Former Northwestern quarterback Kain Colter speaks at a College Athletes Players Association news conference in January. Colter and CAPA are leading the fight to organize Northwestern athletes.


The Fight To Unionize College Athletes Could Also Expand Union Rights For Graduate Students

The National Labor Relations Board announced Thursday that it will review a regional director’s decision that gave college athletes at Northwestern University the right to vote to form a union, a move that will give the full NLRB a chance to weigh in on whether college athletes are students or employees. But while the focus of the Northwestern case has remained on college athletics, the NLRB’s decision to review the case could also have large implications for another group of students that has long sought the right to organize.

In a brief filed with the NLRB last week, the College Athletes Players Association, which wants to represent the athletes, asked the NLRB to further review — and possibly overturn — a previous Board decision that took away bargaining rights from graduate students who work as teaching and research assistants on campus.

The labor rights of graduate teaching and research assistants have been prominent front in the labor movement for decades, since graduate teaching assistants began to organize at various state universities. For more than a decade, the fight has centered on graduate assistants at private colleges and universities, as the NLRB briefly gave them the right to organize before ruling later that they could not. Labor advocates have sought ways to put the issue back in front of the NLRB for years.

Now, according to labor law experts, the Northwestern case could do just that.

The dispute between Northwestern and its athletes — and the College Athletes Players Association — has been related to questions about the organizing rights of graduate students from the beginning, as the two sides have disputed the role of a 2004 NLRB decision regarding graduate student teaching assistants at Brown University. In that case, the Board established an additional standard for determining employee status for students: in addition to meeting the legal definition of “employee,” students seeking bargaining rights had to have a primarily economic relationship with their university with regard to the services they were providing. In Brown, which overruled a previous decision that had granted organizing rights to graduate teaching and research assistants, the Board found that the services provided by graduate students in question were instead academic in nature because their teaching and research duties were tied to their degree requirements. As such, it ruled that they did not have the right to bargain even on issues like wages and health care benefits that existed separately from their education.

Northwestern leaned heavily on the Brown decision in its request for review of the March ruling from a the regional director of the NLRB’s Chicago chapter that deemed college athletes employees and gave them the right to form a union. Northwestern argues that the Brown decision’s stipulations for employee status preclude the university’s athletes from having the right to organize.

CAPA, however, argues that the Brown case is irrelevant to its own, primarily because unlike teaching assistants, athletes get no academic credit for their services. Their relationship with Northwestern, then, is obviously economic, and Brown‘s standards do not apply. Further, CAPA argues that even if Brown did apply, the athletes would meet the criteria it establishes, a belief that matches the ruling of the Chicago regional director, who used the common law definition of employee to rule in favor of the athletes but said that they would also meet the standards laid out in Brown.

But in a reply brief filed to the NLRB last week, CAPA took its arguments against Brown a step further in a move that could involve graduate students directly in the case. The brief argues that while Northwestern has misinterpreted the Brown decision in a way that could limit bargaining rights even more than it already does, the entire Brown ruling was reached incorrectly. And CAPA argued that if the NLRB were to grant review, as it has now done, it should reconsider whether the Brown standards are correct before it determines the outcome of the case involving athletes.

“[I]f review is granted, the Board should reconsider Brown‘s analysis at the most fundamental level,” the CAPA brief stated. “Only if the Board were to conclude that the Brown majority reached the right conclusion with regard to duties that are ‘part and parcel of the core elements of the degree’…would it become necessary to decide whether that conclusion should be extended to duties, such as those at issue here, that are not part of a student’s degree requirements.”

“Seeking a ‘student employee exemption’ to the Act, Northwestern reaches far beyond Brown,” the brief continued. “Brown was wrong, but Northwestern would be wrong even if Brown was right. If the Board grants review, Brown should be reconsidered. Only if the Board were to reaffirm Brown would it be necessary to consider whether Brown should be extended to the very different context presented here. As we have shown, it should not.”

If the Board decides to review Brown as part of its review of this case, it would add another major implication: not only would the unionization rights of college athletes at private colleges and universities be in question, the organizing rights of graduate teaching and research assistants at those same colleges and universities would be at stake too.

The NLRB has reversed itself on unionization rights for graduate teaching assistants before. In a landmark 2000 decision, it ruled that graduate assistants at New York University fit the definition of employees and could bargain with the university on issues like wages, health care benefits, and working conditions. But four years later, the NLRB reversed course and, in the Brown case, ruled that graduate assistants were not employees and could not bargain.

Both cases were seen as at least partially political — the NYU decision was handed down by President Clinton’s NLRB, the Brown reversal by President Bush’s — and labor advocates have long hoped to put the Brown case back in front of the NLRB while President Obama is in office (the five-member board is appointed by the president and currently has a 3-2 Democratic majority). The NLRB agreed to review the Brown decision in 2012 as part of a case involving graduate students at NYU. But the university and the United Auto Workers, which sought to represent NYU students, settled out of court in November 2013 before the Board reached a decision.

The graduate students at NYU eventually voted to unionize, a move they said was meant to help combat rising tuition and health care costs and the increasing burden of student debt as their wages and stipends didn’t keep up.

But because Brown still stands, similar bargaining rights don’t exist at private universities outside NYU (graduate students have organized for decades at various state universities, which are governed by state labor laws).

How likely is it that the NLRB would decide to again re-examine graduate students’ organization rights as part of the Northwestern case?

Right now, it’s impossible to say without relying on speculation, Robert and Amy McCormick, labor lawyers and Michigan State professors who authored a 2006 paper on the employment rights of college athletes, said.

“It is another case involving people who are both employed — or allegedly employed — and students at the same time,” Robert McCormick said. “So I think the Board might take this opportunity to do it. But they might not.”

But both McCormicks agreed that reviewing the Brown decision is well within the scope of the NLRB and is certainly a possible outcome of the Northwestern case should the Board agree to review the regional director’s decision.

The Northwestern case could become “a vehicle for reconsidering Brown,” Amy McCormick said, especially as CAPA argues that the Brown case was decided too broadly.

One major issue CAPA raises with the Brown case is why, “if collective bargaining with respect to graduate students’ teaching duties might potentially involve academic decisions, the graduate students should be denied the right to organize and to bargain over matters that do not involve academic decisions.”

“When they make the request that the NLRB reconsider Brown, they’re saying essentially that the Brown case was decided too broadly, because while there are some things related to the academic relationship that you shouldn’t really be bargaining – like how many credits you need to graduate – just because there are some things in that relationship that are not proper for bargaining doesn’t mean everything is improper for bargaining. Just because they are students doesn’t mean they shouldn’t be able to bargain over their wages as teachers or as research assistants,” she said.

That’s a key point in Brown, one many labor lawyers believe the NLRB reached incorrectly. And narrowing the scope of Brown in a way that allows graduate research and teaching assistants to bargain on non-academic matters could be one outcome of an NLRB review even if it decides not to toss aside the decision completely, Amy McCormick said.

“This case could lead the Board to overrule Brown, or modify Brown,” McCormick said. “If they made it narrower, the way the brief suggests in the CAPA case, the Board could come up with something where they allow graduate students in the future to unionize, but they could bargain only on certain matters.”

That could give graduate assistants the right to bargain on issues like terms of their working relationship, hours and wages, and health care while leaving purely academic issues — like the number of credit hours required to earn their degree — exempt from bargaining. That would be a positive step for graduate students at private colleges and universities, if unions at state universities are any indication: a 2013 study of organized graduate assistants at state universities found that “unionized graduate students earned more, and were more likely to report that they were paid fairly.”

It is far from a certainty that Brown will come under review as part of the Northwestern case. The NLRB could agree with CAPA’s original stance that Brown doesn’t apply because “these football services that are being provided have nothing do with education, nothing to do with an academic relationship,” Amy McCormick said. That would fall in the line with the regional director’s decision. The NLRB could reverse the regional director’s decision. Or the NLRB could agree to review Brown but rule that it is an appropriate standard, even if it wouldn’t necessarily apply in this case.

A final outcome in the CAPA case is likely months, if not years, away, and whatever happens with regard to Brown‘s role in the case is ultimately up to the NLRB. What the Board will do is “anyone’s guess,” Amy McCormick said.

“We’ll have to wait and see what the Board does,” she said. “There are a lot of things they could do here.”

Pictured: Former Northwestern quarterback Kain Colter speaks at a College Athletes Players Association news conference in January. Colter and CAPA are leading the fight to organize Northwestern athletes. (Credit: Associated Press)

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