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Office of Legal Counsel
September 29, 2016

 

On August 23, 2016, the National Labor Relations Board (NLRB) ruled that student teaching and research assistants at private universities have the right to unionize in their capacity as employees. Members of the University community have asked what student unionization might look like at UChicago.

It is very difficult to reach any solid conclusions by drawing from the experiences that public universities have had with graduate student unions because state labor laws applicable to public institutions are often very different than the federal labor law applicable to private institutions such as UChicago. For example, many state labor laws substantially limit what can be bargained over and limit the use of economic weapons like strikes. Additionally, because there was only a brief period (2000-2004) when graduate student assistants at private universities were able to join and form unions, we have little insight into how the NLRB will define core operative concepts like “terms and conditions of employment,” “mandatory subjects of bargaining,” and “management rights” (e.g., academic decision making). 

Nevertheless, past experiences that two private universities – New York University and Yale University – had with grievances and unfair labor practice charges provide some insight into what we might see here at UChicago. What follows is detailed information regarding the grievances filed (2001-05) by the graduate student union at NYU and the unfair labor practice charges filed (1996) against Yale with the NLRB.

 

I.  Grievances Filed at NYU by the United Auto Workers (UAW)

The UAW-NYU collective bargaining agreement was in effect from September 1, 2001, to August 31, 2005. NYU withdrew recognition of the UAW at the expiration of the contract in light of the NLRB’S 2004 decision in Brown University that graduate student assistants are not employees within the meaning of the National Labor Relations Act (NLRA).

In its negotiations with the union, one of NYU’s principal goals was to maintain the faculty’s academic discretion. Ultimately, the labor contract expressly secured that discretion in its “management rights” clause, which stated that all faculty hiring decisions, determinations regarding the number, qualifications, and assignment of graduate assistants, and decisions about “who is taught, what is taught, how it is taught, and who does the teaching” all involve “academic judgment” and “shall be made at the sole discretion of [NYU].”  Preservation of academic decision-making was so important that NYU relinquished its right to seek review of the underlying NLRB decision giving graduate assistants the right to unionize in exchange for the union’s promise to agree to a strong and broad management rights clause tied to academic decision-making.

Over the course of the contract, the union filed more than 30 grievances alleging that NYU breached the contract. Many of the grievances sought exclusive “union jurisdiction” over certain academic programs and activities, despite the union’s agreement that academic matters are the exclusive province of the University through its faculty.  Examples of the grievances include:[1]

1.   The union argued that only TAs covered by the contract may teach discussion sections in the group of liberal arts core courses (called the Morse Academic Plan or MAP), and challenged the appointment of several Columbia ABDs as adjuncts in MAP. The union’s view was that NYU did not have the right to hire candidates – even those with superior credentials – unless they were NYU graduate students. The union also argued that even graduate students ineligible for financial aid (and thus ineligible for a TA appointment under the contract) should be given preference over a more qualified candidate.

2.  In the Arts & Science unit, when an adjunct faculty member became ill in the Hebrew Department, the department hired as an adjunct a public administration PhD student in the Wagner Graduate School of Public Service with a background in Hebrew to complete the course. The union grieved the matter, arguing that the person “had to be” categorized as a teaching assistant in the bargaining unit rather than as an adjunct and pursued the case to arbitration.

3.  The Politics Department appointed three NYU law students as adjunct faculty to teach sections of a foundation course.  The union grieved the matter and took it to arbitration. In arbitration, the union argued that the appointments were invalid and should have been bargaining unit TA appointments because: (i) teaching discussion sections was “not adjunct work”; (ii) NYU could not assign the work “outside of the bargaining unit”; and (iii) the contract did not contain a provision requiring TAs to be full-time graduate students.  Although NYU won the case in arbitration, the union made the same arguments in the MAP grievance describe above (#1) and later filed a similar grievance involving the Psychology Department, in which it claimed that “Introduction to Psychology” was exclusively union work.

Finally, according to a faculty report regarding whether NYU should withdraw recognition of the union upon the expiration of the labor contract, union grievances challenged other aspects of faculty prerogative:[2]

The Committee is concerned that the United Auto Workers has filed grievances over issues that have threatened to impede the academic decision-making authority of the faculty over such issues as: the staffing of the undergraduate curriculum; the appropriate measures of academic progress of students; the optimal design of support packages for graduate students and the conditions and terms of fellowships (as opposed to graduate assistantships).  The Committee is also worried about the willingness of the United Auto Workers to take such issues to arbitration and by the nature of the arbitration process, in which an outside arbitrator, who rarely has prior experience with the environment of universities, makes decisions that are legally binding on departments and programs.  Although no case involving academic decision-making has been decided in the favor of the United Auto Workers, this result was only achieved by a combination of vigilance and good fortune, and there are no assurances that the results will be the same in the future. Had any of these cases been decided differently, the ability of faculty to staff the curriculum and to design and implement programs in accordance with their best academic judgment would have been impaired.

The readiness of the United Auto Workers to grieve issues of academic decision-making and the nature of the arbitration process leads the Committee to conclude that it is too risky to the future academic progress of NYU to have its graduate assistants represented by a union that has exhibited little sensitivity to academic values and traditions….

 

II.  Unfair Labor Practice Charges Filed by GESO Against Yale University

After many years of organizing, including two graduate student strikes, in an attempt to compel Yale to voluntarily recognize it as the graduate student union, the members of the Graduate Employees and Students Organization (GESO) voted in early December 1995 to conduct a “grade strike” at the end of that semester. Ultimately, about 200 graduate students who were either teaching their own classes or assisting faculty in teaching classes as teaching fellows (TFs) refused to submit their students’ final grades.

After the vote to conduct a grade strike but before the deadline for grades, striking TFs were repeatedly told by faculty members and administrators that their future teaching, any requested letters of professional recommendation, and perhaps their careers beyond Yale would suffer if they did not submit their grades in a timely fashion. The TFs ended the strike and submitted their grades in mid-January 1996, about two weeks after the deadline.

GESO then filed unfair labor practice charges against Yale. The charges alleged that Yale’s president, provost, two deans, and sixteen faculty members made statements that violated their right under the NLRA to engage in “concerted activities” and acts of “mutual aid or protection” and retaliated against them for exercising those rights. The NLRB’s general counsel found that some of the charges were meritorious and, in November 1996, issued a complaint alleging that Yale (through its academic officers and faculty) violated the NLRA by issuing various oral and written threats of reprisals against striking TFs and by disciplining them, removing them from teaching assignments, demoting them and subjecting them to closer supervision, and/or eliminating their classes.

The allegations that formed the basis of the complaint included:[3]

1.  Statements made in a letter to graduate students from the Dean of Yale College and Dean of the Graduate School that included: “failure to perform the tasks of evaluating student work and reporting grades in a timely fashion is a serious breach of academic responsibility [which] should be expected to bear on the evaluation of the graduate instructor’s performance as a teacher and on the assessment of his or her suitability for teaching appointments in the spring semester.”

2.  The Dean of the Graduate School wrote a letter to striking TFs that included the statement “If you have not performed your grading tasks, or it is too late to incorporate your grades, or if you fail to hand them in as requested in this letter, then your teaching assignment for the coming term, which was premised on your acceptance of the duties associated with teaching at Yale, will be withdrawn.”

3.  A professor in the Political Science Department made comments during a meeting with graduate students about “the imprudence of a graduate student work stoppage and the negative consequences that could flow from it.”

4.  Faculty members in the French Department issued a memorandum to graduate students that included the comment that “[f]ailure to perform any aspect of a graduate teaching assignment – e.g., meeting all classes, grading and returning papers, holding regular office hours, submitting final grades, etc. – would (1) be a de facto dereliction of professional duties to our students … and (2) constitute behavior unacceptable anywhere in the profession” that could negatively affect evaluations and jeopardize future teaching assignments.

5.  Statements made during a meeting with graduate students by the French Department’s director of graduate studies concerning the grade strike and the “inappropriateness of unions in the academic setting.”

6.  Statements made by French Department faculty members in a meeting with graduate students about “the inappropriateness of the union model in the academic setting, and the loss of teaching opportunities in the Spring semester.”

In Spring 1997, an NLRB administrative law judge (ALJ) presided over the case, which was tried over the course of six weeks, first in Hartford and later in a state courthouse in New Haven (to better accommodate spectators and the media). The hearing included approximately 400 exhibits and the testimony of over thirty witnesses. 

At the conclusion of the hearing, the ALJ dismissed the complaint after concluding that the grade strike was not protected activity under the NLRA because it was an unlawful partial strike (GESO had directed members to continue performing some TF functions during the strike) and because the strikers had misappropriated university property (they refused to turn over grade sheets). The ALJ also concluded that the NLRB’s general counsel failed to make a prima facie showing that the alleged threats and retaliatory acts taken by Yale’s deans and faculty members violated the NLRA. Accordingly, he dismissed the complaint in its entirety.

GESO and the NLRB’s general counsel asked the NLRB to review the administrative law judge’s decision. Ultimately, the NLRB upheld the ALJ’s ruling regarding the unlawfulness of the strike but disagreed with the ruling that the general counsel failed to make a prima facie showing regarding the unlawfulness of several of the statements (Items #3-6 above) as threats and retaliatory acts, and thus remanded the case for a supplemental hearing on those statements. Before the hearing was scheduled, in May 2000, Yale and the NLRB settled the matter and thus the hearing did not take place and the matter was concluded.

[1]   Source: Memorandum to the Community from NYU Senior Vice President Cheryl Mills and Director of Labor Relations Terrance Nolan (March 31, 2005).

[2]  Source: Recommendation From the NYU Faculty Advisory Committee on Academic Priorities (April 26, 2005) at 2.

[3]  Source: Yale University, 330 NLRB No. 28 (Case 34-CA-7347) (Nov. 29, 1999).  There also were graduate student complaints about some faculty making unlawful “pro-union” comments, but none became the subject of an NLRB-issued complaint.