David Yaffe-Bellany

Two weeks after graduate students in six departments voted to unionize, Yale is weighing its legal options in the wake of a stinging defeat at the polls.

On Tuesday, Yale and Local 33 submitted paperwork to the National Labor Relations Board outlining their positions on the challenged ballots that have delayed a final count in two of the nine departments that voted on Feb. 23, according to an NLRB spokesman.

But the deadline to file procedural objections to the conduct of the Local 33 elections — based on issues like voter coercion, rather than the underlying legal framework of the unionization effort — passed a week ago without Yale submitting any complaints to the NLRB. The Math, Sociology, History, History of Art, English and Geology and Geophysics departments voted to join Local 33, while the Physics Department voted against unionization.

The voting results in Political Science and East Asian Languages and Literatures still hang in the balance, as the NLRB decides whether to count ballots cast by master’s and professional students teaching in those departments. In the coming days, NLRB Regional Director John Walsh will evaluate Yale and Local 33’s positions on the eligibility issue, and either call a hearing or simply announce his verdict. An initial vote count shows Local 33 leading in both elections.

Over the past two weeks, University President Peter Salovey has remained mostly silent about Local 33, as Yale’s legal team, working alongside the historically anti-labor law firm Proskauer Rose, plans its next step in the nine-monthlong legal battle. But in a recent interview, Salovey expressed concerns about Local 33’s departmental election strategy and said Yale was evaluating a series of potential options.

“I’m troubled by how few students from among the entire graduate student population were involved in an extremely important decision about the nature of the relationship between graduate students and the University,” Salovey told the News last week. “And so at the moment, we’re just looking at our options, and we’ll have something to say about that in due course.”

As Local 33 begins to plan its bargaining strategy, Yale has the option to file a second appeal challenging Walsh’s Jan. 24 decision that allowed the union to hold departmental elections.

If Yale chooses to file a second “request for review,” it would have to take a different approach than the University’s first unsuccessful appeal in February, which challenged the legal basis of Local 33’s departmental election strategy. The University could argue that the regional director was wrong to conclude that graduate students at Yale qualify as employees under the NLRB’s decision last August giving students at Columbia University the right to unionize.

Local 33 Chair Aaron Greenberg GRD ’18 did not respond to questions about Yale’s potential legal plans. But in a statement to the News late last month, Greenberg said Local 33 is already having “conversations department-by-department about our priorities for our first contracts.”

A second request for review from Yale would continue the University’s pattern of opposing Local 33 at every stage of the legal process. After the Columbia decision in August, Local 33 filed for departmental union elections — an unprecedented strategy that the University immediately challenged in labor court. When the regional director ruled in favor of the union, Yale appealed that decision to the full labor board in Washington seeking to block the elections. But the NLRB turned down that appeal, and Local 33 moved forward with the vote.

It is difficult to predict how the University might go about arguing that Yale graduate students do not qualify as workers under the Columbia decision, which has served as the legal basis for recent schoolwide union elections at Harvard University and Duke University.

But in her testimony at the labor hearings last September, Assistant Dean Pamela Schirmeister argued that Yale students are fundamentally different from their counterparts at Columbia because Yale does not have a core curriculum, giving teaching fellows “a better range of opportunities.”

At the time, Yale Law School professor Michael Wishnie ’87 LAW ’93 dismissed that argument as “silly,” and said he doubted it would sway the NLRB.

“Neither the NLRB’s statutory interpretation nor its application of that interpretation to the facts of the Columbia case turned on this detail,” he told the News in September.

Still, according to Duke Law School professor Dan Bowling, it would not be a surprise if Yale mounted further resistance even after the six successful Local 33 elections.

“If they appeal, that is because Yale is preparing to litigate the eligibility issue as far as they need to before bargaining, which is a process that is available to them,” said Bowling, a labor expert. “Given the controversial board decision in question, this makes eminent sense from their point of view.”

The NLRB’s Columbia decision is one of several Obama-era rulings that could be threatened once President Donald Trump makes his own appointments to the labor board. On the day of the Local 33 elections, graduate students standing outside the Dwight Hall polling location criticized Yale for “lining up with Trump and Republicans in opposition to workers’ rights.”

Local 33 was previously known as the Graduate Employees and Students Organization.