Summary
Professor William Gould comments on the effects that a recent ruling by the National Labor Relations Board could have on college football players for CQ Roll Call.
The National Labor Relations Board may be on the verge of putting some New York graduate students at the cutting edge of labor rights in a case that could ripple out to the federal courts, Congress, and, most importantly, college football. The board last month told its regional office in New York to reconsider a decision that teaching assistants and other graduate students at Columbia University and the New School, both in New York City, werenât eligible for collective bargaining protection under the National Labor Relations Act. The New York office, following a precedent set in 2004, ruled against the students because their work is part of their education. The New York office began reconsidering the case last week. âItâs not that hard to see thatâs the direction the board is heading,â said Daniel Johns, an employment law attorney who has represented universities. The NLRB didn’t comment on the substance of its order to reconsider. The two GOP aligned members indicated they didn’t back the decision. A move to allow the graduate students to organize would not only be subject to appeal in federal courts but also raise a red flag in Congress and among universities. âThe board majority lately has done so many things that have prompted Congress to look more at the agency and the statute [the National Labor Relations Act] that this certainly could be swept in among that kind of review too,â said Brian Hayes, an attorney who has served both on the NLRB and as labor counsel for Republicans on the Senate Health, Education, Labor and Pensions Committee. The NLRB is already at war with the business community and congressional Republicans over union election rules and crackdowns on employment law violations by national franchisers.
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William Gould, chairman of the NLRB from 1994-1998, says the football players may have a better case than the graduate students. Graduate studentsâ supervisors are professors who are clearly directing the studentsâ education. Football playersâ supervisors are their coaches. The NLRB could rule in favor of football players without overturning the Brown precedent. âNorthwestern is in many respects an easier case because nobody can argue that the coaches are involved in the educational mission of the university,â Gould said. Although the circumstances of the graduate students and the football players are different â graduate students vs. undergraduates, program requirements vs. optional participation â Northwestern University and the NCAA cited Brown as one of the precedents they used to argue against the football playersâ union. The NLRB has tended to follow the views of the party in control of its board. A board controlled by Democrats in 2000 allowed a unionization effort at New York University to progress before a Republican-led board in 2004 decided the Brown case that is now precedent. The current Democratic board appears poised to make another change. âItâs just the ping pong jurisprudence you see when you switch political parties in power,â Johns said. DauSchmidt blamed Congress for the back-and-forth standards. âThe act has to be interpreted in cases that arenât clearly covered one way or the other. If Congress were to speak and say âyes, theyâre includedâ or âno, theyâre not included,â the other side would respect that,â he said.