Wyatt Employment Law Report

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Crossroads in College Sports: Northwestern University Football Players’ Attempt to Unionize Could be a Real “Game Changer”

By R. Joseph Stennis

Are student-athletes employees of a university or instead just amateur athletes who play sports for their schools?  This is the question put forth by a  group of current Northwestern University football players who recently announced via representatives their intent to unionize and be recognized as employees under federal labor law.  On January 28, 2014, Ramogi Huma, president of the college athlete advocacy group National College Players Association, filed a petition with the Chicago Regional Office of the National Labor Relations Board (“NLRB”) on behalf of the players requesting to be certified as a union.  If certified by the NLRB, the group of players would be called the College Athletes Players Association (“CAPA”).  CAPA was organized by former Northwestern University quarterback Kain Colter, former University of Massachusetts basketball player Luke Bonner, and Mr. Huma.  CAPA was created with the support from the United Steelworkers Union as well.

The response of the NCAA, Northwestern University and Big Ten Conference was essentially that student-athletes are not employees of the university.  In particular, the NCAA’s chief legal officer Donald Remy stated, “This union-backed attempt to turn student-athletes into employees undermines the purpose of college:  an education.  Student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act.  We are confident the [NLRB] will find…there is no right to organize student-athletes.”

The NLRB’s Chicago Regional Office is expected to hold a hearing on this matter on February 7, 2014.  If the NLRB’s Regional Director finds that the athletes are employees as defined in the National Labor Relations Act, he will order a secret ballet election.  If he makes a finding that the athletes are not employees, he will dismiss the petition.  The Regional Director’s decision—either way—will likely be appealed.

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NLRB Finds Employer’s Refusal to Allow a Non-Employee Union Representative Access To Its Plant Unlawful

By Edwin S. Hopson

On April 23, 2013, the National Labor Relations Board issued its decision in Caterpillar, Inc., 359 NLRB No. 97 (2013), holding that a company’s refusal to allow a non-employee union representative on its property after a fatal accident to investigate the accident was a violation of Section 8(a)(5) of the National Labor Relations Act.  The rationale for its decision was: since the union represented the employee fatally injured and was seeking access to investigate the cause of the fatal accident, the denial of access was an unlawful refusal to provide the union with information it was seeking about a safety issue at the plant.  The Administrative Law Judge who heard the case stated in his decision, in part:

“Information, which concerns unit terms and conditions of employment is ‘so intrinsic to the core of the employer employee relationship’ that it is presumptively relevant. York International Corp., 290 NLRB 438 (1988). Concerning health and safety, the Board has held: ‘Health and safety matters regarding the unit employees’ workplaces are of vital interest to the employees and are, thus, generally relevant and necessary for the union to carry out its bargaining obligations . . . . Few matters can be of greater legitimate concern. Detroit Newspaper Agency, 317 NLRB 1071 (1995); see also American National Can Co., 293 NLRB 901, 904 (1989) (health and safety matters are mandatory subjects of bargaining).”

The Board, in affirming the ALJ, stated:

“The judge properly applied the balancing test articulated in Holyoke Water Power Company [273 NLRB 1369 (1985), enfd. 778 F.2d 49 (1st Cir. 1985)] to conclude that, under the circumstances presented here, implicating significant health and safety matters, the Respondent’s property rights must yield to the employees’ right to responsible representation.”

The company was ordered to allow the union’s representative access to the facility.

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EEOC Sues U.S. Steel Corporation for Nationwide Disability Discrimination Based on a Random Alcohol Testing Policy

By Edwin S. Hopson

The U.S. Equal Employment Opportunity Commission (EEOC) announced recently that it had filed suit in the U.S. District Court for the Western District of Pennsylvania, Case No. 2:10-cv-01284, against U.S. Steel Corporation claiming it had violated federal law when it applied a nationwide policy of requiring probationary employees to undergo random alcohol tests.  The case was initiated after the company fired an employee at its Clairton, Pennsylvania facility as a result of such a test, according to EEOC’s press release. Continue reading