NLRB Proposes New Procedures for Union Representation Votes, Rules that College Football Players May Vote on Unionizing

Northwestern_vs._Michigan_football_2012_04_(Northwestern_band).jpgThe National Labor Relations Board (NLRB) took two recent actions affecting union representation. In early February, it issued proposed rule changes for representation cases, when employees or unions seek a vote to determine whether employees want to form or join a union for collective bargaining. Existing rules have faced criticism for allowing excessive delay and other inefficiencies. In late March, the NLRB issued a ruling in a dispute between an organization representing college football players and Northwestern University. It found that scholarship players are “employees” within the meaning of the National Labor Relations Act (NLRA), and that they are entitled to vote on union representation.

On February 6, 2014, the NLRB published proposed changes to representation-case procedures. 79 F.R. 7317. The new rules, according to the NLRB, would “remove unnecessary barriers to the fair and expeditious resolution” of petitions for union representation. This would include simplifying and standardizing case procedures, and improving the transparency of the process. The current rules, found at 29 C.F.R. Parts 101-103, have been criticized for allowing a substantial amount of time to pass between a petition by non-union workers and a vote on union representation, allowing employers to pressure employees to vote against the union. The new rules are similar to a proposal first made in June 2011. A district court struck down the rules that resulted from that proposal, finding that the NLRB enacted them without the required quorum. Chamber of Commerce v. NLRB, 879 F.Supp.2d 18 (D.D.C. 2012).

The College Athletes Players Association (CAPA), a labor organization, petitioned the NLRB on behalf of football players receiving grant-in-aid scholarships from Northwestern University, seeking a ruling that the players are “employees” within the meaning of the NLRA. Northwestern argued that the players are not employees, comparing them instead to graduate student assistants who were ruled not to be employees in Brown University, 342 NLRB 483 (2004). The NLRB’s Region 13 Director ruled that the players are employees, and directed that an election take place. Northwestern University, No. 13-RC-131359, decision (NLRB, Mar. 26, 2014).

According to the ruling, eighty-five of Northwestern’s 112 football players receive grant-in-aid scholarships that pay most college expenses, including tuition, fees, room and board, and books. Players are subject to rules that do not apply to other members of Northwestern’s student body, many of which are geared towards enforcing NCAA restrictions on compensation of players. Team members receiving scholarships are required to live on-campus for their first two years, and they cannot have a job without the athletic department’s permission. They must submit to monitoring of their social media accounts, and must abide by various restrictions on their public behavior. Training and practice require a substantial commitment of time, often exceeding the twenty-hour-per-week limit set by the NCAA. The football program brought in about $8.4 million in net revenue for Northwestern during the 2012-13 academic year.

The NLRB found that the players’ relationship to Northwestern was as football players first and students second. The school’s academic departments, it found, had no authority or control over the players’ duties to the football team. The players perform a service that benefits Northwestern through the football program’s revenue, and they receive compensation in the form of their scholarships. The NLRB therefore concluded that they are “employees” of Northwestern.

If you need to speak to an employment attorney in New Jersey or New York, contact the Resnick Law Group at 973-781-1204 or 646-867-7997.

More Blog Posts:

NLRB Addresses the Question of When the NLRA Protects Employees’ Statements on Social Media, The New Jersey Employment Law Firm Blog, March 18, 2014
FLSA Protections May Be Available to Undocumented Immigrant Employees in New Jersey, The New Jersey Employment Law Firm Blog, February 21, 2014
NLRB Rules that Facebook Posts Regarding Coworkers Were Protected Concerted Activity, The New Jersey Employment Law Firm Blog, February 7, 2013
Photo credit: By Michael Barera (Own work) [CC-BY-SA-3.0 or GFDL], via Wikimedia Commons.

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