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Let's Take a Knee: What to Expect After Today's Northwestern University Union Vote


This is a big week leading up to the vote today, April 25, by the Northwestern University football team on whether or not to form a union. This is the fifth installment of the ongoing series on the Northwestern University football players' vote on whether to form a union.  As many are aware, that vote will occur today.  The next question for many is, what will happen now?

First, the original ruling by the Regional Director of the NLRB has been appealed by Northwestern University to the full NLRB in Washington, D.C.  At this point, we are awaiting a ruling from the full Board.  Here a few scenarios of how this could play out, depending upon the NLRB's ruling:


No Vote Occurs

Let's get the easiest one out of the way first.  Remember, the NLRB could decide to put off the players' vote on whether to unionize until after the NLRB considers the request for review filed by Northwestern.  As of now, that has not occurred.  I do not anticipate hearing any last minute "stay" of the vote...but the NLRB could surprise us.


Northwestern University Football Players Vote to Unionize

If a majority of the players vote to unionize, the NLRB would then likely certify the union as the winner and Northwestern would be obligated to recognize and bargain with the union.  Of course, Northwestern could decide to not recognize the union and refuse to bargain.  However, that would result in an unfair labor practice complaint being filed against the University.  If that were to occur, that could trigger an appellate review of the NLRB's ruling in a United States Federal Court of Appeals, with a possible final resolution coming from the United States Supreme Court, if they were to accept certiorari.  (For those at home, the "loser" at the Court of Appeals level could file a petition for certiorari with the Supreme Court which would, in effect, ask the Supreme Court to review and reverse the Court of Appeals.  However, the Supreme Court does not have to agree to review any cases.  In a case such as this, however, given the unique nature of the proceedings and legal issues presented, it would not surprise me if the Supreme Court agreed to rule upon the matter). 


Northwestern University Football Players Vote to Not Unionize

If a majority of the players vote to not unionize, the matter will be closed for twelve months (at that point, another petition to vote on whether to unionize could then occur).  However, that does not prohibit objections being made as to Northwestern's pre-election conduct.  If that would occur, the objections would have to be considered by the NLRB and ruled upon.  (Bear in mind, the twelve month period does not start to run until all objections are ruled upon by the NLRB and the election is certified).  If valid objections are found to exist, the vote could be undone and a new vote conducted. If no valid objection is found to exist, the vote results would be certified and the twelve month period would then start to run before another vote could occur.  

(With these two scenarios in which a vote actually occurs today, regardless of the outcome of the union vote by the players, remember that the vote will be kept secret until the NLRB ruling is made.  As a result, even though the players will vote today on whether to unionize, these results of the vote will remain secret for the time being.) 


NLRB Declines to Review Northwestern's Appeal

Of course, the NLRB does not have to accept Northwestern's appeal and could decline to hear the matter.  If that were to occur, the Regional Director's ruling would stand and the Northwestern football players would be free to vote on whether to unionize. 

However, given the nature of this case and the wide reaching impact it could have, I would expect the NLRB will accept the review and consider Northwestern's appeal.


Regional Director's Ruling Affirmed

This is one of the simpler answers.  If the NLRB were to affirm the Regional Director's ruling, the Northwestern football players would be free to vote on whether to unionize.  This would likely be viewed a a green light and embolden other collegiate athletes around the country to also vote on whether to unionize.  In effect, a ruling from the NLRB that affirms the Regional Director's ruling could become a nightmare for many colleges around the country. 


Regional Director's Ruling Not Affirmed

However, if the NLRB does not affirm the Regional Director's ruling, it would likely serve as a huge set back for supporters of allowing college athletes to vote on whether to unionize.  I do not think this is a likely scenario, as the liberal NLRB might not find anything inherently "wrong" with the Regional Director's ruling and as a result, have little basis for overturning it.  Of course, this is the outcome that Northwestern is banking on.  


Regardless of the outcome of the NLRB's ruling, this is likely a matter that will make its way through the courts before all is said and done with. 

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