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It is likely that the University's exceptions will again be rejected in D.C.

By objecting to a regional National Labor Relations Board ruling that affirmed the vote of graduate students to unionize, the University has taken a step forward in a series of legal proceedings challenging unionization that could last for years.

This is the second round of objections that the University has filed regarding the graduate student union, which formally voted in December 1,602 to 623 to join the Graduate Workers of Columbia-United Auto Workers Local 2110. Following the December vote, the University filed objections to the vote based on claims of improper conduct during the election, which the regional NLRB ultimately rejected. Despite the decision, the University filed objections once more to the regional NLRB’s ruling with the national NLRB in Washington, D.C., beginning what experts say will be an extended legal battle.

The union sees these objections as the University’s attempts to delay bargaining by capitalizing on legal technicalities.

“It’s a classic delay tactic,” union spokesperson Olga Brudastova said. “Columbia has been opposing unionization from the very beginning, so it’s not surprising that they’re using this really technical method to delay this process. It is surprising, though, that they’re going against their ideals and values when it comes to respecting democracy on campus.”

Though the University has been vocally opposed to unionization for years, Provost John Coatsworth emphasized that the objections are not an attempt to delay bargaining. When he spoke with Spectator this week, Coatsworth maintained the University’s position that the election was mismanaged due to surveillance and an improper voting procedure.

“We didn’t enter these objections in order to delay, we entered them because we thought the election itself was not well managed,” Coatsworth said.

At a fireside chat last week, University President Lee Bollinger also reinforced the University’s stance against unionization while stating that the exemptions were solely based on election misconduct.

“It is our belief that there was serious misconduct in behavior [during the election], and we think that behavior was serious enough that we should challenge it, that we should not let it go by,” Bollinger said.

However, former NLRB Chair Wilma Liebman said that most employers use strategies such as filing exceptions in order to delay bargaining. According to Liebman, the national board generally affirms the decisions of the regional board, meaning that it is likely that the exceptions will again be rejected in D.C.

If the national NLRB rejects the University’s exceptions, it is possible that the University will refuse to bargain with the union, leading the union to file unfair labor practice charges with the regional NLRB. The evaluation of unfair labor practice charges would eventually lead the regional NLRB to issue a final administrative order rejecting all the appeals and requiring the University to bargain. At that point, the University would present a case against graduate unionization to the United States Court of Appeals for the Second Circuit, which could reconsider the right of Columbia graduate students to unionize.

By filing exceptions, the University could establish a precedent of legal issues with the union, which may help legitimize later claims in the Court of Appeals, in a process that could take 18 months to two years to arbitrate.

“I think everyone assumes that Columbia intends to do that, not strictly to challenge this issue about the alleged objections to the election, but to challenge the more fundamental issue of the employee status of graduate teaching assistants,” Liebman said.

But if the University’s exceptions are upheld, a second election for graduate workers would be held. Even in this situation, the University could still follow the same path of legal procedures by refusing to bargain if graduate students voted in favor of unionizing a second time.

The lengthy legal battle the two parties have undergone has also led members of the union to raise concerns that the University is delaying negotiations in hopes that the NLRB’s new Trump-appointed leadership will potentially reverse the August decision that allowed graduate students to unionize.

The five-person board, which is being led by the Trump-appointed Republican Chair Philip A. Miscimarra, currently consists of two Democrats. The board still has two vacancies that the president will fill, likely in the fall. But the current board members could make a decision on Columbia’s exceptions within two or three months or wait until the new members are appointed, delaying the decision for many more months.

If the Democrat-dominated board made a decision now, it would most likely reject the exemptions, while a Republican-dominated board would probably uphold the exemptions.

“I think the entire situation is kind of in limbo, because it depends upon whether Trump acts quickly and nominates and [whether] the Senate confirms a couple of Republican side members to the NLRB,” Evan Spelfogel, an adjunct professor of employment law at Columbia, said. “If that happens within the next couple of months, it will probably end up resolving this case through a reversal, and holding that the union is not an appropriate representative for these graduate students.”

However, Liebman predicted that it was too late for Columbia to wait for the NLRB to reverse the regional NLRB’s decision.

“At this point, I’m assuming it’s headed for the Court of Appeals and [Columbia will] make its case to the Second Circuit that the board was wrong,” he said.

cara.maines@columbiaspectator.com | @ColumbiaSpec

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