NLRB: Northwestern Players Are Employees, Can Vote on Union

Wednesday night, a Hearing Examiner in the Chicago regional office of the National Labor Relations Board ruled that scholarship football players at Northwestern University are “employees” of the University and therefore are eligible to vote in an election to determine whether or not they want to form a labor union.

I previously reported that a group of players had filed a petition with the NLRB to form a union, and that the Board held a hearing to determine whether or not they were eligible to do so.  The decision by the Regional Office would set a profound precedent, certain to alter not only the nation’s labor law but also the face of intercollegiate athletics.

According to a report from ESPN.com, officials from Northwestern have said they will appeal the decision to the full NLRB in Washington, DC.  The ESPN report also quotes officials from other athletic conferences and from the NCAA expressing disappointment with the decision.

In short, the Hearing Examiner concluded that the players provide services (playing football) in exchange for compensation (a scholarship), in a context in which the alleged employer exercises significant control over the work.  He concluded, despite objections from the University, that the players are not primarily students who play football but instead are primarily football players who happen to attend some classes when they have time.

The case is far from over, because even if the University is unsuccessful in its appeals, the next step would be for the players to vote to determine whether a majority wish to form a union.  Either way, this case will continue to raise questions about the state of big-time college athletics and will impact the labor law as well.

NLRB Abandons Notice Posting Rule

This week, the National Labor Relations Board (NLRB) announced that it has abandoned its rule, adopted several years ago, that would require employers to post notice of employees’ rights under the National Labor Relations Act. That Act provides basic rights for employees to form, join or assist – or refrain from joining or assisting – labor unions.

The NLRB had adopted the rule that would have required employers to post a notice, in a manner similar to other workplace notices, like with the Fair Labor Standards Act (FLSA) or the Family Medical Leave Act (FMLA).  Several federal courts had invalidated the rule, noting that the NLRB does not have the power to make such a rule.  The Courts essentially concluded that the rule was beyond the scope of the powers granted to the NLRB by the Act and that any notice posting requirement should only be enforceable if Congress included such a requirement in the actual law itself.

In a press release this week, the NLRB noted that it has dropped any appeals with this issue, essentially confirming that the rule no longer is in effect.  The NLRB went on to urge employers to provide the notice voluntarily, saying:

The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act.  Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.

While the NLRB no longer will try to require that employers post notice of the employee’s rights, this does not have any impact on the actual rights that exist.  The NLRB continues to be vigilant in enforcing the employees’ rights to form and assist labor unions, and you should contact your counsel if there are any questions about what rights you or your employees do have.