Dartmouth College (Dartmouth) has announced its refusal to bargain with the Service Employees International Union, Local 560, the recently certified union for the Dartmouth men's basketball team. Although this reaction was anticipated, some still felt that Dartmouth might engage in negotiations with Local 560 based upon the union's representation of Local 560 members who are currently students and employees of the college.
In a formal public statement, Dartmouth announced that it will refuse to bargain as long as the National Labor Relations Board (NLRB) and its four current members (including two members who formerly served in General Counsel roles for SEIU locals) refuse to "overturn" the decision of Regional Director Sacks of NLRB Region 1,and continue to recognize the Dartmouth student-athletes as employees of the college. This bargaining refusal announced by Dartmouth runs contrary to established NLRB law, which requires an employer to negotiate in good faith with a certified bargaining representative for a designated bargaining unit pursuant to assumed support of the union for an irrebuttable period of one year from the date of certification of the election results.
The outright refusal by Dartmouth to engage in negotiations with the union regarding mandatory subjects of bargaining following the players' 13-2 successful vote to unionize and the NLRB's certification of Local 560's status as the players' bargaining representative will certainly result in the union filing an unfair labor practice (ULP) charge. The charge will allege that Dartmouth has violated federal law by refusing to negotiate in good faith (an 8(a)5 charge) with Local 560. While the National Labor Relations Act (NLRA) does not require the parties to agree and reach a negotiated agreement, the law does require both Dartmouth and the union to engage in good faith bargaining as long as the student-athlete basketball players are still considered employees pursuant to Section 2(3) of the NLRA. The college's refusal to bargain now potentially creates two simultaneous legal matters arising from the same facts involving the school and the union.
If any potential request by Dartmouth to stay Region 1's initial determination on the ULP charge is not granted and held in abeyance pending a decision by the Board on Dartmouth's Request For Review filing, Region 1 representatives will commence an investigation of the refusal to bargain charge and likely issue a complaint and schedule an administrative hearing before an Administrative Law Judge (ALJ). This would create a very unique situation where the NLRB and its current four members would be considering the Dartmouth appeal of the Regional Director's decision finding Dartmouth player employee status while a hearing before an NLRB ALJ is scheduled.
If any decision is reached and announced by the ALJ regarding the 8(a)5 charge finding Dartmouth's refusal to bargain to be a violation of the NLRA, the case would likely be presented by Dartmouth on appeal to the same members of the Labor Board who are currently considering the Request For Review. If the Board confirmed the ALJ's 8(a)5 finding and denied Dartmouth's efforts to have the bargaining requirement overturned prior to completion of its review of the athletes' employee status, the NLRB could seek a federal court order regarding Dartmouth's failure to bargain and seek a formal federal judicial issuance of its bargaining order. Dartmouth could then appeal and challenge any negative District Court decision to the Circuit Court of Appeals. The Circuit Court could potentially render a decision regarding the college's bargaining obligation, but reserve decision on the employee status of the student-athletes if the Request For Review has not yet been decided and the employee status determination has not been made by the NLRB. Under this scenario, Dartmouth may attempt to seek some type of interlocutory appeal to delay the bargaining mandate while the Request For Review remains pending before the Board and prior to any Circuit Court ruling.
Defending Dartmouth's position, school representative Jana Barnello explained, "While we continue to negotiate in good faith with multiple unions representing Dartmouth employees, our responsibility to future generations of students means we must explore all our legal options for challenging the regional director's legal error."
Along with other potential legal issues involving the Fair Labor Standards Act and possible Worker's Compensation claims for potential player injuries, a very lengthy and complex legal process remains before these issues and the employee status of Dartmouth's men's basketball status will be conclusively decided.
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