In an expected and anticipated procedural step forward, the results of the Service Employees International Union (SEIU), Local 560 election victory at Dartmouth College to represent and serve as the legal representative of the Dartmouth College Men's basketball team for purposes of collective bargaining have now been certified by the National Labor Relations Board (NLRB). In a procedural step following an NLRB election, each party has five-business days following the election to file an objections challenging the election results based upon some type of alleged violative conduct during the election process. For example, if a member of either management or the union is believed to have interfered with or illegally affected the election process or an eligible voter and the losing party believes the actions impacted the voting decision of an eligible voter and the election results, that party can file an objection with the NLRB and challenge the election results. Here, Dartmouth did not file any objections regarding the union's conduct and as a result, the SEIU has become the first certified union to represent NCAA athletes.
Their certification as the players legal representative will likely result in the Union making a demand to commence negotiations on a potential collective bargaining agreement. It is likely that Dartmouth will refuse any such request and seek a stay of any mandated bargaining obligations from the NLRB while their appeal (Request For Review) challenging NLRB Regional Director Laura Sacks' Decision and Direction of Election that concluded that the Dartmouth Men's basketball players are employees of Dartmouth College is considered. Dartmouth has alleged in its appeal filing that "the Regional Director made an unprecedented, unwarranted, and unsupported departure from every applicable Supreme Court, federal court and Board precedent and created a new definition of 'employee' in a manner that not only exceeded her authority but promises to have significant negative labor and public policy implications."
The anticipated refusal to engage in negotiations will likely result in the union filing an Unfair Labor Practice alleging that Dartmouth has violated federal law by refusing to negotiate (an 8(a)5 charge). If a stay is not granted, Region 1 representatives will commence an investigation of the charge and likely issue a complaint and schedule an administrative hearing before an Administrative Law Judge (ALJ) regarding the merits of the allegations contained in the charge. This will create a very unique situation where the NLRB and its current four members, which includes two former General Counsels of SEIU locals, will consider the Dartmouth appeal while a hearing before an NLRB Administrative Law Judge will be scheduled.
Any ultimate conclusion reached by the ALJ finding Dartmouth's refusal to bargain to be a violation of the NLRA would likely be presented on appeal to the Labor Board by Dartmouth pursuant to an additional appeal. If the Board confirmed a potential 8(a)5 finding of the ALJ and ultimately denied Dartmouth's efforts to have the finding of employee status of the team members overturned, the case would ultimately then be appealed and likely considered by the Circuit Court of Appeals. This court would render a decision on the employee status of the student-athletes before the potential for further consideration of the issue by the Supreme Court.
Of interest will be the reaction of other student-athletes at Dartmouth, within the Ivy League and at universities around the country. Will the election results stimulate other union organizing activity among current student-athletes or will this activity prove to be the exception?
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