Northwestern-Athlete Union Issue: Primer on Terms and Concepts, Part II

On April 9, 2014, Northwestern University filed an appeal to the National Labor Relations Board (“NLRB”) regarding the decision of the agency’s district office, which determined the institution’s scholarship football student-athletes are employees who can unionize. According to the Wall Street Journal, the institution’s appeal stated NLRB regional director Peter Sung Ohr’s “decision overlooked or ignored important evidence Northwestern had presented showing its student-athletes are primarily students and not employees. Northwestern cited its 97% graduation rate among its football players, for example, which it says demonstrates the school’s emphasis on its ‘student-athletes’ academic success.” [Click here to read the full Wall Street Journal article.] Buckner, as well as other legal experts, predicts the Northwestern case will wind its way through the federal courts (including a showdown in the United States Supreme Court).

Buckner continues its blog series explaining the various concepts involving collective bargaining. Today’s entry in the series will review common terms used in the National Labor Relations Act (Title 29, Chapter 7, Subchapter II, United States Code [29 U.S.C. §§ 151-169]) and union-related disputes:

Employer: Defined by the National Labor Relations Act (Section 2 of the Act [§152]) as “any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act [45 U.S.C. § 151 et seq.], as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.”

Employee: Defined by the National Labor Relations Act (Section 2 of the Act [§152]) as “any employee, and shall not be limited to the employees of a particular employer, unless the Act [this subchapter] explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. § 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.”

Labor organization: Defined by the National Labor Relations Act (Section 2 of the Act [§152]) as “any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”

Labor dispute: Defined by the National Labor Relations Act (Section 2 of the Act [§152]) as “any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.”

Professional employee: Defined by the National Labor Relations Act (Section 2 of the Act [§152]) as: “(a) any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes; or (b) any employee, who (i) has completed the courses of specialized intellectual instruction and study described [in the Act], and (ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in [the Act].”