In April, when the National Labor Relations Board agreed to take up the case that gave Northwestern University football players the right to vote to form a union, I reported that the Northwestern case could also have implications outside college sports. Because of an argument the College Athletes Players Association, which wants to represent the athletes, had made in a reply brief to the NLRB, the case could also lead to expanded unionization rights for graduate students at private colleges and universities too.
Put simply, the Northwestern case involves a dispute over the role of a previous NLRB decision involving college students — Brown University vs. NLRB — in which the Board ruled that graduate student teaching and research assistants were not employees under the federal National Labor Relations Act and thus could not organize (that case reversed a previous NLRB decision that ruled the opposite). Northwestern wants the NLRB to rely on that decision to reach a similar ruling in this case; the athletes say that Brown isn’t applicable. In a reply brief to the NLRB last month, however, CAPA went a step further on Brown, arguing that it wasn’t just inapplicable to this case but was also incorrect even apart from it. As such, CAPA said that if the Board viewed this case in the context of Brown, it should also review that decision, perhaps to modify or overturn it. And if the NLRB decides to do that, graduate teaching and research assistants could again have the right to organize.
Now, in its call for amicus briefs, the NLRB has indicated that it is at least considering putting Brown under review as part of the Northwestern case. In the call for briefs, the NLRB outlines six possible questions that amicus briefs should address. The first asks whether Brown should apply to the case. The second asks whether it should “adhere to, modify, or overrule” the Brown decision if it is indeed relevant to Northwestern’s case. From the document, which the Board issued last week:
1. What test should the Board apply to determine whether grant-in-aid scholarship football players are “employees” within the meaning of Section 2(3) of the Act, and what is the proper result here, applying the appropriate test?
2. 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?
When I first reported the possibility that Brown could come under review as part of the Northwestern case, Robert and Amy McCormick, labor lawyers and professors at Michigan State University, said that it was impossible to know what the NLRB would do without relying on speculation. But now, it appears that the Board is at least thinking about the ways Brown could affect this case — and the possibility that its decision in Brown could merit a review.
Given CAPA’s argument against Brown, the fact that some labor experts believe the Brown decision was too broad, and that getting the case reviewed has been a priority in segments of the labor community since it was first handed down nearly a decade ago, it is likely that the NLRB will receive briefs arguing that it should be overturned or modified.
Amy McCormick outlined one argument against the Brown ruling in my story in April:
“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.
It’s still possible that Brown won’t affect the Northwestern case at all, since the Board could agree with CAPA and the regional director’s original decision that Brown is irrelevant to this case. And even a review wouldn’t guarantee that the Board would overturn or modify its decision. But the NLRB has, at the very least, opened the door to a review that could make the Northwestern case as significant for graduate students who want to unionize as it is for college athletes seeking the same right.
You can read the full explanation of how Brown relates to the Northwestern case here.