NLRB Region Five Rules that Resident Advisors at George Washington University are Employees Who May Unionize
April 25, 2017
April 25, 2017
August 19, 2015
In a long-awaited decision issued on August 17, 2015, the five-member National Labor Relations Board (“Board”) unanimously shut down an attempt by Northwestern University’s scholarship football players to become the first group of college athletes to form a labor union. This Board holding vacates the direction of election issued by an NLRB Regional Director in March 2014 and dismisses the representation petition filed by the College Athletes Players Association (“CAPA”), but does not address the fundamental issue of whether the players are “employees” under the National Labor Relations Act (“Act”). Instead of deciding this issue, the Board declined to assert jurisdiction over this case based on its conclusion that it “would not promote stability in labor relations” and therefore would not effectuate the policies of the Act. The Board noted that it had never been asked to assert jurisdiction in a case involving college athletes, nor had there ever been a petition for representation of a unit of a single college team, or even a group of college teams. The Board also pointed out that the players in this case did not “fit into any analytical framework” the Board had used in other cases involving college students (such as graduate student assistants or student janitors and cafeteria workers) because this case involved student athletes who receive scholarships to participate in what traditionally has been regarded as an extracurricular activity. The Board also distinguished these scholarship players from professional athletes, because the scholarship players are required to be enrolled full time as students and meet various academic requirements. The Board further observed that bargaining units in professional sports have never been limited to a single team’s players – they have always included the players of all teams in the entire league. Therefore, the Board concluded that there was no precedent that required it to assert jurisdiction, and that it was free to exercise its discretion to decline jurisdiction over this case. In justifying its decision to decline jurisdiction, the Board explained that Northwestern is a member of the National Collegiate Athletic Association (“NCAA”), which has a “substantial degree of control over the operations of individual member teams, including many of the terms and conditions under which the scholarship players (as well as walk-on players) practice and play the game.” Under these circumstances, the Board determined that its assertion of jurisdiction over only Northwestern and its scholarship football players would not promote stability in labor relations across the NCAA. The Board further explained that Northwestern competes in the NCAA Football Bowl Subdivision (“FBS”), where 108 of the 125 member schools are public institutions that are not covered by the Act. As a result, the Board does not have jurisdiction over the vast majority of the FBS teams. In fact, the Board pointed out that because Northwestern is the only private school in the 14-member Big Ten Conference, it “cannot assert jurisdiction over any of Northwestern’s primary competitors.” The Board cited this as an additional reason why its assertion of jurisdiction over only Northwestern and its scholarship football players would not promote stability and uniformity in labor relations. Although the Board’s exercise in restraint in this decision comes as somewhat of a surprise given this Board’s activism in expanding the reach of the Act, the Board made clear that its decision does not “preclude a reconsideration of this issue in the future,” and should be interpreted narrowly. In fact, the Board seemingly opened the door for consideration of a broader proposed bargaining unit than scholarship football players at one university by stating that its decision is not intended to “address what the Board’s approach might be to a petition for all FBS scholarship football players (or at least those at private colleges and universities).” So, the landscape of collegiate athletics will remain the same for now, but this may not be the last unionizing effort of student athletes that we see.
May 13, 2014
The National Labor Relations Board’s treatment of college and university students as “employees” covered by the National Labor Relations Act has been the subject of a tortured history. In the Fall of 2000, in a case involving NYU, the NLRB held that graduate assistants could be employees under the Act and therefore subject to the Act’s protections for organizational activity and collective bargaining. Thereafter, in a number of cases, including one involving Brown University ("Brown I"), the Board rejected arguments that the work of research assistants, teaching assistants and similar graduate student positions were closely tied to their degree requirements such that it constituted more of an educational, rather than economic relationship and concluded that graduate assistants could be employees under the Act. Then, in 2004, in a second case involving Brown University ("Brown II"), the Board made a sharp return to its earlier position, expressly overruling NYU, and deciding that graduate student teaching and research assistants are not statutory “employees” under the NLRA. Based on Brown II, NYU withdrew recognition from its graduate assistants who had earlier voted for representation by the UAW. Eventually, a later group of graduate students organized again and petitioned for a union representation election at NYU in Manhattan and NYU’s then recently-acquired Polytechnic Institute in Brooklyn (separate election petitions were filed in the Manhattan and Brooklyn Regional Offices of the NLRB). The petitions were dismissed at the Region level, without a hearing, on the authority of the Brown II decision. The petitions were remanded for further consideration by the Board, but after a hearing, the petitions were again dismissed at the Region level on the authority of Brown II. The Board granted a request for review of the dismissal and asked for amicus briefs on whether Brown II should be overruled, setting the stage for yet another reversal . However, in November of 2013, NYU and the UAW reached an agreement, pursuant to which NYU agreed to recognize and bargain with the union if a majority of graduate assistants voted in favor of joining the union. The pending Board petitions were subsequently dismissed as moot, removing at least temporarily the possibility that the Board could once again reverse course and overrule Brown II. As we noted in an earlier post, the Board granted Northwestern University’s request for review of the recent Regional Director’s decision directing an election in a unit of grant-in-aid scholarship football players at Northwestern. Thus it seemed the stage was set for the Board to revisit the student/employee issue yet again. Yesterday, the Board issued a Notice and Invitation to File Briefs to interested parties in the Northwestern case. The Notice expressly raises six questions that parties were invited to brief. Question 2 is:
Insofar as the Board’s decision in Brown University, 342 NLRB 483 (2004), may be applicable to this case, should the Board adhere to, modify, or overrule the test of employee status applied in that case, and if so, on what basis?
It is now evident that the Board indeed has found the vehicle it needs to once again flip flop on the issue of students/employees.
April 24, 2014
March 31, 2014
March 27, 2014
In a stunning and potential landmark decision, a Regional Director of the National Labor Relations Board has found that football players receiving grant-in-aid scholarships from Northwestern University (the University) are “employees” under the National Labor Relations Act. In his decision released Wednesday afternoon, the Regional Director determined that “players receiving scholarships to perform football-related services for [the University] under a contract for hire in return for compensation are subject to [the University]’s control and are therefore employees within the meaning of the Act.” Accordingly, the Regional Director ordered that an election be conducted among all football players receiving grant-in-aid scholarships who have not exhausted their playing eligibility for the University. In support of his decision, the Regional Director found that the players receive compensation for the athletic services they perform in the form of scholarships, which pay for the players’ tuition, fees, room, board, and books and can total as much as $76,000 per calendar year for up to five years. Furthermore, the Regional Director found that the players are under the strict control of the University throughout the year. The coaches determine the location, duration, and manner in which the players carry out their football-related activities; they monitor the players’ adherence to NCAA and team rules; and they control “nearly every aspect of the players’ private lives,” including their living arrangements, applications for outside employment, off-campus travel, social media posts, and communications with the media. In contrast, the Regional Director held that “walk-ons do not meet the definition of ‘employee’ for the fundamental reason that they do not receive compensation for the athletic services that they perform.” The University has confirmed that it plans to appeal the decision to the full National Labor Relations Board in Washington, D.C. If upheld, the decision has the potential to dramatically alter the world of big-time athletics in higher education as it would open the door for scholarship athletes at all private universities to unionize. Indeed, the decision could have implications for scholarship students in a number of areas beyond athletics. The Union, College Athletes Players Association (CAPA), which has the financial backing of the United Steelworkers, is seeking, among other demands, financial coverage for former players with sports-related medical expenses and the creation of an educational trust fund to help former players graduate.