Northwestern University and College Athletes Players Association (CAPA), Case No. 13-RC-121359 (August 17, 2015)

In a highly publicized case in which the AAUP filed an amicus brief (.pdf), the National Labor Relations Board declined to assert jurisdiction (.pdf) over the Northwestern University football players’ petition seeking union representation rendering the players unable to unionize under the auspices of the NLRB. The Board, however, explicitly limited its decision to the unusual circumstances of the case, avoiding broader questions involving the unionization of graduate student assistants and others. The Board concluded that asserting jurisdiction over the Northwestern University scholarship football players would not promote stability in labor relations due to the unusual facts of the case, which involved unionizing a single football team rather than teams on a league wide basis, and the fact that the NCAA and the Big Ten conference maintain substantial control over individual teams, the overwhelming majority of which are from public colleges and universities over which the Board cannot assert jurisdiction. The Board emphasized that “this case involves novel and unique circumstances,” repeatedly highlighting the narrow and limited nature of the decision. The AAUP, in response to an invitation from the Board, had filed an amicus brief arguing that graduate student assistants are “employees” with rights to unionize under the NLRA. In its decision the Board did not address this issue and instead explained that “scholarship players bear little resemblance to . . . graduate students,” and that it was not expressing an opinion on its prior graduate student assistant cases. Nonetheless, graduate student assistants at The New School and elsewhere have recently sought to unionize, and the AAUP looks forward to again filing amicus briefs supporting graduate student assistants’ rights to unionize under the NLRA.

The Northwestern University case arose when the grant-in aid scholarship football players sought to unionize. The Regional Director held that the football players were “employees” under the NLRA. While the primary issue involved whether the undergraduate football players were “employees”, the Regional Director also addressed whether or not the players were analogous to graduate student assistants. This brought into the case the standard for whether graduate student assistants are considered employees as defined by the NLRA. In reviewing Northwestern University’s appeal of the Regional Director’s decision, the Board invited amicus briefs to address several important issues, including whether the Board should modify or overrule its 2004 decision in Brown University, which held that private university graduate student assistants were generally not employees with rights to unionize under the NLRA.

On July 3, 2014 the AAUP filed an amicus brief and argued that the Board should overrule the test of employee status applied in Brown to graduate student assistants, but did not take a position as to whether the unionization of college football players was appropriate. The AAUP’s brief explained:

The policy reasons cited by the Brown University majority do not justify implying a special “graduate student assistant” exception to the statutory definition of “employee.”  Therefore, the Board should overrule Brown University and return to its understanding that, where “the fulfillment of the duties of a graduate assistant requires performance of work, controlled by the Employer, and in exchange for consideration,” “the graduate assistants are statutory employees, notwithstanding that they simultaneously are enrolled as students.” New York University, 332 NLRB 1205, 1207, 1209 (2000). 

The amicus brief took particular issue with the argument that academic freedom justified depriving graduate student assistants of the right to unionize. As the brief argued: 

At its core, the Brown University test of employee status is based on an erroneous understanding of the relationship between academic freedom and collective bargaining.  . . . Indeed, interim developments provide further support for the notion that collective bargaining is compatible with academic freedom. These include the NYU administration’s decision to voluntarily recognize its graduate assistant union and a new research study that is the first to provide a cross-campus comparison of how faculty-student relationships and academic freedom fare at unionized and non-unionized campuses. 

Therefore, the brief concluded that “the Board should overrule the test of employee status applied in Brown University and return to its well-reasoned NYU decision, which found collective bargaining by graduate assistants compatible with academic freedom.”

On August 17, 2015, the Board issued its decision in Northwestern University, holding that it would not assert jurisdiction over the union’s petition for an election because doing so would not serve to promote stability in labor relations. The primary question before the Board was whether scholarship football players were employees covered by the NLRA. However, the Board avoided this question. Instead, it relied on a seldom used jurisdictional principle to dismiss the case. The Board explained, “even when the Board has the statutory authority to act (which it would in this case, were we to find that the scholarship players were statutory employees), ‘the Board sometimes properly declines to do so, stating that the policies of the Act would not be effectuated by its assertion of jurisdiction in that case.’”

Here the Board looked to whether asserting jurisdiction, and therefore potentially finding that the players have NLRA rights to unionize, would advance the policy of promoting stability in labor relations. The Board summarized:

After careful consideration of the record and arguments of the parties and amici, we have determined that, even if the scholarship players were statutory employees (which, again, is an issue we do not decide), it would not effectuate the policies of the Act to assert jurisdiction. Our decision is primarily premised on a finding that, because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of FBS football [NCAA Division I Football Subdivision] (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction), it would not promote stability in labor relations to assert jurisdiction in this case.

However, in its decision the Board clearly and repeatedly emphasized the “novel and unique circumstances” of the case and the narrow and limited nature of the decision. The Board explained that it was not addressing the rights of other individuals at universities, particularly the status of graduate student assistants:

[S]cholarship players do not fit into any analytical framework that the Board has used in cases involving other types of students or athletes. In this regard, the scholarship players bear little resemblance to the graduate student assistants . . . [Footnote 10 See, e.g., Brown University, 342 NLRB 483 (2004) (finding graduate student assistants are not statutory employees), overruling New York University, 332 NLRB 1205 (2000) (finding graduate student assistants are statutory employees). Unlike those graduate assistants, the scholarship players are undergraduates, and—with the potential exception of students seeking undergraduate degrees in physical education—the football activities they engage in are unrelated to their course of study or educational programs.]

[Footnote 12 - In discussing Brown University . . . . supra, we express no opinion as to whether those cases were correctly decided or whether they might be relevant to assessing whether the scholarship players are statutory employees. We observe only that the Board has never confronted a case involving students who are similarly situated to the scholarship players at issue in this case.]

Although the Northwestern University case generated a significant amount of attention, the precedential impact of the decision is limited. The Board emphasized that it might assert jurisdiction in a future case based on possible changes in FBS football or in the university’s treatment of scholarship players. The Board observed, as well, that its decision dealing with a single-team petition for an election should not be read as suggesting its approach to a petition for an election covering FBS scholarship football players at all private colleges and universities. Further, the Board explained that other individuals associated with college sports teams were not affected by its decision: “We  emphasize  that  our  decision  today does  not  concern  other  individuals  associated  with  FBS  football, but is  limited  to  Northwestern’s  scholarship  football  players. In  this  regard, we observe  that  the  Board  has  exercised jurisdiction  in  other  contexts  involving  college  athletics. The Board has, for example,  adjudicated  cases  involving athletic  coaches, college  physical  plant  employees  who performed  functions  in  support  of  athletic  events, and referees. Our decision today should not be understood to extend to university personnel associated with athletic programs.”

While the Northwestern case was pending, the issue of graduate student assistant unionization under the NLRA was proceeding in other cases. One case pending before the Board concerned graduate student assistants seeking to unionize at New York University, in which AAUP had filed an amicus brief in support of expanding rights of graduate student assistants under the NLRA. This case was settled by the parties and the graduate student assistants were allowed to vote on unionization, which the union won overwhelmingly. Therefore, the case was dismissed by the Board.

However, unions also filed petitions to unionize graduate student assistants and other students who provide instructional services at Columbia University and at The New School. Both petitions were filed as test cases aimed at having the Board reconsider and overrule its 2004 holding in Brown University that graduate student assistants were not "employees" as defined by the NLRA. The Region 2 Director rejected both petitions, without a hearing, based on the Board’s decision in Brown. On appeal, the Board reversed the decision, concluding that the cases raised substantial issues under the NLRA that warranted a hearing. In so doing, the Board allowed the parties to provide evidence and argument regarding whether Brown University should be reconsidered or overruled. Columbia University, NLRB Case No. 02-RC-143012 (March 13, 2015); The New School, NLRB Case No. 02-RC-143009 (March 13, 2015).

On July 30, 2015, based on seven days of hearing, the Regional Director issued a decision in The New School case, including extensive discussion of the evidence. While the facts were generally favorable for the unionization of graduate student assistants, the Regional Director concluded that she was bound by the Board’s decision in Brown until the Board reconsiders or overrules that decision. Accordingly, the Regional Director stated, “I conclude that I am constrained by Brown, which holds that graduate assistants are not ‘employees.’. . . Because the Petitioner seeks to represent individuals employed in classifications which fall within the term ‘graduate assistants,’ Brown is controlling, and therefore I am dismissing the petition.” On August 13, 2015, the union appealed the Regional Director’s decision, requesting that the Board overrule Brown University and hold that graduate student assistants are employees with rights to unionize under the NLRA.

The New School case, with its extensive factual record, provides an excellent opportunity for the Board to act on its indicated interest in reconsidering the Brown decision. And, barring a settlement, the AAUP expects again to file an amicus brief in support of expanding graduate student assistants’ rights to unionize under the NLRA.