By: Bradford L. Livingston, Esq.

In previous posts about possible unionization by Northwestern University’s scholarship football players, I likened the National Labor Relations Board (“NLRB”) to referees who had committed a false start penalty and showed how the union’s game wasn’t just against Northwestern. This time – in a gridiron battle of acronyms worthy of UCLA v. USC or UM v. OSU – we’ll consider whether, rather than refereeing it, the NLRB intends to insert itself into the game against the NCAA.

After all, attacking the NCAA is the du jour socially-relevant thing to do. The O’Bannon case over college player royalties is set to go to trial in June, new antitrust lawsuits have been filed against the NCAA by several college athletes, and the social and political debate over disparities in wealth and income is increasing in volume. So perhaps the NLRB sees an opportunity to pile on.

In their December 2007 dissent in Register Guard, 351 NLRB 1110, NLRB Members Wilma Liebman and Dennis Walsh – then the pro-union Democratic minority on the Board – called the NLRB the “Rip Van Winkle of administrative agencies.” That was then; this is now. Awake from its slumber and with union advocates now in the majority, the NLRB is like a caffeine-crazed college freshman pulling an all-nighter before an exam to frantically make up for lost time. In an environment where only about 6% of private sector workers are represented by a labor organization, the NLRB (with or without a lawful quorum and its initiatives enjoined by the courts) has been busily helping organized labor. Among both obvious and more subtle examples, just consider its court-quashed “Employee NLRA Rights” posting requirement, its now-revived quickie election rulemaking initiative, its many decisions finding illegal both unionized and non-union employer handbook, social media and other policies (e.g., loyalty, confidentiality, class action waivers, and disparagement). So if the NLRB has decided to reassert its relevancy by entering the game against the NCAA, what plays will it call?

First Down: Give the Union a Bargaining Unit it Can Win

Northwestern’s players are set to vote in a secret ballot NLRB election on April 25, although the ballots will likely be impounded until after the NLRB reviews its Regional Director’s decision that college football players are employees. But no matter how that vote eventually turns out, the game is far from over. The NLRB has given organized labor a new page for its playbook: alternative potential bargaining units.

Unions are strategic in deciding what groups to organize; they understandably file election petitions for groups of workers where they think they’ll win. And with the NLRB’s decision in Specialty Healthcare, 357 NLRB No. 83 (2011), the NLRB has given unions a significant advantage in seeking winnable, so-called “micro” bargaining units. As described in Section 9 of the NLRA, union elections have always been held regarding an appropriate bargaining unit, not the most appropriate bargaining unit. This distinction is critical: where a proposed unit is appropriate under Specialty Healthcare, an employer can only challenge the union’s choice if it meets a very high burden in proving that a different  unit shares an “overwhelming community of interest” with those the union seeks to represent. So while the new Steelworkers-supported college athletes’ union, CAPA, called the play for a bargaining unit comprised of all Northwestern’s football players (and the NLRB’s regional Director approved a unit of all football scholarship recipients who had not exhausted their eligibility), CAPA could just as easily have audibled.

Because CAPA or any other union can file a petition for any unit it is able to organize, why not a unit of only a college football team’s offense, offensive line, or just its quarterbacks? After all, unlike punters and placekickers (who may share their own community of interests but are often not receiving a scholarship), the QBs – who have a separate quarterbacks coach (in NLRA terms, a Section 2(11) “supervisor”), study a different playbook, etc. – will all invariably be on scholarship and share their own community of interests. And why limit organizing to scholarship athletes; why not any college student with a scholarship who receives “pay for play?” When the games are broadcast, instead of focusing TV cameras on freshmen in the bleachers holding up signs saying “Mom and Dad: Send $$$,” wait until they pan outside the stadium to show the striking marching band flute section, whose picket signs proclaim “No Toot Without Loot.” If, as they must, the NLRB’s rules on small bargaining units apply to scholarship athletes as employees, a union will inevitably succeed in organizing some “appropriate” unit.

Second Down: The NCAA as the Athlete’s Employer

No matter whether first down results in big yardage or no gain with Northwestern, the NLRB may be diagramming a second down play in which it takes on not just the 17 private colleges and universities that play major college football, but all of them. To do so, it may conclude that the NCAA is a “joint employer” with any individual college’s scholarship athletes. The NLRB has long held that an organization can be an entirely separate entity, but a joint employer for NLRA purposes if they both codetermine or “take part in determining the essential terms and conditions” of employment of a group of employees. EMI Music, Inc., 311 NLRB 997 (1993). Companies that regularly use labor from staffing agencies, mechanical or janitorial contractors, and other providers understand the risks of joint employment status under the NLRA and often take active steps to minimize their active control over the others’ employees. It is no stretch to argue that the NCAA’s incredibly detailed rules on transfers among teams, eligibility requirements, hours of practice, and everything else determine essential terms and conditions of their participation in the sport – or “employment” to the NLRB. Once a union gains any yardage with its first down play and succeeds in organizing Northwestern (or any other “appropriate” bargaining unit of scholarship athletes among the private colleges and universities that play by NCAA rules), the NCAA as a joint employer – like the primary college employer itself – must recognize and bargain with that unit.

Third Down: The NCAA’s Bargaining Obligation

The NLRB’s call on second down sets up an easy decision for its next play. Once the NCAA is found to be a joint employer, its detailed rules almost certainly must go by the wayside. An employer’s obligation to bargain under NLRA Section 8(a)(5) will supersede any argument that “those have always been our rules” or “that’s what we do at all our other non-union facilities” (such as the public colleges and universities over which the NLRB has no jurisdiction). Simply put, if a union organizes any group of scholarship athletes, the university’s and NCAA’s obligation to bargain in good faith will leave any mandatory subject of bargaining (“wages, hours and other terms and conditions of employment”), which includes the NCAA rulebook, open for negotiation.

Fourth Down: Non-Union Employees are Covered by the NLRA

One of the great things about fourth down is that, no matter the field position or how many yards a team has to go, it can still score a touchdown. And this could be the NLRB’s trick play: that all employees are protected by and have NLRA Section 7 rights. So just consider for a moment the many recent NLRB decisions deeming illegal various employer policies, ranging from regulating online social media posts, to prohibitions against damaging the employer or its reputation, to communications with the media, and other forms of “NLRA protected” communication. In his decision, the NLRB’s Regional Director specifically relied on the following to claim that college football players are employees:

The players must also abide by a social media policy, which restricts what they can post on the internet, including Twitter, Facebook, and Instagram. In fact, the players are prohibited from denying a coach’s “friend” request and the former’s posting are monitored. The Employer prohibits players from giving media interviews unless they are directed to participate in interviews that are arranged by the Athletic Department. Players are prohibited from swearing in public, and if a player “embarrasses” the team, he can be suspended….

In every other “employment” context, recent NLRB decisions have consistently considered policies like these (and their application in disciplining an employee) a violation of employees’ NLRA Section 7 rights. Let’s see what happens when the first college scholarship athlete (take any scholarship athlete at any private college or university) files an unfair labor practice charge with the NLRB. After all, and as the NLRB has made explicitly clear over the last several years, these Section 7 rights apply to all employees, including those who do not belong to a union. Note to college and NCAA as a joint employer: the remedy for an unlawful employment policy invariably includes rescission of the policy (there goes the NCAA rulebook). Even if a union never succeeds in organizing a single college athlete, TOUCHDOWN, NLRB!

Time Out:  

So let’s take a break in the action:  This has nothing to do with whether college athletes are somehow exploited, should be paid for playing, or deserve royalties for television or other use of their likenesses. Other litigation is pending, and the rising tide of public opinion undoubtedly will transform college sports. (In fact, just yesterday the NCAA relaxed its limits on feeding college athletes.) This is merely a labor law commentary about using the NLRA as a vehicle to prompt this social change. College sports will almost certainly be different and no matter what view you may have about the merits of compensating college athletes, the question here is whether or not the NLRB should be playing the game. And, as explained here and in my earlier posts – no matter what down it is – the NLRB should punt.