Once again I shake my head at the NLRB’s analysis in their application of the National Labor Relations Act. In the high profile Northwestern University case which issued in August of last year, the Board found that it would not assert jurisdiction over the grant-in-aid scholarship football players of Northwestern University, citing in particular the fact that it would not promote stability in labor relations. The Board bypassed the issue as to whether the football players were statutory employees and went with a policy oriented approach, finding that it was not in the best interest of all involved to invoke jurisdiction. As the Board noted “even when the Board has authority to act( which it would in this case, were we to find that the scholarship players were statutory employees) the Board sometimes properly declines to do so”, stating that the policies of the Act would not be effectuated by its assertion of jurisdiction.

In declining jurisdiction the Board focused on the fact that the overwhelming majority of Northwestern’s competitors in football are public colleges and universities over which the Board cannot assert jurisdiction, so it would not promote stability in labor relations to assert jurisdiction in that situation. This underlying theme is restated repeatedly in the Board’s decision in Northwestern University and while there are other distinctions set out by the Board, this is the core determining factor for the Board. Yet, here we are, a few months later, and the Board holds in Columbia University that graduate students should be protected under the Act even though the Board will not have jurisdiction over the bulk of the universities and colleges who compete for their services, resulting in the same instability in labor relations. The Board’s reasoning and distinctions simply make no sense. Indeed, I think that if the matter is taken up on appeal, given the Northwestern University case, grounds for overturning the Board’s Columbia University decision are readily apparent. There simply is not a rational distinction between the two cases.

So we are going to have to wait this one out and see if there is an appeal and what the courts’ findings may be in this further expansion by the Board of its jurisdiction.