The
NLRB’s decision is a classic example of mission creep. As the
percentage of unionized employees in the U.S. has declined over the
last several decades to the point where only 6.7 percent of the private
sector workforce are members of unions, the Board has found a need to
push the envelope in order to maintain its relevance. That’s because
with fewer unionized employees the Board’s influence has shrunk. This
decision, which if upheld will likely lead to unions gaining more
members, is just another among many recent actions that the Board has
taken in an effort to increase unionization. For instance, the Board is
also in the process of changing the rules for unionization elections to
make it much easier for unions to win.
Returning to the college football context, what can we expect if the
players are unionized?
First, since the National Labor Relations Act only applies to private
sector employers, public universities will not be affected. This means
that things like pesky union work rules, grievance adjustment, etc.
will work to give public universities an advantage in terms of
flexibility that private universities will not have. If this decision
stands, look for private universities to begin lobbying their states to
change the public sector employee laws so that players at public
universities can be unionized as well.
Next, before a union can be formed, the appropriateness of a particular
unit of employees for bargaining must be determined. Since football
players have different needs and wants from other scholarship athletes
like golfers, most sports will probably have their own bargaining unit.
At a large university with a dozens of sports this could mean dealing
with dozens of bargaining units.
In the midst of a union’s campaign to unionize players, management will
have difficulty trying to figure out what is and what is not an unfair
labor practice under NLRB precedent. Can the coach promise to improve
working conditions if the players vote the union down? No. Can
the coach limit what player can and cannot say on Facebook about their
working conditions? Maybe, but it’s safer to not go there. Would your
average coach know this without having a lawyer pre-clearing everything
that they say? Unlikely. This is enough to give even the most
weathered coach migraines. Also, since what is and is not an unfair
labor practice seems to be changing on a daily basis due to the NLRB’s
mission creep, one needs not only to know what the NLRB has decided in
the past but also to anticipate what they will decide in the future.
Labor and employment lawyers and consultants are the only people that
will like this because it means new revenue streams for their firms.
Every unit of unionized players will, of course, need a shop steward.
The union will also need officers and personnel to negotiate with the
university on a collective bargaining agreement. Since employees who
work under a collective bargaining agreement are not allowed to
individually bargain with the employer over anything that affects the
terms or conditions of their employment, all such issues will have to
be handled by a union representative.
The union will have to collect dues from the players to support its
existence. It will have to file annual financial disclosure reports
with the U.S. Department of Labor’s Office of Labor-Management
Standards (OLMS). The union officers and employees will have to file
conflict of interest reports with OLMS as well. If the university makes
certain types of payments or loans of money or other things of value to
the union, its officers, agents, stewards, or other representatives, it
will have to file disclosure reports.
Since oversight of union officer elections falls under the jurisdiction
of OLMS pursuant to the Labor-Management reporting and Disclosure Act,
not only will the private universities be dealing with the NLRB, but
they will likely have investigators from OLMS around from time to time
as well.
And, don’t forget union officers and employees embezzling from their
members and other related criminal acts. It happens. Investigating
these is also the responsibility of OLMS which obtained 121 criminal
convictions for such acts in fiscal year 2012.
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