September 12, 2007

In a decision favorable to employers, the National Labor Relations Board has ruled that a Staff Complaint Process SCP established by Syracuse University to govern certain types of grievances did not result in the creation of a "labor organization" within the meaning of Section 2(5) of the NLRA. Syracuse University, 350 NLRB No. 63 (Aug. 15, 2007).

After many months of planning, the university announced the implementation of a complaint panel and procedure in September 2002, to become effective in January 2003. Meanwhile, Teamsters Local 317 filed a representation petition in October 2002, seeking to represent university employees. The union argued that the SCP was a labor organization and, accordingly, the university was violating the NLRA by telling employees during the campaign to select it as a cost-free option to the union, and by establishing and maintaining the SCP.

In rejecting the union's argument, the board held that the SCP did not meet the board's standard for a "labor organization." Under Electromation, Inc., 309 NLRB 990 (1992), an entity is a "labor organization" if: (1) employees participate; (2) the organization exists, at least in part, for the purpose of "dealing with" employers; (3) these dealings concern conditions of employment or other statutory subjects, such as grievances, labor disputes, wages, rates of pay or hours of employment; and (4) where an "employee representation committee or plan" is involved, there is evidence that the committee is in some way representing employees.

The board relied on the following facts regarding the SCP:

• The SCP was developed with the goal of resolving employee relations issues that arise between non-bargaining unit employees and their supervisors. It applies to disciplinary actions up to and including termination for violations of specific university rules, policies or practices, but excludes cases involving discrimination and sexual harassment, contents of University policies, performance evaluations, interpersonal disagreements and managerial decisions such as scheduling and reassigning employees, and matters concerning pay.
• The complaint coordinator for the SCP was a Human Resources Department employee who administers the process, coordinates the selection and training of volunteers and serves as a resource for all parties regarding rules and policies.
• All levels of employees were eligible to serve in the various SCP positions. The process begins, at the option of an allegedly aggrieved employee, when the employee presents a complaint to the complaint coordinator for a determination as to whether the grievance falls within the SCP's jurisdiction. Thereafter, if the complaint qualifies, it formally enters the SCP.
• At the informal stage, the complainant and the supervisor whose action gave rise to the grievance engage in mediation with the assistance of a staff mediator from the SCP pool chosen by the complainant.
• If mediation is unsuccessful, the complainant can request that the grievance enter the formal stage of the SCP. Therein, a hearing panel is convened to conduct a hearing, receive evidence from the parties and issue a written decision.
• The panel chair issues a written decision which is forwarded to the HRD vice president who can either accept the decision or return it to the panel for reconsideration. Thereafter, the panel submits its final decision to the HRD vice president who transmits it to the parties. The decision is binding unless one of the parties chooses to appeal to a three-member review panel.
• Once the review panel issues its final determination, the disposition is not subject to further review and is binding on the university.

The board concluded that the SCP did not "deal with" the university on terms and conditions of employment, but rather was limited to making final determinations on the propriety of actions taken by the university against employees. No proposals or counterproposals were exchanged between management and the employees through operation of the SCP. Rather, convened panels work jointly to effect group decisions. Given the final decisionmaking power of the SCP and the lack of "dealing" between the panel and management, the board held that the panel was not a labor organization and, therefore, the university did not violate the NLRA by establishing and maintaining it.

This decision, while generally consistent with board precedent, provides employers further guidance on how they can create alternative problem-solving procedures for employees as part of an issue-free workplace program. A body such as the SCP is cost-free to employees and can effectively assist an employer in providing workplace solutions which limit employees' interests in third parties, such as labor organizations.

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© 2007 Jackson Lewis LLP.  Reprinted with permission.  Originally published at www.jacksonlewis.com.  Jackson Lewis LLP is a national workplace law firm with offices nationwide.