LAWYERIN': IT'S COMPLICATED

LAWYERIN' is an infrequent series in which the Law Offices of Black, Heart, Gold and Pants discusses legal issues related to Iowa athletics. Usually, we get some outside help. Today is no exception.

The following comes from attorney and Friend of the Pants Nate Willems, who practices labor law in Cedar Rapids. In the second of a multi-part series, Nate looks at some of the other issues that could arise with an Iowa football players' union, stuff we haven't even begun to consider.

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Previously, we took the facts found by the NLRB detailing the life of a Northwestern football player, assumed for the sake of argument that Iowa football players go through a similar schedule, applied Iowa's public sector labor law and concluded that more likely than not Hawkeye football players have a right to form and join a union. The next question is if the Hawkeyes had a union, what could they bargain into a contract?

This question is more difficult to answer at the University of Iowa than it would be at Northwestern. One extremely important divide in labor law is between mandatory subjects of bargaining and permissive subjects of bargaining. If one party wants to bargain over a mandatory subject, both parties have to bargain. If one party wants to bargain over a permissive subject, the other party can lawfully say, "No, we don't even want to discuss it."

In the private sector, the mandatory subjects of bargaining are wages, hours and terms and conditions of employment. You may notice that "terms and conditions of employment" is very broad; it can mean a lot of things. Due in part to the lack of specificity in these mandatory subjects of bargaining, courts have construed these mandatory subjects broadly. At the risk of oversimplification, most proposals which concern current employees - or Northwestern football players - would be considered to fall under a mandatory subject of bargaining and Northwestern University would be legally obligated to bargain in good faith over the proposal.

Iowa's public sector labor law, Chapter 20, is very different in this regard. Chapter 20 lists 17 mandatory topics. They are often referred to as the "laundry list." Because the Iowa Legislature took such great pains to spell out the mandatory subjects, Iowa courts have ruled that these 17 items should be construed more narrowly than in the private sector. They are given their common and ordinary meaning, nothing more, and anything else is permissive.

That may sound relatively simple. However, in practice predicting whether a particular contract proposal is mandatory or permissive is incredibly difficult. At times, it is simply guesswork. So, what follows are a series of educated guesses.

There are the 17 mandatory subjects: wages; hours; vacations; insurance; holidays; leaves of absence; shift differentials; overtime; supplemental pay; seniority; transfer procedures; job classifications; health and safety matters; evaluation procedures; procedures for staff reduction; in-service training. If the Hawkeyes or the University wants to bargain some idea into a contract, and not allow the other side to simply say "No," the idea must fall under one of these 17 subjects.

There are some areas of a football program that should be relatively easy to answer. Can the players bargain language restricting who Kirk Ferentz can recruit? No, chapter 20 gives employees no right to bargain over hiring decisions.

Can the players bargain language guaranteeing players playing time? Probably not, once a hiring decision has been made a public employer still has the right to direct its workforce. You might ask, but what about seniority? Seniority is often used in labor contracts to give preferences in transferring into a different job or preventing a person from being laid off. It seems to be a very different situation in football where the majority of players are, on game days, essentially paid to watch. An employer can choose to pay a person to do nothing or to only take on a support role. Just as a police lieutenant can direct one officer to pursue a suspect and a different officer to secure a crime scene, a coach can direct one player on to the field and another to hold a clipboard.

On the other hand, the mandatory subjects "hours" and "in-service training" may loom large. A public sector union in Iowa may bargain over starting and quitting times, break times and hours to be included in a work day. The employer does not have to bargain over what duties will be done when, but the employer would have to bargain over amounts of time which are proposed as in-service training. In some ways, in-service training, generally, is an exception to the idea that once the hours are set the Employer can direct employees in any manner they choose. Since in-service training - or training given to employees during the course of employment - will probably constitute a much larger percentage of the total hours worked for a football player than it would for a teacher or correctional officer, this could become very significant.

Though employees have the right to bargain over in-service training, they would not have the right to specify how much of any specific type of training. Players could negotiate the hours they spend doing football activities and negotiate how much time will be spent on in-service training in comparison to other football activities. Beyond that, players would not be able to shake up the mix between practice, film study and weightlifting.

The question of wages can become closely aligned with hours. As the Iowa Supreme Court has said, "it is only possible to rationally bargain for ‘an honest day's pay' if one can also negotiate the boundaries and the contents of ‘an honest day's work.'" Could certain types of more difficult work - like the Rhabido off-season training program - earn a player more money? Maybe. If players proposed giving themselves a right to say "no thank you" to a grueling workout, that would be a permissive proposal and go nowhere. If players proposed extra pay for a particular type of work, they may have a right to bargain over that.

Insurance and health and safety matters certainly would seem to be big concerns for Hawkeyes. The Northwestern case points out that those football players first utilize their parents health insurance, if available, before the University would step in to pay for medical treatment. If players want to bargain over employer-sponsored health insurance, they would have the right to do so. Health and safety matters, though, have not been found to go as far as one might think. Police officers in Iowa have not had a right to bargain over whether the employer will provide a bullet-proof vest. So, Hawkeyes would probably not have the right to bargain over particular equipment that might reduce the risk of injury.

Supplemental Pay is another topic that could be interesting. If one were to disregard NCAA regulations for a moment, solely as a matter of Chapter 20 there are some benefits here which could be bargained. Supplemental pay roughly means extra pay for extra work. So, if players were asked to sit down for an autograph session or go on the I-Club circuit, they could demand to bargain over compensation for that work. If the team qualifies for a bowl game - and the extra practice that goes with it - supplemental pay would allow Hawkeyes to bargain over additional wages or perhaps bowl game clothes and gift bags. Though ordinarily a union does not have a right to bargain over a clothing allowance, if it is connected to extra work like a bowl game it may be supplemental pay and therefore mandatorily negotiable.

One critical difference between Iowa law and the private sector is discipline and discharge. The private sector has it; Iowa does not. So, Hawkeyes would not have a right to bargain contract language specifying when they could get disciplined or kicked off a team. They can bargain over procedures for staff reduction, but that would seem to be a moot point as the University will presumably want to keep 85 players on scholarship. In other words, terminations can happen at the coach's discretion but don't expect the University to layoff football players.

Vacations, holidays and leaves of absences could play a significant role in bargaining. If the players want to make a proposal to allow somebody to take a year away from school to go on a Mormon mission, I think the University would have to bargain over that idea. Certainly, players could bargain vacations and holidays. The question becomes when would they be able to take them? Could players bargain the right to take vacation days during weeks when they are preparing for a game? Could they make Thanksgiving a paid holiday the day before they play Nebraska?

At some point in this discussion, it is probably important to introduce two points to consider lest fans start to panic. First, having a right to bargain over an idea is a very long way from getting the employer to agree to put that idea in a contract. When courts consider whether a union has a right to bargain over a proposal, they specifically exclude any discussion over whether it is a good idea. In contrast, if the parties reached a stalemate at the bargaining table over whether to allow vacation days to be taken the week of the Iowa State game, an arbitrator would be empowered to make a decision on the merits based, in part, on comparables, or industry practice. So, if the University digs in on saying no to something players want, players would have to convince an arbitrator that this is something other teams have and/or there would be a great injustice to deny players this particular contract right.

Second, and even more significantly, it is important to not lose sight of the fact that labor and management have a shared interest: the success of the football team. Management can sometimes work itself into a frenzy conjuring up a parade of horribles or extreme ideas that workers may seek which could theoretically hurt the success of the enterprise. The fact is every Hawkeye wants the team to be successful and it is in their self-interest
for them to win games. It is typically misplaced angst to worry that players will for some reason demand to take the day off before the Nebraska game, much less convince anybody they should have that right. Union brother Hawkeye will want to beat Nebraska just as much as he always has. Unionization never puts labor on equal footing with management. It simply provides a mechanism to bargain a fair deal.