(Updated September 7, 2017)
As people around the country debate whether the concept of student assistant unionization is positive or negative, we are encouraging the members of our community to become educated on the issue and to discuss among ourselves whether it is right for Washington University and its students. To facilitate this conversation, we have created this website to provide general information about union representation, the NLRB election process and collective bargaining. We hope you find this information helpful, and from time to time we may provide additional information on these topics.
Note: There is no graduate student union election scheduled for graduate students at Washington University. Nor has the university received notice that any union has asked the NLRB to conduct such an election.
Background Information About Graduate Student Assistants And The National Labor Relations Act
Why are we hearing about unionization this year?
Last year, the National Labor Relations Board (NLRB) ruled that graduate students engaged in paid assistantships were “employees” under the National Labor Relations Act (NLRA) who may unionize and collectively bargain with their universities over the terms of these assistantships. This decision overrules decades of legal precedent and marks a fundamental shift from the way the NLRB has traditionally viewed the relationship between graduate student assistants and their universities.
The NLRB decision was not unanimous – there is a lengthy dissenting opinion that offers a counterpoint to this new approach. Indeed, this new interpretation could yet be reconsidered by the current members of the NLRB or by a federal court.
Isn’t teaching and research part of the graduate student assistants’ academic program? What role would a union play in the students’ academic programs?
Washington University believes that first and foremost, graduate student assistants are students. However, the NLRB now holds that when a student receives compensation for performing services such as teaching or research, the student is an employee who would be eligible for union representation. In a semester or term in which the student is not paid for teaching or research, the student would not be eligible for union representation. Students studying at a university with a union would float in and out of “employee” status – during some academic terms they would be represented by the union and in others they would be free to work directly with faculty without regard to the provisions of any collective bargaining agreement.
Do I need a union to get the University to respond to any concerns I may have?
No. There are a number of organizations on campus that regularly communicate directly with the administration on issues of interest to graduate students. Washington University has a long history of working collaboratively with graduate students to address their concerns, and many significant enhancements have been made as a result of student feedback.
If I am interested in union representation, is there any deadline for organizing?
No. You can choose to share any concerns you may have directly with the University, assess its response, and still remain free to seek union representation at some later time. Many employees who are eligible to organize decide to first attempt to work out any issues directly with their employer, rather than paying a union to raise those same issues because once a union is elected, it is difficult to remove even if the union is not delivering the results the employees wanted.
How can students learn more about varying views on unionization?
Two of the briefs filed with the NLRB in connection with the Columbia University case provide differing opinions on graduate student unionization. One brief was submitted by a group of Ivy League and peer institutions (Brown University, Cornell University, Dartmouth College, Harvard University, Massachusetts Institute of Technology, University of Pennsylvania, Princeton University, Stanford University, and Yale University), the other by the AAUP (the American Association of University Professors). PDFs of these briefs are available here and here.
In addition, the NLRB’s August 23, 2016 decision in the Columbia University case contains both a majority and a dissenting opinion further discussing these differing views about graduate student unionization. A PDF of the NLRB decision with the majority and dissenting opinions is available here.
Background Information about Unions, Unionization, and Union Representation
What is a union?
A union is an organization that serves as a third party agent representing a specific group of employees. When a union represents employees, the union is the exclusive representative for those employees with respect to their pay and working conditions. This means that a graduate student assistant represented by a union would not be able to make individualized arrangements with a faculty member about teaching assignments if those arrangements were inconsistent with a collective bargaining agreement – even if those arrangements worked better for the student and the faculty member than what the collective bargaining agreement provided.
Does union representation cost money?
Yes. To support themselves, unions charge their members dues and often negotiate collective bargaining agreements that require employees to join the union or pay an agency service fee as a condition of remaining employed. An agency service fee is equivalent to that portion of the union dues that pay for collective bargaining and contract administration. The agency service fee usually costs almost as much as union dues. Depending on the terms of the labor contract and state law, failure to pay dues or an agency fee could result in dismissal from a teaching or research appointment, which in turn could impact a student’s degree eligibility.
How does a group of employees become unionized? What are “authorization cards”?
The process typically begins with union organizers soliciting employees to sign “authorization cards.” It is very important to understand what those cards are and what effect they can have.
Authorization cards are legal documents used by unions as evidence that a group of employees is interested in union representation. Authorization cards should not be signed without considerable thought, because once signed the cards become the property of the union, they are effective for one year, and cannot be unilaterally revoked. In addition, if at least 30% of the relevant employee group signs cards, the union can file a petition with the NLRB for an election. The outcome of the election binds all eligible employees – whether or not an employee signs an authorization card or participates in the election. We urge you to become educated about union representation and collective bargaining before signing any legally binding union authorization card.
As noted above, there is no graduate student union election scheduled for graduate students at Washington University, nor has the university received notice that any union has asked the NLRB to conduct such an election.
If union organizers approach me outside my classroom or at home, am I under any obligation to speak with them?
No, you have no obligation to speak with a union organizer. Of course, you can choose to do so if you would like to, at a time and location that is acceptable to you and not disruptive to teaching or research activity. Many unions use office and home visits as part of their organizing efforts. Please rest assured that the university has not given any student’s home address or classroom location to any union.
How do union elections work?
Union representation is determined by a secret-ballot election. If a majority of those who vote choose union representation, all eligible voters would be exclusively represented by the union in their dealings with the university concerning stipends, benefits, and other “terms and conditions of employment.” This means that the university could not make individual arrangements with those students with respect to the economic aspects of their teaching and research, but instead would have to negotiate with the union about this.
If a union election were held, could graduate students “opt out” of the union by voting against it or by not voting?
No. The results of any election would bind everyone in the bargaining unit, including students who vote “no,” students who do not vote, and future students who do not have a chance to vote.
For example, consider an election mandated because 30 employees out of a group of 100 signed authorization cards. If only 5 employees turned out to vote, and 3 voted in favor and 2 against, then 3% of the group would have bound the 97 others to exclusive union representation regardless of their desires.
What happens if a union wins an election?
The union would become the exclusive representative of the bargaining unit, including those individuals who voted against union representation or did not vote. The union would have the exclusive legal right to negotiate collective terms and conditions of student assistantships, such as stipends and benefits, for the entire group. Because the union represents everyone in the bargaining unit, whether they want to be represented or not, individual students may be bound by a decision with which they do not necessarily agree.
Would status as an international graduate student impact eligibility to be included in the union?
No. The NLRA does not distinguish between U.S. citizens and non-citizens for purposes of determining eligibility to be included in a bargaining unit.
If a union wins an election, will graduate students receive larger stipends and better benefits?
Nobody knows. There is a common misperception that current stipend levels and benefits serve as a floor and can only improve with collective bargaining. In fact, there are always three possible outcomes in collective bargaining. Members of the bargaining unit can get less than they had before the negotiations began, they can get the same as they had when the negotiations began, or they can get more than they had when the negotiations began. There are no guarantees in collective bargaining. A union can make requests, but an employer is under no obligation to grant the requests.
What are union dues and how are they calculated?
Union dues are the cost of membership in a union. SEIU organizers have stated that graduate students at Washington University would be charged 2.5% of their stipends.
What is collective bargaining?
Collective bargaining is the process in which an employer and a union representing all members of a bargaining unit negotiate over the members’ wages, hours, and other terms and conditions of employment. If a graduate student assistant union were formed, the union would be the exclusive representative of the students, so students would not be able to make individual arrangements about these aspects of their relationship with the university.
How does collective bargaining work?
A union and employer are obligated to meet and confer in good faith. The union may make proposals and request changes, but the employer is under no obligation to agree to its proposals and requests.
Does the law require the parties to complete their negotiations within a certain period of time?
No. It often takes more than a year to negotiate a first collective bargaining agreement. The law does not require any specific frequency of meetings. It simply requires that the parties “meet at reasonable times and confer in good faith.”
If a union were formed, what would happen to graduate student assistants’ stipends and benefits while the collective bargaining agreement is being negotiated?
Typically, there would be no increases in stipends or enhancements to benefits during negotiations because as a general rule, such matters will be subject to bargaining and could not be changed without mutual agreement of the university and the union.
What happens if the university does not agree to all of the union’s requests?
The union can either accept the university’s position or ask the student assistants to vote in favor of going out on strike in an effort to apply pressure to the university to change its position.
Could a graduate student assistant opt out of union representation if a union won an election?
No. If a union were elected to represent a bargaining unit that covered a graduate student who did not want to be represented, there is no mechanism under federal labor law for that graduate student to opt out of union representation. All graduate students in the bargaining unit would be represented by the union and could be required to pay money to the union even if they voted against union representation. If a union represents a graduate student, the university may not work directly with that graduate student to alter any of the terms and conditions of that student’s assistantship, even if the student preferred working directly with his or her faculty advisors on these issues.
If graduate students vote for a union and then decide they don’t like it, can they change their minds about unionization?
Not easily. If a union is certified as the exclusive representative of an employee group, that status cannot be challenged for at least one year. Even after that one-year period, the only way to challenge the union’s status is for the employees to petition the NLRB for another election.
If there were a union, could graduate students sit on departmental or school committees?
It is uncertain. We do know that the union would be the exclusive voice for all students it represents with respect to the terms and conditions of teaching and research assistantships. This means that other avenues of communication between graduate student teachers/research assistants and Washington University such as departmental/school leadership committees might be restricted or limited.
How are disputes resolved if there is a union contract?
Union contracts usually have grievance and arbitration provisions that call for resolving disputes through grievances brought internally and ultimately resolved through the binding decision of an outside arbitrator. The grievance and arbitration process can be time-consuming and often legalistic. There are very few arbitrators with experience resolving disputes between graduate students and private colleges and universities. This makes it difficult to predict how a dispute may be resolved in arbitration.
What could happen if the students went on strike?
The dissent in the Columbia University decision notes that if the union called a strike requiring students in the bargaining unit to stop their teaching and research duties, the university could temporarily or permanently replace those striking graduate student assistants. In addition, the university could stop providing stipends and suspend tuition waivers while they were on strike. Even if the university did not replace striking graduate student assistants, the time lost to a strike could delay a student’s completion of his or her studies and result in payment of additional tuition in order to complete his or her academic program. Those students who chose to work during a strike could be subject to fines by the union.
Could a strike potentially have an impact on my F-1 visa status?
Many graduate students have posed this question to the University. To obtain an answer, the University contacted an outside immigration attorney and U.S. Immigration and Customs Enforcement (Department of Homeland Security). The information provided to the University is set out below. Students also may wish to consult with an immigration attorney for personalized legal advice.
Foreign national students in F-1 status are required to participate in a “full course of study” in order to maintain their F-1 status. 8 CFR § 214.2(f)(5)(i). For Ph.D. programs, what constitutes a “full course of study” is set by the educational institution for the particular academic program. 8 CFR § 214.2(f)(6)(i)(A). The regulations further state that “[o]n-campus employment pursuant to the terms of a scholarship, fellowship, or assistantship is deemed to be part of the academic program of a student otherwise taking a full course of study.” 8 CFR § 214.2(f)(6)(iii). If graduate students are required as part of their academic program to “work” as graduate assistants teaching classes or conducting research, then continuing to serve in that capacity is required in order for the student to maintain a “full course of study” and thus to maintain their F-1 status. (The regulations permit an educational institution to allow an F-1 student to engage in less than a full course of study only for specific reasons enumerated in the regulations, none of which include that the student is unable to continue working due to a strike. 8 CFR § 214.2(f)(6)(iii).)
Any individual on an F-1 visa automatically has their work authorization suspended if a work stoppage occurs in their classification at their location of employment. As 8 CFR § 214.2(f)(14), entitled “Effect of strike or other labor dispute,” states:
Any employment authorization, whether or not part of an academic program, is automatically suspended upon certification by the Secretary of Labor or the Secretary’s designee to the Commissioner of the Immigration and Naturalization Service or the Commissioner’s designee, that a strike or other labor dispute involving a work stoppage of workers is in progress in the occupation at the place of employment. As used in this paragraph, “place of employment” means the facility or facilities where a labor dispute exists. The employer is prohibited from transferring F-1 students working at other facilities to the facility where the work stoppage is occurring.
Therefore, if the union were to engage in a strike, F-1 visa students engaged in graduate teaching and research experiences could be legally prohibited from continuing to “work” in that capacity.
Under such circumstances, F-1 visa students could be subject to deportation whether they continued to “work” or not. If students honored the strike and caused the suspension of their work status under 8 CFR § 214.2(f)(14), they could be deemed out of status for having failed to maintain a “full course of study.” 8 CFR § 214.2(f)(5)(i); § 214.2(f)(6)(iii). And if, despite the automatic suspension of their work authorization, students disregarded the strike and continued to perform their teaching or research responsibilities, they would be out of status. 8 CFR § 214.1(e) (a nonimmigrant “may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status . . . .”). An F-1 student who has failed to maintain status is subject to deportation. 8 U.S.C. § 1227(a)(1)(C)(i) (“Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted . . ., or to comply with the conditions of any such status, is deportable.”); see also 8 CFR § 214.2(f)(5)(iv) (“an F-1 student who fails to maintain a full course of study without the approval of the DSO or otherwise fails to maintain status is not eligible for an additional period for departure”).
Furthermore, universities are legally required to report to U.S. Immigration and Customs Enforcement (Department of Homeland Security) if a student fails to maintain status. 8 CFR § 214.3(g)(2)(ii)(A); see also SEVIS Reporting Requirements for Designated School Officials (www.ice.gov/sevis/dso-requirements).
U.S. Immigration and Customs Enforcement has confirmed this understanding in writing to the University, stating: “If the student has stopped taking courses or stopped performing research and that is what is required for their program, the student’s record should be terminated immediately and they will have to leave the U.S. as soon as possible.”
The University would not report a student’s change in status to the government unless it determined that, under the particular circumstances, it must do so in order to be legally compliant.