New Semester Brings Renewed Labor Claims From College Protests

Student unions have begun to file complaints in the wake of uprisings earlier this year demanding their universities cut their investment ties to Israel, saying that the ensuing disciplinary actions for students involved in the campus protests are ignoring their federally-protected rights.

The union at Columbia University representing teaching and research assistants filed an unfair labor practice charge with the National Labor Relations Board in September, alleging that university officials were unlawfully denying workers their right to a union representative during conduct hearings following the pro-Palestine demonstrations. Other academic unions, including those at Cornell University and New York University, are preparing to mount similar legal arguments.

The complaints could test how far labor protections extend in academic settings when work and study are closely entwined.

The latest filings stem from a spring wave of political protests on campus related to the Israel-Hamas war. Student activists at Columbia set up encampments with tactics that were copied at over 100 colleges nationwide. Protesters occupied campus buildings and public spaces, calling for their schools to disclose and discontinue investments in Israeli institutions and weapons manufacturers.

Many colleges responded by bringing in local law enforcement to break up the encampments, leading to thousands of arrests. Several student unions—including those at Harvard University, the University of Southern California, and Brown University—filed ULP charges with the NLRB, claiming their legally-protected rights to act concertedly had been violated. The graduate student union at the University of California took tens of thousands of its workers out on strike before an Orange County superior judge granted the schools’ injunction request and the union agreed to end the work stoppage.

The tension from the last semester hasn’t dissipated, union organizers say.

“Everyone’s waiting for the other shoe to drop,” said Jonah Inserra, a steward and unit representative for New York University’s graduate student union.

Weingarten Rights

The Columbia Student Workers Coalition, affiliated with the United Auto Workers, filed its most recent ULP Sept. 9, alleging that the school unlawfully denied workers their Weingarten rights.

Weingarten rights, which stem from the 1975 Supreme Court decision in NLRB v. J Weingarten Inc., preserve a worker’s ability to have a union representative in any meetings that could result in disciplinary action impacting their employment.

Grant Miner, SWC’s vice president, said that university administrators told student workers they couldn’t bring union representatives to disciplinary meetings, even though the school lists termination of employment, suspension, and expulsion as some of the possible outcomes.

“The university tells them that they’re being punished as students and it has nothing to do with their status as a worker,” Miner said in an interview. “We sort of see this as a unilateral move by the university to try to find ways to punish people without actually obeying the law.”

Workers who attempted to bring a union representative to the meetings were barred from the proceedings by administrators, who told them the hearings would carry on without them, the union said.

At Cornell University, the Cornell Graduate Students United sent the school a demand to bargain after PhD student Momodou Taal was suspended for his role in the protests, despite a memorandum of agreement that gives the organization the right to bargain over the results of disciplinary proceedings that impact workers’ employment. The suspension terminates Taal from his job at the school and could result in his visa being rescinded, the union said in a statement.

“Unless it somehow ties into an employment situation, I see that being a difficult argument to win,” Thomas Lenz, an employer-side partner with Atkinson, Andelson, Loya, Ruud & Romo, said of the requests for union representation in meetings. “Weingarten can only apply in investigatory interviews, not those fait accompli meetings where an employer has decided what’s going to happen.”

According to the NLRB’s website, Weingarten rights apply to any investigatory meeting where the employee “reasonably believes” it may result in “discharge, discipline, demotion, or other adverse consequences” to their job or working conditions.

“If there’s a threat of disciplinary action or a possibility for disciplinary action, that would lead to the right to have a Weingarten representative,” said Risa Lieberwitz, a labor law professor at Cornell University and former NLRB attorney.

“It seems that the best practice for a university as an employer is to interpret Weingarten in a way that allows the workers to have meaningful support and representation in these meetings,” Lieberwitz, who wasn’t speaking on behalf of the university, said.

Cornell didn’t respond to requests for comment. Columbia University declined to comment on the ULP charges.

Concerted Activity?

The workers’ claims could ultimately rest on the question of whether the subject of the protests involve their working conditions and if the actions can be considered concerted.

The National Labor Relations Act protects worker movements to “take action for their mutual aid or protection,” as long as it has some workplace nexus. NLRB General Counsel Jennifer Abruzzo has pushed for the board to widen its definition of protected concerted activity to include laborers that are engaged in social justice movements at their workplace.

The board has been sparingly receptive to the legal theory, however. It ruled in February that Home Depot violated the law by firing a worker for drawing the “Black Lives Matter” insignia on their apron because the discharge was linked to worker protests of racial harassment on the job.

But in an August decision, the board came to the opposite conclusion about staff at a Birmingham, Ala., cafe who protested racial discrimination outside of the workplace. NLRB member Gwynne Wilcox said in the holding that workers are shielded as long as their group actions have an NLRA-protected objective, even though they might have other objectives.

The Columbia student union organizers said they were “optimistic” about their charges, but had not received a merit determination from the NLRB’s regional office yet.

“It was very clear to us that a lot of our members considered the divestment movement to be part and parcel of their advocacy as workers,” Miner said. “With the investments and the grants the university receives, they believe it makes them complicit with the arms industries of the apartheid state as well.”

Changing Workplace Rules

In addition to the disciplinary proceedings, new campus policies around protests and free speech are also drawing criticism from student labor organizations.

NYU updated its campus harassment and discrimination guidelines this year to include the use of the term “Zionist” within its definition of anti-Semitic actions, saying in a statement that students who would otherwise violate the anti-discriminate policies “cannot be shielded by using ‘Zionist’ as a substitute or code word for Jew or Israeli.”

Inserra with NYU’s Graduate Student Organizing Committee said the union has had a “torrent of inquiries” from its members about how this will impact their ability to do their jobs, and plans to file ULPs over the issue.

“If you have to speak about Zionism or the historical facts of the Middle East, it becomes much more fraught,” he said. “The way the university has construed political speech is now very much wrapped up in our working conditions. You can’t tease them apart.”

NYU spokesperson John Beckman said in an emailed statement that the “student conduct rules apply to ALL students, irrespective of their employment status, just as they always have, and are unrelated to any CBA.”

Other colleges, such as Rutgers University, Northwestern University, and the University of California system, have issued new rules about when, where, and how community members can engage in protests, vigils, or rallies. Lieberwitz said these kinds of campus rules could be considered employment-related working conditions that require bargaining.

“These schools have a duty to bargain about terms and conditions of employment, and certainly rules that regulate when and where people can communicate and meet fall within that duty,” she said. “To be able to discuss and engage in protests and demonstrations about social justice issues are part and parcel of what it means to live and work at a university.”