WEBVTT - College Athletes Could Unionize Under a New NLRB Memo

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>The sound of March madness, it's the sound of money.

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<v Speaker 1>For the n c double A. College sports is a

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<v Speaker 1>billion dollar industry where the athletes play but don't get paid. Now,

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<v Speaker 1>a legal memo from an unlikely source may change that.

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<v Speaker 1>The top lawyer at the National Labor Relations Board says

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<v Speaker 1>that athletes at private colleges qualify as employees under federal

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<v Speaker 1>labor law and are entitled protection if they unionize. My

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<v Speaker 1>guest is Audrey Anderson, who heads the higher education practice

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<v Speaker 1>at Bassbarian SIMS. Audrey tell us a little about what

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<v Speaker 1>the n LRB General Council Jennifer Bruzzo said in her

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<v Speaker 1>memo release on Wednesday. Well, what she has said, June,

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<v Speaker 1>is it from her perspective, certain college athletes are employees

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<v Speaker 1>for purposes of the National Labor Relations Act or the

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<v Speaker 1>n l r A, meaning that they have the right

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<v Speaker 1>to organize, form a union, collectively, bargain strike, things like that.

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<v Speaker 1>And she also went that step farther to say, if

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<v Speaker 1>you call these people who play sports at a college,

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<v Speaker 1>if you call them student athletes, as so many of

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<v Speaker 1>us have done for so long you may be misclassifying

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<v Speaker 1>them under the National Labor Relations Act, and she may

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<v Speaker 1>in future cases take a position that that misclassification is

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<v Speaker 1>a separate violation of the National Labor Relations Act. So

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<v Speaker 1>there was a case in where Northwestern football players sought

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<v Speaker 1>union representation and it was dismissed by the n LRB

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<v Speaker 1>board by the Democratic majority board. So is it possible

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<v Speaker 1>that the board won't agree with her on this? Yes,

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<v Speaker 1>it is possible that the board will not agree with

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<v Speaker 1>her on this. It's also possible that a court will

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<v Speaker 1>not agree with her or with the board. So her

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<v Speaker 1>pronouncement is certainly not the end of the matter. She

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<v Speaker 1>does not get to say what the law is. All

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<v Speaker 1>she can do is say this is the position that

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<v Speaker 1>we are going to take in pursuing charges in labor

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<v Speaker 1>relations disputes. So is the next step for unions to

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<v Speaker 1>try to organize college players? Yes, the next step is

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<v Speaker 1>for college players to try to unionize or to try

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<v Speaker 1>to take other kinds of collective activity. And if they

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<v Speaker 1>believe that their college or their conference is prohibiting them

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<v Speaker 1>from taking collective activity, they could file a charge with

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<v Speaker 1>the NLRB saying our right under the National Labor Relations

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<v Speaker 1>Act have been violated. Now. It's also interesting in this

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<v Speaker 1>memo that General Council also says that she is open

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<v Speaker 1>to considering charges against a sports conference, including the n

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<v Speaker 1>C double A. And that's interesting because public institutions are

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<v Speaker 1>not governed by the National Labor Relations Act, so any

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<v Speaker 1>state colleges and universities are governed instead by any state

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<v Speaker 1>law that might exist around collective bargaining. However, most conferences

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<v Speaker 1>have state institutions within them. It's almost that by saying, well,

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<v Speaker 1>I look at anything that has to do with a

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<v Speaker 1>conference as potential charge, she's also trying to get her

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<v Speaker 1>fingers into the public institutions. If a college athlete at

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<v Speaker 1>a public institution could somehow say that the action being

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<v Speaker 1>taken against me is by virtue of a conference rule

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<v Speaker 1>or an n double A rule, they could file a

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<v Speaker 1>charge against their conference or the n double A. And

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<v Speaker 1>this General Council is saying she'd at least take a

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<v Speaker 1>look at that. Is she going out on a limb here.

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<v Speaker 1>She's definitely trying to make new law, but that sometimes

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<v Speaker 1>how the law changes in this area. And the National

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<v Speaker 1>Labor Relations Board is known for being a more political agency,

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<v Speaker 1>so the law there does change as administrations change, so

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<v Speaker 1>that she's taking what might be thought of as a

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<v Speaker 1>political position is not a news flash. People who practice

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<v Speaker 1>labor law know that you go through these ebbs and

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<v Speaker 1>flows with the change of an administration. The g C

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<v Speaker 1>also mentions one Jealice's opinion in the recent Austin case.

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<v Speaker 1>What I it was interesting in this memo is she

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<v Speaker 1>picked out Justice Kavanaughs concurrence which he wrote only for himself,

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<v Speaker 1>and then kind of a by the way fashion said that, well,

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<v Speaker 1>maybe one way that college athletes and their colleges could

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<v Speaker 1>come to terms with making the college athletes kind of

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<v Speaker 1>whole for their contribution to the school is through collective bargaining.

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<v Speaker 1>And Justice Kavanaugh, I think was not really thinking through

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<v Speaker 1>all the ramifications of that when he wrote it. And

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<v Speaker 1>here we have the General Council of the National Labor

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<v Speaker 1>Relations Board saying, well, one justice of the Supreme Court

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<v Speaker 1>thinks there should be collective bargaining, and therefore he must

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<v Speaker 1>think that they are employees under the National Labor Relations Act.

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<v Speaker 1>And you know, it's kind of unintended consequences of one

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<v Speaker 1>justice is concurring opinion and kind of a throwaway line thanks, Audrey.

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<v Speaker 1>That's Audrey Anderson of Bassbarian SIMS. And it's definitely a

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<v Speaker 1>very time because we are in a kind of a

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<v Speaker 1>final push to complete the the launch system State zero essentially.

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<v Speaker 1>Tesla and SpaceX founder Elon Musk was celebrated last month

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<v Speaker 1>after the historic inspiration for mission that sent four civilians

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<v Speaker 1>deep into orbit. Not garnering nearly as much publicity was

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<v Speaker 1>an achievement by one of Musk's former factory workers, forcing

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<v Speaker 1>Tesla to fight in open court before a jury for

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<v Speaker 1>the first time over allegations of racial discrimination on the

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<v Speaker 1>assembly line. O N. Diaz says that he was repeatedly

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<v Speaker 1>called the N word and other epithets, echoing allegations of

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<v Speaker 1>racism at the Fremont plant that have dogged the electric

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<v Speaker 1>carmaker for years. Joining me is employment law expert Anthony

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<v Speaker 1>on cd, a partnered Proscauer Rose Tony, explain why it's

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<v Speaker 1>so unusual for an employment claim against Tesla to make

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<v Speaker 1>it to trial. The reason is that one of two

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<v Speaker 1>things typically happen to a case like this. Number one

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<v Speaker 1>employees in California at least, and elsewhere as well, often

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<v Speaker 1>tend to be subject to arbitration agreements, which if they

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<v Speaker 1>are the case is sent to arbitration and cannot proceed

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<v Speaker 1>in court. Secondly, many cases end up settling. The likelihood

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<v Speaker 1>of a case being settled is really quite great. In fact,

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<v Speaker 1>upwards of cases they get filed and the courts end

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<v Speaker 1>up at one point or another getting settled. Does the

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<v Speaker 1>point if you have to show that there's a pattern

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<v Speaker 1>of racial discrimination, No, I mean in some cases a fact,

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<v Speaker 1>probably most cases where there are multiple instances of discrimination

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<v Speaker 1>or harassment, the employee will try to get into the

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<v Speaker 1>case something that's referred to as me too evidence, meaning

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<v Speaker 1>that there are other employees, maybe some of them plaintiffs

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<v Speaker 1>themselves or claimants, who have experienced similar actions, whether it

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<v Speaker 1>be harassment or discrimination or whatever it may be in

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<v Speaker 1>the workplace, because obviously having more than one person testifying

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<v Speaker 1>about this tends to bolster the credibility of the employee,

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<v Speaker 1>and credibility is a significant factor in all of these

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<v Speaker 1>cases because in most cases, the employee will say he

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<v Speaker 1>or she suffered from harassment or discrimination, the employer will

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<v Speaker 1>deny it, and so the jury is going to be

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<v Speaker 1>in a position of having to decide who's telling the truth.

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<v Speaker 1>There have been years of complaints from black workers about

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<v Speaker 1>the rampant use of racial slurs on the assembly line,

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<v Speaker 1>that we're ignored by managers and graffiti and hate symbols.

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<v Speaker 1>How does TESLA fight that, Well, the answer is, if

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<v Speaker 1>that is true, that's a big problem for them in

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<v Speaker 1>this case. There are a lot of allegations in this case,

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<v Speaker 1>in in the prior case that we discussed about Tesla,

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<v Speaker 1>that there were physical symbols, things such as swastikas and

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<v Speaker 1>nooses and things like that in the workplace. I would

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<v Speaker 1>expect there would be photos of that that would be

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<v Speaker 1>shown to the jury, because we all know everyone now

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<v Speaker 1>has a cell phone, everyone has a movie studio in

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<v Speaker 1>their pocket basically, and I think that would be very

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<v Speaker 1>compelling if those are credible photographs that the employer has

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<v Speaker 1>some difficulty perhaps and we shooting because the employer is

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<v Speaker 1>responsible for policing the environment. So we often talk about

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<v Speaker 1>a hostile work environment or a toxic work environment. Those

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<v Speaker 1>words get thrown around quite a bit in this kind

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<v Speaker 1>of litigation. That's what we're talking about, whether it's comments

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<v Speaker 1>that are made to an employee or physical manifestations in

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<v Speaker 1>the form of drawings or uses or whatever. Horrible things

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<v Speaker 1>being allowed there. Those are all things that would go

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<v Speaker 1>into the environment, and that the employee is entitled to

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<v Speaker 1>show to the jury and say this is the kind

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<v Speaker 1>of environment I was working in. Now, I'm sure that

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<v Speaker 1>TESLA is going to be very very very carefully looking

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<v Speaker 1>at that evidence and testing it for veracity. Tesla denies

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<v Speaker 1>the allegations and has set in court filings that it's

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<v Speaker 1>taken prompt measures to correct unlawful behavior at its facility.

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<v Speaker 1>So is it going to be a test of credibility

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<v Speaker 1>between the employees and the managers who testify. Yes, And

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<v Speaker 1>the legal standard for an environmental type case is whether

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<v Speaker 1>the employer knew or should have known that this was

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<v Speaker 1>going on. So it's not probably going to be a

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<v Speaker 1>sufficiently airtight defense to say, well, we didn't actually know

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<v Speaker 1>that there were newss and swastikas in this workplace. The

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<v Speaker 1>test is going to be, well, did you know or

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<v Speaker 1>should you have known as the employer under these circumstances

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<v Speaker 1>or in this case, there was a contractual relationship with

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<v Speaker 1>this employee as I understand it, and so actual knowledge

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<v Speaker 1>is not necessarily in their type. In response to similar

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<v Speaker 1>claims of racism by a former factory worker in must

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<v Speaker 1>send this email to employees saying, if someone is a

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<v Speaker 1>jerk to you but sincerely apologizes, it's important to be

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<v Speaker 1>thick skinned and accept that apology. If you are part

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<v Speaker 1>of a less represented group, you don't get a free

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<v Speaker 1>pass on being a jerk yourself. We have had a

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<v Speaker 1>few cases at Tesla where someone in a less represented

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<v Speaker 1>group was actually given a job or promoted over more qualified,

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<v Speaker 1>highly represented candidates and then decided to sue Tesla for

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<v Speaker 1>millions of dollars because they felt they weren't promoted enough.

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<v Speaker 1>That obviously is not cool. Do you think the jury

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<v Speaker 1>will see that email? Yes? I mean I think there's

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<v Speaker 1>a very good chance that there would be what's called

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<v Speaker 1>emotion in limin a filed no doubt by Tesla, which

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<v Speaker 1>would be to exclude that, and then the judge has

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<v Speaker 1>to decide outside the presence of the jury whether to

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<v Speaker 1>let something like that in based on what that says.

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<v Speaker 1>It obviously could be quite prejudicial damaging to Tesla's case,

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<v Speaker 1>and will come on as to why. But I think

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<v Speaker 1>it's pretty self evident. Of course, the Plainett lawyer is

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<v Speaker 1>going to try valiantly to get that in because it

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<v Speaker 1>goes potentially to liability. It may go to damages, but

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<v Speaker 1>so judge will make the determination as to whether it

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<v Speaker 1>does or does not commit But I am sure that

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<v Speaker 1>everyone is watching that email on the trial teams on

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<v Speaker 1>both sides. That's Anthony on cd IF Pross Cower, Rose