A former senior official at the National Labor Relations Board said that the agency’s decision to allow college football players to unionize is destined for a challenge in federal courts.
Jerry Hunter, who served as George H.W. Bush’s general counsel at the NLRB, said that the groundbreaking ruling is on shaky legal ground and faces staunch opposition from not only politicians, but also a federal court system that has already overturned a number of prominent NLRB rulings.
"I was a little surprised by the decision, but unfortunately I hate to admit that the regional director may have been trying to read the tea leaves about where the Obama appointed board is going. They’ve been reversing a lot of precedent," said Hunter, who is now a management-side labor lawyer at Bryan Cave LLP.
The NLRB declared that scholarship college athletes qualify as employees because the players and schools receive financial benefits in exchange for athletic performance. The ruling exempted public schools from unionization and barred walk-on athletes from joining. The ruling upset a number of college athletes, coaches, and politicians.
The regional director’s decision must first be reviewed by the Obama-appointed national NLRB, which is the final arbiter on labor disputes before the federal courts. If the NLRB upholds the decision—which Hunter says is likely given the presence of "three union lawyers on the board"—the football team will be eligible to hold a union election. Only if that effort is successful will Northwestern be able to bring the case to federal court.
"I’d be shocked if Northwestern didn’t file a request for review and appeal to circuit court," Hunter said. The school should have better luck in the federal appeals system, he said.
Federal courts have dismissed several prominent NLRB decisions and have even challenged the constitutionality of the board since Obama took office. David Phippen, a management-side labor lawyer at Constangy, Brooks, and Smith, said that there were a number of major problems with the Northwestern decision, including its unreasonable division of teams into walk-ons and scholarship players. He likes the school’s chances in federal court.
"In the current world, employers have had more success in the courts than with the NLRB because of the political agenda in interpreting the law that is currently going on," Phippen said. "On nearly every issue when a reasonable middleground interpretation is possible, that is not what the current majority of board seems to be taking."
The Northwestern decision is just the latest in a string of radical rulings, according to Phippen. He pointed to its controversial decisions to allow micro-unions, as well as forcing employers to continue handing over employee dues to unions when contracts expire as examples of the Obama board’s willingness to ignore longstanding precedent to benefit unions.
"The courts have been better at checking the board and giving employers a fair hearing," Phippen said.
Hunter said that he expects to see more controversial decisions over the next several years.
"Elections have consequences. Even in college football," he said.