emonstration of reading and understanding the decision

The report should be 1-2 pages in length double-spaced using 12-point Times New Roman font. You wi Show more The report should be 1-2 pages in length double-spaced using 12-point Times New Roman font. You will be graded exclusively on the following criteria: 25 points for demonstration of reading and understanding the decision; 15 points for providing your opinion with compelling support; and 10 points for spelling and grammar. For this assignment you are expected to read the entire NLRB decision regarding the collective bargain rights for college athletes. The decision is attached to this rubric. I want you to summarize the decision. Explain how the board reached its decision and provide your opinion regarding its findings and decision. Did the board reach the right conclusion? UNITED STATES GOVERNMENT BEFORE THE NATIONAL LABOR RELATIONS BOARD REGION 13 NORTHWESTERN UNIVERSITY 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 officers 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 employers interns residents and fellows were employees within the meaning of Section 2(3) of the Act). Further notwithstanding the Employers 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. 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. 6. 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 8400 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 the Employers students can participate in at the Division I level including 8 2 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 Employers 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.2 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 Employers 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 $61000 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 Employers 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 $1200 and $1600 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 members 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 four2 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 $76000 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 $54000 from this fund to 30 or 35 of its football players. 3 year scholarships with an option for a fifth year (typically in the case of a player who redshirts their freshmen year).6 When Head Coach Fitzgerald makes a scholarship offer to a recruit he provides the individual both a National Letter of Intent and a four-year scholarship offer that is referred to as a tender. Both documents must be signed by the recruit and the tender describes the terms and conditions of the offer.7 More specifically it explains to the recruit that under NCAAs rules the scholarship can be reduced or canceled during the term of the award if the player: (1) renders himself ineligible from intercollegiate competition; (2) engages in serious misconduct warranting substantial disciplinary action; (3) engages in conduct resulting in criminal charges; (4) abuses team rules as determined by the coach or athletic administration; (5) voluntarily withdraws from the sport at any time for any reason; (6) accepts compensation for participating in an athletic contest in his sport; or (7) agrees to be represented by an agent. The tender further explains to the recruit that the scholarship cannot be reduced during the period of the award on the basis of his athletic ability or an injury.8 By July 1 of each year the Employer has to inform its players in writing if their scholarships will not be renewed. However the tender provides the players the right to appeal this decision. In cases where Coach Fitzgerald believes that a player may have engaged in conduct that could result in the cancelation of his scholarship he will speak to individuals within the athletic department. Athletic Director Phillips after considering any recommendation offered by Fitzgerald will then determine whether the conduct warrants cancellation of the scholarship. If the player appeals this decision the player will meet with the Employers Director of Financial Aid the Faculty Representative and a Representative from the Vice President of Student Affairs. It is undisputed that within the past five years only one player has had his scholarship canceled for engaging in misconduct (shooting a BB gun in a dormitory) and another player had his scholarship canceled for violating the alcohol and drug policy a second time. In both cases the athletic director asked for and followed Fitzgeralds recommendation to cancel the scholarships. C. The Employers Football Players are Subject to Special Rules As has already been alluded to the Employers players (both scholarship players and walk-ons) are subject to certain team and athletic department rules set forth inter alia in the Team Handbook that is applicable solely to the Employers players and Northwesterns Athletic Department Handbook. Northwesterns regular student population is not subject to these rules and policies. Specifically freshmen and sophomore year players receiving scholarships are required to live in on-campus dormitories. Only upperclassmen players are permitted to live off campus and even then they are required to submit their lease to Fitzgerald for his approval before they can enter into it. If players want to obtain outside employment they must likewise first obtain permission from the athletic department. This is so that the Employer can monitor whether the player is receiving any sort of additional compensation or benefit because of their 6 These four year scholarships remain in effect through the end of the players senior year even if they no longer have any remaining football eligibility. 7 Once the recruit signs the tender its contractual terms are binding on the Employer. However the recruit is permitted to terminate the tender after signing it. 8 The Employers own policy is to not cancel a players scholarship due to injury or position on the teams depth chart as explained in Head Coach Fitzgeralds scholarship offer letter to recruits. If a player has a career ending injury they are deemed a medical non-counter which means that their football scholarship does not count against the NCAAs 85 scholarship limit for Division I football. 4 athletic ability or reputation.9 Similarly players are required to disclose to their coaches detailed information pertaining to the vehicle that they drive. The players must also abide by a social media policy which restricts what they can post on the internet including Twitter Facebook and Instagram. In fact the players are prohibited from denying a coachs friend request and the formers postings are monitored. The Employer prohibits players from giving media interviews unless they are directed to participate in interviews that are arranged by the Athletic Department. Players are prohibited from swearing in public and if a player embarrasses the team he can be suspended for one game. A second offense of this nature can result in a suspension up to one year. Players who transfer to another school to play football must sit out a year before they can compete for the new school. Players are prohibited from profiting off their image or reputation including the selling of merchandise and autographs. Players are also required to sign a release permitting the Employer and the Big Ten Conference to utilize their name likeness and image for any purpose.10 The players are subject to strict drug and alcohol policies and must sign a release making themselves subject to drug testing by the Employer Big Ten Conference and NCAA. The players are subject to anti-hazing and anti-gambling policies as well. During the regular season the players are required to wear a suit to home games and team issued travel sweats when traveling to an away football game. They are also required to remain within a six-hour radius of campus prior to football games. If players are late to practice they have to attend one hour of study hall on consecutive days for each minute they were tardy. Players may also be required to run laps for violating less egregious team rules. Even the players academic lives are controlled as evidenced by the fact that they are required to attend study hall if they fail to maintain a certain grade point average (GPA) in their classes. And irrespective of their GPA all freshmen players must attend six hours of study hall each week. D. Football Players Time Commitment to Their Sport The first week in August the scholarship and walk-on players begin their football season with a month-long training camp which is considered the most demanding part of the season. In training camp (and the remainder of the calendar year) the
oaching staff prepares and provides the players with daily itineraries that detail which football-related activities they are required to attend and participate in. The itineraries likewise delineate when the players are to eat their meals and receive any necessary medical treatment. For example the daily itinerary for the first day of training camp in 2012 shows that the athletic training room was open from 6:30 a.m. to 8:00 a.m. so the players could receive medical treatment and rehabilitate any lingering injuries. Because of the physical nature of football many players were in the training room during these hours. At the same time the players had breakfast made available to them at the N Club. From 8:00 a.m. to 8:30 a.m. any players who missed a summer workout (discussed below) or who were otherwise deemed unfit by the coaches were required to complete a fitness test. The players were then separated by position and required to attend position meetings from 8:30 am. 9 If the Employer is found to be in violation of NCAA regulations it can be penalized by the imposition of practice limitations scholarship reductions public reprimands fines coach suspensions personnel limitations and postseason prohibitions. 10 It is undisputed that the Employer sells merchandise to the public such as football jerseys with a players name and number that may or may not be autographed by the player. 5 to 11:00 a.m. so that they could begin to install their plays and work on basic football fundamentals. The players were also required to watch film of their prior practices at this time. Following these meetings the players had a walk-thru from 11:00 a.m. to 12:00 p.m. at which time they scripted and ran football plays. The players then had a one-hour lunch during which time they could go to the athletic training room if they needed medical treatment. From 1:00 p.m. to 4:00 p.m. the players had additional meetings that they were required to attend. Afterwards at 4:00 p.m. they practiced until team dinner which was held from 6:30 p.m. to 8:00 p.m. at the N Club. The team then had additional position and team meetings for a couple of more hours. At 10:30 p.m. the players were expected to be in bed (lights out) since they had a full day of football activities and meetings throughout each day of training camp. After about a week of training camp on campus the Employers football team made their annual trek to Kenosha Wisconsin for the remainder of their training camp where the players continued to devote 50 to 60 hours per week on football related activities. After training camp the Employers football team starts its regular season which consists of 12 games played against other colleges usually played on Saturdays between the beginning of September and the end of November. During this time the players devote 40 to 50 hours per week to football-related activities including travel to and from their scheduled games.11 During each Monday of the practice week injured players must report to the athletic training room to receive medical treatment starting at about 6:15 a.m. Afterwards the football coaches require the players to attend mandatory meetings so that they can begin to install the game plan for their upcoming opponent. However the only physical activity the coaches expect the players to engage in during this day is weightlifting since they are still recovering from their previous game. The next several days of the week (Tuesday through Thursday) injured players must report to the athletic training room before practice to continue to receive medical treatment. The coaches require all the players to attend mandatory practices and participate in various footballrelated activities in pads and helmets from about 7:50 a.m. until 11:50 a.m.12 In addition the players must attend various team and position meetings during this time period. Upon completion of these practices and meetings the scholarship players attend a mandatory training table at the N Club where they receive food to assist them in their recovery. Attendance is taken at these meals and food is only provided to scholarship players and those walk-ons who choose to pay for it out of their own pocket.13 Because NCAA rules limit the players CARA hours to four per day the coaches are not permitted to compel the players to practice again later in the day. The players however 11 NCAA rules limit countable athletically related activities (CARA) to 20 hours per week from the first regular season game until the final regular season game (or until the end of the Employers Fall quarter in the event it qualifies for a Bowl game). The CARA total also cannot exceed four hours per day and the players are required to have one day off every week. However the fact that the players devote well over 20 actual hours per week on football-related activities does not violate the NCAAs CARA limitations since numerous activities such as travel mandatory training meetings voluntary weight conditioning or strength training medical check-ins training tape review and required attendance at training table are not counted by the NCAA. In the same vein NCAA limits players to 20 CARA hours during Spring football practice and 8 CARA hours during the remainder of the offseason. 12 After the classes begin in late September the football practices are moved up one hour. 13 To avoid providing an additional benefit to the scholarship players the Employer will reduce the monthly stipend of any upperclassmen living off campus by about $13 for each training table. 6 regularly hold 7-on-7 drills (which involve throwing the football without the participation of the teams offensive and defensive linemen) outside the presence of their coaches. To avoid violating the NCAAs CARA limitations these drills are scheduled by the quarterback and held in the football teams indoor facility in the evening. A student athletic trainer is also present for these drills to provide medical assistance if necessary. In the same way around 8:00 p.m. the players will go to their coaches offices to watch film on their own for up to a couple of hours.14 During the regular competition season the players schedule is different on Friday than other days of the week because it is typically a travel day. For home games the team will initially meet at 3:00 p.m. and have a series of meetings walk-thrus and film sessions until about 6:00 p.m. The team will then take a bus to a local hotel where the players will be required to have a team dinner and stay overnight. In the evening the players have the option of attending chapel and then watching a movie. At the conclusion of the movie the players have a team breakdown meeting at 9:00 p.m. before going to bed. About half of the games require the players to travel to another university either by bus or airplane. In the case of an away game against the University of Michigan football team on November 9 201215 the majority of players were required to report to the N Club by 8:20 a.m. for breakfast. At 8:45 a.m. the offensive and defensive coaches directed a walk-thru for their respective squads. The team then boarded their buses at 10:00 a.m. and traveled about five hours to Ann Arbor Michigan.16 At 4:30 p.m. (EST) after arriving at Michigans campus the players did a stadium walk-thru and then had position meetings from 5:00 p.m. to 6:00 p.m. The coaches thereafter had the team follow a similar schedule as the home games with a team dinner optional chapel and a team movie. The players were once again expected to be in bed by 10:30 p.m. On Saturday the day of the Michigan game the players received a wake-up call at 7:30 a.m. and were required to meet for breakfast in a coat and tie by no later than 8:05 a.m. The team then had 20 minutes of meetings before boarding a bus and departing for the stadium at 8:45 a.m. Upon arriving at the stadium the players changed into their workout clothes and stretched for a period of time. They afterwards headed to the training room to get taped up receive any medical treatment and put on their football gear. About 65 minutes before kickoff the players took the field and did additional stretches and otherwise warmed-up for the game. At noon the game kicked off and Head Coach Fitzgerald in consultation with his assistant coaches was responsible for determining the starting lineup and which substitutions would be made during the course of the game. While most games normally last about three hours this one lasted about four hours since it went into overtime. Following the game the coaches met with the players and some of those individuals were made available to the media for post-game interviews by the Employers athletic department staff. Other players had to receive medical 14 The players watch film of their past games and critique their performance and similarly watch film of an upcoming opponents prior games to try to gain a competitive advantage. 15 It is undisputed that the travel itinerary for the Michigan game accurately reflects the players required time commitment on Friday and Saturday when playing an away game. 16 The football teams handbook states that when we travel we are traveling for one reason: to WIN a football Show less


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