Columbia University Has Options to Delay Bargaining

Dec. 22, 2017, 5:18 PM

Columbia University graduate assistants had their union election validated Dec. 18, but the fight is likely to continue, labor observers tell Bloomberg Law.

The school would not discuss the National Labor Relations Board’s decision approving the vote by graduate student assistants to join the United Auto Workers. It said it is “evaluating the Board’s decision to determine our next steps.”

The board had said in a landmark 2016 decision that graduate student teaching assistants and researchers at private universities like Columbia can be considered employees with a right to unionize under federal labor law. That decision could get another look once Republicans regain a board majority, however.

Based on the university’s past “tactic” of delay throughout this organizing campaign, Columbia will likely put off negotiating on a first contract in hopes that the NLRB will reverse the ruling in a different case, labor professors said.

The vote to join the UAW was held in December 2016. The university later challenged the election results on multiple bases, alleging coercion by union leaders and voter surveillance. It also argued that the issue of voter identification created confusion sufficient to invalidate the results.

Labor law in the U.S. is weak, and Columbia has plenty of options to wait for the NLRB to overturn its 2016 decision, Professor Angela B. Cornell, the director of Cornell University’s Labor Law Clinic, said.

UAW Hopeful Columbia Bargains

The board ruled 2-1 Dec. 18 that there is no basis to repeat the Columbia election. Democratic members Mark Gaston Pearce and Lauren McFerran joined in the latest decision. Then-Chairman Philip Miscimarra (R), whose term ended Dec. 16, dissented. New member Marvin Kaplan (R) recused himself from the case, likely because his wife is employed by the Trustees of Columbia University. The UAW said it is “hopeful that Columbia administrators recognize that this movement only keeps growing.” The union also said it hopes Columbia follows the lead of other private universities “to respect the democratic choice of graduate workers to engage in collective bargaining.”

Cornell isn’t so optimistic Columbia will be brought to the bargaining table willingly. “Columbia has fought this tooth and nail,” Cornell said of the organizing campaign. “They’ve tried every single tactic to delay the implementation of the board’s landmark decision and the wishes of the majority of their grad students. It wouldn’t be surprising if they try to hold out in any way they could. They could go to the bargaining table and engage in some very modest effort at bargaining and to delay the process to genuinely reaching a deal.”

Employers may delay or appeal an NLRB decision, and doing so could result in the employer getting its way, Davis, Wright, Tremaine attorney Peter Finch told Bloomberg Law.

“If an employer has a valid argument that the board made a mistake in a prior decision by certifying a unit that is improper because it includes workers who are not employees” as defined by the National Labor Relations Act, then it has the option to test the certification of this unit, Finch said.

“I would expect Columbia is well aware of the climate in which this issue arises and would likely seek to get the question before the Board,” he said.

Columbia Has Options to Overturn

If the university is slow to bargain going forward and that generates an unfair labor charge, that opens the door to get the case to a court of appeals further down the road, Finch said.

If Columbia is resigned to wait out the process, administrators could pursue a contract in the meantime, Cornell said. If a contract is ratified, the administration is bound to the agreement for the duration of that period. But if the NLRB eventually reverses its 2016 decision, Columbia can easily bail out once the contract is finished.

“It’s been done before. It’s not to say they wouldn’t still be pressured publicly. But there wouldn’t be a legal basis to challenge the university. Once the board changes its position, then the grad students don’t have any legal recourse to advance their organizational rights. They wouldn’t meet the definition of an employee” under the law, she said.

Still, public shame might work too, Charlotte Garden, a professor at Seattle University’s School of Law, told Bloomberg Law.

“Whether or not Columbia commits to bargaining in good faith will probably come down to whether the graduate student workers—who voted overwhelmingly to unionize—are able to galvanize public opinion on and off campus in their favor,” she said. “So, I wouldn’t be surprised to see the students and the union pushing the university on multiple fronts, trying to get as many university stakeholders as possible to weigh in on their side.”

General Counsel’s Might Tip Scales

Columbia also has a friend in the NLRB’s new general counsel, Peter Robb.

The status of graduate students and other research assistants in higher education has been identified by Robb as one that he will re-examine during his tenure, Finch said.

Robb directed all regional offices in a Dec. 1 memo to consult headquarters on any cases involving precedent set on workers’ rights in “the last eight years” and any others involving “significant legal issues.”

Robb may weigh in on any complaint that is issued related to a charge against Columbia, Finch said.

“If the board issues a complaint against Columbia for not bargaining with the grad students, the general counsel can say that he believes that decision was wrongly decided and employees in this case are not in fact employees. Therefore, he can say the right move would be to overrule Columbia and dismiss complaint,” Finch said. “That’s a very rare thing. Based on my time on board, it’s not unusual. And that’s how new board law is made.”

To contact the reporter on this story: Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bloomberglaw.com

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