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25^th ANNUAL LABOR ARBITRATION CONFERENCE��November 8, 2024��

Laura A. Sacks

Regional Director

National Labor Relations Board Region 1

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TODAY’S AGENDA

Update on Region 1
Recent Pre-Election Decisions: Employee Status of University Students
Severance Agreements
Non-Compete Agreements
Consent Agreements

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Region 1 Pre-Election Decisions: �Employee Status of University Students�

In Columbia University, 364 NLRB 1080 (2016), the Board concluded that “it is appropriate to extend statutory coverage to students working for universities covered by the Act unless there are strong reasons not to do so.”

The Columbia decision has given rise to related questions regarding the employee status of university students, including fellows, actors, those engaged in experiential learning, and basketball players.

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Trustees of Dartmouth College�01-RC-325633

Petitioner sought to represent the men’s varsity basketball team.
Dartmouth argued that the basketball players are not employees.
All basketball players were recruited by the coaching staff, but basketball players do not receive athletic scholarships.

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Trustees of Dartmouth College�01-RC-325633

Players have no input into the practice schedule and avoid scheduling classes during the “potential practice window.”

During road trips, the coaching staff requires players to travel, eat, and sleep as a group.

Players receive apparel and equipment valued at approximately $2,950 per player.

Players receive supports through Dartmouth Peak Performance.

Players are required to participate in alumni events and have been asked to promote the team and Dartmouth athletics on social media.

Dartmouth’s Request for Review of the Regional Director’s Decision and Direction of Election remains pending before the Board.

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Northeastern University�01-RC-311566

Petitioner sought to represent graduate students who provide instructional or research services.

Northeastern University asserted that its graduate students are not employees.

Petitioner argued that the issues raised by Northeastern were governed by the Board’s decision in Columbia and moved that Northeastern should be required to make an offer of proof as to why it should be permitted to litigate issues governed by settled law.

In its offer of proof, Northeastern argued that due to its focus on experiential learning, graduate students are not employees.

Board denied Northeastern’s Request for Review of the Regional Director’s Decision and Direction of Election, finding that the Regional Director acted reasonably in soliciting an offer of proof from the Employer regarding the employment status of the individuals in the petitioned-for unit and in finding, based on that offer of proof and Board precedent, that they are employees under the Act.

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Massachusetts Institute of Technology �01-RC-304042 �

Petitioner sought to represent graduate fellows.

MIT argued that graduate fellows receive funds to pursue their own academic objectives, not to provide services to MIT.

Petitioner argued that that graduate fellows perform the same work, under the same conditions, as the student-employees in the existing bargaining unit.

Board denied Petitioner’s Request for Review of the Regional Director’s Decision and Order finding that fellows “must meet no employment responsibilities or service requirements to receive or maintain their fellowship awards.”

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Brown University�01-RC-305104�

Petitioner sought to represent graduate students enrolled in the Brown/Trinity MFA in the Acting and Directing Program.

Brown University argued that the students’ participation as actors and directors in theatrical productions is a critical component of their MFA curriculum and the productions generate no appreciable benefit or revenue for the University.

Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order, relying on the finding that the petitioned-for graduate students are not statutory employees but instead individuals receiving “funding to help [them] make academic progress and obtain their degrees.”

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Severance Agreements, Non-Compete Agreements, and Consent Agreements�

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Severance Agreements

In Mclaren Macomb, 372 NLRB No. 59 (2023), the Board held that the Employer violated Section 8(a)(1) by conditioning receipt of severance benefits on the acceptance of an agreement that:

prohibited employees from disparaging the Employer; and

contained a provision requiring furloughed employees to keep the terms of their severance agreements confidential with few noted exceptions.

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Non-Compete Agreements�GC Memo 23-08 – May 30, 2023

- Proffer, maintenance, and enforcement of agreements

that could deny employees the ability to quit/change

jobs by restricting access to other employment

opportunities violate the Act

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The GC’s Position is that such Agreements Chill Employees From:�

Threatening concertedly to resign;
Carrying out concerted threats to resign;
Concertedly seeking or accepting employment with a local competitor;
Soliciting coworkers to go work for a local competitor as part of a broader course of protected, concerted activity; and
Seeking employment, at least in part, to engage in protected, concerted activity with other employees at an employer’s workplace.

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�Remedying the Effects of “Stay or Pay” Provisions that Violate the Act - Contracts that Require an Employee to Pay for Separating From Employment �GC Memo 25-01 – October 7, 2024

Training repayment agreements (TRAPs)
Educational repayment contracts
Quit fees
Damages clauses
Sign-on bonuses
Other types of cash payments tied to a mandatory stay periods
Does NOT include repayment agreements associated with Registered Apprenticeship Programs (no indebtedness to one specific employer; rather to a third-party like a jointly managed trust fund).

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Lawful Non-Competes

Agreement must be voluntary (optional) and in exchange for a benefit
The repayment must be reasonable and specified up-front
The amount cannot exceed the cost to the employer
The stay period must also be reasonable
Repayment cannot be required if the employee is fired without cause

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Consent Agreements�Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedra, 373 NLRB No. 89 (August 22, 2024)

Overturning UPMC, 365 NRLB 1418 (2107), the Board ended the practice of ALJs approving consent orders, finding that such orders do not effectuate the policies of the Act, infringe on the CG’s Section 3 (d) prosecutorial authority, and are prohibited by the Board’s rules (Section 102.35(a)(7))
These are orders that are proffered by a respondent and agreed to by an ALJ over the objection of the GC and the Charging Party
The Board reasoned that these are not settlement agreements because neither the GC nor the Charging Party has agreed to the terms