Over the past two years the General Counsel of the National Labor Relations Board (NLRB) succeeded in extending that agency’s reach into universities. While public universities are beyond the NLRB’s jurisdiction, the agency’s five-member Board issued a series of decisions that applied its laws to many categories of employees at private universities who had previously been excluded because they were faculty of religious institutions, managerial faculty or student assistants. However, in the high-profile Northwestern University case, the General Counsel failed to convince the Board to assert its jurisdiction over the school’s football players.
On February 1, 2017, the General Counsel took the highly unusual step of publishing a “Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context.” The report sets forth the General Counsel’s “prosecutorial position” on how the agency should further apply labor laws in religious institutions and to managerial faculty and student assistants at all private institutions. Additionally, it argues that labor laws should apply to college football players and student athletes in other sports.
The General Counsel has only nine months remaining in his term, leaving him unable to personally oversee these changes. The report instead speaks directly to “employers, labor unions, and employees.” Even after the General Counsel steps down, students, faculty and the unions that represent them can continue to file cases to achieve the changes he desires. The report may also be an attempt to directly change labor relations at private universities without using the procedural machinery of the NLRB. Students and faculty might use the report as a guide to their rights, even though it goes beyond the law as it currently stands. The NLRB has long been concerned with employer actions that “chill” employees’ exercise of workplace rights. This report goes further, “thawing” a path that employees can use to exercise rights they do not have yet, but that the General Counsel hopes they will be granted soon. It remains to be seen what impact the report will have. In the meantime, universities should take note of these developments and reassess their labor relations strategies.