Guest Column: NLRB’s failure to decide Northwestern unionization case hurts everyone

David Nixon, Guest Columnist

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Here’s a possibly necessary reminder: On Jan. 28, 2014, Northwestern football players filed a petition with the National Labor Relations Board, seeking an election to determine whether a union, CAPA, could get majority designation to act as their bargaining representative. Following some necessary legal procedures, including issuance of a decision by the NLRB’s Chicago Office Regional Director Peter Sung Ohr ruling that the players are eligible to vote on union representation under the Wagner Act, an election was held among the players on April 25, 2014. However, just before that election, the University filed an appeal with the NLRB in Washington, D.C., contesting Ohr’s ruling on the statutory status of the players. Therefore, the players’ ballots were impounded. The NLRB has not ruled on NU’s appeal.

As a Northwestern School of Law alumnus (Class of 1964) and an attorney who served as a regional office NLRB prosecuting attorney for 37 years, I have closely followed this case. First, with my obvious affinities, as a virtual “labor of love,” but after the initial bloom faded, it has become a source of frustration and consternation. The latter feelings flow from what seems to me to be inexcusable indolence by the Board. I should note that this editorial is an opinion piece — embodying my opinion, not that of NU.

The NLRB’s delay cannot be justified on any valid ground. There is nothing looming on the horizon or beyond that would furnish the Board with more insight into the issue to be resolved. That issue, as indicated above, is whether the NU football players qualify as statutory employees under the Wagner Act. Its answer determines the players’ eligibility to vote on union representation in a NLRB-conducted election. There is no question in my mind that the Board continues to “sit on its thumbs” on this case because it lacks fortitude. The Board’s five members are appointed by the President for five-year terms with the advice and consent of the Senate. The NLRB’s members are all fond of their prestigious jobs. They all desire to be reappointed eventually. Reappointment is governed by the same process as initial appointment. The members are keenly aware that the NU representation case is a “hot political football” — pun intended.

Most political observers would tell you that the Senate, with a Republican majority, would react in a very negative way to the Board’s issuance of a decision sustaining the Director’s holding that the players are statutory employees eligible to vote on union representation. The notion of unions being injected into intercollegiate athletics would not be very popular among conservatives. President Obama, to my knowledge, has given no indication of any preference here. But he once taught at the University of Chicago Law School, so I would not be surprised if he found Director Ohr’s decision impressive. I found that decision reflected great expertise. I haven’t the temerity to say the Board’s decision on the merits of this case — at such time as it comes down — would be driven by political considerations. I am temerarious enough to say those considerations have controlled the NLRB’s work rate and slowed to a veritable halt on this sensitive case. The case is important, as it will be the first on the issue of intercollegiate athletes being eligible for union representation. But there is a big difference between careful consideration and a state of narcolepsy.

The NLRB’s inertia ill-serves all of the parties. It hurts the University, CAPA and the players. With the issue in limbo, NU is an unattractive choice for all prospective recruits. What promising high school player would gamble his college football career on a school saddled with NU’s unresolved union question? As for the present Cats, the uncertainty has to be a substantial distraction for many. CAPA also is surely unhappy with its organizational efforts being nullified by a seemingly endless administrative brick wall.

I have a proposed solution. That solution is a petition signed by duly authorized representatives of NU and CAPA, respectively, and a majority of the team’s players. The petition would call for the Board’s proceeding within the ensuing 30 days to issue its decision, as action on the petition would advance everyone’s best interest. That petition would be served to the NLRB’s Executive Secretary in Washington and on the Senate, to the attention of its Majority Leader. That petition would appear to be an effective move, as, when the Senate talks, the NLRB listens.

I am mindful that even with a NLRB decision, there will remain further “bridges to cross” in the form of more legal appeals. But here — like in the great game of baseball — you cannot get home without getting across second base.

David A. Nixon is a​n alumnus of the School of Law Class of 1964. He can be reached at glonix@hotmail.com. If you would like to respond publicly to this column, send a Letter to the Editor to opinion@dailynorthwestern.com.

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