The NLRB & Redefining March Madness (Robert Coon On Politics)

I’m not a rabid college basketball fan. College football is more my thing. Apart from watching the Razorback games, I really don’t keep tabs on the college basketball season.

That is, until NCAA tournament time comes around. 

There's something about the tournament that brings out the excitement in me and millions of Americans, compelling us to fill out and obsess over our multiple bracket predictions and spend hours upon hours watching teams that we don’t normally follow and sometimes have never heard of. Our reward? Buzzer beaters, overtime games, one-point victories, and quite simply some of the best, most competitive basketball of the season compressed into just a few weeks in March and April. It’s called March Madness for a reason – because anything can happen.

So far this year's tournament has lived up to the hype. But the most outrageous event in collegiate athletics that occurred in March wasn’t a game-winning shot at an NCAA tournament regional.

It was an administrative ruling by a National Labor Relations Board bureaucrat at the NLRB regional office in Chicago.

The Decision 

"I have found that all grant-in-aid scholarship players for the Employer’s football team who have not exhausted their playing eligibility are ‘employees’ under Section 2(3) of the Act. Thus, I direct an immediate election in this case." - Peter Sung Ohr, regional director, NLRB Region 13, Case 13-RC-121359

On March 26, the NLRB made a decision that rocked college sports. In short, the NLRB said scholarship football players can be classified as "employees" because they receive compensation and are subject to the control of their respective universities. As a result, these employees have the right to form a union. 

The decision, which pertains to scholarship athletes at private-sector colleges and universities, signals a monumental shift in college athletics. It's also one that, through its flaws, epitomizes Big Labor's desperate attempts at self-preservation, with a complicit, politically driven NLRB at its side.

Big Labor’s Steady Slide

According to the U.S. Bureau of Labor Statistics, the union membership rate nationally in 1983, the first year that comparative data was available, was 20.1 percent. Since that time, union membership as a percentage of the workforce has been on a steady decline, coming in at 11.3 percent in 2013. From a membership standpoint, that nearly 10 percent point drop from 1983 represents 3.2 million fewer unionized workers over the past 30 years – a significant loss if you’re Big Labor. 

Looking at the breakdown of private versus public sector unions, labor's predicament appears even bleaker. In 2013, union membership rates among public-sector workers came in at 35.3 percent. But among private-sector workers – a much more substantial employee base – unions only represented 6.7 percent of workers. (1)

Steadily declining membership, combined with high-profile recruitment flops like the failed attempt at unionizing the Volkswagen auto plant in Chattanooga, Tenn., have put Big Labor in an unwelcome position. And by the looks of it, things aren’t about to get better.

So if you’re a union boss these days, how do you keep the dream alive? 

Friends In High Places

You turn to your old friends at the NLRB, that's how. 

The NLRB, for those who are unaware, is "an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative." It just so happens that the five-member board consists of no fewer than three board members (2) (read, a majority) who represented labor unions throughout their legal careers prior to being appointed to the NLRB.

No doubt these "independent" arbiters of federal law have plenty of labor union friends with business before the board. As you might expect, the unions haven't wasted any time calling in a few favors.

In its 2011 Specialty Healthcare decision, the NLRB drastically changed the rules, along with decades of precedent, regarding the establishment of a bargaining unit. Their decision gave unions significant leeway to identify, categorize, and persuade smaller units of workers – or "micro unions" – thus increasing Big Labor's chances of winning organizing elections by essentially stacking the deck.

And earlier this year the NLRB reintroduced a set of rule changes intended to speed up union elections, give unions greater access to workers before the election, and limit the ability of employers to appeal union votes. Proposed by the board as necessary to eliminate "unnecessary delay and inefficiencies," in reality these rule changes, often referred to as "ambush elections," are ultimately designed to do nothing more than give Big Labor an edge. Public comments on these proposed changes are due next week. Given the NLRB’s predilection for carrying Big Labor's water, it's likely that the changes will be adopted – barring any last minute Congressional intervention – before it’s challenged in court.

Back to the Gridiron 

So where does that leave the college football newly-minted College Athletes Players Association, which fought for the NLRB's approval to organize in the Northwestern petition?

Though the board has ordered a secret ballot election to be conducted, this decision is likely to wind its way through the court system for the next few years, before the directives in the decision are fully implemented. The United Steelworkers Union, which according to reports "backed the players' NLRB petition and is paying their legal fees," is likely to stick around for the long haul. After all, college football is a multibillion dollar a year industry - not to mention college sports as a whole. For the unions, it’s simply too lucrative of a potential market to ignore.

In the meantime, those Northwestern football players who fought so hard for the privilege of being classified as an "employee" might want to think long and hard about what they're getting themselves into. 

The NLRB, in its ruling, estimated that the scholarship football players at Northwestern typically received "grant-in-aid totaling $61,000" each academic year - as much as $76,000 annually for those taking Summer school classes. Additionally, many of these players receive additional benefits through the Student Assistance Fund to pay for "health insurance, dress clothes required to be worn by the team while traveling to games, the cost of traveling home for a family member’s funeral, and fees for graduate school admittance tests and tutoring." (3)

It's fair to assume that if the NLRB classifies these student-athletes as "employees," at some point the Internal Revenue Service (IRS) could do the same. And in the off chance that the tax man doesn’t come calling for their piece of the action (4), these newly unionized players can rest assured that their union bosses will – and it won’t be cheap. 

In the end that might be one of the most valuable learning experiences they receive during their college education — I mean, "careers."


(1) In Arkansas public and private sector union membership percentages are 10.9 and 2.1 percent respectively

(2) Pearce, Schiffer, and Hirozawa.

(3) Benefits given to Northwestern players referenced in the NLRB decision. For academic calendar year 2012-2013, the Northwestern disbursed about $54,000 from this fund to 30 or 35 of its football players.

(4) Yeah, right.

(Robert Coon is a partner at Impact Management Group, a public relations, public opinion and public affairs firm in Little Rock and Baton Rouge, La. You can follow him on Twitter at RobertWCoon. His column appears every other Wednesday in the weekly Government & Politics e-newsletter. You can subscribe for free here.)