By Christina Stylianou & Gregg E. Clifton, of Lewis Brisbois
The Dartmouth men’s basketball team has filed a petition to unionize with Region 1 of the National Labor Relations Board (“NLRB”), and its Regional Director Laura Sacks. The petition seeks to allow the 15 members of the team, excluding managers and supervisors, to join and become members of the Service Employees International Union (“SEIU”), Local 560, based in Hanover, New Hampshire. This local has seen its membership declining since 2020 to a current active membership of only about 437. According to its most recent federal filings made in April 2023, the Local does not report or acknowledge the existence of a brick and mortar office of any type, only a post office box, and despite having incurred expenses of over a quarter of a million dollars during the filing year, the federal filing reports that the Local paid $0 of those expenses in benefits to or for its members.
The role of Local 560 with the Dartmouth basketball players may have arisen based upon its current relationship with other employees at the school. Local 560 already has an established relationship with Dartmouth College, as it currently represents Dartmouth College employees who are employed as members of the school’s Department of Safety and Security, pursuant to the terms of a collective bargaining agreement that doesn’t expire until July 1, 2024. In addition, Dartmouth has student-workers who are represented as union workers by the Student Worker Collective for work related to on-campus work in dining services.
The basketball player filing appears to be a continuation of a trend of union activity at Dartmouth. Union organizing activity has been front and center at the school in 2023, as other Dartmouth employee groups have also sought union representation during the year.
The formal petition filed by the Dartmouth team will certainly take some time to be processed. In addition to the Region’s normal processing time to investigate and move forward with a petition seeking to unionize, the question of whether student-athletes are employees under the terms of the National Labor Relations Act is currently scheduled to be litigated before the NLRB. If Region 1 concludes that the Dartmouth players should be considered as employees and be able to move forward with petition, that decision could certainly be appealed to the NLRB in Washington DC and ultimately to a federal district court.
While Dartmouth College considers its legal options in response to the NLRB Petition, if the school recognizes the student-athletes as employees and members of the SEIU or the student-athletes are successful in their unionization effort through the typical election process, it would be the first successful petition and effort to unionize by any group of college athletes. (A group of Northwestern football players made a similar attempt nearly a decade ago, but that petition was dismissed in 2015.) Dartmouth officials have commented in response to the filing of the petition as follows, “We are carefully considering this petition with the aim of responding promptly yet thoughtfully in accordance with Dartmouth’s educational mission and priorities,”
This filing is the latest in a stream of recent efforts to reclassify student-athletes, either directly or indirectly, as employees. Over the last several years, the NLRB has strongly hinted at its inclination to recognize such employment status by way of several statements and announced goals made by NLRB General Counsel Jennifer Abruzzo. In response, multiple unfair labor practice charges have been filed by non-student-athletes in an effort to advance Abruzzo’s agenda. And just this year, the NLRB advanced an unfair labor practice charge against the NCAA, the Pac-12 Conference and the University of Southern California to a formal complaint, alleging that the three entities are joint employers and have unlawfully misclassified college athletes in football and men’s and women’s basketball as “student-athletes” instead of “employees.” That matter is scheduled to be heard in a multi-day hearing in November 2023. At the same time, the Johnson v. NCAA case, dealing with student-athlete compensation, remains pending before the Third Circuit Court of Appeals with its own question as to whether student-athletes may be deemed employees of the NCAA under the Fair Labor Standards Act (“FLSA”).
