Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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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)

Tuesday, March 26, 2013

Important NLRB Excelisor Decision

International Brotherhood of Teamsters, 359 NLRB No. 67 (Feb. 14, 2013), is an important case concerning Excelsior lists. The Board reaffirmed the principle that there is no ULP if the employer substantially complied, reasoning:

We disagree with the hearing officer’s conclusion.
Under Woodman’s Food Markets, 332 NLRB 503
(2000), the Board considers several factors in determining
whether an employer has substantially complied with
the Excelsior requirements, including the percentage of
voters omitted from the Excelsior list, the employer’s
reasons for omitting the voters’ names, and whether the
number of voters omitted constitute a determinative
number of votes. In the present case, we find that the
relevant Woodman’s factors support a finding that the
Employer substantially complied with the Excelsior requirements:
the percentage of voters omitted from the list
is relatively small (15.4 percent), there is no showing of
bad faith on the part of the Employer, and, perhaps most
importantly, the number of voters omitted from the list
does not constitute a determinative number. In reaching
a contrary conclusion, the hearing officer relied in part
on the Board’s decision in Automatic Fire Systems, 357
NLRB No. 190 (2012), but we find that case distinguishable
in two significant respects. First, the present case
involves a two-union election in which all employees
indicated their preference for representation and in which
both unions were equally affected by the Excelsior list
omissions. Second, there is no showing here that the
Employer intentionally omitted an entire segment of its
work force.

The NLRB needs to be more careful in writing decision because a 15.4 percent error rate is no 
small error. I am sure that employer's are going to to argue that errors less than 15.4 percent are
not material and that is clearly not what the Board meant.
Mitchell H. Rubinstein

March 26, 2013 in NLRB | Permalink | Comments (0)

Sunday, March 24, 2013

Rare 2d Circuit Decision Holding Individual Shareholder Liable for ULP's

Salm v. NLRB,____F.Appx. ____(2d Cir. Jan. 30,2013), is an important case. The 2d Circuit in an unreported decision affirmed the NLRB's remedial order which pierced the corporate veil and found individual shareholders personally liable for unfair labor practices. As the court explained:

In the context of federal labor law and enforcement of orders of the NLRB, it remains the
case that the “insulation of a stockholder from the debts and obligations of his corporation is the
norm, not the exception.” NLRB v. Deena Artware, Inc., 361 U.S. 398, 402-03 (1960). This
general norm, however, is not inviolate. To pierce the corporate veil, the NLRB applies the twoprong test laid out in White Oak Coal Co., 318 N.L.R.B 732, 734-35 (1995), enforced, 81 F.3d
150 (4th Cir. 1996). Under this test, the NLRB may pierce the corporate veil and impose
personal liability on a shareholder or owner if “(1) there is such unity of interest, and lack of
respect given to the separate identity of the corporation by its shareholders, that the personalities
and assets of the corporation and the individuals are indistinct, and (2) adherence to the
corporate form would sanction a fraud, promote injustice, or lead to an evasion of legal
obligations.” White Oak Coal, 318 N.L.R.B. at 735.
In analyzing the first prong, the NLRB examines a host of specific factors, including:
(1) whether the corporation is operated as a separate entity; (2) the commingling of funds
and other assets; (3) the failure to maintain adequate corporate records; (4) the nature of
the corporation’s ownership and control; (5) the availability and use of corporate assets,
the absence of same, or under capitalization; (6) the use of the corporate form as a mere
shell, instrumentality or conduit of an individual or another corporation; (7) disregard of
corporate legal formalities and the failure to maintain an arm’s-length relationship among
related entities; (8) diversion of the corporate funds or assets to noncorporate purposes;
and, in addition, (9) transfer or disposal of corporate assets without fair consideration.
Id. Of these, “[n]o one factor is determinative, and not all of these factors must be present.”
NLRB v. Bolivar-Tees, Inc., 551 F.3d 722, 728-29 (8th Cir. 2008). While based on one major
transaction, the Board rightly concluded that an analysis of these factors showed that Salm had
indeed abused the corporate form to such a degree—by drawing down virtually all of the assets
of the Domsey Trading Corporation for his personal use—that the first prong of the White Oak
had been met.
Mitchell H. Rubinstein


March 24, 2013 in Labor Law, NLRB | Permalink | Comments (0)

Wednesday, March 6, 2013

7th Circuit Authorizes Arrest of Owner For Contempt in Failing To Comply With NLRB Case


NLRB v. HH3 Trucking, ___F.3d____, 194 LRRM 3266(7th Cir. Jan. 10, 2012), is one of those case you do not see very often. The owners of a company found to have committed a ULP refused to comply with an NLRB backpay order and were found in contempt. After they continued to refuse to comply, the court ordered their arrest. 

Mitchell H. Rubinstein

March 6, 2013 in Labor Law, NLRB | Permalink | Comments (0)