The Northwestern Football Player Union Vote and Your Business

Rebecca Mazin
Thu, 24 Apr 2014 00:00:00 +0000

On Friday, April 25th, members of the Northwestern University Football team will have the right to cast a ballot for, or against, joining a union. In March the Chicago Region of The National Labor Relations Board (NLRB) issued a determination that scholarship football players are employees as defined by the National Labor Relations Act (NLRA), giving them the right to participate in an election. It's a twisty and complicated question about employee status that is unlikely to be decided this week since the University has appealed the decision about the union vote.

Whether or not you keep up to date on the winding path of this issue, it's a good reminder to learn the basics about your rights and responsibilities as an employer under the NLRA.

But My Business Is Too Small to Be Covered by the NLRA

Obamacare may identify coverage under the Affordable Care Act based on number of employees but the NLRA has a whole different set of rules; most private employers fall under the statutory jurisdiction based on minimal levels of interstate commerce. Interstate commerce includes goods and services you sell, or buy, across state lines. A business is covered by the NLRA if at least $50,000 in goods and services are bought or sold to or from a different state. And the purchases can be direct or indirect. So if you do all of your business in Kansas but your suppliers get goods from Illinois and Georgia, you are likely to be covered.

The thresholds are different for retailers: $500,000 in gross annual volume. For shopping centers and office buildings the minimum is lower: $100,000 a year. Northwestern falls under the standard for private and non-profit colleges who engage in interstate commerce of at least $1 million a year.

Does This Mean My Employees Can Set Up a Vote at My Office?

It's nothing like the student council. If your employees set up a vote in the cafeteria one day and come to you and say, "Boss, we voted, the union is in" you have no requirement to recognize this as a valid election. The process for requesting and holding an election has a long list of steps that include rights for the employer. There are questions about who can vote, where they can vote, and when. It all starts with a petition by employees. If one lands on your desk it's not cause for panic; it's time to call a labor attorney for advice on response.

If I Hear Employees Talking About a Union I'll Just Fire Them

Not a good strategy and one that is likely to land you on the wrong side of a NLRB charge. The NLRA gives employees rights to what is called protected concerted activities-group action to improve wages, benefits, and working conditions and to engage in union activities and support, or oppose, or a union. Put simply, covered employees can get together to complain about work and bring these issues to management. This group activity can be in person or in cyberspace. The NLRB has specifically described how using social media is protected by law and has issued a string of supporting decisions.

When I worked for the NLRB I saw first hand how the wrong reaction can wreak havoc. The owner of a 10-person machine shop was incensed when he heard that one of his machinists had complained about working conditions and said, "Maybe we should get a union." This employee was fired and filed a claim against the employer with the NLRB. By the time my investigation was completed, the owner had fired three more employees, including the wife of the machinist who was the company bookkeeper. It took months to investigate and I left the NLRB long before responses, and appeals, to the charges. But I know how much time and energy had already been spent and can only guess at the financial cost that was added on top of the emotional toll.

I have been on the employer side of organizing campaigns and know that it can feel like a personal attack. Don't my employees like me? And the best response is personal, it demonstrates that you care about employees, listen and respond to complaints about working conditions. Employers have the right, and should do this. But it can't include threatening, spying, promising, or other activities that thwart employee rights. You don't have to be a football coach to spend some time learning the rules of this game.