Harvard Graduate Student Union’s NLRB Objections Go to the Foundations of Fair Elections

The historic graduate student union election at Harvard in November was the first graduate student union election since the National Labor Relations Board’s August 2016 decision in Columbia University[i] restored the right to bargain collectively to student workers. Since then, graduate students have voted to unionize at Columbia[ii] and Yale[iii] Universities, a graduate student union has been certified at Loyola University of Chicago[iv], the votes in a graduate student union election are being counted at Cornell University[v], and graduate students at Boston College[vi] have filed a petition for an election. As graduate students sense their employment becoming more precarious under the Trump administration, we should expect this trend to continue.

At Harvard, the Harvard Graduate Students Union-UAW has filed objections to the election based on the fact that the employer’s voter list was incomplete by hundreds of names. In October of 2016, HGSU-UAW and Harvard signed an election agreement defining eligible categories of workers in the bargaining unit: “All students enrolled in Harvard degree programs employed by the Employer who provide instructional services at Harvard University . . . [and] employed by the Employer who serve as Research Assistants.”[vii] It was Harvard’s responsibility, as it is always the employer’s responsibility, to use these categories to create the list of eligible voters. The union’s charge is that this list had hundreds of omissions.

Rules for the eligibility lists in union elections are defined by the NLRB’s 1966 Excelsior Underwear Inc. decision, which states: “the access of all employees to such communications can be insured only if all parties have the names and addresses of all the voters.”[viii]All employees” is a high standard for a complete list, but the Board has consistently defended that this high standard is necessary because of the huge disparity in access to employees between the employer and the employees organizing the union. The Excelsior rule holds that it is critical that parties to the election receive access to the contact information of eligible voters to ensure a fair election. In the decision, the NLRB held “an employee who has had an effective opportunity to hear the arguments concerning representation is in a better position to make a more fully informed and reasonable choice.” To ensure that all voters hear both sides of the issue, employers and the union must both be working with the same clearly defined group of eligible voters.

In this case, Harvard can’t but accept that the initial voter list was deficient. Harvard is arguing that the Excelsior standard requires some revision given the specific context of university employment. In its formal response to the union’s objection, Harvard writes, “The University’s relationship with these voters is primarily academic, not employment, and the information systems reflect that orientation. Harvard does not record and track the proposed bargaining unit members as it does its traditional employees.”[ix] If the Regional Board accepts the specific context of university employment to excuse employers from the “all the voters” standard of the Excelsior decision, it would establish new, lower standards for universities as employers in union elections. Moreover, if the union prevails in its objection and Harvard wins on an appeal to the Trump-appointed NLRB, the Board might revise the Excelsior decision for lower standards for employers’ eligibility lists in all industries.

A lower standard for a complete eligibility list creates a dangerous precedent for university employees, especially as graduate student union campaigns spread in this region and across the country. It would grant university administrations significant leeway to create incomplete or otherwise deficient eligibility lists. This would compromise the democratic nature of union elections and prevent university workers from receiving the opportunity to make an informed vote in a free and fair election. HGSU-UAW is not arguing that Harvard created an incomplete list in bad faith, but the lower standards Harvard is asking the NLRB to grant it would certainly open the door for bad-acting university administrators to create incomplete lists that intentionally prejudice the union.

Universities are complex, bureaucratic entities — though often not more so than big private corporations. Still, they will entail some forms of employment not found in other industries. Given these potential variations, it is all the more imperative not to allow the existing state of university payroll systems to dictate fairness but, instead, to ensure that universities adhere to the standards of fair union elections as established by decades of precedent.

[i] 364 N.L.R.B. No. 90 (2016), available at http://apps.nlrb.gov/link/document.aspx/09031d45821c20d4

[ii] https://www.nytimes.com/2016/12/09/nyregion/columbia-graduate-students-union-vote.html

[iii] https://www.washingtonpost.com/news/grade-point/wp/2017/02/24/yale-graduate-students-vote-to-form-a-union/

[iv] http://seiufacultyforward.org/2017/02/loyola-graduate-workers-vote-to-join-seiu/

[v] http://cornellsun.com/2017/03/29/union-election-results-too-close-to-call/

[vi]http://bcgradunion.com/2017/03/03/bcgeu-uaw-files-election-with-nlrb-after-two-year-organizing-campaign/

[vii] http://harvardgradunion.org/stipulated-election-agreement/

[viii] 156 N.L.R.B. 1236, 1241 (1966), available at http://apps.nlrb.gov/link/document.aspx/09031d45800a7201

[ix] http://provost.harvard.edu/files/provost/files/harvard_response_to_union_objection_1-17-17.pdf)

Alexandra Rawlings is a 1L at Harvard Law School. Andrew Donnelly is a Ph.D. candidate in English at Harvard, is a member of HGSU-UAW, and has been assisting the union in its case at the NLRB. Charles Du is 3L at Yale Law School. Jonathon Booth is a 1L at Harvard Law School and a Ph.D. candidate in history. Will Bloom is a 3L at Yale Law School. William J. Rainsford is a 3L at Northeastern University School of Law and a member of Graduate Employees of Northeastern University-UAW.

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