NLRB Denies Dartmouth Motion to Reopen Record in Basketball Case

A day after Dartmouth College motioned NLRB regional director Laura Sacks to  introduce new evidence to counter the men’s basketball players’ bid to become employees and unionize, Sacks denied the motion Friday. The denial to reopen the record makes it more likely the players will proceed with their scheduled March 5 vote on whether to unionize.

Reopening the record is considered an extraordinary measure under labor law, and if it had been granted, it would delay the proceedings. Dartmouth insists that Sacks, who on Feb. 5 found the basketball players to be employees within the meaning of the National Labor Relations Act and authorized a union vote, erred in reaching her decision. The school asserts Sacks misapplied the law and reached a conclusion based on an incomplete factual record.

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Sacks disagrees, saying she wrote no extraordinary circumstances are present. Dartmouth wants to introduce “evidence which existed and was readily available to it prior to the hearing,” Sacks noted. The school could have presented additional evidence during the four-day hearing held last October. While Dartmouth complains the NLRB has not previously recognized college players as employees, Sacks’ contrary finding is not a reason to reopen the case.

Sacks also wrote Dartmouth’s motion wasn’t timely. It had 10 business days to file the motion following Feb. 5, but waited until 17 business days to do so.

Lastly, Sacks observed that Dartmouth’s contention that she misapplied the law would be more appropriately argued in a request for review to the agency’s board. Dartmouth is expected to file such a request by next Monday.

Sacks has not yet ruled on Dartmouth’s other motion to postpone the election or impound the ballots from next Tuesday’s vote.

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