By Gregg E. Clifton, Howard Bloom and Patrick Egan, of Jackson Lewis
The decision of the Regional Director of Region 13 of the National Labor Relations Board (“NLRB”) that scholarship football players at Northwestern University are “employees” under the National Labor Relations Act (“NLRA”) has created an interesting question for all colleges and universities: Are members of coaching staffs now considered to be supervisors under the NLRA? The answer is likely “yes.” This would mean that members of athletic department coaching staffs must be trained to foster their understanding that the NLRB has changed the rules relating to scholarship athletes.
A Section 2(11) “supervisor” under the NLRA is one who possesses the authority, in the employer’s interest, ”to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
Supervisory status requires an extensive analysis turning on the facts in each case. However, based upon the defined role and generally accepted responsibilities of most college football coaches, it is likely that the NLRB will conclude in almost all cases that coaches are statutory supervisors, if their players are employees.
If this is so, coaches’ actions and statements can legally bind their university and constitute unfair labor practices (“ULP”) in violation of the NLRA. The NLRA prohibits employers from making statements or engaging in conduct that “interferes with, restrains or coerces” employees in their right to join a union or to band together to improve working conditions. It also prohibits employers from discriminating against employees because of their union activities or sympathies, or because they band together to improve working conditions.
An NLRB Regional Office’s investigation of a ULP charge will decide whether the athlete is an employee under the NLRA, and whether the coach who engaged in the complained-of conduct or made the allegedly unlawful statement is a “supervisor.” If the Region decides that the answer to both questions is yes, it will then decide whether the coach’s conduct/statement violated the NLRA.
The remedies that potentially can be imposed against a college or university by the NLRB depend on when the ULP occurs:
The potential remedy for a ULP committed at any time is the posting (for 60 days) of an official “Notice to Employees” in the workplace (conspicuously placed wherever other notices to employees, now including student-athletes, are posted) stating that the institution violated federal law, with a description of the specific illegal acts found to have been committed. In certain cases, the NLRB even has required a senior member of the management team involved in the ULP to read the Notice to the affected employees. Further, if an employee has been unlawfully suspended or terminated (improperly benched, suspended or kicked off the team), the NLRB can order reinstatement (placement back on the team’s roster) and back pay (reinstatement of the athlete’s scholarship and all of its benefits).
If the ULP occurs after the union has filed a petition with the NLRB to conduct a representation election, remedies could include overturning any election that the institution may have won and requiring a rerun election. The college or university also would have to post a Notice to Employees. Again, if an employee has been unlawfully suspended or terminated, the NLRB also can order reinstatement and back pay, with rapidly accumulating interest.
If the ULP occurs while there is active union organizing underway and after the union had obtained signed union authorization cards from a majority of the “employees” in the proposed unit, presumably including scholarship football or basketball players, the NLRB would require the posting of a Notice.
If the ULP involved what the NLRB refers to as “outrageous” and “pervasive” violations, or those tending to undermine the union’s majority strength and impede the election process, and where the possibility of erasing the effects of that conduct and ensuring a fair election is slight, the NLRB also could impose a more drastic remedy of issuing a “bargaining order.”
This would require a college or university to recognize the union as the representative of the players and begin the process of negotiating a collective bargaining agreement. This could occur in the absence of an election or after an election in which the union lost. Examples of such “hallmark” violations of the NLRA include conduct such as terminating key union supporters (e.g., cutting union supporters from the team), providing benefits to players to discourage their interest in the union or threatening plant closure (e.g., shutting down the program or taking away all scholarships) to discourage union organizing.
The impact of the NLRB’s finding that scholarship football players at Northwestern University are “employees” provides potential ramifications in addition to the change in status for these scholarship athletes. It requires the further education of athletic department coaching staffs to ensure their understanding that the NLRB has changed the rules. All coaches must be aware of their likely status as legal supervisors and the potential legal ramifications of their actions under the NLRA.
