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Harvard’s student unionization effort could come to an end at the hands of Republican appointees to the National Labor Relations Board, one of a number of ways labor experts say the years-long movement could ultimately stall.
Since last year, a coalition of students at Harvard have organized to form a union and collectively bargain with the University in contract negotiations for teaching and research jobs. After a series of legal disputes about a voter list generated by Harvard before the Nov. 2016 election, the unionization question now lies with the NLRB in Washington, D.C.
President Donald Trump has nominated two members to the five-member NLRB, a shift to the right that labor experts say could favor Harvard as the board takes up the University’s appeal. The NLRB could also choose not review Harvard’s appeal.
William Gould IV, chairman of the NLRB under President Bill Clinton, said he thought the board would likely review the case.
“Generally, the board would take very seriously the absences from any voting list,” he said. “This would be a likely candidate for review.”
At the beginning of Trump’s term, there were two Democrats, one Republican, and two vacancies on the board. Since then, the Senate has confirmed Republican Marvin J. Kaplan and will vote on the confirmation of William Emanuel, another Republican. It could still be weeks before the Senate confirms Emmanuel. According to Gould, Democrats tend to favors unions, while Republicans tend to side more with employers.
“Even if he’s voted on in the next week or so, he probably is not going to be acting until the late part of the month at the earliest,” Gould said.
Gordon Lafer, a professor of labor law at the University of Oregon, said this delay could benefit Harvard.
“My concern if I were the union would be that this was a sign that they’re playing for time for the Trump labor board,” he said.
Not only does the University stand a good chance of winning its appeal in front of an NLRB with a Republican majority, but an NLRB decision could affect student unionization efforts at private universities around the country.
Student unionization efforts have sprung up at schools like Harvard, Yale, and Columbia in the wake of a 2016 NLRB decision that ruled graduate students at private universities are employees and therefore eligible to unionize. In reviewing Harvard’s appeal, the NLRB could overturn this precedent.
Gould said there is a “substantial possibility” that the NLRB will rule this way if Emanuel is confirmed before the board releases its decision on Harvard’s appeal.
But if the board rules in favor of the unionization effort and Harvard Graduate Student Union-United Auto Workers—the proposed name of the union—wins the re-vote, Harvard could further draw out the process by refusing to negotiate with the union in hopes of the NLRB overruling the original decision. Gould said the NLRB cannot legally compel Harvard to negotiate with a union, but a federal court could.
“Suppose the union wins this and the union wins the other election,” Lafer said. “What anti-union attorneys would council Harvard to do is to refuse to bargain.”
Warning that the NLRB’s decision could harm “unionization efforts across the country,” union organizer and graduate student Andrew B. Donnelly criticized Harvard’s choice to appeal. He said Harvard’s argument that past NLRB precedent is “outdated” means the University is “trying to change the law.”
“Harvard’s taking advantage of a right wing NLRB to change labor law,” he said.
In an emailed statement, Graduate School of Arts and Sciences spokesperson Ann Hall said the University hopes the federal NLRB will find Harvard’s appeal valid.
“The University is eager to resolve these issues and confirm the outcome of the November 2016 election,” she wrote. “We value the contributions made by Harvard’s students and are committed to protecting academic freedom, the integrity of our teaching and research mission, and continually strengthening the experience of our students, who are at the heart of Harvard’s learning, teaching, and scholarship.”
Even as Harvard’s appeal is pending before the NLRB, students at other private universities continue to hold unionization elections. Students from Boston College will head to the polls on September 12 and 13.
—Staff writer Caroline S. Engelmayer can be reached at firstname.lastname@example.org. Follow her on Twitter @cengelmayer13.
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