A January memorandum issued by Richard Griffen, the current General Counsel of the National Labor Relations Board, has kicked off a debate over whether and when university students should be deemed “employees” who can assert collective bargaining rights under the National Labor Relations Act. The issue has particular significance for universities with high profile football or other athletic teams, which often generate significant profits for their schools.
In the memo, Griffen, an Obama appointee whose term ends in November 2017, touches down on the side of the student-employees. The memo surveys three recent Board decisions, each of which addressed the legal recognition of unions consisting of student-workers.
The first, Pacific Lutheran, was a 2014 case in which the Board addressed its jurisdiction over religious institutions, and also refined its legal test for when faculty become “managers” and thus no longer “employees” protected by the Act.
More pertinent to the issue of student-athletes, the memo goes on to discuss the Board’s twin decisions in Columbia University and Northwestern University. In the former, the Board recognized a union consisting of teaching-assistants. The Act, the Board reasoned, utilizes the broad common-law definition of “employee” as any individual who performs services in return for compensation. The Act allows for only limited, specific exceptions to that definition, none of which creates a carve-out for “employees” who also happen to be students of their ostensible “employer.” In so holding, the Board overturned its prior decisions that had held that teaching assistants generally were not statutory employees.
In Northwestern, however, the Board held that it lacked jurisdiction and thus passed on deciding the “employee” status of Northwestern’s football players; a decision which, in that case, had the effect of blocking the footballer players’ attempt at unionization. But the memo also calls an audible, going beyond the Northwestern holding to state that, in the General Counsel’s view, Division I football players at private universities who receive grant-in-aid scholarships are employees under the Act, and are entitled to all the protections that entails. In support of this view, the memo follows the reasoning undergirding the Columbia decision.
Critics, however, argue that the memo fumbles by ignoring the real-world effect of allowing students – particularly athletes - to unionize. Permitting football players to unionize, for instance, could blitz university administrators with bargaining demands over a range of topics including practice times, concussion protections, the right to earn pay, the right to receive proceeds from merchandise sales, and grade requirements.
Critics further argue that the General Counsel has intercepted the issue from the Board’s judicial arm. Indeed, the memo is enforcement guidance for the Board’s regional directors; it is not a holding by the Board’s adjudicatory body. It thus lacks the force of law unless and until a three-member panel of the Board rules on its new legal interpretations.
Ultimately, the General Counsel’s memo may prove to be a final Hail Mary by the Obama era Board. With a new administration, there will likely be a prompt turnover in the Board’s political balance. When a new General Counsel is appointed by President Trump in November, he or she may revise or reverse the memo, or a Republican-dominated Board panel could overturn it and the Columbia decision outright. In the meantime, however, universities facing unfair labor practice charges or student-organizing efforts can expect the Board’s regional officers to follow General Counsel Griffen’s memo and broadly protect collective bargaining rights of student-workers and athletes.
