By Chloe Wray & Zoe Fruchter
wraychlo@grinnell.edu
fruchter@grinnell.edu

The Union of Grinnell Student Dining Workers (UGSDW) will receive their Certificate of Representation from the National Labor Review Board (NLRB) this week. The Certificate of Representation will be granted after the College did not object to the Nov. 27 election which showed that of the student-workers who voted, 84 percent supported being covered by the union.

The College stated its intent to appeal the decision to hold the election in a Nov. 28 Special Campus Memo,  stating “[The College] will continue to appeal the decision by the regional director of the National Labor Relations Board regarding this election … We think it is important for the full NLRB to hear and consider further the College’s concerns, and we expect to file this appeal soon.”

Upon UGSDW receiving their Certificate of Representation, the College has 14 days to file a request for review with the NLRB.

To break down the appeal process, The S&B spoke with Elizabeth Newman ’08, a practicing employment and civil litigation lawyer in Cincinnati, Ohio who supports the union’s right to organize. To be clear, she is not licensed to practice law in Iowa and is simply a vocal supporter. With Newman’s insight, The S&B navigated the logistics of NLRB legal proceedings.

What happens when the College appeals?

The College will be appealing to the NLRB for judicial review of whether or not student-workers are recognized as employees under the National Labor Relations Act. This appeal is not for the election results. If the College’s request for review is granted, the NLRB will hold a hearing to determine whether the Board members will uphold the Regional Director’s decision in favor of the union or overturn it.

The National Labor Relations Board consists of Chairman John F. Ring, William J. Emanuel, Marvin E. Kaplan and Lauren McFerran. Chairman Ring, Kaplan and Emmanuel were all appointed by President Donald Trump, while McFerran is left over from the Obama era. The fifth seat on the Board is currently vacant, giving the Trump-appointees a 3-1 majority.

“The new members made it pretty clear that this [student-worker rights] was an issue that they planned on reviewing and there’s no reason to think that they won’t overturn the precedent on which the regional director relied in ordering the election,” said Newman.

In overturning the Regional Director’s decision in favor of the union, the Board would also overturn the national precedent relating to the employment rights of student workers, established in The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia — GWC, UAW, Case 02–RC–143012. This decision would effectually revert precedent in this area to Brown and UAW AFL-CIO, Case 1–RC–21368 (2004). The ruling in Brown determined that student-workers were not employees due to the primarily educational and not economic relationship they held with the University.

If the Board rules in favor of the College and determines that student-workers are not employees, the union could potentially appeal to the 8th circuit Federal Court of Appeals and beyond that, the Supreme Court.

However, judicial review, including the initial proceedings at the national board level, is an often lengthy and expensive legal process that would be extremely difficult for the undergraduate union leadership team to undertake successfully.

“I think the union knows that it is in everyone’s interests for them to withdraw the petition if the board grants review. … If they drop out then this whole process should stop,” Newman said. “A few student unions have withdrawn their petitions to avoid the current labor board because they knew that it was hostile to them.”

What happens if the College does not appeal, or the NLRB declines to review the decision?

Even if the College does not appeal or the NLRB does not grant a review of the Regional Director’s decision and the union is allowed to retain their Certificate of Representation, UGSDW may nonetheless face another judicial hearing.

“Employers will refuse to bargain to prompt an unfair labor practice charge and that is a way to get judicial review of the election,” Newman said of alternate strategies the College could use to direct appeal.

In a Nov. 12 special campus memo, the College wrote that they would willingly bargain with the union if the vote to expand passed, despite their continued opposition to the union’s efforts. However, the College is currently refusing to bargain with the union, as stated in a Special Campus Memo on Nov. 28, and reaffirmed in an email from College President Raynard Kington to union advisor Cory McCartan ’19 on Dec. 4.

“Unfortunately, as Grinnell already communicated, the College has concluded that we legally cannot bargain or discuss a framework agreement with UGSDW while our appeal is pending before the NLRB,” wrote Kington in the memo.

The union contends in a Dec. 5 press release that “this claim is completely and laughably false.”

Last month, Proskauer Rose, the College’s legal representative, established collective bargaining between Columbia University and its graduate students while an appeal to the NLRB was still pending.

The union’s only recourse against the College’s silence would be to file an Unfair Labor Charge for the College’s refusal to bargain. This charge would be investigated by the Regional Director of the NLRB and possibly filed to the national board. Such a filing could lead to an NLRB hearing in which the Trump-appointed majority could reverse Columbia if the Board holds that students are not employees and thus cannot be bargained with.

Grinnell: Think National, Act Local

While the union debate has consumed Grinnell’s campus, the conflict ties in to a larger societal and legal shift to disempower unions. In late June of this year, the Supreme Court, which has only become more conservative with the installation of accused sexual assailant Brett Kavanaugh this October, limited the rights of unions to collect dues from non-members in Janus vs. American Federation of State, County, and Municipal Employees.

“In the Trump era, there is less faith in the branches of government, so people are organizing their own groups to marshal whatever power they have. I think it’s working to a degree, but it’s scary … [for] unions on the margins, that the courts can still destroy them. Because [a union] is still going to come up against the very forces that may have triggered organization in the first place,” Newman said.

The S&B will continue to provide updates on the status of the appeal process.