Peter Ohr, Deputy General Counsel of The National Labor Relations Board

Mr. Ohr offers a lesson on the National Labor Relations Act (NLRA), explaining its history, purpose, priorities, and process. Mr. Ohr connects the “Xs and Os” of the NLRA to fundamental American principles of freedom of association and democracy in the workplace as expressed in Section 1 of the Act, as well as its relevance to college sports. In 2014, Mr. Ohr authored the National Labor Relations Board’s (NLRB) opinion in the Northwestern University case, where the football team sought to form a union under the NLRA. A threshold question in that action was whether the Northwestern football players were employees under the NLRA. After fact-gathering and an administrative hearing, the regional board—through Mr. Ohr’s opinion—found that the Northwestern players were indeed employees, applying a common law test. On Northwestern’s appeal, the NLRB national board declined to assert jurisdiction on prudential grounds, neutralizing the unionization effort. In September 2021, NLRB General Counsel Jennifer Abruzzo issued a policy memorandum asserting that certain classes of college athletes had been “misclassified” as student-athletes rather than employees. Ms. Abruzzo also suggested that the NCAA and conferences could be responsible as “joint employers” under the NLRA because of their control over athletes’ lives and work conditions. Mr. Orh discusses the Northwestern case and a current case against USC, the Pac-12, and the NCAA under “misclassification” and “joint employer” theories.

Substantive Note: This interview was conducted on March 10th, 2023, before the Dartmouth College men’s basketball team filed a petition with the NLRB (September 13th, 20230) seeking to unionize.

00:00 Peter Ohr's background

02:43 Purpose, scope, and values of the NLRA

06:56 How the NLRA aligns with American values

08:47 NLRA scope and presumption of coverage

12:30 NLRA is not just about money but also terms and conditions of employment

15:34 Athletes as employees under the NLRA and the 2014 Northwestern football case

25:21 Northwestern appeal to National Board

28:04 Jennifer Abruzzo 9/29/21 memo on athletes as employees and "misclassification"

36:01 Importance of fact-based inquiries in the athletes as employee debate

37:38 "Joint employer" liability under the NLRA

40:06 Differences between the Northwestern and USC/Pac-12/NCAA cases

42:37 USC/Pac-12/NCAA NLRB action

43:45 Appeal options and timing

49:11 Employee status alone is not a magic bullet that will immediately solve all athletes' rights issues

51:23 Mr. Ohr's personal story and the importance in his life of the values and aspirations of the NLRA

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