Parrying the Final Blow

THE LENGTHY BATTLE of District 65 of the Distributive Workers of America to hold a union-forming election in the Medical Area should soon be over. Already, much of the dust kicked up during the year-long dispute has settled; as the rhetoric and mutual recriminations die down, both sides patiently await the National Labor Relations Board's initial decision on whether it will accept the case on appeal. Union officials are privately pessimistic about their chances to obtain even a hearing from the Washington board. Despite what they claim is overwhelming sentiment in favor of a Med area union on the part of area employees, and despite a NLRB ruling on a case involving clerical and technical workers at Columbia University's off-campus research facilities--which seems in many respects to contradict the January ruling on the District 65 case by NLRB regional director Joseph Fuchs--organizers feel the chances that the Washington board will accept the case are increasingly dim. Harvard, they say, will never lose before the NLRB: its influence is too great; its statements and opinions are regarded as beyond reproach.

It is interesting to consider the factors which contribute to the union's convenient if somewhat simplistic analysis. District 65 of the DWA has been organizing the Med area since October, 1974, and it now claims as members the majority of nearly 800 clerical and technical employees in that sector. The District 65 petition to hold a union-forming election in the Med area, opposed from the outset by the University, was either tossed around like a hot potato or otherwise ignored for nearly a year by Fuchs and by the Washington Board. Washington wouldn't hear the case--since 1961, it has left the determination of appropriate bargaining units up to its regional directors--and sent it back to Fuchs on two separate occasions. It became increasingly obvious to both the University and the union that Fuchs was unable to decide the case properly, and they joined him in his second unsuccessful request to have Washington accept the case.

THE WASHINGTON board now says it wanted to avoid "duplication of effort" in the District 65 case, and hence it ignored Fuchs's repeated statements that due to the "unprecedented" nature of the dispute, the case merited consideration by the board in Washington. What Washington failed to acknowledge however, was that it was already considering the Columbia case when it turned down the joint request for referral.

So when both Fuchs and Washington rendered their decisions on the same day in January, and when those decisions were in opposition, the union was justifiably ired, and immediately appealed again to Washington. Harvard filed an opposition brief, and the battle was resumed, but this time by long-distance.

Med area District 65 has by now amply demonstrated that it no longer is a fledging union with a purely self-serving axe to grind. Its battle is now seen by many workers in heroic dimension--pitted against an increasingly Goliath-like University, District 65 is regarded as something of a potential David.

But Harvard may not go down as easily as the biblical giant. While Medical area workers demonstrate in the freezing cold outside Mass hall--"We're a separate unit, so let's get to it!"--Daniel Steiner, the University's general counsel, sits inside coordinating Harvard's predictably airtight legal defense. As workmen paste up a billboard near the Medical Area calling on President Bok to relent, Thomas L.P. O'Donnell, a Ropes and Gray labor lawyer whom Ed Powers, director of employee relations, calls "one of the best in the business" is drafting briefs that will certainly give District 65 a run for its money.

Yet Harvard, contrary to union rhetoric, exerts no undue influence on the NLRB, or at least not directly. George Leet, a spokesman for the Washington board, called the notion "ridiculous;" Fuchs, Powers, and even union attorneys agreed.

However, to avoid embarrassment in its public disputes with workers, the University takes only those positions which it feels sure will prevail. Harvard is too smart, and, for that matter, too image-conscious, to be caught in a public forum with its legal pants down. As Powers explains, "We carefully examine our legal position before we take it; we generally can accurately predict what will happen in most cases."

But if Harvard doesn't "own" the NLRB, as the union is wont to charge, it does engage in behavior which would rankle even the most ordinarily unflappable organizer. Harvard's research in the District 65 case was apparently so good that it saved Fuchs's secretaries countless trips to the archives--Fuchs simply decided to use information provided in Harvard briefs in his decision to the near-complete exclusion of union testimony. "If they say it, it's got to be right," complains Leslie Sullivan, District 65's Med Area organizer.

Harvard's duplicity in the Med Area was amply proven by its personnel-office juggling back in '72. On a tip from Ropes and Gray, the University changed the structure of the Med area personnel department, ostensibly for administrative reasons but most probably to foil a potential unionizing drive. Powers now states unequivocally that the Med Area personnel office is simply a branch of the main University personnel department which he helps administer; the union bitterly remembers that it wasn't always that way.

POWERS SAYS the University is pursuing a valuable institutional objective by attempting to force clerical and technical employees in the Med area to seek membership in a larger, university-wide bargaining unit. "If we don't achieve central unionization under a centralized personnel policy," he explains, "then we won't be able to avoid deficits, or to operate at all effectively."

Harvard, it seems, traditionally fostered a reassuring self-image as a worker-oriented, paternalistic employer; when a dwindling endowment and fiscal stress reared their ugly heads, however, the University quickly changed its tune. Now it speaks of "administrative convenience."

And yet the University may have a point. There is little doubt that scattershot unionization has problems may in fact have seemed so great to Columbia that university officials felt somehow put upon to influence the balloting in the NLRB-authorized election against District 65 a few weeks ago. That election is currently being contested. Partial unionization is attendant with innumerable problems which are all-too common in other sectors of the economy; perhaps most fearsome among them is that of leapfrogging wage settlements. If employees in similar job classifications are paid different wages simply because they are represented by different unions, then an inherent upward instability is introduced into the bargaining process. When one wage settlement is reached, it is bound to be duplicated, if not exceeded, elsewhere, and equal wages become an created serious financial woes for Columbia; the unattainable ideal. Skyrocketing wages and multiple settlements would also mean skyrocketing tuition, and a proliferation of administrative bargaining bureaucracy.

So what can the union hope for? It is obviously in a considerably more advanced stage of organization than its "University-wide" counterpart, the Harvard Employees' Organizing Committee (HEOC), and to deprive already-organized workers of their right to collective bargaining seems patently unfair. And yet "extent of organization" ceased to be a criterion for unionization in 1947, with the passage of the Taft-Hartley Amendment. Previously, the Massachusetts state labor board would award union status to different stores in a department store chain and to different floors in factories, simply on the basis of the extent to which they were already organized. Now, however, the NLRB is bound by only two ambiguous and often conflicting general criteria: it must attempt to increase the bargaining power of workers (thus favoring large bargaining units), while it also seeks to guarantee the worker's right to free organization (which would tend to favor small units). And the Board has shown consistently that in cases where the two objectives conflict, it favors creating larger units.

The board has wide discretion in determining appropriate bargaining units and need not consistently apply the same specific standards to all cases. Consequently, the claim by District 65 that the Washington Board established a "precedent" in the Columbia case can be pretty well shrugged off by the University and the board itself.

The criteria applied by Fuchs in his regional ruling stand in sharp contrast to the criteria applied by the Washington board in the Columbia case. Geographical separateness, palmed off by Fuchs as irrelevant, was one factor which he acknowledged might have weighed in the union's favor. Extra-university funding sources and separate day-to-day direction of operation were viewed as key factors in the Washington board's decision. The Harvard Medical area and those Columbia research facilities granted unit status seem to share these factors in common, despite vehement denials from Harvard, and even a statement by Powers that the Columbia decision is so different from the Fuchs decision that it in fact strengthens the University's position. Fuchs, too, denies the relevance of these criteria, and instead bases his decision on the centrality of the University's personnel policy. But the Columbia decision was rendered in full view of a Columbia personnel policy similar to Harvard's.

No one can argue that the Medical Area, which contains three Harvard graduate facilities, and thus three independent deans, is administered on a day-to-day basis by Cambridge.

All of which perhaps proves that it is a risky business to attempt to predict the behavior of the NLRB. One can only look forward to the Board's decision with interest, keeping in mind the words of Leet: "It is the job of the National Board to make sure that a coherent overall policy is followed, and that case precedent is followed to the extent that the Board sees fit." If the Board sees fit to ignore precedent in this case, the enemies of a Med area union may in fact have found an unwitting ally in the halls of the National Labor Relations Board.