Head Of School’s Emails That School Would Not Recognize Employee Union Deemed Violation Of Employees’ Right To Unionize

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Jul 21, 2023

Employees at the Blue School, a private 2nd through 8th grade school located in New York City, recently conducted an election to create an employee union for Blue School faculty and staff.

On October 19, 2021, the Head of School sent an email to all Blue School employees stating that he would not withdraw the eligibility challenges the School intended to file regarding the recent union election. The email went on to say that the School was challenging the eligibility of specific participants due to the managerial, supervisory, or confidential nature of their roles, which would put them at odds with being part of the union, and improper conduct during the election period. The email also stated that the National Labor Relations Board (NLRB) denied the School’s initial request for review, rejecting the concerns the School made, and that the School was evaluating next steps, including potentially appealing.

On November 5, 2021, the Head of School sent another email to all Blue School employees stating that the union ballot count took place but the full count did not happen, and the number of challenged ballots could be determinative, so there was no decision at this point. The Head of School said he was going to send an email to School families with the same information, which he then did.

On March 20, 2022, the Head of School sent another email to all employees, which stated that he would be representing the School at the ballot count the next day. The ballot was to take place in two stages – first, a representative would open up faculty ballots that were not counted in November to determine whether those teachers are in favor of a combined union for faculty and staff. Then, assuming the vote passes, there would be a second tally to count the combined votes for unionization. The Head of School predicted that the count would go in favor of a combined union that represented both faculty and staff.

The email then shared the Head of School’s reservations about a potential partnership with the United Autoworkers Union (UAW) and the election process in general. As a result, if the election was certified, he said the School would decline to recognize the union and would appeal the outcome. The email also said that faculty employment offers had just gone out, which reflected a 5% salary increase, renewed contributions to 401k plans, and in some specific instances, more substantial increases to ensure teachers with similar experience and credentials were compensated equitably.

The General Counsel for the NLRB argued that the Head of School’s language in the March 20th email interfered with, restrained or coerced employees in the exercise of rights guaranteed by the National Labor Relations Act (NLRA). The School argued that the language was used as part of a larger email in which the Head of School was trying to update colleagues on the actions the School was planning to take in the context of the Board election.

The Administrative Law Judge (ALJ) agreed with the General Counsel and ruled that the Head of School’s email was unlawful because it conveyed a message to employees that selecting a union would be futile, as the School would not bargain with the union if the union won the election. The ALJ noted that the Head of School did not include anything in his emails that if the appeal was unsuccessful, it would recognize and bargain with the union. The ALJ characterized the email as a threat to employees.

As a result of the violation, the School had to cease and desist from engaging in conduct in violation of the NLRA and the NLRB required the School to take affirmative actions that align with the NLRA.

Blue Sch. & Local 2110, Tech., Office & Prof’l Union, UAW (May 4, 2023) 2023 WL 3254439.

Note: This case illustrates that emails from administrators to employees showing a lack of support for potential unionization can be a violation of the National Labor Relations Act.

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