# NLRB General Counsel Memorandum GC 17-01: General Counsel's Report on the Statutory Rights of University Faculty And Students in the Unfair Labor Practice Context

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/NLRB_GCGC1701

## Section

- **Citation:** NLRB General Counsel Memorandum GC 17-01
- **Heading:** General Counsel's Report on the Statutory Rights of University Faculty And Students in the Unfair Labor Practice Context
- **Jurisdiction:** Federal
- **Kind:** Agency guidance
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** NLRB General Counsel Memoranda / General Counsel's Report on the Statutory Rights of University Faculty And Students in the Unfair Labor Practice Context

## Text

1
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).

2
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.

3
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)).

4
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).

5
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.

6
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.

7
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.

8
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.

9
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.

10
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.

11
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.

## Nearby sections

- [NLRB General Counsel Memorandum GC 00-01 Guideline Memorandum Concerning Frontpay](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0001.md)
- [NLRB General Counsel Memorandum GC 00-02 Investigative Subpoenas](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0002.md)
- [NLRB General Counsel Memorandum GC 00-03 Realignment of Responsibilities](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0003.md)
- [NLRB General Counsel Memorandum GC 00-04 Continuation of the Requirement For the Submission of Section 10(j)](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0004.md)
- [NLRB General Counsel Memorandum GC 00-05 Daily Compounding of Interest on Backpay and other Monetary Awards](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0005.md)
- [NLRB General Counsel Memorandum GC 00-06 Impact Analysis Program Modifications](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0006.md)
- [NLRB General Counsel Memorandum GC 00-07 Reimbursement for Excess Federal and State Income Taxes which Discriminatees owe as a result of receiving a lump-sum backpay award](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0007.md)
- [NLRB General Counsel Memorandum GC 01-01 Pro Bono Program](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0101.md)
- [NLRB General Counsel Memorandum GC 01-02 "Casehandling in light of Fleming Cos., 332 NLRB No. 99 (October 31, 2000)"](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0102.md)
- [NLRB General Counsel Memorandum GC 01-03 "Report on Utilization of Section 10(j) Injunction Proceedings March 3, 1998 through January 15, 2001"](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0103.md)
- [NLRB General Counsel Memorandum GC 01-04 Guidelines for Response to Beck-Related Public Inquiries](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0104.md)
- [NLRB General Counsel Memorandum GC 01-05 "Unfair Labor Practice Complaints Issued December 19, 2000 – April 20, 2001"](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0105.md)
- [NLRB General Counsel Memorandum GC 01-06 Fundraising Following Recent Tragedy](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0106.md)
- [NLRB General Counsel Memorandum GC 02-01 Guidelines Memorandum Concerning Levitz](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0201.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/NLRB_GCGC1701. Check the current official text before relying on it. Not legal advice.