There’s no denying that Northwestern University football players won a historic victory on Wednesday, when the Chicago branch of the National Labor Relations Board (NLRB) ruled that they had the legal right to form a union. But that victory, as historic and unexpected as it may have been, was also the easy part.
Now that the university has appealed the decision, Northwestern’s football team will need to present their case at NLRB headquarters in Washington, D.C. And even if the board itself upholds its regional office’s decision, the players might not be able to form a union: All the ruling would guarantee them is the right to hold a union election, one in which would the Northwestern administration would almost certainly intervene.
In other words, it’s still highly unlikely that the Northwestern football players will be able to form a union. They’ve managed to get further in the campaign than anyone could have reasonably expected, but their opponents still have the upper hand. Northwestern’s administration has decades of labor law on its side, and pockets deep enough to use every legal weapon at its disposal.
In that regard, this particular labor struggle is like any other organizing drive. There are a lot of things that make the football players’ campaign unique, but the odds stacked against them should be familiar to anyone with a passing acquaintance with labor law. As labor law expert Gordon Lafer wrote in “Neither Free Nor Fair,” his seminal study of NLRB-administered union elections, “The election system established by the National Labor Relations Act fails to meet the most fundamental standards of American democracy.”
Under current law, union-busting has been turned into a science. Management can use the appeal process to delay or prevent union elections, hold mandatory staff meetings where they discourage organizing, and make use of a whole range of other legal tactics to keep their workplaces non-union. When managers do break the law, it can take years for the legal system to penalize them—if they get penalized at all. Unfair Labor Practice complaints take a long time to prosecute, and the consequences are often so mild that bosses may see little downside in flaunting the law.
With the odds so heavily stacked against unionization, it’s no wonder that union membership has declined precipitously over the past 50 years. The existential question now facing organized labor is where the movement can possibly rebuild its power in the face of an overwhelmingly hostile legal system — and an even more hostile political environment. Unions have tried to answer that question by experimenting with new organizing models, including the college athlete unionization campaign. And while none of these experiments have yielded conclusive results just yet, Wednesday’s NLRB ruling makes the student-athlete campaign look extremely promising. Even if the Northwestern football players never win an NLRB-administered union election, their organizing drive could set a major precedent for organized labor.
To grasp what makes the Northwestern football team special, consider some other recent high-profile organizing experiments. Last month, the United Auto Workers (UAW) were dealt a staggering blow when they failed to unionize a Volkswagen manufacturing plant in Chattanooga, Tenn. In that case, UAW had tried to circumvent management’s overwhelming legal advantage by taking management out of the equation: Instead of fighting against the boss, UAW chose to organize a plant where even the boss wanted a union. But despite Volkswagen’s cooperation, or perhaps because of it, UAW was unable to win over a majority of the plant’s workers. Even under the most favorable conditions possible, the union’s traditional, elections-based approach was still a failure.
A number of other campaigns are trying the opposite strategy: OUR Walmart, Fast Food Forward and similar groups—described collectively as “alt-labor” — have thus far shirked the NLRB election process. Instead, these campaigns rely on a combination of public relations, grassroots disruption, and anti-management lawsuits to put pressure on their employers. But while direct confrontation with the boss has worked well as a mobilization tactic, employers like Walmart and McDonald’s have yet to grant meaningful concessions to the campaigns, much less agree to negotiate with them.
The Northwestern football team’s organizing drive can be seen as a sort of hybrid between a traditional election campaign and an alt-labor uprising. The Northwestern football players, like most alt-labor groups, are organizing in a field that has never before been unionized to any significant degree: In this case, college athletics. And like a lot of alt-labor groups, the National College Players Association (NCPA)—which is backing the Northwestern players in their attempt to unionize — is heavily emphasizing public advocacy and grassroots mobilization.
But that doesn’t mean the NCPA has abandoned the traditional union elections route. Far from it, as Wednesday’s ruling demonstrates. Instead, student athletes appear to be using the NLRB as one tool among many to get their case into the public eye and put pressure on their universities. Even if Northwestern University defeats its football team’s attempts to unionize in the courts, the case may draw enough public scrutiny to force the administration into making other concessions. And even without an official, NLRB-certified union, the football team may be able to exert enough leverage to force the university to the bargaining table.
In fact, the NCAA implicitly left itself wiggle room to negotiate with college athletes in a statement released shortly after Wednesday’s NLRB ruling.
“Over the last three years, our member colleges and universities have worked to re-evaluate the current rules,” said NCAA chief legal officer Donald Remy. “While improvements need to be made, we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college.”
By admitting the need for improvements, the NCAA is implying that it might be willing to take suggestions from the players regarding what those improvements should be. By the standards of modern U.S. labor relations, that carefully-worded admission is a major concession.
What comes of that admission remains to be seen. But if college athletes can leverage both the NLRB process and alternative organizing tactics, so can other groups of workers. It’s a long shot, but it’s among the best shots available to a struggling labor movement.
Ned Resnikoff is an urban policy analyst, researcher, writer, and editor. His byline has appeared in a variety of publications, including the New York Times, San Francisco Chronicle, Dissent, and The Nation. He writes the newsletter Public Comment, which can be found at publiccomment.blog.