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By Michael Rose
Oct. 19 — Unions seeking to represent graduate research and teaching assistants are using different approaches to organizing, and a union looking to organize assistants by department at one university is likely using a smart strategy, observers told Bloomberg BNA.
In Columbia University, the National Labor Relations Board in late August overturned a 12-year-old precedent and ruled that graduate research and teaching assistants at private universities could be considered employees under federal labor law and are able to form unions. Less than a week after the decision, UNITE HERE filed 10 separate petitions for graduate assistants in 10 academic departments at Yale University, marking a departure from the approach being used at Columbia. It remains to be seen whether assistants at other U.S. universities will try that approach.
At Columbia, the United Auto Workers filed a petition to represent some 3,000 graduate assistants in all departments and schools at the university, and the NLRB is in the midst of determining the exact contours of the bargaining unit before they can vote on union representation.
Union representatives at Yale previously told Bloomberg BNA the 10 petitions are for departments where the union has more support and that the filings were intended to show the administration that union representation could work on a smaller scale before expanding it to more departments.
“The petitioning union has a lot of leeway and discretion in deciding what bargaining unit they want to petition for,” Risa Lieberwitz, a professor at Cornell University’s School of Industrial and Labor Relations who favors bargaining rights for graduate assistants, told Bloomberg BNA. “The question is, is this an appropriate bargaining unit?”
Under its 2011 decision in Specialty Healthcare and Rehabilitation Center of Mobile, the NLRB has wide leeway to determine appropriate bargaining units as long as the workers in each unit share an “overwhelming community of interest.”
At Yale, “the union has a lot going in their favor” for the board to decide that 10 bargaining units are appropriate, despite the fact that the university’s administration has announced its opposition to the unit’s approach, Lieberwitz said.
That’s because the NLRB is tasked only with determining whether a given bargaining unit is appropriate, and not whether the unit is the most appropriate, Lieberwitz said.
Yale’s petitions currently are before an NLRB regional director, who will decide whether they’re for appropriate bargaining units, and the employer has opposed the petitions.
Union representatives at Yale previously told Bloomberg BNA that they were looking to show university administrators that unionization could work on a smaller scale before seeking to implement it universitywide. The university, meanwhile, has said it will oppose the union’s approach.
William A. Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College, CUNY, told Bloomberg BNA that “it would not surprise me that Yale may seek to get review by the NLRB prior to the conduct of 10 elections.” Given the fact that the university has opposed the petitions, it was likely that it would seek to continue litigating the issue, Herbert said.
As for graduate assistants at other universities, it’s still “really early” to see how unions will approach the filing of petitions, he said. As yet another example of an organizing model, Herbert pointed to the graduate assistants’ union at Cornell University, which could form the basis of organizing efforts at more schools.
The union at Cornell, which is affiliated with the American Federation of Teachers, reached an agreement with university administrators before the Columbia decision came out, specifying a process for union organizing. The agreement, announced June 1, requires a representation election overseen by the American Arbitration Association if the union shows that 30 percent of employees in the proposed bargaining unit have signed union authorization cards.
The UAW and Harvard University also announced Oct. 18 that they had hammered out an election agreement specifying the process for an NLRB-supervised election, representing another approach to organizing that reflected an agreement on how to proceed rather than a purely adversarial relationship.
Meanwhile, management attorneys agreed with Lieberwitz that Yale’s approach likely would work.
“There is, I think, some decent probability of success in front of the current board with a set of petitions like this under the Specialty Healthcare decision,” Anna Wermuth, an attorney at Cozen O’Connor in Chicago who represents various universities in that area, told Bloomberg BNA.
Wermuth pointed specifically to a June 2016 decision from the U.S. Court of Appeals for the Fifth Circuit involving retailer Macy’s Inc. That closely watched decision upheld the Specialty Healthcare standard in a retail setting, she said.
“The department-by-department approach is not unheard of now, and it has been approved by the labor board and at least by the 5th Circuit,” Wermuth said. Universities are “obviously a different setting, and I think what really ultimately it will come down to in an academic setting is how the institution is organized.”
Universities are often “decentralized in their decision-making,” Wermuth said, with many decisions pertaining to academics coming from a “localized level” rather than a high-level administrator.
As a result, “that sort of decentralization will lend itself to this type of organizing,” Wermuth said. She said she would advise her university clients to “take a very hard look” at how community of interest standards would apply in university settings.
Wermuth did see one argument that could sway the board to rule in Yale’s favor and find that separate bargaining units weren’t appropriate. Under Section 9(c)(5) of the NLRA, the extent to which employees have organized can’t be a determining factor in whether a bargaining unit is appropriate, she said.
Because the union has acknowledged that the 10 departments it’s petitioning for have strong union support, this could provide an argument for management to argue against them under that section of the law, Wermuth said.
Chris Johlie, an attorney at Franczek Radelet in Chicago who also advises university clients, told Bloomberg BNA that he would urge institutions to consider carefully how to respond to one or more union petitions for graduate assistants.
“You really have to sit down and analyze what does this do to our organization,” Johlie said. “Does it make sense to have 10 separate units, or does it not make sense?” Given the option, most employers probably would prefer to have only one unit.
“Each employer is going to have to make its own decision based on its own philosophical views on union organizing, what this does to the organization’s structure,” and other factors, he said.
Johlie added that even if the board eventually finds that the 10 bargaining units at Yale are appropriate, it seems likely that the contracts for those units would be bargained together. Still, he said, given the Specialty Healthcare standard and the current makeup of the board, the union at Yale likely would succeed in getting 10 separate elections.
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