Time to negotiate

Dear President Salovey: As members of the Yale Law faculty, we write to express our disagreement with your May 3, 2017 public letter regarding graduate student teaching fellow unionization.  In the letter, you suggest that graduate teachers who have voted to unionize and are now pressing Yale to enter into negotiations with their chosen representatives are acting undemocratically, and exhibiting a lack of “[r]espect for law and legal process, civil argument and persuasion.”  This casts unfair aspersions on our students, and obscures Yale’s own tendentious approach to the law.  We urge you to reverse course and begin negotiations with those represented.

On February 23, 2017, graduate teachers in eight Yale departments – English, History, Political Science, East Asian Languages and Literatures, Mathematics, Sociology, History of Art, and Geology and Geophysics – voted to unionize, and chose UNITE HERE Local 33 as their representative.  Yale has since refused to negotiate with the union.  In response, a group of graduate teachers has begun a hunger strike on Beinecke Plaza.

Your May 3 letter states that the Yale administration has chosen not to negotiate with the union because you view the strategy of organizing department-by-department rather than across the entire graduate school as “undemocratic.” Each of the departments in question, however, voted in fair and free elections to unionize.  The one department (Physics) whose graduate teachers voted against the union will not be represented.  Bargaining, as you know, would only cover units in which graduate teachers voted for representation.  Voting in smaller units may make it easier for those who wish to exercise their right to organize, but we fail to see how the result can be described as undemocratic.

We also take issue with your suggestion that graduate teachers have shown a lack of respect for legal process and rational argument.  As you are well aware, the graduate teachers have pressed their case over many years, including through legal process before the NLRB.  Nothing in their approach reflects a lack of respect for law.  Indeed, the law is on their side. As you know, once a union is certified as a bargaining representative, it is an unfair labor practice for an employer to refuse to bargain. See NLRA 8(a)(5). The university’s insistence on delay and further litigation appears to be an effort to take advantage of the appointments that President Donald Trump will make to the NLRB, which we consider misguided.

We call on Yale to respect its legal obligations to negotiate with the unionized departments, and to bring this matter to a constructive resolution.

Sincerely,

Bruce Ackerman, Sterling Professor of Law and Political Science
Muneer I. Ahmad, Clinical Professor of Law
Anne Alstott, Jacquin D. Bierman Professor in Taxation
Ian Ayres, William K. Townsend Professor of Law
James Forman Jr., Professor of Law
David Grewal, Professor of Law
Amy Kapczynski, Professor of Law
Issa Kohler-Hausmann, Associate Professor of Law and Associate Professor of Sociology
Daniel Markovits, Guido Calabresi Professor of Law
Tracey L. Meares, Walton Hale Hamilton Professor of Law
Anika Singh Lemar, Clinical Associate Professor of Law
Michael J. Wishnie, William O. Douglas Clinical Professor of Law
Gideon Yaffe, Professor of Law, Professor of Philosophy, and Professor of Psychology

  • HaroldAMaio

    If I do not recognize you, do you not exist?

  • hrsn

    The situation has gotten confused. Where is the proper bargaining unit? Department, School, University? The innovative labor strategy is to organize a Departments, but now they encamp in front of Woodbridge Hall, asking for a University solution. The administration rightly points out that the School is place where teaching appointments are managed. It’s more unrepresentative than it is undemocratic to demand University attention to the outcome of a small minority of Department outcomes.

    If Department really is the bargaining unit, let its Chair, DGS, and DUS, ops manager, and HR rep be the negotiating team. Some faculty are already worried that this is a possible outcome. I suspect the signatories to this letter would find it difficult to squeeze this new duty into their schedules.

  • ShadrachSmith

    Ivy law schools are the last place I would go for legal advice.

    • Orange Street

      Well, that makes one of you.

  • Ralphiec88

    It’s curious to see Local 33 talking about fairness after gerrymandering an election that disenfranchised more than 90% of the people it purports to represent.

    • Orange Street

      Didn’t read the letter, did you? “Bargaining, as you know, would only cover units in which graduate teachers voted for representation.” Local 33 will not represent anyone outside of the 8 departments that voted for it, much less “90%” of the GSAS.

      You also seem to have missed that this was written by faculty at Yale Law Scool and not by Local 33. I’d suggest you give the letter another glance.

      • Ralphiec88

        Um, your first point was my point. And the notion that this letter in support of local 33 is inconsistent with the views of local 33 is just silly.

        • Orange Street

          My point is that no one to whom these elections apply was disenfranchised. As students at the law school noted in an open letter, “Describing this process as undemocratic is analogous to claiming that Connecticut elections are undemocratic because residents of New York are not allowed vote.” By your logic, the New Yorkers have been disenfranchised. This is obviously ludicrous.

          • Ralphiec88

            At the top of Local 33’s homepage is “the union of graduate employees at Yale”. But you’re saying it’s the union of the 10 percent or so of graduates and for the rest it “does not apply”. Who’s correct?
            That “analogy” is really more of a straw man. There’s no state here, no border, and if Local 33 lived up to its aspirations, it wouldn’t have to pretend that so many of those it claimed to represent are no longer in scope.

          • Orange Street

            It’s a simple matter of law that it is the union of those students who voted for it. As such, it’s abundantly clear that there are borders. In this case they are departments. The contracts that those 8 departments negotiate will not be incumbent upon any other department, just as one state’s laws are not incumbent upon any other state. That’s not a “straw man;” it’s a legal fact.

          • Ralphiec88

            Well, we’ll find out if it’s a “simple matter of law” after the appeal, won’t we? The argument that the election the departments are like states because their borders were drawn by the election is circular.

          • Orange Street

            Your last sentence is incomprehensible, but as you would have learned if you’d read this letter, it is indeed a matter of law. Yale is in violation of federal law every day that it refuses to negotiate. I repeat my suggestion that you read this letter.

          • Ralphiec88

            Circular reasoning is a pretty straightforward concept. Of course I have read the letter, as has Local 33. If they really thought they had a solid case for “violation of federal law”, they could take it to court. But they know they don’t, so they won’t.

          • Orange Street

            Can you truly think of no other reasons that a local union would be unable to prevail against a multi-billion dollar corporation in a court of law? I thought a liberal arts education was supposed to be good for critical thinking.

            While the concept of circular reasoning is straightforward, your writing is not. If I correctly parse your garbled prose, you seem to be saying that departments did not constitute meaningful divisions in the GSAS until the February elections. This is nonsense.

          • Ralphiec88

            Let’s face it, Local 33 didn’t really “prevail” in the election. Yale has a decent argument that the election was gerrymandered and inconsistent with Local 33’s claim of representation, and harebrained stunts like the “hunger strike” will be unhelpful also. So yeah they may not prevail in court.

          • Orange Street

            You return to ill-conceived comments about “gerrymandering,” thoroughly debunked in the letter above. And so I return to my original request: PLEASE read this letter, written and endorsed by numerous members of the faculty of Yale Law School. There you will find the answers to your questions about “gerrymandering,” representation, and Yale’s obligations under federal law.

          • Ralphiec88

            I have read the letter. I simply don’t agree that it says what you think it does. The question comes down to whether the microdepartment strategy constitutes gerrymandering. I don’t think anyone could with a straight face claim that that strategy served any other purpose than getting a result that could not have been achieved if all the grad students (which Local 33 still purports to represent) had voted together. Perhaps, however, the court of appeals will read the letter, immediately see Local 33’s indisputable righteousness, and rule in favor of Local 33 before donning sackcloth and ashes. Somehow I doubt it, but for now we just have to agree to disagree.

          • guest1420

            If I decide that I want to go out to lunch with some friends, and I want to go to a steakhouse, I’ll call up my friends who like steak and ask them which steakhouse they want to go to. My strategy, of calling up my friends who like steak, “served no other purpose than getting a result that could not have been achieved if all” of my friends (including the vegans and vegetarians) were invited and asked for input. That doesn’t make it “gerrymandering” or “undemocratic.” Eight departments want to bargain collectively with Yale for _their own contract_, no one else’s, so they got together and under the applicable labor law they held an election. It’s no surprise that they won (just like it would be no surprise that my friends who wanted steak would indeed vote to go to a steakhouse). None of this is “undemocratic”; just as no vegetarians are forced to go to a steakhouse, no one in the other departments are forced to join a union.

          • Ralphiec88

            Yet another half-baked analogy that has no relevance to a union vote. Better hope Local 33’s attorneys have more to offer.

    • dsch

      I’m no fan of L33’s tactics, but it’s extremely disingenuous to say that the election was gerrymandered and disenfranchises people. The agreements that they’re asking for specifically do not apply to those 90% in departments which didn’t participate in voting. The rhetoric of gerrymandering is so inadequate here that it’s difficult to know where to begin to refute it. Gerrymandering means to distribute your voters in such a way that you win many narrow victories while the opponent wins a few overwhelming victories, thereby achieving an undemocratic outcome. That is so far from what happened here that it is not only not right, but it’s not even wrong, since the model that your rhetoric of gerrymandering presupposes fails to apply at all.

      • Ralphiec88

        Not at all. First, the definition of gerrymandering is manipulation of voting bouandaries to favor one party or competitor, which is exactly what Local 33 did. The other effects you cite may happen in gerrymandering but are not required for the definition. Dictionary aside, Local 33 in its more lucid moments claims to be a champion of grad students against supposed abuses ranging from hours to harassment. And yet somehow, Local 33 had to go around 9 out of 10 grad students to get a positive vote. Why is that?

  • dsch

    Your May 3 letter states that the Yale administration has chosen not to negotiate with the union because you view the strategy of organizing department-by-department rather than across the entire graduate school as “undemocratic.” Each of the departments in question, however, voted in fair and free elections to unionize.

    It’s not just that one letter. Every other week for the past semester, everyone with a Yale email account has been graced with some form of administrative communique or other expressing “concern” about how “undemocratic” everything is, plus a whole transparent spiel just before the vote about “we totally support your freedom to vote, but just vote the right way, wink-wink-nudge-nudge.” And all of it is backed up by the stooges in the GSA (the university version of the archetypally irrelevant high school “student government”), who feel threatened by the feeling, which they try very hard to repress, that they actually do no meaningful representation. I have no great love for L33, but at least they are honest about what they want, as opposed to the BS Salovey and co. spew.

    • Capital Magpie

      > “I have no great love for L33, but at least they are honest about what they want, as opposed to the BS Salovey and co. spew.”

      There are many good things to be said about L33’s intentions, but I strongly disagree with the idea that they are forthright about what they want. I think one of the most important issues with L33 is their lack of transparency. They are incredibly hesitant to provide *any* details about their plans. Maybe representatives are coached to only stick to broad talking points (so they don’t say anything they’d regret later), but it is incredibly hard to get any meaningful answers. Even for basic questions like “What ballpark are we looking at for union dues?” While obviously the exact number can’t be provided, it is absolutely possible to look at what comparable unions pay (and indeed they each pay fairly consistent dues), and provide a ballpark, but every L33 representative I’ve talked to has been flat out unwilling to provide such an estimate (for what it’s worth, the GSA *has* been willing to research other unions and provide links for comparisons). Same for details about what portion of dues are sent to UNITE HERE, the rough breakdown of their spending/finances, the mechanics of deciding to strike, how we choose our representatives, who will represent us at the negotiating table, what regulations will change once we’re considered unionized workers (will we be limited by laws about overtime?), etc etc (I’m going off the top of my head but the list of questions I’ve tried to get answers for is very very long, unionizing is a complicated process).

      And that’s just about how the union itself works, let alone their plans for the negotiating table. Obviously, they’ve provided a laundry list of talking points which they’d like to achieve, but have been hesitant to specify how they plan to prioritize them in the negotiations. The union has been admirably active in pushing for more protection against sexual harassment, but I haven’t been able to find any answers on what they actually intend to negotiate for to combat it. I mean, as grad students we already have grievance procedures, it’s just that they aren’t enough. So if the union intends to succeed where many other well intentioned organizations have failed, they’d better have an actual specific plan beyond what the school has already implemented (which I’ve been unable to find). Their website and promotional materials are no help, the only way to learn anything of substance is to talk to them in person, which can be very hit or miss.

      It’s been incredibly frustrating trying to get actual substantive answers from Local 33 on the details of how the union will work, and I strongly disagree with the notion that they have been forthright. They may have their reasons for refusing to discuss these details with their prospective constituents, but they have been very opaque about this whole process.

  • Ash

    Please consider this correction: The graduate students are conducting a fast, not a hunger strike. The distinction seems important, as a fast is choosing not to eat food until the university meets with the students or until their health is at risk, whereas a hunger strike is held either until the opposing side concedes or the striker perishes, which is not what they are doing.

  • hieronymous

    Law professors: I assume you know what you’re talking about, which is why I ask again (as I have repeatedly, without ever getting a response from a L33 supporter): If Yale is violating the NLRA, why doesn’t L33 file an unfair-labor-practices charge or call a traditional strike, instead of engaging in extralegal protest actions?

    • Orange Street

      Pl

      • hieronymous

        This response is . . . telling?

        Please understand, I don’t support Yale in this. From what I can tell, they’re violating their duty to bargain with the certified representative of 8 departments. I would just like someone from L33 to actually explain why the proper method of protesting that breach is to call a quasi-hunger strike and block traffic in New Haven (“extra-legal protest actions,” even if they might be morally licit), rather than to follow the procedures that other unions have followed for 80 years. There might be a reason, I just haven’t heard it. And in the absence of another explanation, I’m left to assume that the reason L33 is not filing an unfair-labor practices charges is that they’re concerned they won’t prevail (because to enforce rights under 8(a)(5) you have to show that the bargaining unit is appropriate) or that it will take too long. These concerns are probably justified, but the logic extends a bit too far, don’t you think? Should all parties who fear that an established process won’t work (or won’t work soon enough) get to block traffic? Why are law professors (not one of whom teaches labor law, a course that is–believe it or not–offered at YLS) endorsing a practice that short-circuits established procedures due to a fear that those procedures won’t lead to a desired outcome?

        I get it. It sucks that Trump won and somewhere on the very long list of reasons why is the fact that he will appoint anti-labor members to the NLRB. But I thought one of the main things progressives were concerned about was continued adherence to the rule of law (hence YLS’s new “Rule of Law Clinic”). I’m just having trouble seeing how this letter is consistent with that concern.

        • Orange Street

          I apologize. I was trying to tell the moderators to remove the comment that I posted. I tried to delete my comment because I have seen others try to answer this question for you on different articles (e.g. the Hungerford piece), and you haven’t seemed to accept those answers. I don’t know what more could be said that you might be willing to accept.

          • hieronymous

            Understood. I’m afraid I didn’t get to see your substantive response (the one you apparently asked to be removed). I haven’t actually seen any response to my question in the other articles, either (at least not from an L33 supporter). The only explanation I’ve seen is in the Alyssa Battistoni piece at the Chron: “Yale has long indicated that it would go all the way to the Supreme Court to fight our union. So what Hungerford describes as a reasonable process of negotiation is actually a long march through the federal court system all the way to a Trump-appointed, antilabor Supreme Court, which would almost certainly overturn the labor law that protects not only us but many other workers.”

            While admirably (unintentionally?) candid, I find this explanation troubling because it amounts to a rejection of established legal processes on the ground that they will likely not lead to a desired outcome. And I don’t see why the same rationale couldn’t be used by any party to a dispute who fears an eventual loss and therefore resorts to self help. (“Sure, I could go to housing court and follow established eviction processes, but the case would take forever and end up in the anti-landlord CT Supreme Court, so I’m just going to lock you out now, since I know I’ve got good cause.”) It’s mildly disheartening to see law professors embrace and endorse the rejection of established legal processes.

    • hieronymous

      Fascinating. Earlier this morning, there was a reply from “Orange Street” to the comment above, which read, in its entirety: “Please remove this comment.” I then replied in turn, noting that Orange Street’s manner of responding to a sincere question about why L33 does not follow the established procedures under the NLRA was “telling.” And now, suddenly, Orange Street’s comment is gone. If my reply to Orange Street is nevertheless published (who knows at this point), readers should understand what it was in reaction to and should further understand that Orange Street’s comment was removed (by whom I do not know).

      • Orange Street

        I apologize for that. I was trying to tell the moderators to remove *my own* comment. I don’t know how do that.