Yale, Local 33 Spar At The NLRB

Hartford — Columbia’s graduate student teachers may be ​“employees,” but their counterparts at Yale aren’t.

So argued Yale lawyers in a windowless hearing room here as the fate of a 26-year-old drive for a union election headed to a legal climax.

Lawyers for UNITE HERE Local 33, the union seeking to represent Yale graduate student teachers, responded that just like Columbia, Yale will now need to treat them as workers with labor rights and follow a precedent set in a case involving Columbia.

Meanwhile, Local 33 sought to set a new precedent of its own: Having just some graduate student teachers — in 10 of 56 departments — obtain union rights, rather than all grad student teachers.

The legal arguments were bandied about, at times with raised voices, Wednesday in a regional National Labor Relations Board hearing at the 450 Main St. federal courthouse here. The hearing began this week and will continue into next week as Yale contests Yale graduate students’ petition to hold an election to unionize as Local 33. This hearing follows an Aug. 23 NLRB ruling giving collective bargaining rights to Columbia University graduate teaching assistants.

The two main questions at hand in the proceedings: Are Yale graduate teaching fellows employees, not just students, like in the Columbia ruling? If so, should they be allowed to form individual bargaining units by department, instead of as one university-wide group?

Since Monday, an NLRB officer has been overseeing a hearing to get an answer that could mean upholding or rejecting Yale grad students’ rights to hold an election to unionize.

Columbia University graduate teaching assistants won collective bargaining rights through a 3 – 1 vote in the Aug. 23 NLRB ruling, meaning they can be viewed as students and workers under the law. The ruling overturned a previous NLRB decision that had concluded Brown University graduate student workers would compromise their relationships with professors by getting the right for collective bargaining.

Less than a week later, on Aug. 29, hundreds of graduate student teachers in 10 Yale departments signed authorization cards seeking to have UNITE HERE Local 33 recognized as their union to bargain with the university. Those 10 departments are: Comparative Literature, East Asian Languages and Literatures, English, Geology and Geophysics, History, History of Art, Mathematics, Physics, Political Science, and Sociology.

Yale lawyered up to contest graduate students’ push for an election with the NLRB.

In an unprecedented move for a private university, Yale grad students are using a department-by-department approach to unionization, first trying to get UNITE HERE Local 33 recognized as the union for only 10 different departments, with each as a separate bargaining unit.

Yale officials continue to maintain that students are not employees. Plus, their lawyers have argued since Monday, departments are not autonomous units and should not be able to bargain separately.

“Even assuming for the sake of argument that graduate students are employees, the smallest appropriate bargaining unit of Yale graduate students would include all graduate students with teaching responsibilities in all Graduate School departments,” said Yale University spokesperson Thomas Conroy in an email to the Independent Wednesday.

Not Your Average Proceeding

An NLRB hearing is not like a typical court case. A hearing officer presides over the proceedings — in this case NLRB attorney Jennifer Dease. She is not a judge. On Tuesday and Wednesday, no one called her ​“Your Honor.” The handful of attorneys in the room often shouted at or over her, and sometimes called one another by first name.

Dease stopped them when necessary to question the witnesses herself, clarifying confusing statements and determining when to go on or off the record. She responded to lawyers’ objections on lines of questioning.

And she is the one who takes the details of the hearing to the NLRB regional director in Boston, John Walsh. Walsh will decide whether or not Yale graduate students get to continue with unionization.

Since Yale is contesting that right, it gets to call witnesses first, whom the union’s lawyers then cross-examine. Monday through Wednesday, the lawyers got through questioning two of six witnesses: first Dean of the Faculty of Arts and Sciences Tamar Gendler, then Dean of the Graduate School of Arts and Sciences Lynn Cooley. They also started, but didn’t finish, questioning Pam Schirmeister, senior associate dean of the graduate school.

Gendler insisted that ​“much of the university’s most exciting work happens across departments.” She referenced Yale’s recently approved new biology lab as an initiative that brings students together by interest, not necessarily department.

Local 33 Chair Aaron Greenberg sat on the wooden court benches watching the proceedings Monday through Wednesday. Between three and six graduate students joined him each day, excited to see the system in action after years of rallying for a hypothetical; Yale graduate students have been trying to form a union since 1990.

Greenberg declined to comment on the verbal volleys between the lawyers. But he said the ​“energy” around the effort to unionize has spiked since the Columbia ruling.

“We’re employees. We’ve known that for a long time,” he said. Running the organization has been especially difficult given that Yale is ​“so resistant” to the idea of student unionization, he said.

“Students,” Not ​“Employees”?

Tuesday, Yale submitted an initial argument for why the recent Columbia ruling should not apply to Yale. Dease called Walsh in Boston to get his take — and he rejected it, saying the argument was too vague.

Yale lawyers revised the argument Wednesday, offering four specific points. Just one of those lines of argument was discussed Wednesday morning: Graduate students are not employees because they receive stipends even when they are not teaching, argued Yale’s lawyer Peter Conrad, partner at Proskaeur Rose LLP.

In special cases, Yale graduate school officials may not be able to find a teaching appointment for a particular student. That student would receive a stipend anyway. Hence the student is not working under the same conditions as a standard employee, Conrad said.

The stipend is part of the financial aid packet, ​“not remuneration for services,” he said.

Union lawyer Yuval Miller, of Davis, Cowell and Bowe LLP., disagreed with that analysis. He said it is clear that Yale, as an employer, made the final determination on whether or not a student would work. ​“It’s up to the school,” he said. ​“The employer holds the strings.”

Miller argued he should be able to consider bringing in Columbia graduate students to testify, to prove they are similar to Yale graduate students. Dease rejected the motion to give Miller more time to prepare more witnesses, saying the crux of the argument is the status of Yale students, not Columbia students.

Over the course of several hours over two days, Yale lawyer Paul Salvatore asked Dean Cooley to read excerpts from various pages in Yale Graduate School’s book of Programs and Policies, to establish the exact roles and responsibilities of graduate students as teaching fellows, as well as the structure of the programs and personnel in Yale’s graduate school.

All graduate students can access a website showing the teaching opportunities that may match their academic interests, Cooley said. Students also receive a centralized orientation at the beginning of the academic year.

Graduate teaching fellows are divided into two ​“levels” across departments, those who teach six to 10 hours a week and those who teach 15 to 20 hours a week, she said. Students at the level with fewer hours receive a $4,000 teaching stipend in their total financial aid package; those with more hours receive $8,000.

Later, in a brief preliminary questioning of Dean Schirmeister, who directs the teaching fellow program at Yale, Salvatore established a main difference between the curricula and teaching responsibilities at Columbia and Yale.

Unlike Columbia, Yale does not have an undergraduate core curriculum, a set of specific courses students must take in order to graduate, Schirmeister testified. She argued this means Yale grad students are able to teach a broader range of classes, a good opportunity for professional preparation.

“The instructional needs are likely to be spread among a broader range of courses,” she said, giving teaching fellows a ​“better range of teaching opportunities.” Universities with core curricula, such as Columbia, are likely to need ​“lots of teaching fellows to staff it,” she said.

Please Use Inside Voices

The volume of the room rose as Miller cross-examined Cooley, with Salvatore raising his voice at Miller, Miller raising his voice to tell Salvatore not to raise his voice, and Dease reproaching Miller for talking over everyone.

Miller asked Dean Cooley questions to tease out an argument for departments as individual units that should be able to bargain separately.

Does the Graduate School Programs and Policies book allow each department to format its own qualifying exams for graduate students? he asked Cooley.

Yes, she responded.

Can each department decide on its own thesis advisory committees, as long as it follows a couple of standard requirements?

Yes, she responded.

Miller also spent some time questioning Cooley on the number of semesters graduate students spent teaching over their time at Yale. Cooley wrote an opinion article published in the New Haven Register Sept. 10 arguing Yale grad students receive ​“unsurpassed support,” including health benefits, full stipend support for six years, and teaching requirements for just six of 12 semesters.

“Did you check that it was true before you published it?” Miller asked Cooley about the latter assertion on teaching requirements.

“I didn’t go through the list of students to check one by one,” Cooley responded.

Miller pulled out an unofficial transcript from a physics graduate student who had taught all 12 semesters at Yale. Yale’s lawyers objected: the document had no date and could not be authenticated. Also, Cooley had not purported to know every student’s workload; she had made the claim to the best of her knowledge, they said.

Dease allowed Miller to ask questions based on the transcript, but not to submit it into evidence, agreeing with Conrad and Salvatore.

“Does the physics department allow students to teach 12 out of 12 semesters?” Miller asked Cooley.

“Physics students do a lot of what we call extra teaching, which means teaching more than what is required for their program. I’m aware of that,” she responded.

“Are there graduate teachers in physics who teach during more than six of their 12 semesters?” Miller continued.

“That’s quite possible,” Cooley said.

Yale graduate students would be setting a precedent if they succeeded in unionizing by department. Greenberg said it makes sense for each department to form a separate bargaining unit, because graduate teaching fellows in different departments have very different teaching requirements.

For example, in the East Asian Language and Literature department, graduate teaching fellows spend four to five days a week on language instruction. English teaching fellows may have a discussion section once a week for a class. And natural science department fellows supervise undergraduate in labs.

Yale’s lawyer Conrad Tuesday called it ​“unworkable” to potentially have 56 separate bargaining units for 56 different academic departments at Yale.

The regional NLRB hearing will continue Friday at 9:30 a.m. at the U.S. Courthouse at 450 Main St. in Hartford.