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)

Thursday, July 11, 2013

It is Objectionable To State That An Employee Would Be Toast If He Votes In Election

Bellagio, LLC, 359 NLRB No. 128 (May 31, 2013), is an interesting case. The Board, reversing the hearing officer, holds that a Union engaged in objectionable conduct when an agent stated that a unit employee "better not vote" and if the "vote went through" he would be "toast."

The issue in the case was not so much whether the above conduct is objectionable. Rather, the importance of the case is in its discussion of apparent authority. As the Board explained:

The Board applies common law principles when considering
whether an individual is an agent of the union.
“Apparent authority results from a manifestation by the
principal to a third party that creates a reasonable basis
for the latter to believe that the principal has authorized
the alleged agent to perform the acts in question.” Great
American Products, 312 NLRB 962, 963 (1993).
“[E]ither the principal must intend to cause the third person
to believe that the agent is authorized to act for him,
or the principal should realize that this conduct is likely
to create such belief.” Service Employees Local 87 (West
Bay Maintenance), 291 NLRB 82, 83 (1988) (citation
omitted). In evaluating whether an individual is vested
with apparent authority to act as the principal’s representative,
the Board also considers “whether the statements
or actions of an alleged . . . agent [are] consistent with
statements or actions of the [principal].” Pan-Oston Co.,
336 NLRB 305, 306 (2001). As stated in Section 2(13)
of the Act, when making the agency determination, “the
question of whether the specific acts performed were
actually authorized or subsequently ratified shall not be

Mitchell H. Rubinstein


July 11, 2013 in NLRB | Permalink | Comments (0)

Thursday, May 23, 2013

DC Circuit Reverses Board In Campaign Threat Case

The DC Circuit holds that the NLRB lacked substantial evidence to support its conclusion that a hospital executive's comments during a union organizing campaign conveyed a threat to employees. Flagstaff Med. Ctr. Inc. v. NLRB, ___F.3d____(D.C. Cir. April 26, 2013). 

A divided Board  found that the employer's President illegally threatened employees when he told them in a campaign meeting that he would not negotiate if the union was certified. But the court found that while the President told employees he would not personally participate in negotiations, he never ruled out the possibility negotiations would occur.

The court also rejected NLRB's conclusion that the hospital fired a union supporter because of his union activity. Rather, the court concluded that there was ample proof the employee was fired for attendance problems.

Mitchell H. Rubinstein

May 23, 2013 in NLRB | Permalink | Comments (0)

Monday, May 20, 2013

Former Chairman Liebman Supports Senate Action on NLRB Nominees

Former NLRB Chairman Liebman recently wrote an opt ed piece calling for the Senate to take action on the 5 nominees to the NLRB. That article can be found here. Chairman Liebman states in part:

Mitchell H. Rubinstein

May 20, 2013 in NLRB | Permalink | Comments (0)

Thursday, May 16, 2013

Breaking News. 3rd Circuit Follows DC Circuit By Invalidating NLRB Craig Becker Appointment

In a 102 page opinion released a majority of the 3d Cir. (Smith and Van Antwerpen) agreed with the D.C. Cir. that recess appointments can only be made during a recess between congressional sessions.  Judge Greenaway wrote a 55 page dissent.  The majority held that Craig Becker's appointment on March 27, 2010, was invalid.  The case is NLRB v. New Vista Nursing and Rehabilitation, Nos. 11-3440, 12-1027, and 12-1936.

Law Review commentary on this important topic, which will likely go to the Supremes, would be most welcome.

Mitchell H. Rubinstein

May 16, 2013 in Law Review Ideas, NLRB | Permalink | Comments (0)

Sunday, May 5, 2013

NLRB Petitions Supreme Court to Review Ruling on Recess Appointments

As expected, the NLRB filed  petition asking the U.S. Supreme Court to review a recent DC Circuit decision which held unconstitutional President Obama's January 2012 recess appointments to the board (NLRB v. Noel Canning Div. of Noel Corp.,  petition filed 4/25/13).

The petition asserts that the decision of the District of Columbia Circuit (705 F.3d 490 (D.C. Cir. 2013), "would dramatically curtail the scope of the President's authority under the Recess Appointments Clause" of the U.S. Constitution if the appeals court ruling is allowed to stand.

Mitchell H. Rubinstein

May 5, 2013 in NLRB | Permalink | Comments (0)

Monday, April 15, 2013

NLRB Asserts Jurisdiction Over Charter School


The NLRB recently held that a private company that provides teaching staff and educational services to a Chicago charter school is an employer subject to the board's jurisdiction and not a political subdivision of the state of Illinois (Pilsen Wellness Ctr., 359 N.L.R.B. No. 72, 3/8/13 [released 3/11/13]).

Applying the Supreme Court's Hawkins decision, the Board finds that Pilsen's directors are appointed by the private nonprofit's sitting board members rather than public officials, NLRB concludes the company “is not administered by individuals who are responsible to public officials or the general electorate.”

Mitchell H. Rubinstein 

April 15, 2013 in NLRB | Permalink | Comments (0)

Wednesday, March 27, 2013

2d Circuit Issues Major Decision On Indefensbile Conduct

NLRB v. Special Touch, ___F.3d___(2d Cir. Feb. 27, 2013), is a major decision which outlines when striker could loose protection for striking by engaging "indefensible conduct."  Here, although the union gave the required 8(g) 10 days notice of striking a health care institution, 48 strikers mislead the employer into thinking that they were going to show up. As the court explained:

Despite the fact that forty-eight aides never started
work on June 7, 2004, it can still be said that foreseeable
imminent danger resulted from their “sudden cessation of
work.” Until approximately twenty minutes after each of the
forty-eight aides’ shifts began, Special Touch believed that
it had these patients covered.

Mitchell H. Rubinstein

March 27, 2013 in NLRB | Permalink | Comments (0)