Courtesy of Scott Olsen

The decision last month by the National Labor Relations Board to order union elections in nine of Yale’s academic departments put one long-running legal dispute to rest — but it may also have paved the way for another.

In the decision, NLRB Regional Director John Walsh did not clarify whether masters and professional students in the nine departments — a group that will be eligible to vote in six of the nine departmental elections — will have their votes counted, setting up a potential eligibility dispute much like the one that has prolonged the ongoing union election process at Harvard.

“We know from situations at other universities that determining who is eligible to vote in these kinds of elections can be quite conflictual,” University President Peter Salovey told the News last week. “It is not a straightforward question.”

Only students who are currently teaching in the nine departments — including Ph.D. students based in those departments, Ph.D. students based in other departments and masters and professional students — will be allowed to vote in the departmental elections this spring, although the exact dates have not been announced. But according to the NLRB decision, the master’s and professional students will vote under challenge, meaning that their eligibility may not be determined until after the elections.

According to Graduate School Associate Dean Pamela Schirmeister, six of the nine departments will have non-Ph.D. voters, with the highest concentrations in East Asian Languages and Literatures and Political Science.

“We’re still talking about 20 percent of the voters who are not Ph.D. students in any department, and a higher percentage who are not Ph.D. students in the voting departments,” Schirmeister said.

Stanford law professor and former NLRB Chairman William Gould said the NLRB’s Local 33 ruling did not resolve the eligibility of masters and professional students because doing so would be time-consuming and might delay the elections.

“What the board will often do is once the vote comes in, then they will see what the margin of victory or defeat for the union is, and whether the challenges would affect that outcome,” Gould said.

If the number of challenged ballots proved greater than the margin deciding one of the elections, the NLRB would have to determine whether each individual master’s and professional student was eligible to vote, he said.

And as the election process at Harvard has demonstrated, high-stakes disputes over voter eligibility can drag on for months.

In November, the Harvard Graduate Student Union-United Auto Workers became the first graduate student union to hold an election since the August decision. But at the moment, Harvard and the HGSU-UAW are mired in legal disputes over the eligibility of more than 300 voters, enough to swing the result of the schoolwide election. The 300 voters include graduate students who are not currently on Harvard’s payroll but have taught in the past — a group that is ineligible to vote under the terms of the Local 33 elections. An NLRB hearing on the matter is scheduled for Feb. 21.

The legal delays at Harvard have hardened the resolve of HGSU-UAW opponents. In December, Jae Hyeon Lee, a Harvard graduate student who has led the opposition to HGSU-UAW, told the News that the delays reinforced his concerns about the union’s ability to resolve conflicts.

And already at Yale, the eligibility rules outlined in the NLRB decision have generated outrage from union opponents, who argue that every student in the nine departments should be allowed to vote.

Still, in an interview, Gould defended the NLRB’s eligibility rules, saying it would be “impossible to speculate” about whether certain ineligible students in the nine departments might teach in the future.

“There would be no way that you could address that in an evidentiary hearing,” Gould said.

After Local 33 filed for departmental elections in August, just a few days after the landmark NLRB ruling, Yale contested that strategy in labor court, putting the union effort on hold for the rest of the semester. But the decision in January, based on a controversial labor board precedent, means that Local 33 will hold departmental labor elections this spring.

Any subsequent legal delays would play into the hands of Yale’s lawyers, who are currently considering whether to file an appeal against the NLRB decision. With President Donald Trump in the White House, the membership of the NLRB is likely to change dramatically in the coming years, putting the board’s August decision on “the endangered species list,” according to Duke labor expert Dan Bowling.

Local 33 Chair Aaron Greenberg GRD ’18 said he does not anticipate similar delays to the ones at Harvard. But Elizabeth Mo GRD ’18 — one of the leaders of the anti-Local 33 group GASO, a pun on the former incarnation of the union, the Graduate Employees and Students Organization — said she can foresee a prolonged legal fight over eligibility, and that it would not be in the best interests of graduate students.

“Everything else is on hold while the delays are worked out, including things like child care,” Mo said. “That’s the part that would be most frustrating.”

Last semester, Yale was expected to announce new child care subsidies to support student parents in the Graduate School of Arts and Sciences. But the University froze that initiative after Local 33 filed for elections, fearing that the announcement of new benefits could provoke an unfair labor practice charge.

The Local 33 precursor GESO was founded in 1990.