General Counsel's Report on the Statutory Rights of University Faculty And Students in the Unfair Labor Practice Context

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OFFICE OF THE GENERAL COUNSEL

MEMORANDUM GC 17-01

January 31, 2017

TO:

All Regional Directors, Officers-in-Charge,

and Resident Officers

FROM:

Richard F. Griffin, Jr., General Counsel /s/

SUBJECT:

General Counsel’s Report on the Statutory Rights of University

Faculty and Students in the Unfair Labor Practice Context

The Board has issued three recent decisions of importance in the

representation context regarding the question of whether to certify certain

bargaining units of university1 faculty and/or students under the National Labor

Relations Act (the “NLRA” or the “Act”). They are Pacific Lutheran University,2

Columbia University,3 and Northwestern University.4 Because these decisions were

representation cases, they did not directly address the right of the workers in those

cases to seek protection against unfair labor practices. Thus, the Office of the

General Counsel has begun to analyze how it will apply this precedent to unfair

labor practice charges involving individuals performing the kinds of work involved

in those cases. This Report is intended as a guide for employers, labor unions, and

employees that summarizes Board law regarding NLRA employee status in the

university setting and explains how the Office of the General Counsel will apply

these representational decisions in the unfair labor practice arena.

As detailed below, the Board issued Pacific Lutheran in 2014, which sets

forth two new significant tests affecting university employees: (1) a jurisdictional

test determining when faculty of religious educational institutions under NLRB v.

Catholic Bishop of Chicago (“Catholic Bishop”),5 are subject to the Board’s

jurisdiction; and (2) a refinement of the test set forth in NLRB v. Yeshiva

1 Throughout this Report, we refer to all institutions of higher education as

universities.

2 361 NLRB No. 157 (December 16, 2014).

3 364 NLRB No. 90 (August 23, 2016).

4 362 NLRB No. 167 (August 17, 2015).

5 440 U.S

holic Bishop”),5 are subject to the Board’s

jurisdiction; and (2) a refinement of the test set forth in NLRB v. Yeshiva

1 Throughout this Report, we refer to all institutions of higher education as

universities.

2 361 NLRB No. 157 (December 16, 2014).

3 364 NLRB No. 90 (August 23, 2016).

4 362 NLRB No. 167 (August 17, 2015).

5 440 U.S. 490 (1979).

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University (“Yeshiva University”)6 for determining when faculty members are

managerial and not protected by the Act. More recently, the Board issued two

decisions concerning students in higher education: Columbia University,7 in which

the Board certified the petitioned-for bargaining unit, thus reaffirming its position

in New York University (“NYU”)8 that student assistants in colleges and

universities are employees under the NLRA, and Northwestern University,9 in

which the Board declined to exercise jurisdiction to certify the union’s proposed

bargaining unit and opted not to decide whether scholarship football players are

statutory employees.10 This Report summarizes this recent precedent, as well as

the state of Board law relating to medical interns and other non-academic student

employees. This Report also addresses the question left open in Northwestern

University, and sets forth the General Counsel’s position on whether scholarship

football players at NCAA Division I Football Bowl Subdivision (“FBS”) private

colleges and universities are employees under the NLRA, and therefore are entitled

to the protections of Section 7 of the Act.

I.

Pacific Lutheran, 361 NLRB No. 157 (December 16, 2014)

In its recent Pacific Lutheran decision, the Board announced a new standard

for determining when faculty members at a school with an asserted religious

mission fall within the Board’s jurisdiction.11 This test is a necessary threshold for

determining whether faculty, students, and other workers in religious universities

are employees protected by the NLRA

361 NLRB No. 157 (December 16, 2014)

In its recent Pacific Lutheran decision, the Board announced a new standard

for determining when faculty members at a school with an asserted religious

mission fall within the Board’s jurisdiction.11 This test is a necessary threshold for

determining whether faculty, students, and other workers in religious universities

are employees protected by the NLRA. The decision is also significant for its

announcement of a revised standard for determining whether a university faculty

member is managerial and thus excluded from protection under the NLRA.12

The Board’s new standards set forth under Pacific Lutheran are important to

unfair labor practice case processing. Thus, while the Board will use the standards

6 444 U.S. 672 (1980).

7 364 NLRB No. 90 (August 23, 2016).

8 332 NLRB 1205 (2000).

9 362 NLRB No. 167 (August 17, 2015).

10 See id., slip op. at 1, 3, 4, 6, 7.

11 361 NLRB No. 157, slip op. at 5-11.

12 361 NLRB No. 157, slip op. at 1, 14.

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set forth in Pacific Lutheran in representation cases to determine whether a

petitioned-for bargaining unit should exclude certain faculty members, i.e., those

who maintain the school’s religious mission or who are managerial, we will apply

those same standards when determining whether we can seek redress for individual

faculty members or other employees who are the victims of unfair labor practices.

A.

Religious Character of the University and Faculty Positions

Under the Board’s new standard, we will examine whether a school’s asserted

religious identity, and an individual faculty member’s specific role in creating and

maintaining that identity, prevent us from seeking remedies for unfair labor

practices committed against that employee

ployees who are the victims of unfair labor practices.

A.

Religious Character of the University and Faculty Positions

Under the Board’s new standard, we will examine whether a school’s asserted

religious identity, and an individual faculty member’s specific role in creating and

maintaining that identity, prevent us from seeking remedies for unfair labor

practices committed against that employee.

Prior to the Board’s Pacific Lutheran decision, the Supreme Court in Catholic

Bishop held that Board jurisdiction over labor disputes between church-operated

schools and their teaching employees would present “a significant risk that the

First Amendment will be infringed.”13 The Court declined to construe the NLRA in

a manner that would require resolution of such difficult First Amendment issues,

and therefore held that the Act did not grant the Board jurisdiction over lay

teachers in church-operated schools.14 The Court’s decision in Catholic Bishop

rested in substantial part upon “the critical and unique role of the teacher in

fulfilling the mission of a church-operated school.”15

Following the Supreme Court’s decision in Catholic Bishop, the Board

proceeded on a case-by-case basis, applying a multifaceted analysis to decide

whether a self-identified religious school had a “’substantial religious character’

such that exercise of the Board’s jurisdiction would present a significant risk of

infringing on that employer’s First Amendment religious rights.”16 However, in

University of Great Falls v. NLRB, the D.C. Circuit rejected the Board’s analysis

and exercise of jurisdiction over a university that had been founded by a Catholic

13 440 U.S. at 502-504. Although the facts in Catholic Bishop concerned teachers at

church-operated parochial schools, the Board and courts have applied that holding

to colleges and universities. See Pacific Lutheran, 361 NLRB No. 157, slip op. at 4,

n.4 (citing Universidad Central de Bayamon v

ty that had been founded by a Catholic

13 440 U.S. at 502-504. Although the facts in Catholic Bishop concerned teachers at

church-operated parochial schools, the Board and courts have applied that holding

to colleges and universities. See Pacific Lutheran, 361 NLRB No. 157, slip op. at 4,

n.4 (citing Universidad Central de Bayamon v. NLRB, 793 F.2d 383, 401 (1st Cir.

1985); Trustee of St. Joseph’s College, 282 NLRB 65, 67-68 (1986)).

14 Catholic Bishop, 440 U.S. at 506-507.

15 Id. at 501.

16 Pacific Lutheran, 361 NLRB No. 157, slip op. at 4 (comparing Jewish Day School,

283 NLRB 757, 761-62 (1987) (declining jurisdiction) to Livingstone College, 286

NLRB 1308, 1310 (1987) (asserting jurisdiction)).

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religious order.17 In so holding, the D.C. Circuit developed a new three-part test for

when the Board may assert jurisdiction over a religious college or university,

relying in part on the First Circuit’s decision in Universidad Central de Bayamon v.

NLRB, 793 F.2d 383 (1st Cir. 1985) (en banc).18 Under the Great Falls test, the

Board may not assert jurisdiction where a university: (1) holds itself out to

students, faculty, and the community as providing a religious environment; (2) is an

organized non-profit; and (3) is affiliated with, or owned, operated, or controlled,

directly or indirectly, by a recognized religious organization, or with an entity whose

membership is determined at least in part based on religion.19 In subsequent cases,

the Board neither accepted nor rejected the Great Falls test.20

In its 2014 Pacific Lutheran decision, the Board reexamined its standard for

exercising jurisdiction over faculty members at self-identified religious colleges and

universities.21 The Board adopted a new two-part test, designed to be faithful to the

holding of Catholic Bishop and to avoid the potential for unconstitutional

entanglement while, to the extent constitutionally permissible, vindicating the

rights of employees to engage in

he Board reexamined its standard for

exercising jurisdiction over faculty members at self-identified religious colleges and

universities.21 The Board adopted a new two-part test, designed to be faithful to the

holding of Catholic Bishop and to avoid the potential for unconstitutional

entanglement while, to the extent constitutionally permissible, vindicating the

rights of employees to engage in collective bargaining.22 As the first step, the

Board adopted the first prong of the Great Falls test, namely whether the university

has demonstrated that it “holds itself out to students, faculty, and community as

providing a religious educational environment.”23 Relevant evidence could include:

“handbooks, mission statements, corporate documents, course catalogs, and

documents published on a school’s website” and possibly “[p]ress releases or other

public statements by university officials.”24 Proof of non-profit status (the second

Great Falls prong) may also be relevant.25 However, the Board does not require

proof of the third prong of the Great Falls test concerning the university’s formal

17 278 F.3d 1335 (D.C. Cir. 2002).

18 Id. at 1343.

19 Id.

20 See Pacific Lutheran, 361 NLRB No. 157, slip op at 5 (citations omitted).

21 Id., slip op. at 5-11.

22 Id., slip op. at 5.

23 Id. (quoting Great Falls, 278 F.3d at 1343).

24 Id., slip op. at 6.

25 Id., slip op at 7 (citing Great Falls, 278 F.2d at 1344).

e university’s formal

17 278 F.3d 1335 (D.C. Cir. 2002).

18 Id. at 1343.

19 Id.

20 See Pacific Lutheran, 361 NLRB No. 157, slip op at 5 (citations omitted).

21 Id., slip op. at 5-11.

22 Id., slip op. at 5.

23 Id. (quoting Great Falls, 278 F.3d at 1343).

24 Id., slip op. at 6.

25 Id., slip op at 7 (citing Great Falls, 278 F.2d at 1344).

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relationship with a religious organization.26 The university’s threshold burden of

this first step is not a heavy one, and the Board will “err on the side of being over-

inclusive and not excluding universities because they are not ‘religious enough’.”27

If a school meets this threshold showing that it holds itself out as providing a

religious educational environment, the Board then applies the second step of the test

and examines: whether “the university holds out its petitioned-for faculty members

as performing a specific role in creating and maintaining that environment.”28

Unlike the first step, the focus of this prong is on the individual faculty member,

rather than the university as a whole. Thus, there must be a “connection between

the performance of a religious role and faculty members’ employment requirements”

for an individual to be exempt from the NLRA.29

If the university holds out its faculty members, in communications to current

or potential students and faculty members, and the community at large, as

performing a specific role in creating or maintaining the school’s religious purpose

or mission, the Board will decline jurisdiction.30 Examples of when the Board will

decline jurisdiction include when evidence shows that faculty members are held out

as serving a religious function, such as: integrating the institution’s religious

teachings into coursework, serving as religious advisors to students, propagating

religious tenets, or engaging in religious indoctrination or religious training.31 The

Board will also decline jurisdiction where the university holds itself out as requiring

that

hen evidence shows that faculty members are held out

as serving a religious function, such as: integrating the institution’s religious

teachings into coursework, serving as religious advisors to students, propagating

religious tenets, or engaging in religious indoctrination or religious training.31 The

Board will also decline jurisdiction where the university holds itself out as requiring

that its faculty conform to its religion or religious beliefs in a way that is linked to

their work as faculty members.32

However, general statements that faculty members are expected to support

the goals or missions of the university are not alone sufficient for the Board to

decline jurisdiction.33 Faculty members who are not expected to perform a specific

26 Id.

27 Id. (quoting Great Falls, 278 F.3d at 1343).

28 Id.

29 Id., slip op. at 9, n.14 (emphasis in the original).

30 Id., slip op at 9.

31 Id.

32 Id.

33 Id., slip op. at 8.

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role in establishing or maintaining the university’s religious educational

environment “are indistinguishable from faculty at colleges and universities which

do not identify themselves as religious institutions and which are indisputably

subject to the Board’s jurisdiction.”34

Applying that test to the facts in Pacific Lutheran, the Board found that the

university had met the threshold requirement because it held itself out as creating

a religious educational environment.35 However, the university failed to establish

the second requirement, i.e., that it held out the contingent faculty members in its

petitioned-for unit as performing a religious function.36 In so finding, the Board

explained that there was nothing in the school’s materials that would suggest to

faculty, students, or the community, that its contingent faculty members played a

role in advancing the school’s identified religion.37 Thus, the Board asserted

jurisdiction over the petitioned-for unit.38

The Board applied Pacific Lutheran in two recent represen

g a religious function.36 In so finding, the Board

explained that there was nothing in the school’s materials that would suggest to

faculty, students, or the community, that its contingent faculty members played a

role in advancing the school’s identified religion.37 Thus, the Board asserted

jurisdiction over the petitioned-for unit.38

The Board applied Pacific Lutheran in two recent representation cases, which

help define the boundaries of the Board’s jurisdiction under the new test. In Seattle

University, the Board determined that the Jesuit Catholic university met Pacific

Lutheran’s first prong because the school held itself out as providing a religious

educational environment but concluded that the majority of its contingent faculty

were covered by the NLRA.39 Thus, the Board excluded from the petitioned-for unit

only those contingent faculty members who teach in the Department of Theology

and Religious Studies and the School of Theology and Ministry.40 Unlike the

majority of contingent faculty who are not hired to advance the school’s religious

goals, faculty in the Department and School of Theology are held out as performing

a specific role in creating and maintaining the school’s religious educational

environment.41 With regard to that faculty, the Board concluded that the school

34 Id.

35 Id., slip op. at 12-13 (relying on the university’s website, articles of incorporation,

bylaws, faculty handbook, course catalog, and other publications).

36 Id., slip op. at 13-14.

37 Id.

38 Id., slip op. at 14.

39 364 NLRB No. 84, slip op. at 2 (August 23, 2016).

40 Id., slip op. at 1, 3.

41 Id., slip op. at 2-3.

he school

34 Id.

35 Id., slip op. at 12-13 (relying on the university’s website, articles of incorporation,

bylaws, faculty handbook, course catalog, and other publications).

36 Id., slip op. at 13-14.

37 Id.

38 Id., slip op. at 14.

39 364 NLRB No. 84, slip op. at 2 (August 23, 2016).

40 Id., slip op. at 1, 3.

41 Id., slip op. at 2-3.

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met its burden at the second step of the Pacific Lutheran test because “a reasonable

prospective applicant for a contingent faculty position in either the Department or

the School would expect that the performance of her responsibilities would require

furtherance of the University's religious mission.”42 For the same reasons, the

Board in Saint Xavier University certified the unit consisting of the Catholic

university's part-time faculty, excluding only part-time faculty who teach in the

University's Department of Religious Studies.43

Consistent with the Board’s new test, we will similarly seek redress for unfair

labor practices committed by religious education institutions against individual

faculty member discriminatees who the university does not hold out as performing a

specific role in creating and maintaining the university’s religious educational

environment.

B.

Managerial Status of University Faculty

The Pacific Lutheran decision is also significant for its announcement of a

revised standard for determining whether a faculty member is managerial and thus

excluded from protection under the NLRA.44 This standard is applicable in all cases

alleging unfair labor practices against university faculty members to determine

whether the faculty members are managerial or employees under the Act

culty

The Pacific Lutheran decision is also significant for its announcement of a

revised standard for determining whether a faculty member is managerial and thus

excluded from protection under the NLRA.44 This standard is applicable in all cases

alleging unfair labor practices against university faculty members to determine

whether the faculty members are managerial or employees under the Act.

In Yeshiva University, the Supreme Court found that faculty of the

university were managerial employees excluded from the right to collective

bargaining under the NLRA.45 The Court defined managerial faculty as those who

“formulate and effectuate management policies by expressing and making operative

the decisions of their employer.”46 Such managerial faculty “must exercise

discretion within, or even independently of, established employer policy and must

be aligned with management.”47 However, if faculty members’ decision-making is

“limited to the routine discharge of professional duties in projects to which they

have been assigned,” they would be covered by the NLRA, even if union

42 Id., slip op. at 3.

43 364 NLRB No. 85, slip op. at 1, 3 (August 23, 2016).

44 361 NLRB No. 157, slip op. at 1, 14.

45 444 U.S. at 674, 679.

46 Id. at 682 (citation omitted).

47 Id. at 683.

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membership “arguably may involve some divided loyalty.”48 Applying these

standards, the Court found the Yeshiva faculty to be managerial because they:

decide what courses will be offered, at what times, and to which students; debate

and determine teaching methods, grading policies, and enrollment standards;

effectively decide which students will be accepted, retained, and permitted to

graduate; and at times have decided the size of the student body, tuition, and school

location.49 However, the Court expressly left open the possibility that some faculty

in future cases could be properly included in a bargaining unit, while others were

excluded (for instance, a distinc

, and enrollment standards;

effectively decide which students will be accepted, retained, and permitted to

graduate; and at times have decided the size of the student body, tuition, and school

location.49 However, the Court expressly left open the possibility that some faculty

in future cases could be properly included in a bargaining unit, while others were

excluded (for instance, a distinction between tenured and non-tenured faculty)

“depending upon how a faculty is structured and operates.”50

After Yeshiva University, the Board issued nearly two dozen decisions

applying a “sweeping” breadth of factors to analyze the managerial status of faculty

at universities.51 In those cases, the Board considered faculty participation in at

least 28 areas, ranging from curriculum and teaching methods to admissions and

student retention.52 The D.C. Circuit criticized this case-by-case approach,

particularly the Board’s failure to explain which factors were most and least

significant and why.53

Thus, because the Yeshiva University Court did not prescribe a precise

analytical framework to determine the managerial status of university faculty and

left the Board to proceed on a case-by-case basis, the Board in Pacific Lutheran

stated that it would now apply Yeshiva University to develop a “new approach” that

is more “workable” and “predictable” to help guide employers, unions, and

employees.54 The Board’s new approach is “designed to answer the question

whether faculty in a university setting actually or effectively exercise control over

decision making pertaining to central policies of the university such that they are

48 Id. at 690.

49 Id. at 686.

50 Id. at 690, n.31.

51 Pacific Lutheran, 361 NLRB No. 157, slip op. at 15 & n.30.

52 See id., slip op. at 15.

53 Id., slip op. at 16 (citing LeMoyne-Owen College v. NLRB, 357 F.3d 55 (2004),

denying enforcement 338 NLRB No. 92 (2003) and Point Park Univ. v

al policies of the university such that they are

48 Id. at 690.

49 Id. at 686.

50 Id. at 690, n.31.

51 Pacific Lutheran, 361 NLRB No. 157, slip op. at 15 & n.30.

52 See id., slip op. at 15.

53 Id., slip op. at 16 (citing LeMoyne-Owen College v. NLRB, 357 F.3d 55 (2004),

denying enforcement 338 NLRB No. 92 (2003) and Point Park Univ. v. NLRB, 457

F.3d 42 (2006), denying enforcement 344 NLRB 275 (2005)).

54 Id., slip op. at 16.

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aligned with management.”55 Under this standard, the Board will examine “both

the breadth and depth of the faculty’s authority at the university,” giving more

weight to those areas of policy-making that affect the university as a whole, and

seeking to determine whether the faculty actually exercise control or make effective

recommendations over those policy areas.56 Specifically, the Board will examine the

faculty’s participation in decision-making concerning: academic programs,

enrollment management policies, finances, academic policies, and personnel policies

and decisions.57 The Board will put greater weight on the first three areas.58

Applying this new standard to the facts, the Pacific Lutheran Board

concluded that the employer failed to prove that its full-time contingent faculty

exercised sufficient managerial authority to justify their exclusion from the

petitioned-for unit of contingent faculty.59 The Board found “insufficient evidence”

that the full-time contingent faculty were substantially involved in decision-making

affecting the first three, most significant, areas—academic programs, enrollment,

and finances.60 Even with respect to the final two areas of academic and personnel

policies, the Board found their decision-making “essentially limited to matters

concerning their own classrooms or departments.”61

In the unfair labor practice context, complaint will not issue against a

university if we determine that an asserted discriminatee is a managerial employee

under the Board’s Pacific Luthe

nances.60 Even with respect to the final two areas of academic and personnel

policies, the Board found their decision-making “essentially limited to matters

concerning their own classrooms or departments.”61

In the unfair labor practice context, complaint will not issue against a

university if we determine that an asserted discriminatee is a managerial employee

under the Board’s Pacific Lutheran test. However, even where the Board applies

Pacific Lutheran to refuse to fully process a petition to certify a proposed bargaining

unit, we will conduct an individualized analysis of the asserted discriminatee’s

employment position to determine whether the individual exercised sufficient

managerial authority so as to be deprived of employee status under the Act.

55 Id., slip op. at 14.

56 Id., slip op. at 16-17.

57 Id., slip op. at 14.

58 Id.

59 Id., slip op. at 24.

60 Id., slip op. at 25.

61 Id.

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II.

Columbia University, 364 NLRB No. 90 (August 23, 2016)

Another important representation decision directly impacting unfair labor

practice case processing is the Board’s decision in Columbia University.62 There,

the Board applied the statutory language of the Act and longstanding common-law

principles to settle the issue of statutory coverage for graduate student employees,

determining that student assistants are employees under the NLRA. This case is

significant for its direct application to student assistants, and also for the

implications of the Board’s analysis for non-academic university employees and

medical interns and residents.

A.

Student Assistants

In settling that student assistants are NLRA employees, the Board in

Columbia University overturned its prior divided holding to the contrary in Brown

University,63 which itself had overruled its earlier decision in NYU.64 The

Columbia University standard will be applied in future unfair labor practice cases

involving student assistants at private sector universities

ts.

A.

Student Assistants

In settling that student assistants are NLRA employees, the Board in

Columbia University overturned its prior divided holding to the contrary in Brown

University,63 which itself had overruled its earlier decision in NYU.64 The

Columbia University standard will be applied in future unfair labor practice cases

involving student assistants at private sector universities.

Prior to Brown, the Board in NYU found that graduate assistants meet the

NLRA definition of “employee” in Section 2(3), which is broadly defined to include

“any employee,” and contains no exception in the statutory text for graduate

students.65 Moreover, regardless of the time they spend on their work, graduate

students meet the common-law test of agency in that they “perform their duties for,

and under the control of” their university, which in turn pays them for those

services—a situation “indistinguishable from a traditional master-servant

relationship.”66 Turning to the purpose of the NLRA, the Board in NYU found “no

basis to deny collective-bargaining rights to statutory employees merely because

they are employed by an educational institution in which they are enrolled as

students.”67 The NYU Board also rejected the argument that graduate assistants

should be denied the Act’s protection because their work is “primarily educational”

and instead explained that “obtain[ing] educational benefits from employment is not

62 364 NLRB No. 90 (August 23, 2016).

63 Brown University, 342 NLRB 483 (2004).

64 332 NLRB 1205 (2000).

65 Id. at 1205-1206.

66 Id.

67 Id. at 1205.

uate assistants

should be denied the Act’s protection because their work is “primarily educational”

and instead explained that “obtain[ing] educational benefits from employment is not

62 364 NLRB No. 90 (August 23, 2016).

63 Brown University, 342 NLRB 483 (2004).

64 332 NLRB 1205 (2000).

65 Id. at 1205-1206.

66 Id.

67 Id. at 1205.

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inconsistent with employee status.”68 In that regard, the Board relied upon its

decision in Boston Medical Center Corporation,69 which had found interns,

residents, and fellows at a nonprofit teaching hospital to be statutory employees,

even though they were also students learning their chosen medical craft.70 Finally,

the NYU Board rejected the argument that recognizing graduate assistants as

statutory employees would harm academic freedom, explaining that this concern

was “speculative.”71

In Brown University,72 a sharply divided Board overturned NYU and held

that “graduate student assistants are not statutory employees.”73 The crux of the

Brown majority’s decision was that graduate assistants are not employees because

they are “primarily students and have a primarily educational, not economic,

relationship with their university.”74 The Brown University majority stated that,

even assuming that “graduate student assistants are employees at common law . . .

it does not follow that they are employees within the meaning of the Act.”75

Significantly, Brown University expressly declined to overturn Boston Medical

Center.76

In Columbia University, the Board returned to its position in NYU,

determining that an employment relationship can exist under the NLRA between a

college or university and its employee, even when the employee is also a student.77

In overturning Brown University, the Board concluded that Brown’s “fundamental

68 Id. at 1207 (internal quotation marks omitted).

69 330 NLRB 152 (1999).

70 See NYU, 332 NLRB at 1206-1207

an employment relationship can exist under the NLRA between a

college or university and its employee, even when the employee is also a student.77

In overturning Brown University, the Board concluded that Brown’s “fundamental

68 Id. at 1207 (internal quotation marks omitted).

69 330 NLRB 152 (1999).

70 See NYU, 332 NLRB at 1206-1207.

71 Id. at 1208 & n.9.

72 See n. 63, supra.

73 Id. at 483.

74 Id. at 487.

75 Id. at 488, 491.

76 Id. at 487.

77 See Columbia University, 364 NLRB No. 90, slip op. at 1-2, 5-6 (rejecting the

Brown University holding that graduate students cannot be statutory employees

because they are primarily students).

12

error” was that it had framed the existence of statutory coverage in terms of the

employee’s primary role as a student.78 The Board explained that “[s]tatutory

coverage [under the NLRA] is permitted by virtue of an employment relationship; it

is not foreclosed by the existence of some other, additional relationship that the Act

does not reach.”79 Thus, an individual “may be both a student and an employee; a

university may be both the student’s educator and employer.”80

The Board concluded that both Section 2(3) of the Act and the common-law of

agency support a finding of employee status. The Board explained that the

definition of “employee” in Section 2(3) is “strikingly” broad, and, as the Supreme

Court observed, “seems to reiterate the breadth of the ordinary dictionary definition

of the term, a definition that includes any person who works for another in return

for financial or other compensation.”81 Moreover, that Congress chose not to list

student assistants among the NLRA’s enumerated exclusions from the definition of

“employee” in Section 2(3) “is itself strong evidence of statutory coverage.”82

Student assistants meet the common-law definition of employee that establishes

that an employee “relationship exists when a servant performs services for another,

under the other’s control

Moreover, that Congress chose not to list

student assistants among the NLRA’s enumerated exclusions from the definition of

“employee” in Section 2(3) “is itself strong evidence of statutory coverage.”82

Student assistants meet the common-law definition of employee that establishes

that an employee “relationship exists when a servant performs services for another,

under the other’s control or right of control, and in return for payment.”83 The

Board explained that in past cases, it has applied the broad language in Section 2(3)

to cover categories of workers that included paid union organizers (salts),

undocumented workers, and confidential employees.84

78 Id., slip op. at 5.

79 Id., slip op. at 2.

80 Id., slip op. at 7 (emphasis in the original). The Board also addressed students’

inclusion in bargaining units, explaining that the mere fact of students’ finite

employment tenure does not mean they should be automatically excluded from the

unit. See id., slip op at 20-21 & n.130 (overturning cases such as San Francisco Art

Institute, 226 NLRB 1251 (1976), which excluded student janitors from a

bargaining unit of full-time and part-time janitors) and Saga Food Service of

California, Inc., 212 NLRB 786 (1974), cited by the Columbia University dissent at

slip. op. at 32, n.50.

81 Columbia University, 364 NLRB No. 90, slip op. at 4, quoting NLRB v. Town &

Country, 516 U.S. 85, 90 (1995) (internal quotations omitted).

82 Id. (citing Sure-Tan, Inc. v. NLRB, 353 U.S. 883, 891-92 (1984)).

83 Id., slip op. at 3, quoting NYU, 332 NLRB at 1206.

84 See id., slip op. at 5.

-

ifornia, Inc., 212 NLRB 786 (1974), cited by the Columbia University dissent at

slip. op. at 32, n.50.

81 Columbia University, 364 NLRB No. 90, slip op. at 4, quoting NLRB v. Town &

Country, 516 U.S. 85, 90 (1995) (internal quotations omitted).

82 Id. (citing Sure-Tan, Inc. v. NLRB, 353 U.S. 883, 891-92 (1984)).

83 Id., slip op. at 3, quoting NYU, 332 NLRB at 1206.

84 See id., slip op. at 5.

-

13

The Board also stated that asserting jurisdiction over student assistants who

meet the common law definition of employee furthers the Act’s policies of

encouraging collective bargaining and employees’ freedom to express a choice for or

against a bargaining representative.85 The Board rejected the theorized claims in

Brown University that classifying student assistants as employees under the NLRA

would detrimentally impact the education process, explaining, inter alia, that there

is no empirical support for the claim in Brown that collective bargaining cannot

accompany a student-teacher relationship.86

Member Miscimarra’s dissent in Columbia University speculated that other

problems could arise from the Board exercising its jurisdiction over student

assistants, warning, for instance, that NLRA coverage could lead to strikes,

lockouts, and other labor strife in higher education.87 But as the majority noted,

these are common concerns for every workplace and not a reason to deny the

NLRA’s protections to student employees.88 Member Miscimarra also feared that

Board jurisdiction over student employees will harm universities’ confidentiality

practices in sexual harassment cases by requiring disclosure of sensitive documents,

or require schools to authorize abusive language against the university faculty.89

However, as the majority explained, the NLRA’s document production provisions

and boundaries of protected conduct “are, and always have been, contextual,” as

“[t]he Board evaluates such claims in light of workplace standards and other

relevant rules and practices.”90 Additionally, the General Coun

e documents,

or require schools to authorize abusive language against the university faculty.89

However, as the majority explained, the NLRA’s document production provisions

and boundaries of protected conduct “are, and always have been, contextual,” as

“[t]he Board evaluates such claims in light of workplace standards and other

relevant rules and practices.”90 Additionally, the General Counsel has prosecutorial

discretion over whether to issue an administrative complaint in any given case,

taking into account the legitimate concerns of the university, including, e.g., the

need to maintain confidentiality in harassment investigations.91 Indeed, Regional

85 Id., slip op. at 6-7.

86 Id.

87 Id., slip op. at 29-30 (Member Miscimarra, dissenting).

88 Id., slip op. at 11.

89 Id., slip op. at 30-31.

90 Id., slip op. at 11.

91 See 29 U.S.C. § 153(d) (power of the General Counsel includes having “final

authority, on behalf of the Board, in respect of the investigation of charges . . .

under section 10”); see also Verso Paper, Case 30-CA-089350, Advice Memorandum

dated January 29, 2013 at p. 3, n.7 (finding rule requiring confidentiality during

ongoing investigations of employee misconduct would be lawful as modified); United

Parcel Service, Case 20-CA-29850, Advice Memorandum dated February 23, 2001

14

Offices may only issue unfair labor practice complaints that are “well founded in all

respects.”92

B.

Non-Academic University Workers

As explained above, Columbia University settled that undergraduate

research assistants are employees.93 However, that case has broader implications

beyond just student assistants. Other students, typically undergraduates, often

work in non-academic positions for their universities during the school year, for

instance as maintenance or cafeteria workers, lifeguards, campus tour guides, or

administrative assistants in the campus financial aid or alumni affairs offices

assistants are employees.93 However, that case has broader implications

beyond just student assistants. Other students, typically undergraduates, often

work in non-academic positions for their universities during the school year, for

instance as maintenance or cafeteria workers, lifeguards, campus tour guides, or

administrative assistants in the campus financial aid or alumni affairs offices.

Non-academic undergraduate work presents a less complicated question than

the one that the Board grappled with in NYU, Brown University, and Columbia

University concerning what weight, if any, to give the question of whether the work

was “primarily educational”—an issue which is not present where students work in

non-academic positions. Thus, students performing non-academic work who meet

the common-law test of performing services for and under the control of

universities, in exchange for compensation, fall within the broad ambit of Section

2(3).94 As such, students performing non-academic university work are clearly

covered by the NLRA, and, as with student assistants, we will analyze unfair labor

practice charges involving non-academic student employees accordingly.

(finding confidentiality rule lawful where employer had substantial and legitimate

interest in maintaining confidentiality of employee personnel records); Walmart,

Case 11-CA-067171, Advice Memorandum dated May 30, 2012 (finding revised

social media policy prohibiting disclosure of confidential trade secrets and

information lawful); Werthan Packaging, Inc., Case 26-CA-20116-1, Advice

Memorandum dated May 31, 2001 (finding rule prohibiting disclosure of

confidential business documents and customer information lawful).

92 NLRB Unfair Labor Practice Casehandling Manual § 10260.

93 See Columbia University, 364 NLRB No. 90, slip op. at 7

media policy prohibiting disclosure of confidential trade secrets and

information lawful); Werthan Packaging, Inc., Case 26-CA-20116-1, Advice

Memorandum dated May 31, 2001 (finding rule prohibiting disclosure of

confidential business documents and customer information lawful).

92 NLRB Unfair Labor Practice Casehandling Manual § 10260.

93 See Columbia University, 364 NLRB No. 90, slip op. at 7. See also id., slip op. at

20 n.130 (overruling San Francisco Art Institute, 226 NLRB 1251 (1976), and other

similar cases to the extent that they hold that the mere fact of being a student

impairs bargaining rights).

94 See n.81, supra. Cf. University of West Los Angeles, 321 NLRB 61, 61 (1996)

(finding student law library clerks properly included in the same bargaining unit as

non-student clerks).

15

C.

Medical Interns, Residents, and Fellows (Hospital House Staff)

Finally, the Board’s Columbia decision reinforces the Board’s prior conclusion

that interns, residents, and fellows (or “house staff”) in post-medical school

residency programs are employees within the meaning of the Act.95 In its 1999

Boston Medical Center Corporation decision,96 the Board overruled its prior

precedent in Cedars-Sinai Medical Center97 and St. Clare’s Hospital & Health

Center,98 which had held that hospital house staff members were not employees

because they were primarily students.

The Boston Medical Center Board’s analysis of Section 2(3) was similar to

that of Columbia University, noting that the breadth of Section 2(3) is striking, and

students are not listed among its exclusions.99 Further, the fact that hospital house

staff members are also students does not diminish their status as employees

because “nothing in the [NLRA] suggests that persons who are students but also

employees should be exempted from the coverage and protection of the Act”100 and

their “status as students is not mutually exclusive of a finding that they are

employees.”101 The Board concluded that hospital house staff members are

employees und

members are also students does not diminish their status as employees

because “nothing in the [NLRA] suggests that persons who are students but also

employees should be exempted from the coverage and protection of the Act”100 and

their “status as students is not mutually exclusive of a finding that they are

employees.”101 The Board concluded that hospital house staff members are

employees under the common-law master-servant analysis because, inter alia, they

work for an employer, receive compensation in the form of a stipend and benefits,

and provide services for the hospital in the form of patient care.102

In 2010, in St. Barnabus Hospital,103 the Board was asked to reconsider its

Boston Medical Center decision in light of Brown University. The Board declined to

do so, stating “Boston Medical Center has been the law for over a decade, and no

95 364 NLRB No. 90, slip op. at 11.

96 330 NLRB 152 (1999).

97 223 NLRB 251 (1976).

98 229 NLRB 1000 (1977).

99 Boston Medical, 330 NLRB at 160.

100 Id.

101 Id., slip op. at 161.

102 Id., slip op. at 160-61.

103 355 NLRB 233 (2010).

16

court of appeals has questioned its validity.”104 The Board further pointed out, inter

alia, that the Brown University Board expressly refused to extend its reasoning to

hospital house staffs.105

Accordingly, because Boston Medical Center was never overturned by Brown

University and its reasoning was applied in the Board’s recent Columbia University

decision, hospital house staffs will continue to be protected as employees under the

NLRA, and we will continue to process unfair labor practice charges involving those

employees.

III.

Northwestern University, 362 NLRB No. 167 (August 17, 2015)

In August 2015, the Board issued its decision in Northwestern University,106

declining to exercise its jurisdiction over a representation petition filed by a union

seeking to represent Northwestern University’s football players who receive grant-

in-aid scholarships

to process unfair labor practice charges involving those

employees.

III.

Northwestern University, 362 NLRB No. 167 (August 17, 2015)

In August 2015, the Board issued its decision in Northwestern University,106

declining to exercise its jurisdiction over a representation petition filed by a union

seeking to represent Northwestern University’s football players who receive grant-

in-aid scholarships. In so holding, the Board expressly declined to resolve the issue

of whether college scholarship football players are employees under the NLRA.107

As described below, based on: the record developed in Northwestern University,

which includes information about NCAA rules that significantly control the

activities of Division I FBS scholarship football players; other public information;

and the Board’s recent decision in Columbia University, we conclude that

scholarship football players in Division I FBS private sector colleges and

universities are employees under the NLRA, with the rights and protections of that

Act.

Rather than reaching the question of whether scholarship football players are

NLRA employees, the Board in Northwestern concluded that it would not promote

stability in labor relations to assert jurisdiction by certifying the petitioned-for

bargaining unit. The Board reasoned that, even if the football players are

employees for the purposes of collective bargaining, “such bargaining has never

involved a bargaining unit consisting of a single team’s players, where the players

for competing teams were unrepresented or entirely outside the Board’s

104 Id. at 233.

105 See id. See also Icahn School of Medicine at Mount Sinai, 29-RC-112517, 2014

WL 2002992, at **2, 17-22 (Feb. 25, 2014) (Regional Director concluded that house

staff officers are NLRA employees, following Boston Medical Center).

106 Supra, n. 4.

107 Northwestern University, 362 NLRB No. 167, slip op at 1.

e Board’s

104 Id. at 233.

105 See id. See also Icahn School of Medicine at Mount Sinai, 29-RC-112517, 2014

WL 2002992, at **2, 17-22 (Feb. 25, 2014) (Regional Director concluded that house

staff officers are NLRA employees, following Boston Medical Center).

106 Supra, n. 4.

107 Northwestern University, 362 NLRB No. 167, slip op at 1.

17

jurisdiction.”108 The Board went on to note that “we are declining jurisdiction only

in this case involving the football players at Northwestern University; we therefore

do not address what the Board’s approach might be to a petition for all FBS

scholarship football players (at least those at private colleges and universities).”109

Finally, in commenting on the suggestion that the Board should use Section 14(c)(1)

as a basis for declining jurisdiction, the Board stated that “we are unwilling to find

that a labor dispute involving an FBS football team would not have a ‘sufficiently

substantial’ effect on commerce to warrant declining to assert jurisdiction.”110 Thus,

it is clear that nothing in Northwestern precludes the finding that Northwestern (or

other private college/university) scholarship football players are employees under

the Act and enjoy the protection of Section 7.111 Since the issue was raised but left

unresolved in Northwestern, it is important that these individuals know whether

the Act’s protection extends to them, i.e., whether if they engage in concerted

activity for mutual aid and protection, such activity is protected by the NLRA.

108 Id., slip op. at 4.

109 Id., slip op. at 6.

110 Id., n.28.

111 In Columbia, explaining the care with which it exercises its discretionary

jurisdiction, the Board stated:

In Northwestern University, 362 NLRB No

i.e., whether if they engage in concerted

activity for mutual aid and protection, such activity is protected by the NLRA.

108 Id., slip op. at 4.

109 Id., slip op. at 6.

110 Id., n.28.

111 In Columbia, explaining the care with which it exercises its discretionary

jurisdiction, the Board stated:

In Northwestern University, 362 NLRB No. 167 (2015), we denied the

protections of the Act to certain college athletes—without ruling on

their employee status—because, due to their situation within and

governance by an athletic consortium dominated by public universities,

we found that our extending coverage to them would not advance the

purposes of the Act. Here, conversely, we have no reason to believe

that extending bargaining rights will not meaningfully advance the

goals of the Act.

Columbia University, 364 NLRB No. 90, slip op. at 7, n. 56 (emphasis added). In

proper context, this reference to Northwestern’s “deny[ing] the protections of the

Act,” while explaining that the Board did not rule on players’ employee status, is

limited to the Board’s discretionary decision there not to “extend[] bargaining

rights” and to decline further processing of a representation case; it does not answer

the question of whether, for example, a football player who has been kicked off the

team and lost his scholarship because he discussed improving concussion protocols

with his teammates in violation of an unlawful team rule would be entitled to the

protections of the Act.

n there not to “extend[] bargaining

rights” and to decline further processing of a representation case; it does not answer

the question of whether, for example, a football player who has been kicked off the

team and lost his scholarship because he discussed improving concussion protocols

with his teammates in violation of an unlawful team rule would be entitled to the

protections of the Act.

18

The conclusion that Division I FBS scholarship football players in private

colleges and universities are employees under the NLRA is supported by the

statutory language and policies of the NLRA, and the Board’s interpretation of

them in Boston Medical Center and Columbia University.112

As those two decisions recognized, the Supreme Court has endorsed the

Board’s broad interpretation of “employee” as defined in Section 2(3).113 Section 2(3)

contains only a few enumerated exceptions, and university employees, football

players, and students are not among them.114 As the Board stated in Columbia

University, the absence of any of these exclusions “is itself strong evidence of

statutory coverage.”115

In applying the NLRA’s expansive language and purpose to specific

situations, the Board has long made use of common-law agency rules governing the

conventional master-servant relationship, including most recently in Columbia

University.116 Under those rules, an employee includes any person “who perform[s]

services for another and [is] subject to the other’s control or right of control.

Consideration, i.e., payment, is strongly indicative of employee status.”117

112 While the Board in Northwestern University observed that the scholarship

football players “bear little resemblance to … graduate student assistants” based on

the fact that the football players are undergraduates and their football activities are

generally unrelated to their courses of study, see Northwestern University, slip op

17

112 While the Board in Northwestern University observed that the scholarship

football players “bear little resemblance to … graduate student assistants” based on

the fact that the football players are undergraduates and their football activities are

generally unrelated to their courses of study, see Northwestern University, slip op.

at 3-4 & n.10, the Board based these distinctions on Brown University and its

“primarily student” test, which the Board subsequently overturned in Columbia

University. See supra at pp. 11-12. The Board expressly found, in Columbia

University, that undergraduate teaching assistants are employees. 364 NLRB No.

90, slip op. at 16.

113 See Columbia University, 364 NLRB No. 90, slip op. at 5; Boston Medical Center,

330 NLRB at 160.

114 See Columbia University, 364 NLRB No. 90, slip op. at 4; Boston Medical Center,

330 NLRB at 160.

115 Columbia University, slip op. at 4.

116 See id., slip op. at 4-5 (applying common-law to find student assistants to be

NLRA employees); Boston Medical Center, 330 NLRB at 160 (applying common-law

to find house staff to be NLRA employees). See also Town & Country, 516 U.S. at

93-95 (finding that the common-law supported the Board’s broad interpretation of

employee status); BFI Newby Island Recyclery, 362 NLRB No. 186, slip op. at 12

(Aug. 27, 2015) (providing overview of the common-law agency test).

117 See Boston Medical Center, 330 NLRB at 160.

r, 330 NLRB at 160 (applying common-law

to find house staff to be NLRA employees). See also Town & Country, 516 U.S. at

93-95 (finding that the common-law supported the Board’s broad interpretation of

employee status); BFI Newby Island Recyclery, 362 NLRB No. 186, slip op. at 12

(Aug. 27, 2015) (providing overview of the common-law agency test).

117 See Boston Medical Center, 330 NLRB at 160.

19

Applying the common-law rules here, it is clear from the evidentiary record

established in Northwestern University that scholarship football players at

Northwestern and other Division I FBS private colleges and universities are

employees under the NLRA because they perform services for their colleges and the

NCAA, subject to their control, in return for compensation. With regard to the

question of whether athletes provide services for the college/university, the

Northwestern football program, which is part of the NCAA Division I Big Ten

conference, generated approximately $76 Million in net profit during the ten year

period ending in 2012-2013, and provided an immeasurable positive impact to

Northwestern’s reputation, which in turn undoubtedly boosted student applications

and alumni financial donations. It is also clear that college scholarship football

players receive significant compensation in exchange for that service.118 The

players’ compensation is clearly tied to their status and performance as football

players, since they risk the loss of their scholarships if they quit the team or are

removed because they violate their school’s or the NCAA’s rules. These factors do

not seem to be unique to Northwestern, but also appear to be true in the other

Division I FBS football private colleges and universities

118 The

players’ compensation is clearly tied to their status and performance as football

players, since they risk the loss of their scholarships if they quit the team or are

removed because they violate their school’s or the NCAA’s rules. These factors do

not seem to be unique to Northwestern, but also appear to be true in the other

Division I FBS football private colleges and universities.

With regard to whether services are performed subject to the

college/university’s control, there is substantial evidence that colleges and

universities control the manner and means of scholarship football players’ work on

the field and numerous facets of the players’ daily lives to ensure compliance with

NCAA rules. The NCAA has the right to control and actually controls the

competition among football players and many of their terms and conditions of

employment, including the maximum number of practice and competition hours,

scholarship eligibility, limitations on compensation, minimum grade point average

and other conditions for potential loss of scholarships, restrictions on gifts and

benefits players may accept, restrictions on the number of scholarship players, and

mandatory drug testing. The NCAA also maintains a “Compliance Assistance

Program” to ensure that colleges and student-athletes are in compliance with

NCAA rules, including those that regulate terms and conditions of employment,119

and colleges employ staff whose sole function is to ensure compliance with those

rules.

Division I FBS colleges and universities impose additional controls over

scholarship football players

The NCAA also maintains a “Compliance Assistance

Program” to ensure that colleges and student-athletes are in compliance with

NCAA rules, including those that regulate terms and conditions of employment,119

and colleges employ staff whose sole function is to ensure compliance with those

rules.

Division I FBS colleges and universities impose additional controls over

scholarship football players. For example, Northwestern maintains daily itineraries

118 For instance, Northwestern scholarship football players receive up to $76,000 per

year for up to five years, covering the cost of their tuition, fees, rooms, board, and

books, and a stipend that began in 2015 covering additional expenses such as travel

and childcare above the amount of the original scholarship.

119 See http://www.ncaa.org/compliance-assistant?division=d1 (last visited January

31, 2017).

20

regulating players’ hourly tasks from the time they wake up until the appointed

hour that they go to sleep and requiring full-time hours during training camp and

the regular season and the equivalent of a part time job of between 12-25 hours

during the off-season. This time requirement is not unique to Northwestern. The

NCAA’s data, most recently its January 2016 GOALS Study, found that Division I

FBS football players “continue to report the highest weekly in-season time

commitments,” a median of 42 hours per week on football-related activities.120

Moreover, players must insure that their grade point averages do not fall below the

NCAA-required minimum, while at the same time foregoing classes and courses of

study that interfere with scheduled football activities

found that Division I

FBS football players “continue to report the highest weekly in-season time

commitments,” a median of 42 hours per week on football-related activities.120

Moreover, players must insure that their grade point averages do not fall below the

NCAA-required minimum, while at the same time foregoing classes and courses of

study that interfere with scheduled football activities. Finally, coaches can penalize

players, including firing them from the football team resulting in the loss of their

scholarships, for college and/or NCAA rule infractions, and they also can be

penalized separately through the NCAA infractions process.121

Accordingly, FBS scholarship football players clearly satisfy the broad

Section 2(3) definition of employee and the common-law test. This conclusion is not

precluded by the Board’s Northwestern University decision. There, the Board

decided not to assert jurisdiction over a representation petition involving only

Northwestern college football players because of the nature of the control exercised

by the football leagues over individual teams and because of the composition of

Division I FBS football, in which the majority of the teams are public universities

not subject to the Board’s jurisdiction.122 However, those difficulties are not

relevant to the question of whether the players are employees under the NLRA.123

The preemptive exclusion of a whole category of employees from the NLRA’s

protection based on the Board’s determination not to proceed in one representation

120 See

http://www.ncaa.org/sites/default/files/GOALS_2015_summary_jan2016_final_2016

0627.pdf at p.2 (last visited January 31, 2017)

he players are employees under the NLRA.123

The preemptive exclusion of a whole category of employees from the NLRA’s

protection based on the Board’s determination not to proceed in one representation

120 See

http://www.ncaa.org/sites/default/files/GOALS_2015_summary_jan2016_final_2016

0627.pdf at p.2 (last visited January 31, 2017).

121 Other examples of control by Northwestern, and potentially other Division I FBS

private colleges and universities, include: football players are required to seek

permission before living off-campus, applying for outside employment, driving

personal vehicles, traveling off-campus, and posting items on the internet.

122 362 NLRB No. 167, slip op. at 3.

123 For example, the Board routinely asserts jurisdiction over unfair labor practices

involving employees classified as “guards” even where it would be statutorily

precluded from certifying a mixed-guard bargaining unit in a related representation

case. See, e.g., White Superior Div., 162 NLRB 1496, 1499 (1967) (rejecting

employer argument that it could not violate Section 8(a)(3) by discriminatorily

transferring guards because the Board could not certify the unit under Section

9(b)(3)), enforced as modified, 404 F.2d 1100 (6th Cir. 1968).

21

proceeding would undermine the Section 7 protections afforded to all unorganized

private sector employees who may never elect to form or support a union. Such

employees still have the right to engage in concerted activities for “mutual aid or

protection” under Section 7, and their bargaining unit status does not impair such

rights.124

Thus, for instance, scholarship football players should be protected by Section

7 when they act concertedly to speak out about aspects of their terms and conditions

of employment

ct to form or support a union. Such

employees still have the right to engage in concerted activities for “mutual aid or

protection” under Section 7, and their bargaining unit status does not impair such

rights.124

Thus, for instance, scholarship football players should be protected by Section

7 when they act concertedly to speak out about aspects of their terms and conditions

of employment. This includes, for example, any actions to: advocate for greater

protections against concussive head trauma and unsafe practice methods,125 reform

NCAA rules so that football players can share in the profit derived from their

124 See, e.g., Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip op. at 3

(Aug. 11, 2014) (the focus of the “mutual aid or protection” inquiry is on the goal of

the concerted activity, primarily “whether the employee or employees involved are

seeking to ‘improve terms and conditions of employment or otherwise improve their

lot as employees’”) (quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)).

125 Such advocacy could seek specific changes to the NCAA concussion management

guidelines including NCAA penalties, similar to recent NFL reforms, for schools

that violate the guidelines (http://www.cbssports.com/college-football/news/why-the-

ncaa-wont-adopt-concussion-penalties----at-least-not-yet/, last visited January 31,

2017; http://www.nytimes.com/2016/07/26/sports/football/nfl-concussion-protocol-

new-rules.html?_r=0, last visited January 31, 2017); strict uniform contact

standards across the NCAA

(http://www.nytimes.com/2016/03/02/sports/ncaafootball/ivy-league-moves-to-

eliminate-tackling-at-practices.html?_r=0, last visited January 31, 2017); NCAA-

enforced protections against unduly harsh practices

(https://www.washingtonpost.com/sports/oregon-football-workouts-sent-players-to-

hospital-who-will-stand-up-for-them/2017/01/17/1c0d7fae-dcf7-11e6-918c-

99ede3c8cafa_story.html?utm_term=.9bec0fb56ed2, last visited Jan

6/03/02/sports/ncaafootball/ivy-league-moves-to-

eliminate-tackling-at-practices.html?_r=0, last visited January 31, 2017); NCAA-

enforced protections against unduly harsh practices

(https://www.washingtonpost.com/sports/oregon-football-workouts-sent-players-to-

hospital-who-will-stand-up-for-them/2017/01/17/1c0d7fae-dcf7-11e6-918c-

99ede3c8cafa_story.html?utm_term=.9bec0fb56ed2, last visited January 31, 2017);

or for other reforms advanced by the National College Players Association, a non-

profit advocacy organization for Division I athletes

(http://www.ncpanow.org/about/mission-goals, last visited, January 31, 2017).

22

talents,126 or self-organize, regardless of whether the Board ultimately certifies the

bargaining unit.127

This conclusion applies solely to the question left open in Northwestern

University with regard to Division I FBS scholarship football players. There are

undoubtedly other sports that provide substantial financial benefit to

colleges/universities and that involve scholarship athletes who are under significant

control by the schools and the NCAA. However, in the absence of a full Regional

investigation, like the one undertaken with respect to the petition filed in

Northwestern University, we cannot conclusively determine the employee status of

other kinds of student athletes in cases that may arise in the future.

Recent history teaches that discussions of whether university football players

are “employees” under the NLRA may devolve into disputes focused not on the

narrow question of statutory interpretation but rather on whether the status quo is

fair and equitable to the players and the universities. Partisans for and against the

current system have strongly held, deeply felt positions

the future.

Recent history teaches that discussions of whether university football players

are “employees” under the NLRA may devolve into disputes focused not on the

narrow question of statutory interpretation but rather on whether the status quo is

fair and equitable to the players and the universities. Partisans for and against the

current system have strongly held, deeply felt positions. The “revered tradition of

amateurism in college sports” and the substantial value of a university scholarship

are set against the enormous revenue generated by Division I FBS football

programs and the substantial salaries paid to university administrators, coaches,

and conference officials involved in the sport.128 Serious questions about the role of

extracurricular activities in a university education and whether football players

should be treated differently from equally committed athletes in non-revenue sports

or students participating in equally time-consuming non-athletic activities are

passionately debated. This memorandum certainly cannot—and it would be

entirely inappropriate for it to attempt to—resolve these difficult, sometimes

126 See, e.g., http://www.latimes.com/sports/ucla/la-sp-0525-ucla-under-armour-

20160525-snap-story.html (providing an example of speech that would have been

protected by Section 7 were the college subject to the Board’s jurisdiction: the

UCLA quarterback sent a social media message in response to UCLA’s

$280,000,000 Under Armor apparel contract, writing “We’re still amateurs though

… Gotta love non-profits #NCAA”) (last visited January 31, 2017).

127 See Beth Israel Hospital v. NLRB, 437 U.S. 483, 491 (1978) (employees’ exercise

of Section 7 rights “necessarily encompasses the right effectively to communicate

with one another regarding self-organization at the jobsite”).

128 Compare Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468

U.S

teurs though

… Gotta love non-profits #NCAA”) (last visited January 31, 2017).

127 See Beth Israel Hospital v. NLRB, 437 U.S. 483, 491 (1978) (employees’ exercise

of Section 7 rights “necessarily encompasses the right effectively to communicate

with one another regarding self-organization at the jobsite”).

128 Compare Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468

U.S. 85, 120 (1984) (recognizing over 30 years ago “a revered tradition of

amateurism in college sports”) to Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d

285, 294 (7th Cir. 2016) (Hamilton, J., concurring) (observing that the economic

reality is that this tradition of amateurism is “sometimes frayed” and may not

extend to Division 1 men’s basketball and FBS football, which “involve billions of

dollars of revenue for colleges and universities”).

23

divisive, questions. We merely determine here that the application of the statutory

definition of employee and the common-law test lead to the conclusion that Division

I FBS scholarship football players are employees under the NLRA, and that they

therefore have the right to be protected from retaliation when they engage in

concerted activities for mutual aid and protection. It is our hope that by making our

prosecutorial position known, we will assist private colleges and universities to

comply with their obligations under the Act.

IV.

Conclusion

Significant recent Board cases have addressed employee status at

universities in representation proceedings. The Office of the General Counsel will

use the Board’s analysis in those cases to process unfair labor practices affecting the

rights of individuals performing those types of work to engage in protected

concerted activity.