By César F. Rosado Marzán

Today, the NLRB determined whether or not the Northwestern University football players could unionize. It decided that they could not. However, the NLRB’s decision did not hinge on the issue of whether or not the college athletes are employees under the NLRA, but on its determination that the Board would not foment stable industrial relations under the NLRA if it enabled the college athletes to unionize.

Even if the NLRB was reasonable in determining that collective bargaining would not provide for stable industrial relations in college football, such determination could have been better reached by the parties themselves, and especially the college athletes. That’s the beauty of collective bargaining: it lets parties make those sorts of determinations without second-guessing by the state.

According to the Board, collective bargaining in college football would require league-wide bargaining, including with those units with putative public sector employees who are beyond the reach of the NLRB’s jurisdiction—the college athletes who play for state schools. The arrangement of college football proved too complex for the NLRA’s model of collective bargaining, according to the NLRB. However, the Board reached this decision even when professional Canadian athletes in baseball and hockey do not fall under the NLRB’s jurisdiction; professional baseball and hockey are unionized.

The Board limited its decision to the facts of the case. However, the decision will be used by the management bar to justify further instances of non-recognition of employees in non-standard forms of employment, e.g., graduate students, workers who are also clients and patients of their employers (as in mental health institutions), temporary employees, among others. About a quarter of U.S. workers work in such types of non-standard settings. Today a quarter of the U.S workforce has something new to struggle against.

The response to such attempts of non-recognition will thus necessarily remain the good old-fashioned one: workers will have to fight for recognition despite the law, through their collective efforts. The maladies of asymmetrical market relationships that the NLRA attempts to remedy, namely industrial strife, will inevitably be pushed to the surface given today’s unfortunate NLRB decision.

By César F. Rosado Marzán

The New York Times reported yesterday that 1,600 Volkswagen (VW) workers in Chattanooga, Tennessee will be voting on Feb. 12-14 on whether or not they want to be represented by the United Auto Workers (UAW). This union election promises to be momentous. It also helps us to see more clearly who’s on the side of workers’ freedom of association rights, and who’s not.

The election is important because it may add new blood to the UAW. With over 1.5 million members in the late 70s, the union has now been reduced to about 350,000 active members. It needs new blood.

Second, while the UAW has lost members partly because of the decline of the U.S. auto industry, the U.S. has experienced significant growth in auto manufacturing jobs in the South­ due to European and Asian transplants. However, the UAW has had little luck in organizing in the South—a “right-to-work” territory, recognized as a particularly “hostile terrain” for unions.

Third, VW has pledged not to oppose the union organizing drive in Chattanooga, in clear contradiction of the American practice of corporate “union avoidance.” Moreover, VW has stated that if the union prevails in the elections, it will form with the union a German style-works council, or an employee representation body that helps to co-manage aspects of the plant. It also bargains certain issues with management.

For months, the UAW had stated that it had proof of majority support in Chattanooga. It declared that the VW management would voluntarily recognize the union. Voluntary recognition has become the preferred method of union organization in the U.S. because NLRB-administered election processes permit the employer to put up an anti-union campaign. Unions claim that employer opposition during elections dissuades workers from exercising their right to join a union and bargain collectively. However, VW did not agree to voluntary recognition. It stated that it would not oppose the union in the days leading to the election, but the workers will have to vote in an NLRB-administered election. (more…)

By César F. Rosado Marzán

The Supreme Court recently decided that it had improvidently granted certiorari in Unite Here Local 355  v. Mulhall, leaving management and labor stuck in a troubling game of chance.

The Supreme Court initially granted certiorari in Mulhall to decide whether an agreement between an employer and a union led the employer to grant the union “a thing of value” in violation of Section 302 of the Labor Management Relations Act (“LMRA”). In Mulhall v. Unite Here Local 355, the 11^th Circuit decision that the Supreme Court was going to review, the employer and the union entered into an agreement in which the employer would (1) remain neutral in respect to the union’s efforts to organize the employer’s employees, (2) give the union access to it premises so that the union could speak to the workers about union representation, and (3) give the union a list of employees’ names and contact information for organizing purposes. In return, the union would lobby the state legislature for certain gambling rules that the employer, a racetrack, wanted changed to benefit its business.

Section 302 of the LMRA is an anti-bribery statute. It aims to stop union corruption. The plaintiff did not prove that there was actual bribery, extortion, or union corruption involved in Mulhall. However, the plaintiff argued that anything valuable given to the union by the employer was a per se violation of Section 302. While the 3^rd and 4^th Circuits had ruled against plaintiffs in similar cases, [1] the 11^th Circuit held that the employer could be found in violation of Section 302 if it attempted to corrupt the union through these kinds of agreements or if the union attempted to extort the employer. [2] (more…)