If History is Guide, Grad Student Unionization Path May Be Rocky Despite Ruling

Even after last week’s landmark National Labor Relations Board ruling that would force Harvard to legally recognize an elected graduate student union, the path forward for universities is far from clear.

The NLRB overturned precedent in ruling that student assistants at private universities are considered employees, and Harvard has invited members of the Harvard Graduate Students Union-United Auto Workers to discuss next steps in light of the decision, according to Graduate School of Arts and Sciences Dean Xiao-Li Meng.

But for graduate students involved in the unionization effort, the fight is not over. Graduate students weathered a period in limbo after the Board first recognized graduate students as employees in 2000, a decision effectively overturned in 2004. That rocky history shows the NLRB's recent decision may not guarantee a smooth path to unionization.

The NLRB visited the issue of unionization in its New York University decision in 2000, granting students at private universities the right to collectively bargain. At that time, graduate students at Harvard were not actively seeking a union, but other campuses saw a lot more activity.

Student movements at several Ivy League schools moved forward with plans to hold a union election following the NYU decision. After Brown administrators refused to hold an election, the NLRB scheduled a hearing and ultimately ruled students had a right to hold the election. Ninety percent of eligible graduate students cast their vote in 2001. But because Brown’s request for review was still pending at the time of the election, the ballots were impounded.

William B. Gould, a Stanford Law professor who was chairman of the NLRB from 1994 to 1998, said it is important to have elections right away, especially on college campuses.

“If you wait until that issue is resolved, those employees—particularly in the university setting where they go on and graduate and go on to other things—they may never be able to express their position. Because it will take a number of years to have the matter resolved,” Gould said.

By the time the NLRB decided the Brown case in 2004—which allowed universities to ban unions among graduate students—President George W. Bush’s Republican appointees had swung the NLRB rightward, and reversed its NYU decision. The ballots were left uncounted at Brown, as well as at Columbia and the University of Pennsylvania.

Labor law expert David Rosenfeld, a lecturer at the University of California, Berkeley, said it will be harder for universities to take a similar avenue, given new union election rules announced in 2015. There is no longer a 25-day period between submitting a petition and holding an election, any post-election challenges are waived, and objections must now be made within seven days of an election.

“It doesn’t mean [the universities] can’t ultimately delay, but it’s going to make it more difficult,” Rosenfeld said.

It is unclear how Harvard will act going forward. The University reaffirmed its opposition to unionization after the decision was released, and again in an email from Meng, the GSAS dean. If an election is held and HGSU-UAW wins, the University could immediately agree to sit down with organizers and negotiate.

But Gould said he expects private universities to challenge the decision. The fact that Harvard has now agreed to sit down with union organizers did not sway his opinion.

“They will emphasize the inhospitable posture of [the Supreme Court] toward bargains in higher education and the chaos that may ensue from the Yale petition today for ten different units,” Gould wrote in an email, referring to the Yale union effort’s move to file ten separate petitions by department. Graduate workers in each of those departments will vote to join a single union, an approach Gould called “unusual.” A recent revision of NLRB rules allowing for “microunits” of workers inspired the move, and it theoretically makes it easier for a union to win an election.

In the event of a challenge from universities, Gould said the NLRB would litigate the matter and raise it before the appellate courts and potentially the Supreme Court.

“I think we’re going to hear a lot more about this in the coming months,” Gould said. “The Board is in for a real fight.”

Despite the lengthy road ahead, John T. Trumpbour, research director of the Labor and Worklife Program at Harvard Law School, said he believes the students can win their battle.

“The Harvard graduate students right now are in a much better position to achieve victory for unions than was the case then,” Trumpbour said. “People right now are so much more organized and energized.”

In the same turn of events that happened in the early 2000s, the upcoming presidential election could impact the Board’s decision. Trumpbour said a Donald Trump administration would be in the University’s best interest, with the idea that he would pack the NLRB with Republican appointees who would reverse the decision.

“They’re kind of in a tough position because they are very afraid of Trump getting elected for a variety of reasons, but on this particular issue they would much more be in need of a Republican president to get the Board’s composition to change,” Trumpbour said.