By Gregg E. Clifton & David A. Tango
After a lengthy delay in the commencement of collective bargaining negotiations between the Service Employees International Union, Local 560 and Dartmouth College (Dartmouth), following the National Labor Relations Board’s (NLRB) certification of the Dartmouth Men’s Basketball team as a recognized employee bargaining unit, Local 560 has filed an unfair labor practice charge with the NLRB, accusing the school of illegally refusing to bargain with the union in direct violation of the terms of the National Labor Relations Act (NLRA).
The Dartmouth players were originally found to be employees by NLRB Region 1 Regional Director Laura Sacks, who stressed in her Decision and Direction of Election that the school possessed sufficient control over the players such that they were actually performing work in exchange for receiving non-monetary compensation in the form of per diem payments, meals, room and board, expensive sneakers and potential priority admissions in front of other student applicants. In addition, she also found the potential ability to direct or try to restrict the course selection of the team members to accommodate their basketball schedules to be a determinative factor.
The current charge, filed with Region 1 of the NLRB in Boston on behalf of Local 560 by SEIU labor counsel Jake Krupski, seeks to force Dartmouth to honor the terms of the NLRA and meet with the union representatives to negotiate in good faith and bargain about wages, hours and other mandatory subjects of bargaining. The unfair labor practice charge will now be reviewed and evaluated by Region 1 investigators. Based upon Dartmouth’s acknowledgment and outright refusal to bargain, which was first communicated to the Union by Dartmouth back in March, it is likely that a formal complaint will be issued and a hearing will be scheduled before an Administrative Law Judge (ALJ) to determine the merits of the union’s allegations. Should the ALJ ultimately find that Dartmouth’s refusal to bargain constitutes a violation of the NLRA, Dartmouth would likely file another appeal with the NLRB. If the NLRB were to confirm any such finding by the ALJ of a Section 8(a)(5) violation and ultimately deny Dartmouth’s efforts to have the finding of employee status of the team members overturned, the case would then be appealed and be provided a forum for Dartmouth’s arguments to be considered by a Circuit Court of Appeals. This Court of Appeals would render a decision on the employee status of the student-athletes before potentially considering any finding by the NLRB of a violation of the NLRA by Dartmouth. The decision of the Court of Appeals could ultimately be appealed to, and considered by, the United States Supreme Court.
While the Union’s ULP charge will move forward, the parties still await a ruling from the NLRB on Dartmouth’s Request For Review seeking to overturn Regional Director Sacks’ Decision and Direction of Election. While the school’s challenge is still being held in abeyance, the effort to overturn the initial ruling finding the athletes to be employees remains daunting. In addition to the factual findings issued by Regional Director Sacks, the current composition of the NLRB makes the potential success of the appeal even more doubtful. Currently, only four of the five Board positions are filled, as the Biden administration has apparently refused to nominate any individual to become the fifth member of the Board. As such, the NLRB consists of only the following four members: Chairperson Lauren M. McFerran, Marvin E. Kaplan, David M. Prouty and Gwynne A. Wilcox. Interestingly, two of the four current members of the NLRB have previously served as in-house counsel for SEIU local unions. David Prouty previously served as General Counsel of the SEIU Local 32BJ, as well as General Counsel of the Major League Baseball Players Association from 2013-2017, after serving as the players Chief Labor Counsel from 2008-2013. Gwynne Wilcox, prior to joining the NLRB, previously served as Associate General Counsel of Local 1199SEIU-United Healthcare Workers East.
In response to the filing of the ULP charge, Dartmouth released a statement acknowledging the charge and the school’s position. The school stated, “In March, we appealed the regional director’s decision to the full NLRB and continue to await their review. In the meantime, we have declined to bargain with SEIU Local 560 on this matter. It is an unprecedented step in Dartmouth’s long history of labor negotiations, but it is the only lever we can engage to ensure this matter is reviewed by a federal court. We expected this action would result in their filing an unfair labor practice charge with the NLRB, which they did and which we will also appeal.”
