An article by Joseph Ambash entitled "Is the
Northwestern Decision a Wake-Up Call for Higher Ed
Institutions?" was published in The New England Journal of Higher
Education.
The recent decision by a regional director of the National Labor
Relations Board (NLRB) that Northwestern University football
players on scholarship are "employees" entitled to
unionize under the National Labor Relations Act (NLRA) should serve
as a wake-up call for higher education administrators.
Part of a trend in which both the NLRB and unions are trying to
expand the reach of collective bargaining into previously uncharted
territory, the decision carries special significance for schools in
New England, where there are many big-time athletic programs and an
increasing amount of organizing activity. The Northwestern
decision may spur further organizing on New England college and
university campuses, including among student athletes.
The Northwestern decision is currently on appeal to the
NLRB in Washington and the matter will no doubt be settled by the
courts if the NLRB affirms the regional director's decision.
But common sense and practicality alone dictate that the regional
decision is unworkable and should be overturned.
If upheld, the decision would add to the confusion of an
already-bewildering system. The NLRA applies only to private-sector
employers. State entities, including public colleges and
universities, are governed by the labor laws of their respective
states. The Northwestern decision could result in a
hodge-podge of unionized and non-unionized athletic teams, even
among those that play each other. Creating even further
complications, the Northwestern decision would apply only
to scholarship players. "Walk-ons" playing beside
scholarship athletes would be excluded from the union.
Constant litigation around these differences would be the
norm.
But the fundamental reason for the Northwestern decision
being unworkable is that students are simply not employees. They
are admitted to school, not hired at a school. That certain sports
programs bring in revenue does not change that fact. The
development of character, skill and focus are among the educational
values embodied in college sports. These goals hold true for the
rowing team, the chorus, the orchestra and the marching band. All
have rules. The participants are governed by myriad academic
regulations and requirements. Some of the participants are granted
scholarships. The likely result of a decision affirming the
Northwestern ruling would be a plethora of petitions
seeking collective bargaining for virtually every private-sector
college activity in which scholarships are granted and
"revenue," however defined, is generated. The
operational, social, financial and educational implications for the
institution would be staggering.
The NLRB long ago concluded that even students whose
"work" is an inherent feature of an academic program are
not "employees" within the meaning of the NLRA. For
example, in the Brown University decision in 2004, the
NLRB ruled that graduate student assistants are not employees
within the meaning of the law because their relationship to the
university was primarily educational, not economic. The
Northwestern decision will likely be viewed as an
opportunity by the current NLRB—whose composition has
radically changed since the Brown decision—to
overrule Brown and open the door to organizing among
graduate student assistants and a host of other classifications. If
that occurs and is sustained by the courts, there will be a
paradigm shift in private-sector higher education.
The dissenters in the Brown decision—whose successors are now in the majority—contended that collective bargaining and academic freedom would co-exist without problems. This myopic view ignores the irreconcilable collision between a union's right to demand collective bargaining and a university's prerogative to run its institution.
For example, unionized Northwestern football players would be entitled to bargain nearly every aspect of their university experience—including degree requirements, class attendance requirements, amount and value of scholarships, rules regarding practice and exams, even dietary choices on game day—because the scope of bargaining over "terms and conditions of employment" is virtually unlimited in the private sector. Indeed, a union of football players could even demand that "walk-ons" be excluded entirely from the team because they are illegally performing "bargaining unit work." Is this what we want higher education to look like?
The unionization of private-sector college athletes would also
raise complicated questions about the applicability of a host of
other laws that govern the workplace. Would unionized students be
entitled to worker's compensation? Unemployment during the
summer? Overtime for hours "worked" over 40? The list is
virtually endless.
The implications of an upheld Northwestern decision would
be enormous for private-sector New England higher educational
institutions. The region is home to both a large number of Division
One athletic teams in a variety of sports and aggressive union
organizing. Just days ago, part-time professors at Northeastern
University voted to form a union. Local college administrators
should join the chorus of those who weigh in on this important
issue. College athletics could probably use some reforms.
Unionizing student athletes is not one of them.
This article first appeared on nebhe.org.
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