Labor Day Musings

Kollman & Saucier
Kollman & Saucier
09/05/2016

Twenty-nine years ago this week, on September 8, 1987, I began my legal career at the law firm then known as Venable, Baetjer & Howard. The late Sam Cook,  Chairman of the firm’s Labor & Employment Department asked me if I had enjoyed my “Management Day” holiday the preceding day. Even since, I’ve had a special affinity for the first Monday in September, and today I offer some thoughts on a couple of trending topics in the world of labor law.

Section 7 v. Title IX: Who Wins?

As we reported a couple weeks ago, on August 23, 2016, the NLRB ruled that graduate and undergraduate student teachers at private colleges and universities are “employees” under the National Labor Relations Act.  Not only does this mean that these hard working (and perhaps now-subject-to-income-tax-on-their-scholarship) students have the right to unionize, but they also have the right to use vulgar language in the workplace.  For example, in Pier 60, 362 NLRB No. 59 (2015), an employee angry at his unpopular supervisor went onto Facebook during a break at work and posted:

Bob [the supervisor] is such a Nasty M***** F***** don’t know how to talk to people!!!!!!  F*** his mother and his entire f****** family!!!!  What a LOSER!!!!  Vote YES for the UNION!!!!!!!

The employer fired him, but the NLRB ordered that he be reinstated with backpay because his speech was nothing more than “robust debate” in the workplace.

Now lets tweak our facts. Suppose a male Teaching Assistant, angry at the way he was spoken to by the female professor he “works” for,  goes onto Facebook and posts:

Susan [the Professor] is such a Nasty B**** don’t know how to talk to people!!!!!!  F*** her mother and her entire f****** family!!!!  What a LOSER!!!!  Vote YES for the UNION!!!!!!!

Upon seeing the post, Susan immediately contacts the university’s Title IX office and complains that the TA is creating a hostile environment and invading the “safe space” of other female students and faculty by using such vulgar, violent, and sexually oppressive language that conjures up terrifying mental images  of the university’s sexist past.  She demands that the TA be immediately removed from the program.

So what should the university do?  Remove the TA and incur the wrath of the NLRB? Or tell the professor this is just “robust debate” that must be tolerated now that the university is more of a “workplace” than an academic setting? And how’s this for a twist: if Professor Susan is upset at what she perceives to be the university’s ineffective response to her complaint and tries to persuade other faculty that they need a union, can the university argue that Susan and other faculty are now “supervisors” (managing their grad student/employees) who cannot form a union under the NLRA?

Turn About is Fair Play… Or Maybe Not?

Today’s Wall Street Journal reports that those friendly folks who have been hired by the SEIU union to lead “Fight for $15” protests outside of fast food restaurants are now trying to form their own union.  How is the SEIU responding?  According to the Journal:

The SEIU responded that it “supports the ability of all workers” to unionize, “including organizers in the Fight for $15.” But the union also claims it doesn’t employ the workers because the organizers are directly employed by individual organizing committees in each city that has a Fight for $15 campaign.

To call the SEIU’s defense ironic would not do it justice. In its 2015 Browning-Ferris decision, the NLRB ruled that an employer is a “joint employer” who can be forced to recognize and bargain with  a union so long as it exercises indirect control over the workers.  The SEIU is relying upon Browning-Ferris to try to hold McDonald’s corporate office liable for alleged unfair labor practices committed by individual franchises.  Seems like the SEIU is going to count on the fact that the incredibly pro-labor NLRB will craft some special exemption for unions so they don’t have to play by the same rules as those evil employers do.

Though I feel for our clients as they struggle to run a business (or college) in an environment where the rules of the game are being changed almost daily, it sure makes for some interesting discussions among those of us who practice in the field.  Assuming Hillary Clinton is elected President this November, we should get at least four more years of “Extreme Makeover: The NLRB Episodes.”

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