After decades of campus debate, the future of the graduate student union movement at Yale now rests on a question of legal interpretation: Does a recent, highly controversial development in national labor law apply to the University?
Graduate student union Local 33 is anxiously awaiting an answer to that question. After weeks of contentious labor hearings last October, the regional office of the National Labor Relations Board has yet to reach a verdict on whether a polarizing labor board decision from 2011 allows Local 33 to hold separate union elections in nine of Yale’s academic departments.
Still, as the wait continues, legal briefs obtained by the News last month shed new light on the arguments for both sides and highlight the factors that will likely shape the NLRB’s final verdict.
As the briefs demonstrate, the legal debate between Yale and Local 33 hinges on the NLRB’s decision six years ago in the case Specialty Healthcare and Rehabilitation Center of Mobile, which allowed a small subset of nursing-home workers — a so-called “micro-unit” consisting of certified nursing assistants — to hold their own union election, excluding other employees with similar but not identical jobs.
The labor board’s decision, which overturned two decades of precedent that compelled workers to organize in “wall-to-wall” bargaining units rather than smaller subgroups, has paved the way for similarly piecemeal unionization efforts in other industries.
“It comes down to tactics. A union wants to organize an election among a group that it knows it can get a majority vote in,” said Dan Bowling, a senior lecturer and labor expert at Duke School of Law. “The goal is to get a labor contract and start getting footholds with an employer.”
In August 2016, after the NLRB ruled that graduate students at private universities have the right to unionize, Local 33 filed petitions for separate elections in 10 academic departments, a strategy based on the Specialty Healthcare ruling. Yale contested that approach, which no graduate student union has ever attempted, in labor court in Hartford, where a series of graduate students, administrators and outside experts testified during three weeks of hearings last fall. Shortly after the hearings ended, Local 33 withdrew its petition for an election in the Comparative Literature Department. The nine departments in which Local 33 is still seeking to hold elections are East Asian Languages and Literatures, English, Geology and Geophysics, History, History of Art, Mathematics, Physics, Political Science and Sociology.
William Gould, a former chairman of the NLRB, said the Yale-Local 33 case is unique in two respects: It is the first time that Specialty Healthcare and Rehabilitation Center of Mobile has been applied to academia and the only occasion that the decision has been used to argue for multiple micro-units at once.
“This is a very difficult case,” said Gould, who has reviewed the two briefs. “Both sides are represented by experienced labor law council, and the briefs reflect that. I don’t know how I would resolve it.”
After months of deliberation, NLRB Regional Director John Walsh is still in the process of reviewing both sides’ arguments to determine whether the departmental elections should proceed. It remains unclear when Walsh will announce his verdict on the nine union petitions.
In the meantime, Yale and Local 33’s post-hearing briefs — statements filed with the NLRB in October and obtained by the News through the Freedom of Information Act — offer the most detailed account to date of the opposing interpretations of Specialty Healthcare submitted to the labor board.
DETERMINING A COMMUNITY OF INTEREST
Employees hoping to hold union elections must satisfy two key requirements cited in Specialty Healthcare as well as previous decisions.
First, they must be “readily identifiable as a group” — in other words, they must have a different role than other employees based on “job classifications, departments, functions, work locations, skills or other similar factors.”
Second, all the employees in a proposed unit must share a “community of interest,” a set of common traits distinguishing them from other types of employees. Historically, the NLRB has used several criteria to determine whether employees meet that threshold: organization into an individual department, specific skills and training, unique job functions, distinct terms and conditions of employment, separate supervision and frequent contact and collaboration with other employees in the proposed unit, among other factors.
But arguably the most important aspect of Specialty Healthcare is the heavy legal burden it places on employers seeking to block an election: the requirement that they demonstrate an “overwhelming community of interest” between the proposed unit and the employees excluded from that unit. According to Bowling, as long as the employees in the proposed unit meet the “community of interest” threshold, union elections can go forward, even if the unit does not represent the best, “most appropriate” way to divide the workforce.
Moreover, in cases like the Yale-Local 33 one, the NLRB also takes into account the preferences of employees, which will count in the union’s favor, Cornell Law School professor Angela Cornell said.
“It’s always been the case that employees’ preferences were very important in deciding what the unit was going to be,” Cornell said. “It’s going to be very difficult for employers to be able to show that the unit should be much larger. It’s not impossible, but it’s going to be harder.”
Over the past few years, Specialty Healthcare has proven to be one of the most controversial decisions in the recent history of the NLRB, attacked by business lobbyists who say it could lead to an unmanageable number of small bargaining units in individual workplaces. The decision, which was supported by Democratic appointees to the NLRB, will likely come under threat once President-elect Donald Trump is inaugurated, although the process of reversing it could take years.
Still, Specialty Healthcare has already withstood multiple rounds of legal scrutiny, earning the validation of numerous U.S. circuit courts of appeal. Whatever Trump might do in the future, the decision has already made an impact across multiple professions: In 2014, the NLRB applied the logic behind Specialty Healthcare in a decision allowing cosmetic and fragrance department employees at Macy’s to form a separate bargaining unit.
Now, Local 33 is seeking to apply Specialty Healthcare to the academic sphere. In its brief, the union argued that the nine academic departments are distinct groups with their own communities of interest. In response, Yale contended that the departments are merely “arbitrary segments” of a larger unit — consisting of every graduate student in the University’s schoolwide Teaching Fellow Program — with one overwhelming community of interest.
Although Yale also mounted historical and logistical objections to Local 33’s approach, both briefs focused primarily on the question of whether each of the nine academic departments possesses a distinct community of interest. Below is a quick run-down of the legal arguments that Yale and Local 33 used to address that crucial question.
Department Organization
Local 33: There are clear dividing lines between each department that justify forming separate bargaining units. “The employer’s highest governing body, the Yale Corporation, has designated each petitioned-for department as an operational subdivision of Yale University,” the brief states.
Yale: In her testimony, Faculty of Arts and Sciences Dean Tamar Gendler argued that “departments were arbitrary ways of dividing a multidimensional intellectual space” characterized by constant overlap between different fields of study. Moreover, many graduate students teach in multiple departments, or pursue joint degrees.
Employee Supervision
Local 33: Graduate student teachers are directly supervised by departmental administrators, including the chair and the director of graduate studies, who often adjudicate student complaints.
Yale: “There is no supervisory relationship” between graduate student teachers and department administrators. On the contrary, graduate student teachers are supervised by the professors in charge of the courses they teach.
Skills and Qualifications
Local 33: Graduate student teachers in each department have distinct skill sets. A history student would not be qualified to teach in the English Department, and vice versa.
Yale: All graduate student teachers possess the same “fundamental skills,” such as the ability to convey complex information to undergraduates, regardless of their department.
Job Functions
Local 33: Graduate student teachers in each of the nine departments have fundamentally different duties, depending on the type of subject matter they teach, which varies by department. Moreover, grading obligations differ significantly by department.
Yale: The duties of graduate student teachers in the nine departments are largely the same: leading sections, holding office hours, grading homework and exams. “Although their specific duties may vary, whatever differences exist are course-driven,” the brief states. “There are no measurable distinctions at the department level.”
Terms and Conditions
Local 33: Each department decides how many hours individual graduate student teachers work and how much they are paid — either $4,000 or $8,000 per semester. Additionally, department administrators decide which courses require graduate student teachers and the qualifications those teachers should have.
Yale: The Graduate School of Arts and Sciences sets schoolwide policies for compensation, benefits and hours that apply to all departments in roughly the same way.
Contact and Collaboration
Local 33: Graduate student teaching is a collaborative endeavor. Student teachers assigned to the same course meet regularly, both for formal sit-downs with the professor and informal discussions with their peers.
Yale: In contrast to the employees at Macy’s, graduate student teachers perform their duties independently rather than side by side. “Being a teaching fellow is a largely solitary pursuit,” the brief states. “Thus, contact among teaching fellows within any of the nine departments is sporadic and casual.”
“BLIND TRANSPLANTING OF PRINCIPLES”
Beyond the specifics of graduate student life at Yale, the legal dispute between the University and Local 33 also touches on a decadeslong debate: Should labor laws designed for one industry extend to another?
According to Bowling, the National Labor Relations Act of 1935 — a product of Roosevelt’s New Deal that remains the primary legal foundation for unionization in the United States — was designed to protect workers in industrial settings. But over the years, the NLRB has extended the reach of the law to cover workers in a variety of professional environments. The recent efforts of Local 33, and the longer history of graduate student unionization, are part of that broader trend.
In 1980, the Supreme Court prevented faculty at Yeshiva University from forming a union on the grounds that the professors had too much managerial authority to be considered workers. The court’s decision in National Labor Relations Board v. Yeshiva University warns that fundamental differences between industrial and academic institutions “preclude the blind transplanting of principles developed in one arena into another.”
In its brief, Yale highlights a similar set of issues, quoting the court’s prior warning about the “blind transplanting of principles.” By contrast, one of the central arguments of the Local 33 brief — which draws numerous parallels between academic departments and work divisions in the industrial and other industries — is that the logic of Specialty Healthcare is transferable to Yale.
Professor Cornell said that arguments like Yale’s are common in labor disputes across many different industries, where employers are typically represented by the same small set of law firms.
“[The argument] is made in universities, it’s made in a range of other contexts,” she said. “The arguments are frequently recycled. They don’t have many arguments to make, and that’s one of them, though of course they might pair it to the university a bit.”
The New York firm representing Yale, Proskauer Rose, is a major player in anti-union litigation: It has represented several major American sports leagues in collective bargaining disputes. By contrast, McCracken, Stemerman & Holsberry — the firm working for Local 33 — has represented unions in the construction industry. Yale and Local 33 are not the only observers with a stake in the NLRB’s final decision. The case could have far-reaching effects, potentially emboldening graduate student unions at other universities to adopt their own piecemeal election strategies.
Samuel Estreicher, a law professor at New York University, said the NLRB will likely frame the decision in a way that applies its basic approach to all research universities, not just to Yale.
“Whatever approach you take has to make sense for major research universities across the board,” Estreicher said. “You don’t want another 18 cases asking if the ruling at Yale applies to Syracuse. You want to have a good understanding of how research universities tick and how these departments tick.”
According to Bowling, the high stakes of the case might explain why the NLRB has yet to deliver a decision after months of deliberation.
“Regional directors in these very cutting-edge areas of labor law are being thoughtful and careful about their decisions,” Bowling said. “They know they’re going to become the subject of further litigation.”