With Trump Poised to Change the Legal Landscape, the Clock May Be Ticking on Graduate Unions

Ryan Flynn/New Haven Register via AP

When Columbia University graduate students went to the polls in December to decide whether to form a union, the landslide that ensued surprised even many activists. Despite opposition by the administration, students voted by more than two to one to form a collective-bargaining unit.

More than three months later, however, they are no closer to a seat at the bargaining table. While the vote was resounding, Columbia has challenged its integrity, leaving the matter tied up at the National Labor Relations Board. The university is seeking a new election, arguing that the vote was marred by a host of issues, including voter intimidation, a voter-identification mix-up, and improper surveillance of voters by the union.

A hearing officer of the labor board dismissed the university’s concerns this month. But the Columbia case — the first successful vote since graduate students at private colleges in August won the right to unionize — provides a reality check for graduate activists across the United States. At Columbia and elsewhere, when students have tried to collectivize, colleges have been willing to tie up the union bids in litigation. Meanwhile, the clock is ticking: The students’ legal right to unionize may again be short-lived because of the election of Donald J. Trump to the presidency.

In a case involving Columbia, the labor board in August gave graduate assistants the right to unionize. Since then, students at Columbia and Loyola University Chicago have voted to form unions. A drive at Duke failed; one at Harvard also appears to have fallen short, though results haven’t been certified yet. Students on some other campuses, including Boston College and Cornell University, have filed for elections, while several others are still organizing.

Mr. Trump’s election, however, has tempered activists’ optimism. The new president will have a chance to reshape the composition of the labor board, making it majority-Republican. At that point a private university will surely try to overturn last year’s sweeping labor-board ruling, which gave graduate students the right to form a union for the first time since 2004, when a George W. Bush-era board took away that right. Activists now worry that universities are trying to run out the clock, figuring that the law will change again.

“It’s strictly a delay tactic,” says Julie Kushner, director of the United Auto Workers region that oversees New York City, about Columbia’s objections to the union election. “They’re grasping at straws. No reasonable person could think there wasn’t a clear determination in that election.”

A Columbia spokeswoman said the university was reviewing whether it would appeal the decision but declined to comment further on details of the institution’s strategy.

New Uncertainty

While Mr. Trump brings new urgency, it’s unclear whether universities would be less litigious on graduate unionization had Hillary Clinton won the presidency, says Joseph W. Ambash, a lawyer who represented Brown University in the 2004 case that the Columbia decision overturned. “If you have legitimate legal questions about the Columbia decision, which I think most schools do,” Mr. Ambash says, “the only way to challenge it is to litigate it.”

There’s nothing wrong with wanting to press your case to a more favorable labor board, defenders of the universities say. The labor board’s views on graduate unionization are, as Daniel V. Johns, a labor lawyer, has put it, “ping-pong jurisprudence” — a product of the political nature of the board. Graduate students at private colleges were first given the right to collectively bargain by a labor board under President Bill Clinton. A Bush board took away the right. An Obama board gave it back. A Trump board would be poised to take it away once more.

While Mr. Trump will change the composition of the labor board, it’s still unclear how quickly he will make appointments for two vacant seats on the five-member panel, which currently has two Democrats and one Republican. It’s also unclear, once Mr. Trump names new board members, how long it will take for the reshaped board to take up a graduate-union case. Activists hope the administration, which could have its hands full with major domestic priorities like replacing the Affordable Care Act and overhauling the tax code, simply won’t turn its attention to labor-board picks. But some labor lawyers say appointing new board members wouldn’t take much administration bandwidth; it’s just a matter of Mr. Trump’s getting around to it.

In the meantime, it’s clear that many colleges — despite the hope of union activists just months ago — will take their fight against graduate students’ unionization drives beyond just the ballot box. Institutions including Yale and Duke have echoed Columbia’s strategy, asserting in legal filings that their graduate students’ union drives shouldn’t proceed. All three universities had objections filed by Proskauer Rose, a firm that specializes in labor and employment law.

Yale argued that a novel strategy its graduate students were using — forming unions at the departmental level — should not be allowed. Last month the university told the labor board that permitting the elections would mean that Yale could one day end up having to manage 56 bargaining agreements with graduate students, one for each academic department. Such “extreme Balkanization,’” the university said, would cause “endless and irreparable disruption of the very graduate and undergraduate education for which the University exists.”

Duke argued that its Ph.D. students were markedly different than the ones covered by the labor board’s ruling in the Columbia case because Duke didn’t have a mandatory core curriculum and because some Duke doctoral students received training before being “thrust wholesale into many of the core duties of teaching.”

The labor board rejected that argument and directed an election. The university ended up winning at the ballot box, with students rejecting a union by a wide margin, not counting disputed ballots. But Duke’s legal filings have left some graduate students bitter at what they view as delay tactics. “That may be the first time in history,” says Scott Barish, a fifth-year Duke doctoral student in the biology department, “that Duke has argued it’s different than an Ivy League school.”

‘A Partisan Issue’

At the New School, also in New York City, graduate students’ union drive has also been tied up in bureaucratic limbo. The Columbia ruling doesn’t apply to New School graduate assistants, the university argues, because their employment relationship is more casual than that of the Columbia students. The New School is correct: Its graduate assistants do not receive the multiyear financial packages that Columbia students do, and their teaching loads are less certain from semester to semester. To graduate students, however, that’s precisely why a union makes even more sense at the New School.

Tania Aparicio, a Ph.D. student in sociology, says she’s had enough. Ms. Aparicio, a pro-union activist, says that if there’s no election this semester, the union will authorize a strike vote. Ms. Aparicio says that the university would have pursued the same legal strategy regardless of whether Mr. Trump was in the White House, but that graduate unionization “is a partisan issue and there are different consequences of delaying now.”

Columbia sought another union election on the grounds that the first one was plagued by several problems. The university argued that voters were intimidated by union agents and that union supporters influenced the vote by setting up a tripod near the voting booth at Earl Hall and videotaped voters as they went to the polls. Columbia also said that voter identification should have been required, and that one student may have voted in two locations. All of this, the university wrote, “destroyed the laboratory conditions necessary for a free and fair election.”

But the person behind the video camera was actually a journalism student filing a report on the election, according to hearing evidence. And a labor-board hearing officer rejected the rest of the university’s objections “in their entirety.”

“The Employer has failed to demonstrate that any alleged objectionable conduct occurred which could have affected the results of this election, in which the petitioner prevailed by 900 votes,” wrote Rachel Mead Zweighaft, of the labor board’s Brooklyn office, in a March 7 ruling.

It’s unclear what Columbia’s next step will be. The university has until Monday to decide whether to appeal the hearing officer’s decision to the full labor board. But if administrators refuse to bend, the university could drag out the process for a year or longer, experts said, potentially culminating with a federal court of appeals review if the university ultimately refuses to bargain.

Olga Brudastova, a Columbia doctoral student in engineering, expresses a view voiced by union activists everywhere: Universities aren’t living up to their ideals. On the one hand, she says, campus administrators like the president, Lee C. Bollinger, have spoken out about the challenges Mr. Trump’s administration poses to Columbia’s values. On the other hand, she argues, the same administrators are hoping for a Republican-majority labor board and embracing GOP talking points about the prevalence of voter fraud.

“It’s so disappointing that the universities are using the same tactics and the same arguments,” Ms. Brudastova says. “They are delaying the democratic process at every step.”

Vimal Patel covers graduate education. Follow him on Twitter @vimalpatel232, or write to him at vimal.patel@chronicle.com.