Although President Donald Trump has appointed two new Republican members to the National Labor Relations Board, it could take months for them to make any decisions regarding graduate student unionization, experts say.
Graduate students voted 1602 to 623 to join Graduate Workers of Columbia University-United Auto Workers last November after the NLRB overturned the 2004 Brown University decision preventing graduate student unionization at private universities. The Obama-appointed board’s ruling reversed a precedent that was over a decade old and came after years of activism on the part of graduate students.
Soon after the vote, the University filed a series of objections with the regional NLRB claiming improper conduct including coercion and surveillance on the part of the union during the election. After a regional office of the NLRB rejected those objections, the University filed a second series of objections to the national board.
Union organizers alleged that the University was delaying negotiations with them in order to wait for President Donald Trump to appoint a new, right-leaning National Labor Relations Board, but the board will not actually be right-leaning for at least a few months.
Although Trump appointed Republicans Marvin Kaplan and William Emanuel to the board this summer, Emmanuel has yet to be confirmed, deadlocking the board until the Senate confirms him. Since confirming Emmanuel is low on the Senate’s list of priorities for the fall and Chairman Philip Miscimarra has announced his plans to step down at the end of the year, the board will not fully swing Republican until the spring, when Emmanuel is confirmed and a new chairman is named.
According to Evan Spelfogel, an adjunct professor of employment law at Columbia, Kaplan and Emanuel are both management-side labor employment lawyers with histories of opposing unions. As an attorney for the House education and labor committee, Kaplan drafted a bill that would have eliminated micro-unions.
“Unless Mr. Trump gets moving and unless people get confirmed by the Senate pretty quickly, we’re going to see very little change over the next few months at least until the end of this year, probably until the first half of next year,” Spelfogel said.
Although the threat of losing the right to unionize looms over GWC-UAW, the NLRB will probably not reconsider graduate student unionization as a whole for months, if not years, according to Spelfogel. A university such as Columbia must first bring the case to the general counsel, an individual independent from the NLRB who chooses which cases to pursue and investigates labor practice cases. The general counsel, Richard Griffin, is a Democrat and will remain in his position until Trump appoints a replacement.
“Until December at least the Democrats still have the general counsel in place. … Until a Republican general counsel is in place who is able to bring cases up the pipeline to a Republican-controlled five member board, the law in place as it is today based on cases decided by the Obama-controlled board will not change,” Spelfogel said.
Currently, the union is awaiting results of the second round of objections the University has filed. Since Emmanuel has not yet been appointed and Kaplan has recused himself from the case, the board making the decision will be a Democratic majority. Even if the decision is made after Emmanuel is appointed, the board will be deadlocked, causing the case to revert to the regional board’s decision.
“For us the situation is still very hopeful, and we’re just expecting the D.C. board to make a decision in our favor,” union spokesperson Olga Brudastova said. “We are expecting to be certified really soon.”
If the second round of objections is accepted, the union will have to hold another election. In the more likely case that the NLRB rejects the University’s exceptions, the union will proceed in its attempts to bargain with the University. If the union succeeds, the University will likely refuse to negotiate with them, causing the case to go to the Court of Appeals.