The National Labor Relations Board’s PIAA Ruling On Lacrosse Officials Could Have National Implications.

In today’s Propsectus, I shared an article from the Observer-Reporter about how the recent National Labor Relations Board’s 2-1 decision that ”lacrosse officials who are sent to public and private school games in Western Pennsylvania are employees of a state athletic association, not independent contractors,” was having a major impact on the PIAA.

To understand how the NLRB got to this decision you have to go back to 2015 when “a regional director for the National Labor Relations Board ruled that high school lacrosse referees in Districts Seven and Eight are employees of the PIAA rather than independent contractors.” The ruling opened the possibility that high school refs across Pennsylvania could unionize and collectively bargain for better compensation and benefits. Indeed, some of the concerns seemed very reasonable and had more to do with safety than getting a couple extra bucks from a game.

In addition to wanting to be paid more for their services, lacrosse officials in Districts Seven and Eight have a few others issues at play. Bittner said boys’ lacrosse officials would like to have access to a locker room and reasonable access to parking spots in hopes of decreasing the possibility of engaging with parents after the game.

“Once a game is done and our jurisdiction is done, most coaches are sensible about it, but some parents may not agree with some of the calls we make,” Bittner said.

After the regional director’s 2015 ruling, the PIAA filed an appeal with the NLRB to review the decision in hopes of overturning it. A couple weeks ago on July 11th, in a 2-1 decision, the NLRB affirmed the regional director’s finding that the lacrosse officials were employees and not independent contractors, and that they could unionize. The NLRB found that the PIAA had not met its burden under the multi-factor FedEx standard used by the NLRB to determine whether or not one is an employee or independent contractor.

You can find the entire NLRB opinion from July 11th here. It is Case Number: 06-RC-152861. The entire pdf is about 20 pages with the last 8 being the dissenting opinion. It’s not that long and is worth your time, especially if you are a lacrosse-sponsoring athletic association outside of Pennsylvania.

In its ruling the NLRB found that “Although the officials have some discretion over certain aspects of the means and manner of their work, the rules and regulations demonstrate that PIAA nevertheless exercises ‘pervasive’ control over their officiating.” The amount of control that the PIAA held over their lacrosse officials was the key issue in the matter. Here’s more from the opinion.

Applying the FedEx analysis here, we find that the Employer has failed to establish that the officials are independent contractors rather than employees. Although there are certain aspects of the relationship between PIAA and the officials that may suggest the officials are independent contractors, we find that those aspects are outweighed by the factors showing that the officials actually are employees. In particular, we find that employee status is demonstrated by the extent of PIAA’s control over the officials, the integral nature of the officials’ work to PIAA’s regular business, PIAA’s supervision of the officials, the method of payment, and the fact that the officials do not render their services as part of an independent business.

So what does this mean for everyone outside of Pennsylvania? Good question. This article from Bloomberg suggests that it could actually be a pretty big deal around the country. Indeed, “Implications of the ruling could stretch beyond the borders of the keystone state; the NLRB’s chairman said all 50 states have governing bodies like the Pennsylvania Interscholastic Athletic Association.” I could easily see lacrosse officials in states outside Pennsylvania using the PIAA matter as a template to challenge their status as independent contractors in their home states.

While athletic associations will harp on the added costs that could come from unionized officials, as lacrosse officials in Pennsylvania stressed, it’s not always about the money. Sometimes its about something as small as respectfully engaging with the lacrosse officials and hearing their concerns. Indeed, this bit at the end of today’s Observer-Reporter is very illuminating; it appears that if the PIAA hadn’t unilaterally cut officials pay by $5 back in 2015 and then refused to talk to lacrosse officials about their concerns, all of this might never have happened.

“Our board only makes a determination what the (district) pays for a postseason event, and the board looks at that on an annual basis,” said O’Malley. “In this year’s budget, the board took it upon themselves to (allow) a $5 increase across the board to the officials’ fees in all sports. Anytime, there is a nominal raise with the amount of officials we have for our various postseason events, it equates to an increase of 25-30 thousand dollars in our annual budget.”

Dan Boyle, head of District 7 lacrosse officials, said the case evolved two years ago when the PIAA unilaterally decided to reduce payment by $5 per game. “They told us the price for everything is going up and they have cost concerns,” said Boyle. “They refused to negotiate with us.”

So the officials from the WPIAL (District 7) and city League (District 8) took a vote to unionize in order to get stronger negotiating power. The vote was 50-31 in favor of unionizing. In July of 2015, the NLRB ruled the lacrosse officials were employees of the PIAA and not independent contractors as the PIAA contended.

“The failure to negotiate was the whole (issue),” Boyle said. “We just wanted to sit down and talk. When the PIAA refused to do that, that was when some members of our organization went forth with the decision to go to the NLRB.”

If the PIAA had just sat down and talked to their officials about their concerns, they probably would’ve saved a whole lot of money in legal fees.