Post ─ Northwestern University: What’s Next? Union Elections 101

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

2. Presented by: Art CarterShareholderLittler Mendelson P.C. Dallas Office214.880.8105 atcarter@littler.com

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

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

5. 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

6. 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).

7. 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.

8. 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)

9. 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

10. 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

11. 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

12. 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

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

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

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

16. 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.

17. Questions?

18. Post ─ Northwestern University:What’s Next? Union Elections 101 September 2014 Art CarterShareholderLittler Mendelson P.C.Dallas Office214.880.8105atcarter@littler.com