GASO: NLRB

NLRB Summary of GESO

The following is an attempt to objectively explain the status of the GESO unionization effort and its legal standing, past and present. Chronologically, the story starts with the Feb. 1992 grade strike. However, there are many factors which figure into the equation, and attempt is here made to piece them together so as to inform the graduate student body in a comprehensible yet concise manner.

Please Note -- a more complete source of information on this matter can be found at the website of the Yale Office of Public Affairs

Unionization in Normal Circumstances
The NLRB and the NLRA
Summary of long-standing pertinent NLRB decisions
GESO's Strikes
So where does that leave things?
But Other Schools have Unions
Endnotes

Unionization in Normal Circumstances

In industry settings (where workers are clearly defined as employees), petition can be made to the NLRB when 30% of the putative bargaining unit have signed cards. Cards are collected, counted, and verified. Generally speaking the potential organization won't petition for recognition as such until they know they can win an election by a simple majority vote. An employer may recognize the bargaining unit with no contest if presented with enough cards, but it can also require an election. It would appear that there's no firm protocol, and the NLRB which oversees such matters on a case by case basis.

The NLRB and the NLRA

The National Labor Relations Board is a federal agency of the executive branch which interprets and enforces the National Labor Relations Act of 1935. The National office for the NLRB, the site to which appeals and difficult problems are submitted and refered, is in Washington D.C. The NLRB also has regional offices that handle the routine issues. Each regional office has an adjunct officer, the Regional Director, who reviews and parses the incoming matters to the regional office. The Regional Director does not have the authority to speak for the NLRB.

Recent reversal of long-standing NLRB decision

The NLRB's position for over 25 years is that graduate and professional students, although they may perform "some faculty-related functions," are "primarily students"^1a, and "...the mutual interests of the services being rendered are predominately academic rather than economic in nature. Such interests are completely foreign to the normal employment relationship and ... are not readily adaptable to the collective bargaining process."^1c This ruling was manifest in several cases in the 1970s^1a-e.

The NLRB reversed this decision on Oct 31, 2000 in a case where NYU graduate students, with the logistical help of the UAW, pressed for union recognition under the NLRA. The Board believed that "It is undisputed that graduate assistants are not within any category of workers that is excluded from the definition of `employee' ... ample evidence exists to find that graduate assistants plainly and literally fall within the meaning of `employee'.''

GESO's Strikes, Including the Grade Strike of December, 1995 and the Subsequent Hearing

GESO tried unsuccessfully to be recognized as the representative of TAs by striking (refusing to teach classes) for three days in February of 1992. In October, 1994, GESO requested an election to be conducted among teaching fellows in the Humanities and Social Sciences. The request was denied, on the simple principle that "[T]he request that some of our graduate students be polled to determine whether they wish to be represented by an exclusive bargaining agent is based on the flawed premise that the primary relationship between the University and the graduate students is that of employer to employee."^3a In April of 1995, GESO struck again for a week. The League of Women Voters conducted a vote during that week among all students in Humanities and Social Sciences (not just TAs), which achieved a pro-representation majority in those divisions. Yale again refused to recognize GESO, as "relationships between teachers and students who will become professional colleagues could be profoundly damaged by the insertion of formal collective bargaining into the process of graduate education"^3b

GESO voted strategically on December 7, 1995 to go on "grade strike" with the following:

Motion: We call upon Yale Administration to sit down with our elected negotiating committee and to commit to signing a written and binding agreement. If I am a TA or PTAI, I will withhold my grades until the Yale Administration does so. If I am neither TA nor PTAI, I will not do the work of any striking TA or PTAI, nor will I take the job of any TA of PTAI who is denied work because he or she is striking

The faculty reached a consensus, which agreed with the administration's position in late December, 1995 that Yale wouldn't tolerate one group of students holding another group of students hostage, and that striking students would not be eligible to teach in the Spring semester if they do not fulfill their obligation of reporting grades for the fall semester. Formal notification to this effect was sent to all involved parties by Dean Appelquist. The usual January 2 (1996) deadline for reporting grades was extended first to January 9th, then to January 15th, together with repeated encouragement that students fulfill their obligation On January 14 GESO capitulated, and the approximately 100 participating TAs did turn in grades by January 15th. However GESO, with the help of HERE I.U. (Hotel Employees and Restaurant Employees International Union) filed complaint against Yale for "engaging in unfair labor practices as set forth in the National Labor Relations Act"^2,3 -- claiming that the University interfered with the rightful organizing effort of workers.

The regional director in Hartford reviewed the initial claim for about a year, and sent it to the national NLRB office in Washington D.C. for further consideration. Word was sent back that GESO should file a complaint to the NLRB for formal consideration.

In Spring of 97, the trial was held (first in Hartford, then moved to New Haven for convenience). Yale Counsel filed a motion¹ soon after the start of the trial, stating that the 25-year precedent -- upheld on several occasions -- interpreted the NLRA to apply only to employees in conventional labor situations, that the roles of graduate students defines them primarily as students, and that "collective-bargaining between students and teachers was an 'anathema' and the 'very antithesis'^1e of the educational process."¹ In short, Yale argued, the NLRA does not apply.

The judge denied the motion, but invited Yale to resubmit the motion later in the hearing. Yale did not resubmit, but instead waited until the end, when it submitted a different statement. Yale argued that, even if students were to be considered employees, the "strike" was partial and it interfered with the work of others critical to the activity of the university, and therefore unprotected under the NLRA. The judge concurred, geared his written decision entirely around this fact, and dismissed the case to avoid a protracted end to the inevitable.^{3,4
5}

Of course not happy with the decision, GESO appealed the case to the NLRB in Washington D.C. That appeal was settled in May, 2000. In the settlement, GESO dropped all unfair labor practice charges (under protest), and Yale agreed to prominently post affirmation of its committment to protect freedom of expression. The matter of whether graduate students may be classed as ``employees'' was explicitly left open to debate.

So ... ?

GESO is forever on a "membership card drive". Each December when the vote to ``release the new membership cards,'' they are effectively launching the new year's effort to gain enough support (signatures) to petition the NLRB for union recognition.

As of October, 2000, GESO no longer faces NLRB precedent which denied students ``employee'' status. While hearings will still likely be held to determine the putative bargaining unit, the way is mostly clear for GESO to gain legal labor union recognition -- their only remaining obstacle is lack of majority support from Yale graduate students. Once GESO feels that they can win an election, the signed union cards will be delivered to the NLRB to petition their assistance. Such an election will be decided by a simple majority of those voting. Any subsequent election for decertification of a labor union can be held only in the 30 days between 60 and 90 days⁶ before a contract negotiation, and would be decided by a majority of those eligible to vote. Note the relative ease and difficulty, respectively, to certify and decertify a labor union.

But Other Schools have Unions

Yes, there are some other schools who have graduate student unions. There are about ten states in which state labor laws permit organization of students at public universities. However, each state is different -- there is no consensus as to how different graduate student roles are classified and can be represented, and teaching can be very different. A perusal of state-school graduate labor union webpages reveals that these unions are at least as much a state-legislature lobbying outfit as much as a labor union per se.

New York University is the only private university where national labor unions have succeeded in organizing graduate students.

1. Yale's Motion to Dismiss Complaint Case No. 34-CA-7347
and cited therein:

a. Adelpi University 195 NLRB 639 (1972)
b. Leland Stanford Junior University 214 NLRB 621 (1974)
c. Cedars-Sianai Medical Center 223 NLRB 251 (1976) & 224 NLRB 626 (1976)
d. Clark County Mental Health Center 225 NLRB 780 (1976)
e. St. Clare's Hospital and Health Center 223 NLRB (1976) & 229 NLRB 1000,1002 (1977)
2. Complaint and Notice of Hearing Case No. 34-CA-7347

3. Decision and Order of Michael O. Miller, Administrative Law Judge for Case No. 34-CA-7347
and cited therein: a. President Levin, quoted in response to the rejection of the 1994 request for election.
b. President Levin, quoted in response to the rejection of the 1995 vote.

4. Note -- GESO issued news releases after the case, claiming that Judge Miller's decision upheld the NLRB General Counsel's decision that graduate teachers are "employees." It should be noted that the General Counsel is only an attorney, and to call any of his statements or opinions "a decision" is deceptive. The General Counsel does not speak for the NLRB.

While the real Decision of Judge Miller frequently draws upon precedents involving real employees to qualify many aspects of this very different situation, it should be noted after careful reading, that he issues no such decision on the issue of employee status one way or the other. In fact: (Decision page 2, footnotes 4 and 5)

The Charging Party (GESO et al.) raised a novel issue, contending that I must resolve the issue of the employee status of teaching fellows, as a jurisdictional matter, prior to any resolution of the merits, citing [precedents]. Analysis of this issue requires it's rejection [emphasis supplied].

"The question of GESO's labor organization status is bound up in the issue of whether the TAs and PTAIs are statutory employees. That issue will not be addressed herein [emphasis supplied]. For the purpose of this decision, I will assume, arguendo, that they are employees and that GESO is a labor organization within the ambit of Section 2(5) of the [NLR] Act."

arguendo means "for the sake of argument -- assuming that the allegations are true." i.e. Judges Miller's decision was not contingent upon the classification of graduate student as employees versus students. That matter, for the sake of deciding upon the "unfair labor practice" charge, was not relevant. No court support, explicit nor implicit, is to be construed for describing graduate students as employees.

5. Note -- Decisions were also included regarding three secondary charges. (1) To Yale's counter-charge that striking graduate students had acted in an insubordinate manner, Judge Miller found cited precedents unapplicable to this case, and found it inappropriate to apply the concept of insubordination to strike activity, even when unprotected. (2) GESO charged that Yale's threats were not directed solely to the unprotected activity, but instead constituted "overbroad threats." Judge Miller found this unsubstantiated. (3) A technicality, which would have turned the "unprotected" strike into a "protected" strike if true, was the claim that Yale condoned the strike by extending the deadline for submission of grades. That there was no apparent promise to fully forgive the striking students meant Yale did not condone the strike.

6. NLRB Publication The NLRB and You