Yale's labor settlement: a larger perspective

The contentious debate pitting Yale's faculty and Administration against the Graduate Employee Student Organization (GESO) is far from over. Although Yale reached an accord with the National Labor Relations Board (NLRB) on Thurs., Mar. 29—in which it agreed to post notices for 60 days outlining graduate students' rights to free speech—large questions still loom.

The Herald sat down with sociology Assistant Professor Christopher Rhomberg to discuss the settlement's implications for Yale as well as its place within the larger debate about whether graduate students are employees. Rhomberg studied at UC-Berkeley for eight years as a graduate student prior to coming to Yale in 1998. While there, he chaired the Community Action Program, the collective bargaining agent for Berkeley's graduate students. Among other classes, Rhomberg currently teaches a lecture called Labor Relations in the United States.

ZOE KONOVALOV/YH If the NLRB rules favorably on NYU graduate students' drive to unionize, tensions between Yale TAs and faculty may lessen.

Both Yale and GESO claimed to have benefited from the recent settlement—Rhomberg does not disagree. From Yale's standpoint, it does not yet have to acknowledge graduate teaching assistants as employees. For GESO, although Yale's having to post notices "is a standard settlement in these cases," the move will also "clear the air" in the debate, Rhomberg said. "It establishes the climate of what the legal environment is. I'm not sure every grad school employee knows that [what the free speech notices outline] is a fact of law." But the settlement is far from definitive. "This is just an interim situation," he continued. "The main question remains whether or not graduate students are employees."

After the NLRB rules on the pending case between New York University (NYU) and its own graduate students, that question may be answered. "The NYU decision is going to make the call," Rhomberg said. But it may not end there, he warned. Even if the regional NLRB rules that graduate students have the right to unionize, NYU can appeal the decision to the federal NLRB, and then, if the school again loses, to a U.S. court of appeals. However, if NYU does not appeal a loss, "it will be the law of the land"— because the ruling board on this case is not federal, it will establish a legal precedent relating to federal law.

Although unable to predict NYU's reaction, Rhomberg appeared to believe that the NLRB would rule in favor of graduate student unionization. The NLRB rules upon labor disputes in the private sector, but at approximately 12 public universities—including Michigan, Wisconsin, Florida, and California—collective bargaining for graduate students already enjoys recognition. Such unionization "has exploded in the last 10 to 20 years," and "[although] the case hasn't been determined in the private sector yet, [it's] hard to think that a graduate student at one school is an employee, but at another is not."

Rhomberg explained that being a student does not preclude being an employee as well. While certain types of private-sector employees are not permitted to unionize, such as agricultural and managerial workers, the law does not mention that students are similarly forbidden. And "unless the law is specifically exclusive, then it is inclusive." Furthermore, even if graduate students are considered apprentices, they are allowed to unionize just as apprentices in other private-sector industries. Their own perception of themselves as students or employees, meanwhile, is legally meaningless. Rhomberg asserted, "The subjective intent of employees is irrelevant. All that matters is the relationship between the workers and their employer."

Already, the NLRB seems to be leaning toward a similar opinion. In November 1999, the NLRB ruled that interns and residents at the Boston Medical Center could bargain collectively. Their positions as students, the board held, did not exclude their additional role as employees. Among those communities of interest upon which the NLRB has ruled, Rhomberg said, residents and interns are the closest available analogy to graduate students. For this reason, "many think the NLRB will [now] rule in favor of graduate students [in the NYU case]."

Even at Yale, earlier signs have pointed towards an ultimately favorable ruling for graduate students. GESO conducted a "partial strike" in the spring of 1995, refusing to submit grades by the grading deadline, but most members acquiesced after the Administration threatened to curtail future teaching eligibility. Afterwards GESO filed a complaint with the NLRB, and although it was dismissed and the NLRB did not rule on graduate students' employee status, "entertaining [the question] showed that the NLRB considered the issue viable," Rhomberg said. The complaint was dismissed because by withholding the products of their labor (grades) rather than their actual labor, graduate students were engaging in an illegal partial strike. Rhomberg offered this analogy: "If an autoworker strikes, he can refuse to work. He can't drive the car he built home with him."

When the NLRB rules on the NYU case in the upcoming days, Yale's graduate students will likely act swiftly if the ruling is favorable, Rhomberb said. In all likelihood, the graduates would quickly hold elections on whether to petition the NLRB for union status (at least 30 percent of graduate students must approve)—then, if NYU appealed the favorable ruling, the results would be impounded until a final decision were reached. If collective bargaining eventually were to gain approval, the results would stand—if not, they would be thrown out before being counted. Yale, Rhomberg argued, should take a hands-off approach to the election scenario. "Yale should let grad students decide for themselves if they want to unionize," he said.

If results at other schools are any indication, when left alone Yale's graduates would vote in the affirmative. "In 1999 the University of California agreed to recognize graduates as employees," Rhomberg explained. "Elections were held on eight campuses—on all of them a majority voted for unionization, and on many support reached two-thirds or beyond."

In any case, graduate students have undertaken a risky endeavor by trying to bargain collectively. In contrast to other workers, they have both their occupation and education to lose when they dispute with their employer. The partial strike "had potentially very damaging impacts on their careers with regard to teacher recommendations and personal files," Rhomberg said.

The overall length of the NLRB proceedings—approximately four and a half years—did nothing to help the relationship between graduate students and the University. The delay "probably wasn't good for any of the parties. It gives a greater opportunity for a more antagonistic campaign, which both sides want to avoid." The NLRB's inefficiency deserves some of the blame for the long wait. Although faced with one GESO appeal in the case's history, the NLRB was also hindered by budget cuts that have diminished the size of the staff and lessened resources.

This antagonism stands as the very reason that graduate unionization would benefit Yale and its students, according to Rhomberg. Separating the employee role from the student role "withdraws a potentially dangerous power relationship" between graduate students and Yale faculty. Instead of conflicting with Yale's academics, a graduate student union would bypass them and bargain directly with administrators. As a result, Rhomberg said, "rather than [the current] feudal system of personal authority, a contract would substitute a rational structure of responsibilities...That can result in a better workplace," he said. And schools that recognize collective bargaining are seeing such effects already. "Experience has shown that graduate unionization doesn't interfere with the academic missions of those universities where good-faith bargaining has taken place."

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