Wyatt Employment Law Report


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Northwestern Football Players Cast Votes On Union

By R. Joseph Stennis

helmutThis morning at Northwestern University’s campus located in Evanston, Illinois, players from the school’s football team cast secret ballots to determine whether to form the nation’s first union for college athletes.  A total of seventy six football players were eligible to vote, but none were required to do so.  It is uncertain at this juncture how many of the seventy six eligible players actually voted.   For those players who did,  a majority of them must have voted in favor of unionizing and allowing the College Athletes Players Association (“CAPA”) to represent them for collective bargaining purposes.  The election stems from a ruling made by the NLRB’s regional director in its Chicago Office, Peter Sung Ohr, last month.   In his ruling, Mr. Ohr concluded that Northwestern University football players  presently on scholarship at the school are “employees” as that term is defined under the National Labor Relations Act and federal common law, and could therefore conduct elections to determine whether or not they want to be represented by CAPA.

Earlier this month, Northwestern appealed Mr. Ohr’s decision to the NLRB in Washington, D.C.  Yesterday, the Board granted Northwestern’s request for review and has ordereed that the ballots from today’s vote be impounded until it reaches a decision.  In its request, Northwestern is seeking a reversal of Mr. Ohr’s decision.  We will not know whether the players voted to unionize or not until and if the Board issues a decision approving the Regional Directors’ ruling that allowed the election to take place.  So, although today’s vote by Northwestern’s players was a historic moment for private college student-athletes, whether they ultimately will—or have the ability to— unionize is still very much uncertain.


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NLRB Regional Director Rules Northwestern University Football Players Have the Right to Unionize

By R. Joseph Stennis

helmutYesterday afternoon the Director of the NLRB’s regional office located in Chicago, Illinois ruled in a landmark decision that Northwestern University football players presently on scholarship at the school are an “employee” as that term is defined under the National Labor Relations Act (“NLRA”) and federal common law. As a result, the Director’s decision Continue reading


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Crossroads in College Sports: Northwestern University Football Players’ Attempt to Unionize Could be a Real “Game Changer”

By R. Joseph Stennis

Are student-athletes employees of a university or instead just amateur athletes who play sports for their schools?  This is the question put forth by a  group of current Northwestern University football players who recently announced via representatives their intent to unionize and be recognized as employees under federal labor law.  On January 28, 2014, Ramogi Huma, president of the college athlete advocacy group National College Players Association, filed a petition with the Chicago Regional Office of the National Labor Relations Board (“NLRB”) on behalf of the players requesting to be certified as a union.  If certified by the NLRB, the group of players would be called the College Athletes Players Association (“CAPA”).  CAPA was organized by former Northwestern University quarterback Kain Colter, former University of Massachusetts basketball player Luke Bonner, and Mr. Huma.  CAPA was created with the support from the United Steelworkers Union as well.

The response of the NCAA, Northwestern University and Big Ten Conference was essentially that student-athletes are not employees of the university.  In particular, the NCAA’s chief legal officer Donald Remy stated, “This union-backed attempt to turn student-athletes into employees undermines the purpose of college:  an education.  Student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act.  We are confident the [NLRB] will find…there is no right to organize student-athletes.”

The NLRB’s Chicago Regional Office is expected to hold a hearing on this matter on February 7, 2014.  If the NLRB’s Regional Director finds that the athletes are employees as defined in the National Labor Relations Act, he will order a secret ballet election.  If he makes a finding that the athletes are not employees, he will dismiss the petition.  The Regional Director’s decision—either way—will likely be appealed.


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Senate Committee to Hold a Hearing on NLRB Nominees

By Edwin S. Hopson

On May 16, 2013, the full U.S. Senate Committee on Health, Education, Labor & Pensions will conduct a hearing on the pending nominations to be Members on the National Labor Relations Board.  Currently, there are five nominations pending for the five-member board. They are for:

●Curent Chairman Mark Pearce, for another term (his current term expires in August, 2013);

●Current Member, Richard Griffin, who is serving a recess appointment;

●Current Member, Sharon Block, who is also serving a recess appointment;

●Harry Johnson, a recent nominee who is a Republican; and

●Phillip Miscimarra, a recent nominee who is also a Republican. 

Griffin and Block’s recess appointments have been under fire after the D.C. Circuit Court of Appeals ruled in Noel Canning v. NLRB in January 2013 that they were invalid.


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House Committee Holds Hearing on Proposed Legislation to Roll Back/Block NLRB Actions

On October 12, 2011, the U.S. House Education and the Workforce Committee held a hearing on the proposed “Workforce Democracy and Fairness Act” (H.R.3094) recently introduced by Republicans.  The purpose of the legislation is to the proposed legislation is to roll back some recent decisions of the National Labor Relations Board and block its proposed rule that would speed up the representation election process.  Specifically, H.R. 3094 would:

●Provide employers at least 14 days to prepare their case to present before a NLRB election hearing officer and an opportunity to raise additional concerns throughout the hearing process up to the close of the hearing.

●Provide that no NLRB representation election will be held in less than 35 days after filing of the petition.

●Reinstates the traditional standard for determining which employees will be eligible to vote in the union election.

●Provides that once an election is directed, eligible voters in the election must select in writing what sort of personal contact information they want released to the petitioning union in addition to their name, i.e., telephone number, email address, or mailing address.

Witnesses testifying were: attorney Charles Cohen, a Republican and former Member of the National Labor Relations Board, Robert Sullivan, President of R.G. Sullivan Consulting, on behalf of the Retail Industry Leaders Association, attorneys Michael J. Hunter, who represents unions, and Phillip B. Russell, who represents employers. 

The proposed legislation may pass the House, but most certainly cannot pass in the Senate at this point in time.


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Legislation Proposed to Curb/Roll Back Recent NLRB Actions

By Edwin S. Hopson

On October 5, 2011,Congressman John Kline(R-MN), the Chairman of the U.S. House Committee on Education and the Workforce, announced that he had introduced H.R. 3094 entitled, the “Workforce Democracy and Fairness Act.”  The proposed legislation is meant to curb/roll back some recent decisions and actions of the National Labor Relations Board including its proposal to speed up the representation election process.  According to a press release issued October 5, 2011, the proposed legislation would:

 ●Provide employers at least 14 days to prepare their case to present before a NLRB election hearing officer and an opportunity to raise additional concerns throughout the hearing process up to the close of the hearing.

 ●Provide that no NLRB representation election will be held in less than 35 days after filing of the petition.

 ●Reinstates the traditional standard for determining which employees will be eligible to vote in the union election.

 ●Provides that once an election is directed, eligible voters in the election must select in writing what sort of personal contact information they want released to the petitioning union in addition to their name, i.e., telephone number, email address, or mailing address.

Original cosponsors of H.R. 3094 include: Representatives Howard “Buck” McKeon (R-CA), Joe Wilson (R-SC), Virginia Foxx (R-NC), Duncan Hunter (R-CA), Phil Roe (R-TN), Glenn Thompson (R-PA), Tim Walberg (R-MI), Scott DesJarlais (R-TN), Todd Rokita (R-IN), Larry Bucshon (R-IN), Trey Gowdy (R-SC), Martha Roby (R-AL), Dennis Ross (R-FL), and Mike Kelly (R-PA).

A hearing by the committee on the measure will take place on October 12, 2011.