Washington University in Saint Louis (14-CA-202172)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE: October 31, 2017

TO:

Leonard J. Perez, Regional Director

Region 14

FROM:

Jayme L. Sophir, Associate General Counsel

Division of Advice

SUBJECT: The Washington University

d/b/a Washington University in Saint Louis

Case 14-CA-202172

512-5006-5067

512-5006-8300

512-5006-8333

This case was submitted for advice as to whether the Employer’s statements

during a graduate student employee organizing campaign regarding the effect of any

future strike on foreign student visa holders constituted unlawful threats in violation

of the Act. We conclude that the Employer violated Section 8(a)(1) of the Act by

threatening that, in the event of a strike, “all foreign students will lose their visas and

have to leave the country.” The Employer’s other statements were lawful, however,

as they either set forth the exact language of the applicable Federal regulations or

merely conveyed the actual possibility that a strike “could” lead to the loss of student

visas.

FACTS

The Washington University d/b/a Washington University in Saint Louis (the

Employer or the University) is a private university in Saint Louis, Missouri. Service

Employees International Union, Local 1 (the Union) is engaged in an organizing

campaign among graduate student employees of the Employer. Many of these

graduate student employees are international students and hold “F-1” student visas.

On

2017,1 the

in the Employer’s

department (the

, sent an e-mail to all graduate student

employees in the department regarding a graduate student employee unionization

forum to be held the next day. Among the questions the

encouraged

the graduate student employees to bring up at the meeting included:

Foreign students...I have been told that if a graduate student union is

formed, and this union goes on strike...all foreign students will lose

1 All dates hereinafter are in 2017, unless otherwise noted

nt regarding a graduate student employee unionization

forum to be held the next day. Among the questions the

encouraged

the graduate student employees to bring up at the meeting included:

Foreign students...I have been told that if a graduate student union is

formed, and this union goes on strike...all foreign students will lose

1 All dates hereinafter are in 2017, unless otherwise noted.

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Case 14-CA-202172

- 2 -

their visas and have to leave the country. In my opinion, this would be

terrible for our students and our program.

At the forum, a Union organizer indicated that unionization could have no

possible effect on the graduate student employees’ visa status, and that there was no

possibility of them being deported, while the Union’s attorney acknowledged a

potential impact on foreign students’ visa status. The graduate student employees

found this confusing, and again asked the

to obtain more definitive

information for them. The

contacted various sources for information,

both within the University and without, including the Region, the U.S. Department of

Homeland Security (DHS), and officials at the University of Oregon, at which there

recently had been a graduate student employee strike.

In

at least one graduate student employee again asked the

for a meeting to talk about the contradictory information

was receiving about the

possible effects of unionization. The

agreed to set up a meeting, to

which

invited all

graduate student employees

and Security (DHS), and officials at the University of Oregon, at which there

recently had been a graduate student employee strike.

In

at least one graduate student employee again asked the

for a meeting to talk about the contradictory information

was receiving about the

possible effects of unionization. The

agreed to set up a meeting, to

which

invited all

graduate student employees. At the

meeting,

the

told the graduate student employees that

did not know what

would happen, but the information provided to

by the University and DHS

indicated that if the Union were to strike, student-visa holders “could lose their status

and be asked to leave the country.”

On

, the

emailed three of the students who had been at

the meeting:

The strike at Oregon some folks are talking about only lasted 8 days.

According to the director of graduate studies there, they did have to

turn over a list of students who were on visas when they went on

strike. Nothing probably happened, because the gov’t did not respond

in the 8 days of the strike. It does not mean they couldn’t have

responded.

On

, in response to another student’s question, the

e-

mailed:

I just received this from our Office for International Students and

Scholars in my response to wanting more in writing.

Here is the section of the regulations relating to a strike:

(14) Effect of strike or other labor dispute. Any employment

authorization, whether or not part of an academic program, is

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b

(b) (6), (b) (7)(C)

(b) (6), (b

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b

(b) (6), (b) (7)(

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

4) Effect of strike or other labor dispute. Any employment

authorization, whether or not part of an academic program, is

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b

(b) (6), (b) (7)(C)

(b) (6), (b

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b

(b) (6), (b) (7)(

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Case 14-CA-202172

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automatically suspended upon certification by the Secretary of Labor

or the Secretary’s designee to the Commissioner of the Immigration

and Naturalization Service or the Commissioner’s designee, that a

strike or other labor dispute involving a work stoppage of workers is in

progress in the occupation at the place of employment. As used in this

paragraph, “place of employment” means the facility or facilities where

a labor dispute exists. The employer is prohibited from transferring F-

1 students working at other facilities to the facility where the work

stoppage is occurring.

This is in addition to the academic issues involved with not fulfilling

the requirements of each academic program. In the end, any of these

things would cause them to not maintain their F-1 status.

On

, the

again contacted DHS, emailing the Student

and Exchange Visitor Program (SEVP) of US Immigration and Customs Enforcement,

which responded:

1. If you dismiss a student from their program for no longer being in

good academic standings, the Sevis record will need to be Terminated.

Before the record is Terminated, the student may apply for a change of

status to another visa type. Please be aware that the Change of Status

process can take a while to process and the student needs to maintain

their F-1 status while the Change of Status application is pending. If

the student’s record is Terminated, they will need to leave the U.S. as

soon as possible. 2

o be Terminated.

Before the record is Terminated, the student may apply for a change of

status to another visa type. Please be aware that the Change of Status

process can take a while to process and the student needs to maintain

their F-1 status while the Change of Status application is pending. If

the student’s record is Terminated, they will need to leave the U.S. as

soon as possible. 2. If the student has topped [sic] taking courses or

stopped performing research and that is what is required for their

program, the student’s record should be Terminated immediately and

they will have to leave the U.S. as soon as possible.

On

the University emailed all graduate student employees a FAQ

document regarding graduate student employee union organizing, which it also

posted online. The last question included a lengthy response addressing the F-1 visa

issue:

Could a strike potentially have an impact on my F-1 visa status?

Many graduate students have posed this question to the University.

To obtain an answer, the University contacted an outside

immigration attorney and U.S. Immigration and Customs

Enforcement (Department of Homeland Security). The information

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Case 14-CA-202172

- 4 -

provided to the University is set out below. Students also may wish to

consult with an immigration attorney for personalized legal advice.

Foreign national students in F-1 status are required to participate in

a “full course of study” in order to maintain their F-1 status. 8 CFR

§214.2(f)(5)(i). For Ph.D. programs, what constitutes a “full course of

study” is set by the educational institution for the particular academic

program. 8 CFR §214.2(f)(6)(i)(A). The regulations further

provide: ”[o]n-campus employment pursuant to the terms of a

scholarship, fellowship, or assistantship is deemed to be part of the

academic program of a student otherwise taking a full course of

study.” 8 CFR §214.2(f)(6)(iii)

what constitutes a “full course of

study” is set by the educational institution for the particular academic

program. 8 CFR §214.2(f)(6)(i)(A). The regulations further

provide: ”[o]n-campus employment pursuant to the terms of a

scholarship, fellowship, or assistantship is deemed to be part of the

academic program of a student otherwise taking a full course of

study.” 8 CFR §214.2(f)(6)(iii). If graduate students are required as

part of their academic program to “work” as graduate assistants

teaching classes or conducting research, then continuing to serve in

that capacity is required in order for the student to maintain a “full

course of study” and thus to maintain their F-1 status. (The

regulations permit an educational institution to allow an F-1

student to engage in less than a full course of study only for specific

reasons enumerated in the regulations, none of which include that

the student is unable to continue working due to a strike. 8 CFR

§214.2(f)(6)(iii).)

Any individual on an F-1 visa automatically has their work

authorization suspended if a work stoppage occurs in their

classification at their location of employment. As 8 CFR §214.2(f)(14),

entitled “Effect of strike or other labor dispute,” states:

Any employment authorization, whether or not part of an academic

program, is automatically suspended upon certification by the

Secretary of Labor or the Secretary’s designee to the Commissioner of

the Immigration and Naturalization Service or the Commissioner’s

designee, that a strike or other labor dispute involving a work

stoppage of workers is in progress in the occupation at the place of

employment. As used in this paragraph, “place of employment”

means the facility or facilities where a labor dispute exists. The

employer is prohibited from transferring F-1 students working at

other facilities to the facility where the work stoppage is occurring

signee, that a strike or other labor dispute involving a work

stoppage of workers is in progress in the occupation at the place of

employment. As used in this paragraph, “place of employment”

means the facility or facilities where a labor dispute exists. The

employer is prohibited from transferring F-1 students working at

other facilities to the facility where the work stoppage is occurring.

Therefore, if the union were to engage in a strike, F-1 visa students

engaged in graduate teaching and research experiences could be legally

prohibited from continuing to “work” in that capacity.

Case 14-CA-202172

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Under such circumstances, F-1 visa students could be subject to

deportation whether they continued to “work” or not. If students

honored the strike and caused the suspension of their work status

under 8 CFR §214.2(f)(14), they could be deemed out of status for

having failed to maintain a “full course of study.” 8 CFR

§214.2(f)(5)(i); §214.2(f)(6)(iii). And if, despite the automatic

suspension of their work authorization, students disregarded the

strike and continued to perform their teaching or research

responsibilities, they would be out of status. 8 CFR §214.1(e) (a

nonimmigrant “may engage only in such employment as has been

authorized. Any unauthorized employment by a nonimmigrant

constitutes a failure to maintain status ...”). An F-1 student who has

failed to maintain status is subject to deportation. 8 U.S.C.

§1227(a)(1)(C)(i) (“Any alien who was admitted as a nonimmigrant

and who has failed to maintain the nonimmigrant status in which the

alien was admitted . . ., or to comply with the conditions of any such

status, is deportable.”); see also 8 CFR §214.2(f)(5)(iv) (“an F-1 student

who fails to maintain a full course of study without the approval of the

DSO or otherwise fails to maintain status is not eligible for an

additional period for departure”).

Furthermore, universities are legally required to report to U.S

which the

alien was admitted . . ., or to comply with the conditions of any such

status, is deportable.”); see also 8 CFR §214.2(f)(5)(iv) (“an F-1 student

who fails to maintain a full course of study without the approval of the

DSO or otherwise fails to maintain status is not eligible for an

additional period for departure”).

Furthermore, universities are legally required to report to U.S.

Immigration and Customs Enforcement (Department of Homeland

Security) if a student fails to maintain status. 8 CFR

§214.3(g)(2)(ii)(A); see also SEVIS Reporting Requirements for

Designated School Officials (www.ice.gov/sevis/dso-requirements).

U.S. Immigration and Customs Enforcement has confirmed this

understanding in writing to the University, stating: “If the student

has stopped taking courses or stopped performing research and that

is what is required for their program, the student’s record should be

terminated immediately and they will have to leave the U.S. as soon as

possible.”

Around

the University updated the FAQ webpage and added the

following line to the end of the above FAQ section: “The University would not report a

student’s change in status to the government unless it is determined that, under the

particular circumstances, it must do so in order to be legally compliant.”

(b) (6), (b) (7)(C)

Case 14-CA-202172

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ACTION

We conclude that the Employer violated Section 8(a)(1) of the Act by threatening

that, in the event of a strike, “all foreign students will lose their visas and have to

leave the country.” The Employer’s other statements were lawful, however, as they

either set forth the exact language of the applicable Federal regulations or merely

accurately conveyed the possibility that a strike “could” lead to the loss of student

visas

olated Section 8(a)(1) of the Act by threatening

that, in the event of a strike, “all foreign students will lose their visas and have to

leave the country.” The Employer’s other statements were lawful, however, as they

either set forth the exact language of the applicable Federal regulations or merely

accurately conveyed the possibility that a strike “could” lead to the loss of student

visas.

It is well established that an employer violates the Act by threatening employees

with job loss during a union organizing campaign.2 In particular, “employer threats

touching on employees’ immigration status warrant careful scrutiny, as they are

among the most likely to instill fear among employees.”3 For this reason, the Board

has emphasized that it “must continue to fine tune its institutional “ear” in order to

protect vulnerable workers from immigration-related threats and manipulation that

violate the Act.”4

While threats of job loss are unlawful, Section 8(c) of the Act states that: “[t]he

expressing of any views, argument, or opinion . . . shall not constitute an unfair labor

2 See, e.g., Unifirst Corp., 335 NLRB 706, 706-08 (2001) (employer violated Section

8(a)(1) of the Act by making an unlawful threat of job loss, and conveying the

inevitability of a strike and the futility of bringing in a union); Connecticut Humane

Society, 358 NLRB 187, 220 (2012) (“where an employer’s statements about

permanent replacements make specific references to job loss, such statements are

generally deemed to be unlawful since they convey to employees the message that

their employment will be terminated”).

3 Labriola Baking Co., 361 NLRB No. 41, slip op. at 2 (2014). See also, e.g., Viracon,

Inc., 256 NLRB 245, 246-247 (1981).

4 Labriola Baking Co., 361 NLRB No. 41, slip op. at 2. While Labriola Baking Co.

itself was a representation case, the Board made it clear that it applies similar

considerations in unfair labor practice cases. Id

ssage that

their employment will be terminated”).

3 Labriola Baking Co., 361 NLRB No. 41, slip op. at 2 (2014). See also, e.g., Viracon,

Inc., 256 NLRB 245, 246-247 (1981).

4 Labriola Baking Co., 361 NLRB No. 41, slip op. at 2. While Labriola Baking Co.

itself was a representation case, the Board made it clear that it applies similar

considerations in unfair labor practice cases. Id. (“it is both objectionable and (where

alleged) unlawful for an employer to threaten immigration-related problems for

employees because they engage in union or other protected, concerted activity”); Id.,

slip op. at 8 (Members Miscimarra and Johnson dissenting) (“it is highly objectionable

and unlawful for an employer to threaten or cause immigration-related problems for

employees because they engage in union or other protected concerted activity”).

Case 14-CA-202172

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practice . . . if such expression contains no threat of reprisal or force or promise of

benefit.” This has been interpreted by the Board to mean that an employer does not

violate the Act by merely stating an accurate understanding of the law. Thus, for

example, an employer does not violate the Act by truthfully informing employees that

they are subject to permanent replacement in the event of an economic strike, even it

does so without fully detailing the protections employees have pursuant to Laidlaw,5

as long as the employer does not threaten that employees will be deprived of their

rights in a manner inconsistent with Laidlaw.6

In the instant case, when the Employer stated on

that “all foreign

students will lose their visas and have to leave the country” in the event of a strike, it

clearly restrained and coerced employees in the exercise of their Section 7 right to

strike, and this was not an accurate statement of the law because a strike would not

necessarily lead to the loss of their student visa and the immediate end of their lawful

right to remain in

tated on

that “all foreign

students will lose their visas and have to leave the country” in the event of a strike, it

clearly restrained and coerced employees in the exercise of their Section 7 right to

strike, and this was not an accurate statement of the law because a strike would not

necessarily lead to the loss of their student visa and the immediate end of their lawful

right to remain in the United States. While a strike could potentially lead to such

consequences for at least some graduate student employees, the Employer’s statement

overstated the requirements of the applicable regulations and the potential effects of

those regulations on the affected graduate student employees. In many strike

situations, graduate student employees in fact would not lose their visas, given the

time that it takes the Secretary of Labor to certify the strike after being notified by

the relevant school officials. The Employer’s own statements illustrate this point -- on

, the

noted that a graduate student employee strike

at another university did not result in a DOL certification causing the loss of their

visa status. Moreover, even where the Secretary of Labor does certify a graduate

student employee strike, and foreign graduate student employees do lose their

student visas, individual graduate student employees may well have some basis other

than their student status for lawfully remaining in the United States, despite the

Employer’s blanket statement that they all would “have to leave the country.” And, it

is also possible that the Employer, which is responsible for determining the “course of

study” requirements underlying F-1 visa status, could alter those requirements so as

to permit the continuation of student visa status notwithstanding the revocation of

work authorization.7 Therefore, the Employer’s

statement constituted an

5 The Laidlaw Corp., 171 NLRB 1366 (1968), enforced 414 F.2d 99 (7th Cir. 1969),

cert. denied 397 U.S. 920 (1970).

6 See, e.g., Stahl Specialty Co., 364 NLRB No

quirements underlying F-1 visa status, could alter those requirements so as

to permit the continuation of student visa status notwithstanding the revocation of

work authorization.7 Therefore, the Employer’s

statement constituted an

5 The Laidlaw Corp., 171 NLRB 1366 (1968), enforced 414 F.2d 99 (7th Cir. 1969),

cert. denied 397 U.S. 920 (1970).

6 See, e.g., Stahl Specialty Co., 364 NLRB No. 56, slip op. at 18 (2016); Eagle

Comtronics, Inc., 263 NLRB 515, 516 (1982).

7 In this regard, we note that it is well established that an employer’s statements

about the consequences of unionization must be “carefully phrased on the basis of

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C) (b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Case 14-CA-202172

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unlawful threat in violation of Section 8(a)(1) of the Act.8

In contrast, the Employer’s later statements were more measured, and either set

forth the exact language of the applicable regulations or more accurately conveyed the

actual possibility that a strike “could” lead to the loss of student visas. Indeed, as

noted above, on one occasion the Employer actually informed graduate student

employees of a graduate student employee strike that did not have any effect on

student visas. All of the Employer’s statements after

involved a reasonable

reading of the possible consequences of the applicable regulations, often with the

relevant sections of those regulations included or attached to the statements. In the

absence of any unlawful threats in the Employer’s statements after the

statement, we conclude that the Employer did not violate the Act by ma

se

statements.9

objective fact to convey an employer's belief as to demonstrably probable consequences

beyond his control.” NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969) (emphasis

added). See also, e.g., Quamco, Inc., 325 NLRB 222, 223 fn

he

absence of any unlawful threats in the Employer’s statements after the

statement, we conclude that the Employer did not violate the Act by ma

se

statements.9

objective fact to convey an employer's belief as to demonstrably probable consequences

beyond his control.” NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969) (emphasis

added). See also, e.g., Quamco, Inc., 325 NLRB 222, 223 fn. 6 (1996) (when employer

“implies a prediction that the employer's plant will also close if the employees choose

union representation, the employer must, as noted above, articulate an objective basis

for the prediction”).

8 The Region should not, however, rely on any asserted inconsistency between the

Employer’s statements as to student visas and its statement regarding the Deferred

Action for Childhood Arrivals (DACA) policy, i.e., that it “will not release information

about a student’s immigration or citizenship status to third parties unless required to

do so by law or directive from a court.” While the Charging Party argues that these

statements are inconsistent and demonstrate the Employer’s unlawful motivation, we

note that: (1) the Employer has similarly stated that it would not report a graduate

student employee’s change in status to the government unless it is determined that,

under the particular circumstances, it must do so by law; (2) the Employer appears to

be required by law to report any graduate student employee who fails to maintain a

full course of study; and (3) in any case, the alleged violation of Section 8(a)(1) of the

Act does not require a showing of an unlawful motivation.

9 We recognize that there may be some tension between the regulations at issue in the

instant case and the Section 7 protections afforded to graduate student employees,

similar to the conflict discussed by the district court that invalidated a regulation

regarding H-1 visas because it ran counter to the policies of the Act. WJA Realty Ltd.

Partnership v Nelson, 708 F. Supp. 1268 (1989)

on.

9 We recognize that there may be some tension between the regulations at issue in the

instant case and the Section 7 protections afforded to graduate student employees,

similar to the conflict discussed by the district court that invalidated a regulation

regarding H-1 visas because it ran counter to the policies of the Act. WJA Realty Ltd.

Partnership v Nelson, 708 F. Supp. 1268 (1989). We note that, following the District

Court’s decision, the invalid regulation was replaced with language that does not

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Case 14-CA-202172

- 9 -

Accordingly, the Region should issue complaint, absent settlement, alleging that

the Employer violated Section 8(a)(1) of the Act by threatening on

that, in

the event of a strike, “all foreign students will lose their visas and have to leave the

country.” The Region should dismiss the allegations concerning the Employer’s later

statements, absent withdrawal, as the later statements either set forth the exact

language of the applicable regulations or accurately conveyed the actual possibility

that a strike “could” lead to the loss of student visas.

/s/

J.L.S.

ADV.14-CA-202172.Response.WashU.

conflict with the Act. The Immigration Unit in the Division of Operations-

Management is addressing this issue with the appropriate authorities at DHS.

(b) (6), (b) (7)(C)

(b) (6), (b) (7)