College Athletes Could Unionize Under a New NLRB Memo

labor law and are entitled protection if they unionize. My guest is Audrey Anderson, who heads the higher education practice at Bassbarian SIMS. Audrey tell us a little about what the n LRB General Council Jennifer Bruzzo said in her

memo release on Wednesday. Well, what she has said, June, is it from her perspective, certain college athletes are employees for purposes of the National Labor Relations Act or the n l r A, meaning that they have the right to organize, form a union, collectively, bargain strike, things like that.

And she also went that step farther to say, if you call these people who play sports at a college, if you call them student athletes, as so many of us have done for so long you may be misclassifying them under the National Labor Relations Act, and she may in future cases take a position that that misclassification is a separate violation of the National Labor Relations Act. So there was a case in where Northwestern football players sought union representation and it was dismissed by the n LRB

board by the Democratic majority board. So is it possible that the board won't agree with her on this? Yes, it is possible that the board will not agree with her on this. It's also possible that a court will not agree with her or with the board. So her pronouncement is certainly not the end of the matter. She does not get to say what the law is. All she can do is say this is the position that we are going to take in pursuing charges in labor relations disputes. So is the next step for unions to

try to organize college players? Yes, the next step is for college players to try to unionize or to try to take other kinds of collective activity. And if they believe that their college or their conference is prohibiting them from taking collective activity, they could file a charge with the NLRB saying our right under the National Labor Relations

Act have been violated. Now. It's also interesting in this memo that General Council also says that she is open to considering charges against a sports conference, including the n C double A. And that's interesting because public institutions are not governed by the National Labor Relations Act, so any state colleges and universities are governed instead by any state law that might exist around collective bargaining. However, most conferences

have state institutions within them. It's almost that by saying, well, I look at anything that has to do with a conference as potential charge, she's also trying to get her fingers into the public institutions. If a college athlete at a public institution could somehow say that the action being taken against me is by virtue of a conference rule or an n double A rule, they could file a charge against their conference or the n double A. And this General Council is saying she'd at least take a

look at that. Is she going out on a limb here. She's definitely trying to make new law, but that sometimes how the law changes in this area. And the National Labor Relations Board is known for being a more political agency, so the law there does change as administrations change, so that she's taking what might be thought of as a political position is not a news flash. People who practice labor law know that you go through these ebbs and

flows with the change of an administration. The g C also mentions one Jealice's opinion in the recent Austin case. What I it was interesting in this memo is she picked out Justice Kavanaughs concurrence which he wrote only for himself, and then kind of a by the way fashion said that, well, maybe one way that college athletes and their colleges could come to terms with making the college athletes kind of whole for their contribution to the school is through collective bargaining.

And Justice Kavanaugh, I think was not really thinking through all the ramifications of that when he wrote it. And here we have the General Council of the National Labor Relations Board saying, well, one justice of the Supreme Court thinks there should be collective bargaining, and therefore he must think that they are employees under the National Labor Relations Act.

And you know, it's kind of unintended consequences of one justice is concurring opinion and kind of a throwaway line thanks, Audrey. That's Audrey Anderson of Bassbarian SIMS. And it's definitely a very time because we are in a kind of a final push to complete the the launch system State zero essentially. Tesla and SpaceX founder Elon Musk was celebrated last month after the historic inspiration for mission that sent four civilians

deep into orbit. Not garnering nearly as much publicity was an achievement by one of Musk's former factory workers, forcing Tesla to fight in open court before a jury for the first time over allegations of racial discrimination on the assembly line. O N. Diaz says that he was repeatedly called the N word and other epithets, echoing allegations of racism at the Fremont plant that have dogged the electric

carmaker for years. Joining me is employment law expert Anthony on cd, a partnered Proscauer Rose Tony, explain why it's so unusual for an employment claim against Tesla to make it to trial. The reason is that one of two things typically happen to a case like this. Number one employees in California at least, and elsewhere as well, often tend to be subject to arbitration agreements, which if they are the case is sent to arbitration and cannot proceed

in court. Secondly, many cases end up settling. The likelihood of a case being settled is really quite great. In fact, upwards of cases they get filed and the courts end

up at one point or another getting settled. Does the point if you have to show that there's a pattern of racial discrimination, No, I mean in some cases a fact, probably most cases where there are multiple instances of discrimination or harassment, the employee will try to get into the case something that's referred to as me too evidence, meaning that there are other employees, maybe some of them plaintiffs themselves or claimants, who have experienced similar actions, whether it

be harassment or discrimination or whatever it may be in the workplace, because obviously having more than one person testifying about this tends to bolster the credibility of the employee, and credibility is a significant factor in all of these cases because in most cases, the employee will say he or she suffered from harassment or discrimination, the employer will deny it, and so the jury is going to be in a position of having to decide who's telling the truth.

There have been years of complaints from black workers about the rampant use of racial slurs on the assembly line, that we're ignored by managers and graffiti and hate symbols. How does TESLA fight that, Well, the answer is, if that is true, that's a big problem for them in this case. There are a lot of allegations in this case, in in the prior case that we discussed about Tesla, that there were physical symbols, things such as swastikas and

nooses and things like that in the workplace. I would expect there would be photos of that that would be shown to the jury, because we all know everyone now has a cell phone, everyone has a movie studio in their pocket basically, and I think that would be very compelling if those are credible photographs that the employer has some difficulty perhaps and we shooting because the employer is responsible for policing the environment. So we often talk about

a hostile work environment or a toxic work environment. Those words get thrown around quite a bit in this kind of litigation. That's what we're talking about, whether it's comments that are made to an employee or physical manifestations in the form of drawings or uses or whatever. Horrible things being allowed there. Those are all things that would go into the environment, and that the employee is entitled to show to the jury and say this is the kind

of environment I was working in. Now, I'm sure that TESLA is going to be very very very carefully looking at that evidence and testing it for veracity. Tesla denies the allegations and has set in court filings that it's taken prompt measures to correct unlawful behavior at its facility. So is it going to be a test of credibility

between the employees and the managers who testify. Yes, And the legal standard for an environmental type case is whether the employer knew or should have known that this was going on. So it's not probably going to be a sufficiently airtight defense to say, well, we didn't actually know

that there were newss and swastikas in this workplace. The test is going to be, well, did you know or should you have known as the employer under these circumstances or in this case, there was a contractual relationship with this employee as I understand it, and so actual knowledge

is not necessarily in their type. In response to similar claims of racism by a former factory worker in must send this email to employees saying, if someone is a jerk to you but sincerely apologizes, it's important to be thick skinned and accept that apology. If you are part of a less represented group, you don't get a free

pass on being a jerk yourself. We have had a few cases at Tesla where someone in a less represented group was actually given a job or promoted over more qualified, highly represented candidates and then decided to sue Tesla for millions of dollars because they felt they weren't promoted enough. That obviously is not cool. Do you think the jury

will see that email? Yes? I mean I think there's a very good chance that there would be what's called emotion in limin a filed no doubt by Tesla, which would be to exclude that, and then the judge has to decide outside the presence of the jury whether to let something like that in based on what that says. It obviously could be quite prejudicial damaging to Tesla's case, and will come on as to why. But I think

it's pretty self evident. Of course, the Plainett lawyer is going to try valiantly to get that in because it goes potentially to liability. It may go to damages, but so judge will make the determination as to whether it does or does not commit But I am sure that everyone is watching that email on the trial teams on both sides. That's Anthony on cd IF Pross Cower, Rose