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.

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.

In a not surprising development, the National Labor Relations Board announced today that it has granted Northwestern University’s Request for Review of the Regional Director’s decision directing an election among the University’s grant-in-aid scholarship football players, citing the existence of “substantial issues warranting review.”  The NLRB will later issue a briefing schedule, which will invite amicus briefs from other interested parties. While the election among the University’s eligible student-athletes will still take place tomorrow, April 25, 2014, as scheduled, the ballots will be impounded, instead of counted, until after the NLRB issues its final decision.

The Chronicle has reported in the recent past about a division of views within the AAUP as to its proper focus.  In 2012, a slate of officers running under the “AAUP Organizing for Change” banner won election fairly handily (although only about 10% of the AAUP’s membership actually voted).  At the time of that election, a former AAUP Staff member described the election outcome as affecting “to a large extent, whether the association remains anchored principally to its commitment to the profession and its standards and principles or becomes an organization principally focused on a particular means—unionization—of achieving these objectives." This past February a slate of challengers, seeking to return AAUP to its traditional focus instead of a unionization focus, looked to unseat the “Organizing for Change” leadership.  At that time, The Chronicle reported on an interview given by Rudy H. Fichtenbaum, the “Organizing for Change” candidate  running for re-election as the AAUP’s president, in which he was said to have described “the real choice before the AAUP membership [as] whether the association would continue to build a national network of activist chapters or retreat into being a group focused on running a Washington office that weighs in on few controversies each year.”  Mr. Fichtenbaum was quoted as saying, “Our emphasis has totally been on organizing people.” The election results were just reported and all four top spots will continue to be held by the “Organizing for Change” incumbents.  Although Mr. Fitchtenbaum’s election was close, winning with just under 52% of the vote, the other candidates on that slate won more handily.  Despite all of the controversy, however, only 4,433 valid votes were cast, out of a total membership of about 47,000.  So it is hard to draw too many conclusions about what these results actually reflect within the full academic community.  Nonetheless, it seems safe to assume that this latest victory will be viewed as a “mandate” by the “Organizing for Change” leadership to continue, and perhaps even increase, AAUP’s focus on unionization. Historically, this may not have had meant much for private colleges and universities.  Since the U.S. Supreme Court’s 1980 decision in NLRB v. Yeshiva University, which held that in the traditional higher education setting, faculty are “managerial” employees not eligible for unionization under the National Labor Relations Act, the full time faculty at most colleges and universities have not had the legal option to unionize.  However, the Obama National Labor Relations Board – at full strength for the first time in a decade --  has been actively overturning a host of NLRB precedents and established practices which collectively increase the likelihood of union organizing.   These changes have occurred against the backdrop of declining unionization – organized labor represents only about 6.7%  of American workers in the  private sector, which is near its  all-time record low.  While the NLRB does not have the authority to simply “overturn” a Supreme Court decision, the Yeshiva decision requires a very fact specific application.  As a result, the NLRB may have room  to “interpret” Yeshiva in a different way going forward, while still utilizing the framework of the Court’s analysis. The NLRB clearly has signaled its intention to consider that course of action.  Recently, in connection with its review of a faculty election issue involving Pacific Lutheran University, the NLRB has invited interested parties to submit briefs on a number of issues related to its application of Yeshiva, including:

• Which of the factors identified in NLRB v. Yeshiva University, 444 U.S. 672 (1980), and the relevant cases decided by the Board since Yeshiva are most significant in making a finding of managerial status for university faculty members and why?
• In the areas identified as “significant,” what evidence should be required to establish that faculty make or “effectively control” decisions?
• Are  the factors identified in the Board case law to date sufficient to correctly determine which faculty are managerial?
• If the factors are not sufficient, what additional factors would aid the Board in making a determination of managerial status for faculty?
• Is the Board’s application of the Yeshiva factors to faculty consistent with its determination of the managerial status of other categories of employees and, if not, (a) may the Board adopt a distinct approach for such determinations in an academic context, or (b) can the Board more closely align its determinations in an academic context with its determinations in non-academic contexts in a manner that remains consistent with the decision in Yeshiva?
• Do the factors employed by the Board in determining the status of university faculty members properly distinguish between indicia of managerial status and indicia of professional status under the Act?
• Have there been developments in models of decision making in private universities since the issuance of Yeshiva that are relevant to the factors theBoard should consider in making a determination of faculty managerial status? If so, what are those developments and how should they influence the Board’s analysis?
• As suggested in the Yeshiva decision, are there useful distinctions to be drawn between and among different job classifications within a faculty--such as between professors, associate professors, assistant professors, and lecturers or between tenured and untenured faculty--depending on the faculty's structure and practices?

Changes in how the NLRB applies the Supreme Court’s Yeshiva decision, coupled with an AAUP more inclined to pursue union organizing, could lead to some very interesting developments for private colleges and universities in the next year or so.  Stay tuned.

After what seemed like a small lull in NLRB activity impacting Higher Education, the National Labor Relations Board has once again signaled potentially significant alterations to the legal landscape. Just last week, the NLRB issued an “invitation” to file briefs in a case involving Pacific Lutheran University.  This specific case involves the interplay between organizing rights (in this instance for adjunct faculty) under Section 7 of the National Labor Relations Act and the Religious Clause of the First Amendment, which in 1979 the Supreme Court held in NLRB v. Catholic Bishop of Chicago precludes the NLRB from becoming entangled in religious issues (in that case the Court held that the NLRB could not require a union election among lay teachers at a Catholic school). This “invitation” asks interested parties to address the appropriate test that the Board should apply under Catholic Bishop and to identify factors it should consider in determining the appropriate standard for asserting jurisdiction. But the invitation goes much further than this question which is only of significance to religiously affiliated institutions.  The underlying Pacific Lutheran University case also includes a claim that the University’s adjunct faculty are managerial under NLRB v. Yeshiva University because, among other things, there are adjuncts who are voting members of the University’s Faculty Assembly, along with their tenured and tenure track faculty.  The invitation, therefore, also requests interested parties to identify those factors that the Board should consider most significant in making a managerial determination, as well as what evidence should be required to establish that faculty “effectively control” decisions.  In particular, the Board has solicited information on whether there have been “developments in models of decision making in private universities since the issuance of Yeshiva that are relevant to the factors the Board should consider in making a determination of faculty managerial status?” What is the significance of this invitation?  It likely signals some significant changes in the near future.  The fact is that unless the Board were inclined to consider some dramatic moves in these two areas, it would not have needed (or wanted) to solicit briefs on these issues.  Stay tuned - given the recent history of this Board, significant change is almost certainly on the horizon.