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The NLRB Benches Itself

Stretching too far, too often, is an excellent way to pull something. But despite years of hyperextension, overreach isn’t what landed the National Labor Relations Board on the bench this time.

Anyone who has kept an eye on the NLRB as reconstituted during the course of the Obama administration would likely have guessed that there was no bureaucratic stretch too far for it to reach in the cause of bolstering the faltering ranks of American unions. As I have noted previously in this space, the current board has made clear that it is not simply interested in protecting workers’ right to organize, but in actively promoting worker organization. So an observer would be forgiven for assuming that a group of workers seeking to join a union would have an easy road to NLRB backing these days.

That assumption has been proven wrong, however. The board may be devoted to its view of protecting workers’ rights, but it is even more devoted to protecting itself from the political blowback likely to result from tampering with this nation’s most sacred religion - football.

Last year, a regional NLRB official ruled that Northwestern University’s student athletes were employees of the university, and thus had the right to form a union if they wished. Northwestern appealed this decision to the full NLRB in Washington. The board, overturning the original decision, declined to allow players at Northwestern to unionize - not because it found that they were not employees, as Northwestern and other members of the NCAA contend, but because it believes letting one school’s players unionize would upset the sport’s competitive balance.

That’s the proper concern of, say, a league commissioner. But the NLRB? Can you imagine the board declining to “assert jurisdiction,” to use its bureaucratic weasel-wording, over an airline’s pilots or an automaker’s assembly workers because allowing employees at one company to form a union would upset the competitive dynamic against other organizations? If that mental image is absurd, it should be.

In fact, this is exactly the reverse of how the labor relations laws were designed and expected to operate. But in ignoring such laws, the decision is of a piece with this board’s track record. The current NLRB has asserted jurisdiction where it plainly has none (such as trying to make McDonald’s responsible for the labor practices of franchisees that meet all criteria of being independent employers) and has been deliberately vague in its assertions of power, even over routine contents of employee handbooks, the better to make ex post facto determinations that employers crossed unmarked boundaries.

The Northwestern players’ attempt to unionize in pursuit of fair treatment and compensation in their multibillion-dollar industry was just about the only hope, short of congressional action, to achieve fairness and end the collusive exploitation of their labor. It is the players’ misfortune that, in this particular instance, the vested interest of the NCAA and all those who profit from college football meant that the long arm of the labor board extended only to put its hand firmly in its bureaucratic pocket. The board simply decided not to decide, meaning that players will face this unfair system for the foreseeable future.

This player exploitation, by the way, does not begin in college. The Seattle Times reported last weekend that one of the nation’s public prep school powerhouses, Bellevue High, has arranged for top-flight players from outside the district to be “educated” at a local private academy that - lacking its own team - entitles them to play for the public school. The prep school’s steep tuition is apparently covered in certain cases by Bellevue’s booster club, the paper reported. In some instances, boosters may also have paid rent to enable a player’s family to reside within Bellevue’s school district.

Bellevue, whose games are competitive enough to attract TV broadcasts, recently reeled off a 67-game winning streak, has won 11 state titles in the past 15 years and routinely sends players to top-tier college programs. There the players’ labor again brings attention and money for their schools, but not to the players themselves, apart from authorized scholarships that the players typically forfeit if they quit the sport that the schools insist are not their jobs. Similarly, the Seattle paper reported that Bellevue coaching personnel threatened players that their tuition payments would be cut off if they quit the team, though the existence of such threats has been disputed.

While the details of the Bellevue situation are still under scrutiny, it should not surprise anyone that in a world that prioritizes football seemingly above all at every level, from high school through professional play, players are at the mercy of organizations through which a great deal of money flows. The current NLRB might have seemed like a probable ally, but that proved not to be the case.

The whole affair reeks of a labor board more interested in protecting itself than in protecting workers, and of an “amateur” sports industry that enriches everyone associated with it except for those who actually put their bodies on the line to play. But in school football, that’s just the way the ball bounces.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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