Speaking Out

NLRB's Complex Decision

An Open Letter to President Judith Rodin

Since receiving President Rodin's e-mail of November 22, I have read the 100 page report of the NLRB and I feel that there is need for some clarification and response.

First, the Board's decision is, indeed, complicated because, as the Board's decision demonstrates, the multitude of various graduate programs and the use of teaching assistants and research assistants is complicated and diffuse with no coherent unity. The complexity of the Board's decision reflects the complexity of the University practices.

Second, the NLRB has for decades held that the question in a representation case is whether bargaining unit requested by the union is "an" appropriate unit, not "the" most appropriate unit. It is for the union to decide what unit it wants to represent and bargain for, and if it is an appropriate unit, subject to minor modifications, then that is the unit for which the Board will hold an election. It is not at all uncommon that this unit does not include all who have some common interests, and a single employer may have three or a dozen appropriate units. The Board uses various tests to determine whether a unit is appropriate, but the basic question is whether it is a unit which both the union and employer can, in practical terms, work out their common problems.

It seems to me, in view of the Board's standards, the unit described is an appropriate unit. I see no serious problem with the University dealing with the Union for these employees without including the other graduate employees. Indeed, separate units for each school might have been more appropriate in view of the fact that the Deans of each school do, or can, exercise major control over the graduate program and the use of teaching assistants in that school. Then each Dean could more easily negotiate to fit the employment of graduate students in that school to its own needs. That would have meant a separate election in each school. There is nothing arbitrary about the Board not including all graduate student employees in one unit.

Third, it is true that those graduate students not included in the unit have no vote, but that is because the Union can not bargain for them. They will in no way be bound by any agreement made by the Union. For them, nothing will be changed regardless of the outcome of the election.

Fourth, disputes over the size of the bargaining unit are often not disputes over whether the unit is appropriate for bargaining purposes, but instead, contests over who will win the election. It is like the contests over redistricting for elections for state legislatures or Congress. That, it seems to me, to be the case here. I have no knowledge of where the Union is strong, or where it is weak, but it is quite clear that the University seeks to avoid bargaining with the Union in any bargaining unit, no matter how bounded or expanded. I have difficulty believing the University would prefer to bargain for graduate students in all departments rather than the limited unit the Board has described. It seeks a larger unit because it hopes that will help it defeat the union in the election. The result would be that no graduate would have collective representation, regardless of his or her choice. I think it highly likely that if the University had stated that it was prepared to recognize the Union for any substantial group of graduate students where the Union had a demonstrated majority, there would have been no need for the Board proceedings. Even now, the University and the Union can negotiate for what they believe is the most appropriate unit.

Fifth, I see no insuperable obstacle to the Administration dealing with those graduate student employees who wish to speak collectively. I see no compelling reason that they should not have an effective voice in the decisions which affect their employment as teaching assistants and research assistants. To me, it is unseemly that their terms and conditions of employment should be dictated unilaterally without meaningful discussion with representatives of their own choosing.

--Clyde W. Summers, Professor of Law

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President Rodin's Response

I welcome Professor Summers' thoughtful comments, and am pleased that he has provided the University community with an opportunity to continue debating the pros and cons of graduate student unionization as we get closer to an election date. But I disagree with some of his conclusions.

I too believe strongly that graduate students should have an effective voice in the decisions that shape their educational experience at Penn. However, I believe that the bid by the AFT to represent groups of Teaching Assistants and Research Assistants does not best accomplish that goal. Penn now offers a wide array of diverse graduate programs that furnish each graduate student with a premier educational experience. Establishing a labor union as the exclusive representative for certain groups of graduate students would require that those graduate students give up their individual and independent voices in advancing their unique needs for graduate scholarship.

Contrary to Professor Summers, I also believe that the scope of the graduate student bargaining unit vitally concerns the entire community of graduate students at Penn, and that the bargaining unit defined by the NLRB has no cohesive rationale. With the bargaining unit that the NLRB has constructed, Penn graduate students performing identical services will be treated in some cases as employees and in others as students. Graduate students within the same school performing the same services will be treated differently based on their characteristics as students, not the characteristics that should be used to determine whether they are employees. And some graduate students with the same responsibilities will be treated as students if they are paid on an hourly basis but as employees if they receive funding on a stipend basis, even though their respective responsibilities are the same. Moreover, a graduate student who comes to Penn from another university like NYU or Columbia, where there are defined graduate student bargaining units, could be included in the bargaining unit at NYU or Columbia and excluded from the Penn bargaining unit even if the student's field of study or grant funding were the same.

Also, as a result of the NLRB's ruling, many graduate students at Penn--such as those students pursuing degrees in the natural science disciplines who as graduate students share a community of interest with other students such as those studying economics or other social sciences--will nonetheless be disenfranchised in this election.

I am not as sanguine as Professor Summers that the narrow and arbitrary bargaining unit defined by the NLRB will not have an adverse effect on the excluded graduate students. Graduate students will only be in the union when they have teaching responsibilities. However, a union agreement can broadly determine who will teach and when, thereby having an impact on both union and non-union members. In addition, collective bargaining can certainly skew the allocation of the University's financial resources, which are not unlimited, in a way that affects graduate students not in the bargaining unit.

Finally, imposing an additional layer of rules and policies that affect some but not all students, for some but not all periods of their student careers, and requiring Penn to determine who is in the bargaining unit governed by the labor contract, and when student health plans or university policies will apply, creates real and practical difficulties for the graduate students, the faculty and the administration -- difficulties that can only jeopardize the quality of graduate education and harm the quality of the graduate student experience at Penn.

For all these reasons, I continue to support legal efforts being made to rationalize this process.

-- Judith Rodin, President