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BtBS Exclusive: Eugene Freedman, baseball scribe and labor lawyer, on unionizing the minor leagues

Can the minor leagues be legally unionized?

The COVID-19 pandemic has once again cast a spotlight on the minor leagues, where players face poverty wages and starvation diets. With minor league pay set to expire on May 31 and minor leaguers facing an uncertain future, I spoke with veteran labor lawyer and baseball writer Eugene Freedman about the task of organizing the minor leagues, and whether that’s even possible.

We started by talking about the Major League Baseball Players’ Association. “I think that there’s a couple of aspects to this,” Freedman explained. “One is what is the players association’s duty right now with respect to representing players. There is no duty to minor leaguers.” But could the MLBPA include minor leaguers, as I’ve been advocating for a while? It’s actually, as Freedman explained, not that simple.

“There are a lot of difficulties in organizing the MILB because of all the promotions,” Freedman said. “The players are not permanent employees to an extent, because they move from club to club and level to level. Because of the structure of the Nat’l Labor Relations Act, it would be hard for any union to organize them.”

What Freedman is talking about is the basics of how to unionize - and it’s not easy. We can use this handy guide to explain the process (it’s more complicated than this, but this will suffice for our purposes).

A labor union can be formed in two ways: employees can either choose an existing union through an election or create their own. Creating a new union is very difficult; most of the time employees unionize by holding labor union elections. Either way, a union must be certified by the [National Labor Relations Board] (a federal agency). The process is as follows:

Authorization Cards – An employee must first sign an authorization card to show his willingness to form a union. A union election requires at least 30% of the employees to sign the cards. Creating a new union requires a majority of the workers to sign the cards. Otherwise, a union cannot be formed.

Appropriate Bargaining Unit (ABU) – If there are enough signed authorization cards, they are sent to the NLRB for approval of a union election. The NLRB will only grant a union election if the employees are an ABU. This means that the employees have similar demands, hold similar positions, are non-management employees, and work in a close geographical area.

Certification – The NLRB will certify and preside over a union election if the above requirements are met.

So why would this pose an impediment to organizing the minor leagues? “By the time you have an NLRB petition for an election, and then the election takes place, the majority of that legally created bargaining unit would no longer be the same people,” Freedman explained. That’s because the process of unionizing takes time - a long time. “The signing of cards to request an election, challenging individual voters, and then the election, that usually takes six months to a year,” Freedman said. Six months is an entire baseball season - so by the time the NLRB has said the minors can hold an election, players could have been promoted out of the minors, or dropped from affiliated baseball completely. “In that time, there could be 100% turnover at the lower levels of the minor leagues and 50% turnover even at the Double-A level,” Freedman said. “And that would allow the employers to challenge the legality of the union.”

In this way, a minor league baseball union could face challenges similar to the organization of another transitory industry. “Colleges are [doing this] to prevent organizing by teaching assistants and graduate assistants,” Freedman said. “And if you can delay an election for two years, it’s not the same people who signed the cards, and therefore the election is off.”

There’s also another roadblock facing a minor league union. “I could see the management fighting on so many fronts initially on what is an appropriate bargaining unit,” Freedman said. “Is each [minor league] level itself an appropriate unit, or should it be the majority of the minor leagues?” The good news is that this is a problem for which there is a solution. “Under the NLRB board law, it doesn’t have to be the most appropriate unit; it can be an appropriate unit,” Freedman explained. “You could petition to represent the employees for Columbus AAA baseball team – that would be deemed an appropriate unit, because it’s the same working conditions and the same employer. You could also petition for the International League – it would be an appropriate unit, but it might run into problems because it would be a multi-employer unit, although they share nearly identical terms of employment.”

Go broader than that, though, and you start facing problems. What if you wanted to organize every player on a minor league deal? “[Let’s say that we organized] all employees not in an existing bargaining unit signed to minor league contracts,” Freedman said. “You need to have a 30% showing of interest by card or petition, and some of those [players] are going to be cut.” So in order to get the requisite showing, a fledgling minor league union would have to have higher than 30% to be sure - and make certain that percentage stuck around long enough to have the election. “Most unions want at least a majority [showing of interest],” said Freedman. “Some unions have their own internal standards, 60% or more. It would be a really difficult organizing effort.”

But despite all of those obstacles, organization of the minor leagues can be done, especially if it were on a per-level basis at the upper minors. In fact, there’s one place in particular where that organization would be possible. “Spring Training would be an opportunity to make that easier, since all the players would be in Florida or Arizona,” Freedman said.

So the minor leagues can, in fact, be unionized. It would take an organization effort willing to put in the time - two years or more - and effort necessary. It would not, however, be a simple matter.

Special thanks to Eugene Freedman for his time and expertise.

Sheryl Ring is a litigation attorney and Legal Director at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author’s. This post is intended for informational purposes only and is not intended as legal advice.