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A History Lesson for the Obama NLRB as it Takes on the NCAA

03/28/2014 10:50 pm ET | Updated May 28, 2014

The National Labor Relations Act, which has just been found to "protect the rights" of college varsity football players to organize a union, grew out of the industrialization of the 19th century.

Workers came in from the farms, and workplaces changed dramatically. Employees worked long hours in massive factories in urban settings performing repetitive tasks under highly regimented and frequently dangerous conditions. These were working environments foreign to those experienced by earlier generations. Increasingly, employees sought to improve their lot by banding together into unions. What did they hope to achieve through collective action? As Samuel Gompers, founder and first President of the American Federation of Labor, put it simply, workers "wanted more," -- that is, better wages, better benefits and better working conditions.

By and large, employers resisted these collective actions, and the result was economic struggle, violent at times, on a scale that is hard to imagine today.

  • The 1894 Pullman recognition strike began by idling 3,000 workers. At its peak, the strike idled 250,000 workers in 27 states and shut down much of the nation's rail traffic. It was ended by a federal injunction backed up by 12,000 federal troops.
  • The 1902 Anthracite Coal strike, in which workers sought recognition, a wage increase, and an eight-hour day, idled 100,000 mineworkers and threatened the winter fuel supply to all major cities.
  • The 1937 GM sit-down strike idled over 100,000 workers nationwide and was in response to GM's refusal to recognize the UAW or to accept the legitimacy of the National Labor Relations Board's (NLRB) processes.

Such labor disputes demonstrated vividly that a work stoppage at a single location could have a massive impact on the national economy as a whole, and these disruptions fomented a groundswell of support for the regulation of labor relations on a national scale.

Then came the Great Depression and it inflicted widespread economic hardship on workers and employers alike. Between 1929 and 1932, industrial production fell 45 percent, homebuilding dropped 80 percent, and average family income for those lucky enough to work fell 40 percent. Unemployment stood at 37 percent in 1933. Rightly or not, Congress was of the view in 1935 that inequality of bargaining power between employers and employees was a cause of the Great Depression insofar as it led to depressed wage rates and purchasing power for workers.

The National Labor Relations Act thus was seen in 1935 as a response both to ongoing labor strife and to the immediate exigencies of the Great Depression itself. It gave workers the right to organize and to bargain collectively with their employers over their wages, benefits and the conditions under which they were being required to work.

Ninety years later in comes Peter Ohr, a Regional Director for the NLRB, and declares that the members of a college varsity football team at Northwestern University on a scholarship are "employees" under the Act entitled to organize and bargain with their employer over the terms and conditions of their playing football.

In Charles Dickens' play, Oliver Twist, Mr. Bumble, the beleaguered husband of a domineering wife, complains that the "law is an ass" for presuming his wife operates under his direction. With all due respect to Mr. Ohr, it is not the law at fault here.

A statute must be interpreted in the context in which it was intended to apply. To do otherwise, risks undermining the statutory scheme that in the case of the National Labor Relations Act was intended to protect workers, not football players. The questions abound: Do players have the right to file a grievance for the discipline they receive when they arrive late for practice? Can they bargain for an hourly wage in addition to their scholarship? Are their hours studying covered? What about overtime?

But apart from becoming the butt of late night television jokes, there are real-life consequences to this foolishness. The Internal Revenue Service (IRS) is watching. Will the players be required to pay taxes on the value of their scholarships?

The issue Ohr decided will now be appealed to the five-member Board and ultimately the courts, which are less apt to be as forgiving.

Peter Schaumber is a former chairman of the National Labor Relations Board under President George W. Bush.