Dartmouth Refuses to Bargain With Unionized Basketball Players
Dartmouth College Monday announced it will refuse to bargain with the men’s basketball players’ union, the Service Employees International Union, Local 560, which represents other Dartmouth students who are unionized employees of the school.
In a statement, the college says it won’t bargain if the National Labor Relations Board “refuses to overturn” last month’s decision by NLRB regional director Laura Sacks to recognize the players as employees within the meaning of the National Labor Relations Act and to order a union vote. The 15 players voted 13-2 to unionize, and last week the NLRB certified the SEIU Local 560 as the players’ union.
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The players request Dartmouth bargain over wages, hours, insurance, health care, disciplinary procedures, support services and other mandatory subjects of employment. In a collective bargaining agreement, the players would be paid at least the campus minimum wage for students, $16.25/hour, and would likely obtain funding to pay for out-of-pocket healthcare costs.
Given that the agency’s board will likely not decide Dartmouth’s appeal for many months, the college’s pledge to refuse to bargain will likely soon provide grounds for an unfair labor practice charge. The union could file a charge with the NLRB for refusal to bargain. The NLRB would then instruct Dartmouth to bargain—Dartmouth’s statement is an admission it won’t bargain. The agency would seek a court order to enforce that instruction.
Dartmouth might believe it would fare better with a federal court deciding whether it must bargain than waiting for the agency’s board—which already rejected by a 3-1 vote the school’s attempt to stay the vote—to decide its appeal of whether the players are employees and can unionize. A federal court might reason Dartmouth doesn’t have to bargain if the players aren’t, in that court’s view, employees within the meaning of the NLRA.
However, the scope of the court’s review could undermine Dartmouth’s plan. The court would be assessing whether Dartmouth must bargain, not technically whether the players are employees. In that vein, the court might determine the question of employment should first be decided by the agency’s board.
Meanwhile, the players could seek their own judicial review. Per the regional director’s order, they became employees of Dartmouth in February (unionization is a separate step).
The players could sue the school under the Fair Labor Standards Act, which guarantees minimum wage and overtime pay. The players could argue they are owed wages and back pay as protected by the FLSA, which is the same basic legal argument in Johnson v. NCAA.
A player injured on the job could also sue Dartmouth if he is denied eligibility for workers’ compensation insurance. Like the FLSA, workers’ comp provides another line of recourse for a player in the legal system.
For now, at least, it’s unlikely a Dartmouth player would sue over wages or worker’s compensation since it would risk delaying the process of forming a union. It could also backfire if a court held the player is not an employee and so is not owed worker’s comp. But those litigation strategies remain tools for the players in challenging their employer.
Expect a complicated legal path ahead as the Ivy League school and its basketball players duel over labor law in a controversy that could fundamentally change the relationship between Division I athletes and private colleges.
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