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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Federal Court Rejects NLRB Challenge to State “Secret Ballot” Law

By Edwin S. Hopson

On September 5, 2012, U.S. District Court Judge Frederick J. Martone ruled that an Arizona state constitutional amendment addressing how employees choose a union was not on its face preempted by the National Labor Relations Act.  The NLRB had filed suit in federal court in Phoenix, Arizona in 2011, challenging the Arizona provision which essentially compelled union elections to be by secret ballot.  The NLRB contended that the so-called “secret ballet amendment” conflicted with longstanding federal labor law on how employees choose a union.  The judge in dismissing the NLRB’s lawsuit stated: “[i]t is possible that state litigation invoking (the amendment) may impermissibly clash with the NLRB’s jurisdiction to resolve disputes over employee recognition, conduct secret ballot elections, and address unfair labor practices.”  However, while leaving open the possibility of a meritorious future challenge, the judge declined to assume the amendment to the Arizona constitution would conflict with the NLRA since the amendment to the had not yet actually been applied.

Judge Martone also stated: “[a] bargaining representative may be voluntarily recognized by an employer if there is convincing evidence of majority support. Alternatively, the NLRB may certify a union as the bargaining representative after it conducts a secret ballot election.”

According to an NLRB press release, the state of Arizona had “represented to the court that there was no preemption because the state’s ‘guarantee’ of a secret ballot election would only apply if and when the voluntary recognition option is not selected.”

In that same press release, NLRB Chairman Mark Gaston Pearce states: “Although we continue to believe that a preemption finding should have been made, we are very pleased that the court recognized that these choices are guaranteed to employees by federal law and cannot be taken away by the states.”