Washington Univ. Overstated Impact of Strike on Foreign Students

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By Lawrence E. Dubé

Washington University in St. Louis illegally threatened employees last year that a labor strike against the school would mean “all foreign students will lose their visas and have to leave the country.”

The threat is described in an October 2017 National Labor Relations Board memo that was released by the agency Feb. 15. The board noted the care employers must take in predicting the consequences of unionization and strikes. Exaggerating the risks to employees, particularly in the complex area of immigration rights, can easily violate federal labor law.

NLRB Associate General Counsel Jayme L. Sophir wrote the memorandum, which advised the board’s St. Louis regional director to issue a formal complaint against the university. Sophir heads the agency’s Division of Advice, which provides guidance to regional offices in complex or controversial unfair labor practice cases.

Statement About Grad Student Organizing

Service Employees International Union Local 1 raised the Univertisy’s threat in an unfair labor practice charge it filed during an unsuccessful effort to organize the university’s graduate students. The union lost a 2017 election by a 216-174 vote, and the election case is now closed.

The NLRB regional director did issue a complaint against Washington University, but Local 1 withdrew its unfair labor practice charge early in 2018 and that case also was closed.

The threat was made in an email to one university department’s graduate students shortly before a forum on graduate student unionization. The problem, Sophir said, was that the warning to “all foreign students” overstated the risk they could encounter in the event of a strike.

Foreign students with F-1 visas may have their visas automatically suspended if a strike affects their place of employment, but Sophir said they wouldn’t likely lose their visas or employment authorizations unless and until the Labor Department certified to immigration officials that a strike had occurred. Students also might have some other basis for lawfully remaining in the U.S. and wouldn’t necessarily be removed from the country because of a strike.

An employer must make predictions about the effects of unionization on the basis of objective fact, Sophir said, and the university’s prediction about “all foreign students” went over the line.

But Washington University didn’t violate the law when it advised students about federal regulations that provide for suspending the visas of foreign students affected by strikes in the U.S. Those statements, the NLRB official said, were lawful because they “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.”

Counsel for the university and the union weren’t immediately available to comment on the Division of Advice memo.

Schuchat, Cook & Werner represented SEIU Local 1. Ogletree Deakins Nash Smoak & Stewart P.C. represented Washington University in St. Louis.

The case is Washington Univ., NLRB Div. of Advice, Case 14-CA-202172, 10/31/17.

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