UNITED STATES GOVERNMENT BEFORE THE NATIONAL LABOR RELATIONS BOARD REGION 13 NORTHWESTERN UNIVERISTY Employer and Case 13-RC-121359 COLLEGE ATHLETES PLAYERS ASSOCIATION (CAPA) Petitioner DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as
amended (“the Act”), a hearing was held before a hearing officer of the National Labor Relations Board (“the Board”). Pursuant to the provisions of Section 3(b) of the Act, the Board has
delegated to the undersigned its authority in this proceeding.
1
1
Upon the entire record in this proceeding, I find: 1.
The hearing officer‟s rulings, made at the hearing, are free from prejudicial error and are affirmed.
2.
Northwestern University (“the Employer”) is engaged in commerce within the meaning of the Act and it
will effectuate the purposes of the Act to assert jurisdiction herein. 3.
College Athletes Players Association (“the Petitioner”) is a labor organization within the meaning of the
Act. At the hearing, the Employer stipulated that the Petitioner was a labor organization if two conditions were met: (1) its football players who receive grant-in-
aid scholarships are found to be “employees” within
the meaning of the Act; and (2) the petitioned-for-unit was found to be an appropriate unit within the meaning of the Act. I find that both of these conditions have been met. See also
Boston Medical Center
, 330 NLRB 152, 165 (1999) (where Board found that the petitioner was a labor organization since
employer‟s interns, residents, and fellows were employees within the meaning of Section 2(3) of the Act).
Further, notwithstanding the Employer's conditional stipulation, I find that the Petitioner is a labor organization within the meaning of the Act for the reasons set forth in Section IV (F) of this decision. 4.
The Petitioner claims to represent certain employees of the Employer in the unit described in the petition it filed herein, but the Employer declines to recognize the Petitioner as the collective-bargaining representative of those employees 5.
There is no collective-bargaining agreement covering any of the employees in the unit sought in this petition and the parties do not contend that there is any contract bar to this proceeding. 6.
A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.
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I.
ISSUES
The Petitioner contends that football players
(“players”)
receiving grant-in-aid scholarships
(“scholarship”)
from the Employer
are “employees” within the meaning of the Act,
and therefore are entitled to choose whether or not to be represented for the purposes of collective-bargaining. The Employer, on the other hand, asserts that its football players receiving grant-in-
aid scholarships are not “employees” under the Act. It further asserts that
these players are more akin to graduate students in
Brown University
, 342 NLRB 483 (2004), whom the Board found not to
be “employees” under the Act.
In the alternative, the Employer contends that its players are temporary employees who are not eligible for collective bargaining. Finally, the Employer contends that the petitioned-for-unit is arbitrary and not appropriate for bargaining.
II.
DECISION
For the reasons discussed in detail below, I find that players receiving scholarships from
the Employer are “employees”
under Section 2(3) of the Act. Accordingly,
IT IS HEREBY ORDERED
that an election be conducted under the direction of the Regional Director for Region 13 in the following appropriate bargaining unit: Eligible to vote are all football players receiving football grant-in-aid scholarship and not having exhausted their playing eligibility employed by the Employer located at 1501 Central Street, Evanston, Illinois, but excluding office clerical employees and guards, professional employees and supervisors as defined in the Act.
III.
STATEMENT OF FACTS A. Background
The Employer is a private, non-profit, non-sectarian, coeducational teaching university chartered by the State of Illinois, with three campuses, including one located in Evanston, Illinois. It currently has an undergraduate enrollment of about 8,400 students. The academic calendar year for these students is broken down into four quarters: Fall, Winter, Spring, and an optional Summer Session. The schedule for the current academic calendar year shows that classes began on September 24, 2013 and conclude on June 13, 2014. The Employer maintains an intercollegiate athletic program and is a member of the National Collegiate Athletic Association (NCAA). The NCAA is responsible for formulating and enforcing rules governing intercollegiate sports for participating colleges. The Employer is also a member of the Big Ten Conference and its students compete against the other 11 member schools (as well as non-conference opponents) in various sports. There are currently 19 varsity sports, which t
he Employer‟s students c
an participate in at the Division I level, including 8
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varsity sports for men and 11 varsity sports for women. In total, there are about 500 students who compete in one of these sports each year for the Employer.
B. The Employer
’s Football Staff
and Grant-in-Aid Scholarship Players
As part of its athletic program, the Employer has a varsity football team that competes in games against other universities. The team is considered a Football Bowl Subdivision (FBS) Division I program.
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Since 2006, the head football coach has been Patrick Fitzgerald, Jr., and he has been successful in taking his team to five bowl games. On his football staff, there is a Director of Football Operations, Director of Player Personnel, Director of Player Development, nine full-time assistant coaches, and four graduate assistant coaches who assist him with his various duties. There are also five full-time strength coaches, two full-time video staff employees, two administrative assistants, and various interns who report to him. In turn, Head Coach Fitzgerald reports to Athletic Director James J. Phillips and President Dr. Morton Shapiro. The
Employer‟s
football team is comprised of about 112 players of which there are 85 players who receive football grant-in-aid scholarships that pay for their tuition, fees, room, board, and books.
3
The players on a scholarship typically receive grant-in-aid totaling $61,000 each academic year.
4
The grant-in-
aid for the players‟ tuition
, fees and books is not provided directly to them in the form of a stipend as is sometimes done with room and board. Because the
Employer‟s
football team has a rule requiring its players to live on campus during their first two years, these players live in a dorm room and are provided a meal card, which allows them to buy food at the school cafeteria. In contrast, the players who are upperclassmen can elect to live off campus, and scholarship players are provided a monthly stipend totaling between $1,200 and $1,600 to cover their living expenses. Under current NCAA regulations, the Employer is prohibited from offering its players additional compensation for playing football at its institution with one exception. The Employer is permitted to provide its players with additional funds out
of a “Student Assistance Fund” to cover
certain expenses such as health insurance, dress clothes required to be worn by the team while traveling to games, the cost of traveling home for a family
member‟s
funeral, and fees for graduate school admittance tests and tutoring.
5
The players do not have FICA taxes withheld from the scholarship monies they receive. Nor do they receive a W-2 tax form from the Employer. For a number of years, the NCAA rules provided that players could only receive one-year scholarships that were renewable each year at the discretion of the head coach. But effective the 2012-2013 academic year, the NCAA changed its rule to permit universities to offer four-year scholarships to players. The Employer immediately thereafter began to award its recruits four-
2
There are currently 120 to 125 universities with collegiate football teams that compete at the FBS Division I level. Seventeen of these universities, including the Employer, are private institutions.
3
The remainder of the football
players on the team are “walk
-
ons” who do not receive grant
-in-aid scholarships, but may receive need-based financial aid to attend the university which is not contingent on them remaining on the football team. This financial aid can be renewed every year if the player qualifies for it. The walk-ons may also eventually earn a grant-in-aid scholarship and this has in fact happened to 21 players within the past seven years.
4
This figure increases to about $76,000 if a grant-in-aid scholarship player enrolls in classes during the Summer session.
5
For academic calendar year 2012-2013, the Employer disbursed about $54,000 from this fund to 30 or 35 of its football players.