Yale’s Lawless Administration

By refusing to negotiate with recently unionized graduate workers, Yale president Peter Salovey has announced in writing that the university will defy US labor law.

UNITE HERE Local 33 / Facebook

The global wave of right-wing populism landed in New Haven on May 3, 2017 when Yale University President Peter Salovey issued an executive order, announcing that Yale would defy US labor law.

Yale refuses to begin negotiations with UNITE HERE Local 33, which was certified by the National Labor Relations Board as the representative of graduate teachers in eight Yale departments (including English, History, Political Science, and Geology and Geophysics) after union elections in February. Like other populist demagogues, Salovey insists that his view of what is democratic outweighs not only the rights of association of his employees, but the inconvenient legal procedures of the NLRB: “we [the royal we] are deeply troubled by the undemocratic method of department-by-department unionization chosen by Local 33,” he writes. He then laments “Local 33’s non-inclusive strategy” and “its micro-unit approach.”

So Salovey imposes his idea of “democracy” by defying democratic labor law.

Consider three points regarding Yale’s newfound commitment to democracy. (Let’s set aside the fact that Salovey is himself not a democratically-elected president of Yale University, but simply a CEO appointed by the Yale Corporation.)

First, Salovey writes that those who participated in the elections — which included, and I quote the NLRB here, “all teaching fellows employed by the Employer at its New Haven, Connecticut facility who teach in the [specified] Department, including discussion section leaders, part-time acting instructors, associates in teaching, lab leaders, and grader/tutors, but excluding all other employees, managers, guards and supervisors as defined in the Act” — was limited to “only 228” graduate teachers.

To get a sense of the scale of the election, consider that the total number of tenure-track faculty at Yale is 199 (according to Yale’s own most recent figures for the Faculty of Arts and Sciences). Thus, the graduate teachers in just nine departments outnumbered the total junior faculty at Yale.

This not only reveals how much of Yale’s teaching—particularly at the introductory level—is done by graduate teachers, but underlines the importance of the union election that took place.

Salovey, however, insists that a truly democratic election would be “held across the entire graduate school,” and he cites the union elections held at Columbia and Harvard. Now, graduate teachers at Columbia and Harvard had every right to petition for the elections in units that covered the entire graduate school, but this does not make their elections more democratic. After all, one could just as easily argue that the department-by-department elections at Yale were more democratic because graduate teachers in eight departments (English, History, Political Science, Geology and Geophysics, Mathematics, History of Art, Sociology, and East Asian Languages and Literatures) were able to vote for a union to represent themselves, while graduate teachers in one department (Physics) decided not to have a union.

It is perhaps inconvenient for Yale administrators that teaching fellows employed by the history department will have a union contract, whereas lab leaders employed by the physics department will not, but this is hardly unusual at an institution like Yale, where some employees are covered by union contracts, and others (like me, an American Studies professor) are not.

But the real issue is that a bargaining unit is not whatever the Yale president thinks it should be.

The heart and soul of US labor law—with all of its flaws—is workers’ right to self-organization. The NLRB decision directing the graduate teacher union elections explicitly drew on one of the most important decisions of the Obama-era NLRB, a ruling — subsequently upheld by four circuit courts — in a case involving a nursing home in Mobile, Alabama named Specialty Healthcare. Upholding the rights of nursing assistants, the decision affirmed that the nation’s labor law was intended to facilitate freedom of association: “the first and central right set forth” in the law, the board notes, “is employees’ ‘right to self-organization.’”

Employer views about who belongs in the bargaining unit are beside the point. “The initiative in selecting the appropriate unit lies with the employees,” and if they demonstrate a “community of interest,” they have the right to bargain collectively.

This is a profound reassertion of the original meaning of US labor law. Earlier rulings had denied workers their democratic rights when employers expanded bargaining units to include employees in different departments with different conditions. Now, a group of “readily identifiable” workers who “share a community of interest” — working in the same spaces, with similar conditions and similar supervisors — can exercise the fundamental democratic right to bargain collectively. It is this “right to self organization” that Salovey denounces as the “micro-unit” approach.

This leads to my second point. What is a “micro-unit approach”? One won’t find arguments for or against “micro-units” in the NLRB decision. The “micro-unit” is a propaganda term invented by right-wing groups, furious that the courts upheld the Specialty decision. Lobbying for legislation to overturn it, they deemed these units “micro-units” even though the Mobile nursing assistant unit was twice the median size of units recognized over the preceding decade.

Like other populist demagogues, Salovey mouths the sound bites provided by his handlers — in this case, most likely by his “union-avoidance” law firm, Proskauer Rose.

The right of those who work to organize themselves is not unlimited. Unlike state legislators, workers can’t create absurd gerrymanders, including and excluding people arbitrarily. But if workers form appropriate units (regardless of size), they can bargain collectively, and — by law — employers must respond by bargaining in good faith. Thus the actual issue at Yale was whether or not the departmental bargaining units were “appropriate units.”

Last fall, NLRB hearings were held with weeks of detailed testimony about the distinct skills, structures of work, and forms of supervision in the various departments. The NLRB concluded that, since Yale itself organized the occupational space of the university around departments, the department was an appropriate unit for employees to seek representation. The case was decided and the elections were held.

Finally, note that Salovey calls for “rational debate … civil argument and persuasion” while issuing an executive order defying the basic laws governing employment in America. By refusing to negotiate with Local 33, it is he who refuses “civil argument and persuasion.”

He will say that Yale has not defied the law, but is simply waiting for an appeal to be heard. But Yale could easily — and by its own highest ideals must — begin good-faith negotiations with the graduate teachers while that appeal is pending. Graduate teachers should not have to wait on their rights while Yale exhausts its repertoire of delaying tactics.

What does one do in the face of a lawless administration?

Since April 25, 2017, eight graduate teachers who are members of UNITE HERE Local 33 have engaged in The Fast Against the Slow, a fast to move the Yale administration to negotiate. More details are available here.