Based on the recent history of the NLRB, getting a unanimous decision on any issue is quite surprising.  However, on August 17, in a 5-0 vote, the NLRB held that it did not have jurisdiction to address the issue of whether football players at Northwestern University could unionize, overturning the Regional Director’s decision issued on March 26, 2014 holding to the contrary.  The NLRB pointed out that each case must be viewed on its’ own merits and facts.  Among the facts considered were:

  1.  Northwestern is a private university, not a public university.
  2. The Board found that it would not assert jurisdiction based on:
    1. “The nature of NCAA Division 1 FBS football-comprised of roughly 125 college and university teams-which exercises a substantial degree of control over individual member teams, including the terms and conditions under which the scholarship players practice and play.”
    2. “The composition and structure of FBS football in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction. Asserting jurisdiction over the single team in this case would likely have ramifications for those other member teams.”  108 of the FBS teams are public universities over which the NLRB has no jurisdiction.

The Board avoided answering the question of whether “grant-in-aid scholarship players are employees under the [National Labor Relations] Act.”  The Board, in denying to assert jurisdiction over this case, found that taking the case would not “effectuate the policies of the NLRA to promote stability in labor relations.”

Practice pointer.  Although this was an unusual unanimous decision by the NLRB, I anticipate the majority to continue to aggressively pursue and/or uphold labor friendly positions for the near, and maybe even the distant, future.