THE BLOG

'Whatever They Need, We Will Get Them'

04/07/2014 05:25 pm ET | Updated Jun 07, 2014

Northwestern football coach Pat Fitzgerald strongly urged his players to reject the effort to unionize the Wildcat team. In doing so, he reiterated themes that have characterized management's response to unionization since the Wagner Act was enacted in 1935. Apparently, only management knows what their employees really need. Only the employer can improve wages, hours, terms and conditions of employment for its workers.

Of course, national labor law proceeds from a very different set of assumptions. Workers have the protected right to organize unions that will represent them. It is the employees who know what they want and not their supervisors or managers. Whether a union can obtain what employees decide they need is a matter for the negotiating table and not for unilateral management decision making.

We are witnessing a unique phenomenon with the scheduled representation election of college football players at Northwestern University. However, none of the players who will vote in the election run by the Labor Board on April 25 will ever benefit from the terms of any collective bargaining agreement. With the University vowing to appeal the recent decision of the Regional Director of the Labor Board, it will take years for the legal process to run its course. Assuming the employees vote to unionize and the Regional Director's determination that they are "employees" covered by national labor law is upheld on appeal, the parties would then need bargain collectively but they are not obligated to reach an agreement. If they finally do reach an agreement, all the current players are likely to have graduated.

We are a long way from what NCAA President Mark Emmert in his State of the NCAA address recently called the "ridiculous idea" that college athletics would be governed by unionization and collective bargaining. Emmert said, "It would blow up everything about the collegiate model of athletics." He said the notion of unionization would "strike most people as a grossly inappropriate solution to the problem."

Emmert is correct that unionization of college athletics would "blow up everything about the collegiate model." The core assumptions of that model are that athletes are primarily students and that colleges and universities are strictly limited under the rules of the NCAA as to what they can offer their athletes. He is correct that it would be "ridiculous" for colleges and universities to dismantle this remarkable business structure. That decision, however, is no longer one for the NCAA and its members to make unilaterally. The workers will get their say.

I am sure that Northwestern University and the NCAA have very good labor counsel who will advise them about the representation process. During the period leading up to a representation election the participants must maintain what is referred to as "laboratory conditions" within which a free and fair election can be conducted. The Labor Board will not look favorably on express or implied threats made by management concerning the job security of the football players. For example, any suggestion that players who vote to unionize will lose their scholarships or playing time will be sufficient to vitiate any anti-union vote. Similarly, management -- in this case, Coach Fitzgerald -- has to be careful not to promise his players anything for turning down the union. When he tells his players he doesn't think they need a union, that is perfectly fine. However, when he lets them know that he will get them what they need, he comes close to a promised benefit for voting "no."

Companies have always had problems staying on the clean side of the line when it comes to campaigning against unionization. Unionization is a significant threat to the absolute control management believes is its right in the workplace. Management hires employees and fires those who don't make the grade. To have to justify everything it does and even seek the union's approval presents a major impediment to management. Promising to make things better if the employees do not unionize and even threatening that thing will get worse if they do unionize is a perfectly natural -- albeit illegal -- thing to do when presented with this threat to management hegemony.

As the lead-up to the representation election proceeds, it will be interesting to watch how the parties campaign. The fact that management -- both at the university and indirectly by the NCAA -- has already suggested that financial circumstances will improve for the players without unionization demonstrates that the union's effort has already proven successful. Nothing was about to change before the union filed its representation petition. Now, all of a sudden, the life of college athletes will improve! Even if the players turn down the union -- and that is a significant possibility since half of all elections result in a "no" majority -- they have achieved a great deal.

Just in case Emmert forgets about his pronouncement that unionization is "ridiculous" and the life of athletes will improve without it, the union can file another representation petition. The Northwestern University football players have found a way to make management take notice of their needs whether they unionize or not.