Clyde Summers: The right to bargain collectively

Two weeks ago, University President Judith Rodin sent an e-mail to all of the faculty and graduate students criticizing the "complicated" decision made in the regional director of the National Labor Relations Board's ruling that graduate students who are teaching and research assistants are employees of the University. She was particularly critical of the decision's exclusion of Ph.D. candidates in the natural sciences from the bargaining unit while including those in the social sciences, saying that it "makes no sense." She stated that the "decision arbitrarily divides and discriminates among graduate students in determining who would be eligible to vote and who would not."

Since receiving that e-mail, I have read the 100-page Report of the Regional Director, and I feel that there is need for some clarification and response.

First, the Board's decision is indeed complicated because, as the decision demonstrates, the multitude of various graduate programs and the use of teaching and research assistants is complicated and diffuse with no coherent unity.

Second, the NLRB has for decades held that the question in a representation case is whether the bargaining unit requested by the union is "an" appropriate unit, not "the most" appropriate unit. It is for the union to decide what unit it wants to represent and bargain for, and if it is an appropriate unit, subject to minor modifications, then that is the unit for which the Board will hold an election. It is not at all uncommon for this unit to not include all who have some common interests, and a single employer may have three or a dozen appropriate units. The Board uses various tests to determine whether a unit is appropriate, but the basic question is whether it is a unit in which both the union and employer can, in practical terms, work out their common problems.

It seems to me, in view of the Board's established standards, the unit described is an appropriate unit. I see no serious problem with the University dealing with the union for these employees without including the other graduate employees. Indeed, separate units for each school might have been more appropriate in view of the fact that the deans of each school do, or can, exercise major control over the graduate programs and the use of teaching assistants in that school. Each dean could have more easily negotiated to fit the employment of graduate students in that school to its own needs. That would have meant a separate election in each school. There is nothing arbitrary about the Board not including all graduate student employees in one unit.

Third, it is true that those graduate students not included in the bargaining unit have no vote, but that is because the union cannot bargain for them. They will in no way be bound by any agreement made by the union. For them, nothing will change regardless of the outcome of the election. It would be totally improper for them to vote in an election which did not affect them; it would be like people in the suburbs voting on who should be mayor of the city.

Fourth, disputes over the size of the bargaining unit are often not disputes over whether the unit is appropriate for bargaining purposes but instead, contests over who will win the election. It is like the contests over redistricting for elections for state legislatures or Congress. I have no knowledge of where the union is strong or where it is weak, but it is quite clear that the University seeks to avoid bargaining with the union in any bargaining unit, no matter how bounded or expanded. I have difficulty believing the University would prefer to bargain with graduate students in all departments rather than the limited unit the Board has described.

The result the administration seeks is that no graduate student would have collective representation, regardless of his or her choice. I think it highly likely that if the University had stated that it was prepared to recognize the union for any substantial group of graduate students in which the union had demonstrated a majority, there would have been no need for the Board proceedings. Even now, the University and the union can negotiate for what they believe is the most appropriate unit.

Fifth, I see no insuperable obstacle to the administration dealing with those graduate student employees who wish to speak collectively. I see no compelling reason that they should not have an effective voice in the decisions which affect their employment as teaching assistants and research assistants. To me, it is unseemly that their terms and conditions of employment should be dictated unilaterally without meaningful discussion with representatives of their own choosing. Recognition of their human dignity and democratic principles requires no less.

Clyde Summers is an emeritus professor of law.

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