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GSU strategically withdraws representation of University of Chicago graduate students

By Pamela Wolf, J.D.

Graduate Students United (GSU) has withdrawn its previously granted certificate of representation to prevent the University of Chicago from taking advantage of the Trump Administration’s pro-employer leaning to overturn the NLRB’s Obama-era ruling in Columbia University that recognized graduate workers across the country as employees. The union made its decision to withdraw representation by a membership vote at its weekly open organizing committee meeting based on concerns that a review of its case was imminent. On February 14, the University of Chicago filed a letter with the NLRB asking that “The Board should grant Chicago’s RFR [Request for Review], reverse the Regional Director’s decision, and overrule Columbia.”

In October, University of Chicago graduate workers made history by voting 1103-479 to demand that the university recognize GSU as their union. Since then, the university administration “has refused to respect the results of that election and begin bargaining a contract,” according to GSU. Moreover, in recent public statements, the university has made clear that they intend to continue their appeal to what the union called the “Trump-controlled” Board and seek to overturn the Columbia decision.

Obama-era precedent. In Columbia University, a four-member Board panel overruled its Bush-era Brown University precedent and held that students are statutory employees, and thus entitled to organize, if they have a common-law employment relationship with their university. Applying the new standard to the Columbia University teaching and research assistants, the Board found they were employees under the National Labor Relations Act.

Questionable Board move. Many Board watchers are still crying foul over the Board’s reversal of the Obama-era joint-employer standard in its December 14, 2017, ruling in Hy-Brand Industrial Contractors, Ltd. Based on that ruling, the D.C. Circuit Court of Appeals remanded Browning-Ferris Industries, the case in which the Board ruled against the employer and established the now overturned joint-employer standard, back to the Board. In Hy-Brand, the 3-2 Board took action just two days before the December 16 departure of Republican Chair Philip Miscimarra would end the Board’s brief Republican majority to overrule the controversial 2015 Browning-Ferris decision, which expanded the scope of joint-employer liability and returned to the Board’s pre-Browning-Ferris standard.

Questions have been raised about the Trump-era Board using Hy-Brand as an opportunity to overturn the Browning-Ferris joint-employer standard with new Member William Emanuel participating, despite the fact that his former law firm, Littler Mendelson, represented one of the parties in Browning-Ferris. Further, the joint-employer standard was not in dispute in Hy-Brand.

After its Hy-Brand ruling, the Board quickly asked the D.C. Circuit to remand Browning-Ferris, still pending there on appeal, back to the Board for reconsideration, which the appeals court agreed to do. According to the Teamsters Union, which had intervened in the case, the Board sought and obtained remand without the union afforded any opportunity to oppose the Board’s request. The remand also came before the Hy-Brand decision overturning Browning-Ferris had even become a final order.

Facing the realities. The Hy-Brand case is just one of the Board’s actions that GSU took into account when it voted to withdraw its certificate of representation, saying the withdrawal was necessary because of developments at the national level. “Since taking office, Donald Trump has appointed two new members to the five-member NLRB. These appointees moved quickly to undo a number of pro-worker decisions that were made under the Obama administration,” the union said in a release.

GSU also pointed out that the U.S. Senate is currently advancing the confirmation of Trump’s third appointment, John Ring, while at the same time the University of Chicago is arguing against the recusal of Trump appointee Marvin Kaplan, whose wife works for the university, from presiding over cases related to the Columbia precedent. GSU believes that these new NLRB appointees will overturn Columbia, with the result that it may be many years before graduate workers regain their legal status as employees, even after a new president appoints a new Board. The union accordingly plans to “pursue alternate pathways toward winning recognition and a contract.”

The battle still continues. GSU said it still looks forward to meeting the University of Chicago administration at the bargaining table. The union added that it is joining graduate unions at other institutions who have withdrawn from the NLRB process and are instead demanding recognition directly from their universities. “Many unions across the country have reached private agreements with their employers independent from the NLRB,” said GSU. “Through our organizing, GSU has built the power to wage a campaign to win such an agreement. Our union has the support of a supermajority of graduate employees at UChicago, whose work is necessary for the university to function.”