The regional labor board director’s decision finding that the Northwestern scholarship football players are statutory employees under the Labor Act presents a most formidable challenge to NU’s lawyer who is appealing it. Taking nothing from that legal counsel, who is unquestionably most able, the decision left no obvious entry point for successful attack.
It reflected fastidious review of the facts and research and analysis of the law. The NLRB in Washington, with whom the appeal was filed, will not merely “rubber stamp” the director’s decision.
Rather, it will carefully evaluate the issue on the merits. I would, though, in view of the governing provisions of the act and applicable legal principles, have to say NU faces a very steep hill to climb on appeal. Nothing is certain in life or in the law, but, to me, the director’s decision certainly looks sound in every respect.
If NU’s appeal is denied, the players’ votes on April 25 would thereupon be counted. If a majority of valid votes are “no” on union representation, the issue is all but closed for at least 12 months (when another petition could be filed). It would be “all but closed” because, conceivably, College Athletes Players Association could file objections to NU’s pre-election conduct or the board’s conduct during the election itself. Both appear rather remote possibilities, as it looks like NU has been very respectful of its players’ rights, and the board has lots of experience in conducting elections.
However, on both contingencies, “appear” and “looks” are very operative words. On the first, we can only go by what is reported in the media. Regarding the second possibility, not being prescient, I cannot foretell that the board agent conducting the election will not, for example, fail to open the polls timely or, as another example, be alleged to have made objectionable remarks during the polling period. Those caveats aside, if NU garners a majority of the votes, the union issue will be quickly laid to rest for 12 months or more.
Obviously, if CAPA gets the majority of the votes, a different scenario is presented. With that victory, CAPA would promptly request NU to meet and bargain for a contract.
Assuming that NU is still convinced that the players are not employees and wants to pursue all of its rights of appeal, it would have to refuse to recognize CAPA. The bad news is that the refusal would result in the board finding NU guilty of an unfair labor practice. The good news is, with that finding, NU has a legal standing to file in federal appeals court where it would contest that threshold determination of employee status. Whichever party loses in the federal appeals court could seek review by the Supreme Court.
If this matter were to go as far as its being decided by the High Court, I’d guess (being an optimistic sort) there would be a final resolution in perhaps three years, as a Supreme Court decision adds at least a year to the process. All that time CAPA would not be recognized by NU as the players’ representative, as that goes to the very heart of what remains at issue. Clearly, this is a very laborious process.
But it is what Congress enacted in the National Labor Relations Act. It assures all parties due process in controversies involving the important question of employee representation.
David A. Nixon