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What Does the New College Athletes’ Labor Union Mean for Employers?

What Does the New College Athletes’ Labor Union Mean for Employers?

Labor unions recently unveiled a new page in their playbook for organizing non-union workforces. Last week, the United Steelworkers of America supported several college athletes as they petitioned to form a labor union. In supporting this effort, the USW demonstrated one of the techniques that unions have begun using to help them increase their membership rates for the first time in years. Non-union employers should monitor this development, as it can help them understand how to respond to unions as they continue updating their organizing tactics. 

Northwestern Football Players Attempt To Form a Union 

On January 28, several Northwestern University football players petitioned the National Labor Relations Board to recognize them as a labor union. These players were members of a new labor group called the “College Athletes Players Association,” which seeks to represent college athletes at Northwestern and other universities. The USW is advising CAPA and paying its legal bills.  

If CAPA successfully unionizes these athletes, it will gain the right to represent them in their dealings with Northwestern. CAPA has indicated that it would attempt to get them benefits such as better medical treatment, improved safety protection, and the ability to accept paid commercial endorsements without jeopardizing their eligibility. 

The Unions Face an Uphill Battle, But Could Still Prevail

Although the USW and CAPA will face legal challenges, it is certainly possible that they could succeed, particularly given the pro-labor stance of today’s NLRB. In order to represent these athletes, CAPA will need to satisfy two legal requirements. First, it will need to prove that a sufficient number of the athletes actually want CAPA to represent them. Second, it will need to prove that the athletes are “employees” under the National Labor Relations Act. To satisfy this requirement, CAPA would need to show that the athletes had a relationship with Northwestern that was more “economic” than “educational.” 

As the law exists today, it may be difficult for the Unions to prevail. The NLRB held in 2004 that graduate students do not constitute employees and, therefore, cannot unionize under the NLRA. Northwestern will rely on this decision and argue that it also applies to student athletes. 

Nevertheless, there is a real chance that the Unions will succeed. Many believe the NLRB will ultimately overrule this 2004 decision, thus making it far easier for student athletes to unionize. This certainly would not be the first time the current NLRB has changed existing law to help workers form unions.   

The Unions’ Effort Shows How They Are Successfully Utilizing New Tactics

Although the Unions’ effort will not directly impact private-sector businesses, it is still worthwhile for all employers to follow this development. In supporting CAPA, the USW is providing yet another example of how unions are using new techniques – such as grass-roots campaigns, improved public relations, and social media – to spread the message about unionization and, ultimately, organize new workforces. 

In many ways, this effort resembles the “Black Friday” and “Fight for 15” protests that the Service Employees International Union is currently supporting at Wal-Mart stores and fast food restaurants. In supporting these efforts, the unions likely understand that they may not succeed in unionizing these employees. But they still receive several benefits by supporting the efforts. First, if the targeted employer ultimately improves the employees’ working conditions, the unions will take credit. Second, these efforts help the unions remain in the public eye at a time when they otherwise would be losing relevance.  

Perhaps most importantly, these efforts are helping unions groom the next generation of pro-union employees. The unions know that, just as these college athletes will not remain for long at their schools, transient employees such as retail clerks and fast food workers will not ultimately remain with their current employers. When they do move on to other jobs, the unions hope they will bring their pro-union mindsets with them, and ultimately help the unions organize their new employers. 

How Should Employers Respond?

There are at least two lessons that private-sector employers can take from this development. First, they should remember not to take unions lightly, even if they sometimes appear to be losing their clout. Unions have consistently shown their resilience and adaptability, such as evolving their organizing techniques when their former techniques lose effectiveness. Their new organizing techniques appear to be working, as unions actually increased their private-sector membership rates last year for the first time this decade. 

Second, it remains essential for employers to know how they can and cannot respond to union organizing campaigns. The Unions’ effort here shows just how quickly a union can begin organizing workers in an industry that may have considered itself impervious to unionization. For these reasons, employers should ensure that they have union avoidance campaigns ready in advance, so that they can help defeat any campaigns that arise unexpectedly. Even if the Unions’ effort here ultimately fails, they almost certainly will have another play for attempting to expand their membership at new locations.   



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