When it comes to fellowship—and collective bargaining—it looks like “fellows” aren’t treated the same as their permanent status co-workers.  In Phoenix News Times, LLC and The Newsguild–CWA, 370 NLRB No. 84 (Feb. 10, 2021), the National Labor Relations Board (the “Board” or “NLRB”) found that workers employed at a Phoenix newspaper in a fellowship program of finite duration were temporary workers who could not be included in a bargaining unit.

Phoenix News and the Fellows

The Employer Phoenix News Times (the “Employer” or “Phoenix News”) is a news organization.  The owner of the Employer maintains a fellowship program to which journalism students and/or recent graduates can apply, and selected candidates (the “Fellows”) are assigned to one of the organization’s six publications.  Phoenix News employs the Fellows through that program.

Fellows and permanent writers on staff (the “Staff Writers”) are similar in many respects:  they use the same procedures, undergo the same review and editing process, receive the same benefits, work in the same location, use the same break rooms, and attend the same weekly staff meetings.  Both Fellows and Staff Writers also report directly to the News Editor.

However, Fellows and Staff Writers are also quite different.  Importantly, unlike Staff Writers, Fellows typically are only employed for a six-month fellowship period.  While the fellowship can be extended if the Fellow shows promise and there is a “reasonable expectation” that a permanent Staff Writer position will soon become available, these extensions were rare.  Of the 27 Fellows who worked for the owner of Phoenix News since 2013, only five had their fellowships extended for brief, finite periods of time.  Further, of the nine Fellows who completed fellowships at Phoenix News, fewer than half went on to work at Phoenix News in permanent positions.

The union filed a petition to represent a unit of Phoenix News employees, including the Fellows.  In response, Phoenix News contended that the Fellows are temporary employees who could not be properly included in the bargaining unit.

The Regional Director’s Decision

The Regional Director issued a Decision and Direction of Election, finding that the Fellows could be appropriately included in the unit.  According to the Regional Director, the Fellows should be included in the unit because they “share a community of interest with the other petitioned-for employees,” and also “have a vested interest in the terms and conditions of Staff Writers’ employment.”  In reaching his decision, the Regional Director relied on Boston Medical Center Corp., 330 NLRB 152 (1999) and similar cases, and analogized the Fellows to apprentices or medical residents who are frequently included in bargaining units.

The Board Reverses, Concludes Fellows are Temporary Employees Who are Not Appropriately Included in the Bargaining Unit

Phoenix News filed a request for review.  The Board reversed the Regional Director’s determination, finding that—as a general rule—“temporary employees” are not included in bargaining units.  The Board concluded the circumstances did not negate this general rule.  The Board focused extensively on the fact that the Fellows have a “finite” tenure with a “readily ascertainable” end date.  For example, the Board distinguished the medical residents in Boston Medical from the Fellows at issue here on the grounds that the medical residents’ tenures typically lasted a number of years, whereas the Fellows have a finite “apprenticeship period” of only 6 months.

The Board further noted that the circumstances here did not implicate any of the well-established exceptions to the general rule against including temporary employees in bargaining units.  For example, the Fellows are not akin to seasonal or recurring employees who have a reasonable expectation of year-to-year employment.  Further, if Fellows are employed beyond their six-month tenure at Phoenix News, they generally only remain on payroll for short, finite periods of time.

In sum, the Board found that the Fellows were nothing more than temporary employees who could not be properly included in the bargaining unit.  Accordingly, the Board reversed and remanded the case to the Regional Director for action consistent with the Board’s decision.

Important Takeaways

This case offers a good illustration of a tension that has existed in NLRB doctrines since the passage of the NLRA:  which employees truly comprise an appropriate bargaining unit?  A broader interpretation of the community of interest test can result in a bargaining unit with more employees.  A narrower interpretation can result in some employees—like the Fellows here—who are disenfranchised from the process and will not participate in any vote or subsequent bargaining in the event of a union victory.  This decision is one of those that likely would have a different outcome with different Board members.

The Board’s decision in Phoenix News Times makes clear that regardless of whether temporary employees have terms and conditions of employment similar to that of their full-time co-workers, the finite nature of their employment is a key factor—at least for now—in determining whether those employees can participate alongside their permanent counterparts in a bargaining unit.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.