NLRB Opens Backdoor for NCAA Athlete Unionization

Broad ‘employee definition’ in grad student ruling could spread to football field

Butler Library at Columbia University

Butler Library at Columbia University / Wikimedia Commons

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The National Labor Relations Board’s decision to allow graduate student unionization has inspired other universities to organize unions and could re-open the door to the unionization of NCAA athletes.

The Democratic board reversed precedent on Aug. 23 that prevented student teaching and research assistants from organizing unions and gave the go-ahead for graduate and undergraduate students at Columbia University to organize and collectively bargain through the United Auto Workers union. Less than a week later students at Yale University petitioned the board to join UNITE HERE—a hotel workers union that also represents Yale service employees.

"We’re extremely excited to have our election, make it official, and get to negotiating a contract for the improvements we want to see," Local 33–UNITE HERE co-chair Robin Canavan said in a release.

The National Labor Relations Board is the top federal labor arbiter and oversees unionization campaigns and elections. The board voted 3-1 to allow graduate students to unionize because their performance in teaching and research capacities contributed to a private university’s bottom line. The board had previously held that students did not qualify as employees because their primary relationship with the campus was educational, rather than economic.

"We hold today that student assistants who have a common-law employment relationship with their university are statutory employees under the Act," the board’s three Democrats said in the ruling. "There is undoubtedly a significant economic component to the relationship between universities, like Columbia, and their student assistants."

Legal experts told the Washington Free Beacon that the ruling would have major consequences for American universities because of the how broadly it was written.

Scott Schneider, head of Fisher Phillips’ higher education practice, called the Columbia case a "remarkable ruling" given its departure from prior precedent. While a previous Democratic board allowed graduate students to organize in 2000, the Columbia opinion includes undergraduates.

"It basically applies to all student employees who provide any instructional service," he said. "Whether a service is educational is completely thrown out the window. The main question will be: are they providing services to the university and are they receiving compensation? It’s a very broad definition of employee."

The employee standard set in Columbia could extend beyond mere instruction. Northwestern University football players petitioned to organize a union in 2014. A regional director approved the petition, but the NLRB board ultimately dismissed the case in 2015 because its jurisdiction did not extend to public schools, which make up the majority of big time college athletics. Schneider says that the board’s legal reasoning could re-open the case for unionizing athletes because they bring in economically beneficial television and apparel contracts and sales.

"If this board decided to revisit the issue of whether student athletes were employees the definition of employee [set in Columbia] is so broad that student athletes would have a very strong case," he said.

Republican board member Philip Miscimarra was the sole dissenter in the case, arguing "Congress never intended that the NLRA and collective bargaining would be the means by which students and their families might attempt to exercise control over such an extraordinary expense." Former board member Peter Schaumber said that the Obama board has departed from the letter and decades of jurisprudence surrounding the National Labor Relations Act.

"The Board since the Act was passed has recognized, as it had to, that the Act was intended to apply to the workplace, not the classroom or the football field, or those other ‘work’ relationships, that are not primarily economic in nature," Schaumber said. "The union side members of the Board, all committed members of the labor movement, are trolling for membership on behalf of their constituency."

Bill McMorris   Email Bill | Full Bio | RSS
Bill McMorris is a staff writer for the Washington Free Beacon. He joins the Beacon from the Franklin Center for Government and Public Integrity, where he was managing editor of Old Dominion Watchdog. He was a 2010 Robert Novak Fellow with the Phillips Foundation, where he studied state pension shortfalls. His work has been featured on CNN, Fox News, The Economist, Colbert Report, and numerous print publications and radio stations. He lives in Alexandria, Va, with his wife and three daughters. His Twitter handle is @FBillMcMorris. His email address is mcmorris@freebeacon.com.