NLRB ruling resolves little, provokes strong response

ZOË KONOVALOV/YH GESO protestors and the Yale administration will square off again in court.

Just when the TA question finally seemed ready to die down, graduate students are at the forefront of Yale controversy again.

On Mon., Nov. 29, a three-member panel of the National Labor Relations Board (NLRB) agreed with a 1997 administrative law judge's ruling that the University's response to the 1995 GESO strike did not constitute unfair labor practice. More significantly, the NLRB remanded the case back to the original trial judge to rule decisively on whether graduate students at Yale are, in fact, employees.

Approximately 200 GESO members withheld final-semester grades in 1995. The GESO lawsuit claimed that the University's resulting threat to refuse recommendations and teaching appointments—which brought about the strike's end in January 1996—breached NLRB practice. Unresolved by Monday's ruling was whether certain faculty, including French Director of Graduate Studies Edwin Duval, other members of the French department, and Political Science Professor H. Bradford Westerfield, TD '47, improperly threatened graduate students participating in the strike, as GESO's lawsuit charged.

The committee decided to return parts of the case to the original judge, Administrative Law Judge Michael Miller, to "provide the Board with findings of fact and conclusions of law on the issue of the employee status of the TFs [teaching fellows]." GESO spokesperson Antony Dugdale, GRD '00, called this "a precedent-setting legal decision" and a victory for GESO. The instruction requiring Miller to reexamine the allegations of coercive threatening activity, Dugdale said, "assumes that graduate teachers are employees with the protection of labor law." Dugdale also cited the NLRB's decision regarding the Boston Medical Center Corporation, in which it ruled that medical residents and interns can legally claim the status of employees and receive labor protection. GESO's position is strengthened by the Boston Medical ruling, Dugdale said, because "the precedent that we are not employees is being undermined by the interns case."

Yale Administrators, including President Richard Levin, GRD '74, Provost Alison Richard, and Graduate School Dean Susan Hockfield, dispute such an interpretation of the ruling. Hockfield insists that GESO's claims had no factual basis. "It is clear from the NLRB panel that there was no decision on the status of graduate students," she said. In a letter to Graduate School faculty, graduate students, and undergraduates, Richard pointed out that legal validation would still require GESO to seek recognition by obtaining petitions from proposed union members and approval by a majority of University graduate students.

Dugdale saw Richard's letter as a sign that Yale is becoming less resolute in its opposition to GESO unionization. "The Provost's letter is a very elegant concession. All along the Administration has been saying we have no right to employee status. Now, instead of saying we have no right, she implicitly acknowledged it is our decision, and is leaving it up to us."

Perhaps the only definitive result of the case is that it guarantees a continued legal battle over the status of graduate students at Yale. Visiting Law Professor Katherine Stone, an expert on labor law, said the NLRB's ruling "leaves GESO unionization as still an open question." Interestingly, the question will return to Miller, who refused to answer it back in 1997. "The question of GESO's labor organization status is bound up in the issue of whether the TAs [teaching assistants] are statutory employees," Miller wrote then. "That issue will not be addressed here." He then summarily dismissed the entire complaint.

Stone also conceded that the case is far from over—Miller's next decision could be referred once again back to the NLRB panel, and any subsequent ruling could then be brought before the U.S. Court of Appeals, and eventually all the way to the Supreme Court. "This could potentially be a very long case," she said. According to Stone, GESO's declaration that the case has the potential to set a national precedent for the status of graduate students in private universities is a bit premature. "There is no way to know if this will be a precedent-setting case. It will depend on whether the decision turns on narrow factors or if it is written rather broadly," Stone said.

The NLRB ruling drew renewed references to another GESO cause—the ongoing discussion about the perceived "TA crisis" at Yale. Dugdale said the question of whether or not there is a TA crisis and how to solve it directly relates to the status of graduate students as employees. "The TA shortage is a labor shortage. For graduate students, teaching is a labor problem. There is a certain amount of work to do, and it is not getting done. There is a wholesale labor aspect that needs solving here."

Both Hockfield and Yale College Dean Richard Brodhead, BR '68, GRD '72, challenge this assertion. Hockfield insisted, "I don't see these two issues as related," and expressed doubts that graduate TA unionization would address future class TA requirements. "I don't understand how saying TAs are employees would change the numbers of TAs available," she said. "We are very concerned about the quality of teaching, and I don't know how being an employee could change the teaching preparation we could provide."

Brodhead echoed Hockfield's sentiments. "I don't accept that there is a TA `crisis': that's a polemical exaggeration of the facts," he said. "I fail to grasp how unionization is a way to `solve' this alleged crisis. One thing that concerns me about unionization is that it would create a much more cumbersome, inflexible system through which to address problems." Hockfield pointed out, "Having academic issues decided as labor issues is of grave concern. I don't know of any evidence that shows that unionization improves the quality of education."

Predictably, Dugdale saw it another way. "Pretty much everyone except the Administration, because they are extremists, admits there is a problem with the TA system," he said. "The academic benefit to me of the TA system is secondary to the importance of labor at the University and how it will work." Far from TA unionization being a labor issue apart from academics, he said, "Having teachers at the university being the ones making the decisions is precisely how you improve education. The best way to improve education is to make people who care—i.e. the teachers—have their say."

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