Archives for April 2018

By Jared Odessky*

In August 2016, the National Labor Relations Board (NLRB or “the Board”) held that graduate student assistants at Columbia University were statutory employees under Section 2(3) of the National Labor Relations Act (“the Act”) with the legally enforceable right to unionize. The ruling extended to private colleges and universities generally and spurred a wave of organizing on campuses across the country.

When President Trump took office, analysts predicted that his new appointees to the Board would move quickly to reverse the Columbia decision. Yet while the Trump NLRB has overturned a number of important Obama-era precedents, Columbia remains intact. Below I explain the decision’s staying power and explore the legal prospects for graduate employee unionization in an evolving labor law climate.

 

Employee Status Under 2(3)

The National Labor Relations Act safeguards the collective action and bargaining rights of employees in the private sector, including at private colleges and universities. In 2000, the NLRB, with a majority of Clinton appointees, first recognized that graduate student assistants at New York University met the definition of employees under Section 2(3) of the Act. In 2004, the Board, then with a majority of Bush appointees, reversed NYU in a case involving assistants at Brown University. In 2016, the Obama Board reversed Brown in Columbia, restoring the rights guaranteed by the Act to graduate student assistants.

After Columbia, graduate student assistants won union representation elections at numerous colleges and universities. Following union victories at Boston College, the University of Chicago, and Yale University in 2017, all three university administrations planned appeals to the newly appointed Trump NLRB majority seeking review of graduate student assistants’ employee status under Section 2(3). Rather than risk another reversal a la Brown, student assistants at these schools made the difficult choice to pull their petitions and pursue voluntary recognition by their university administrations. Harvard student assistants will vote in what will likely be the last graduate employee union election under the Trump NLRB on April 18-19, but the administration has so far not indicated it will challenge the Act’s applicability. Absent a case raising the question of employee status, the Board lacks a direct means to overturn Columbia.

Meanwhile, Columbia University’s graduate student assistants voted overwhelmingly (72%) to unionize in December 2016. The NLRB certified their union this past December. In January of this year, the Columbia administration announced that it would refuse to bargain with the union in violation of existing law. Because of Columbia’s outright abdication of its duty to bargain in good faith, the NLRB, despite its political make-up, is likely to grant an unfair labor practice charge filed by the union. The Columbia administration then plans to appeal to a federal appeals court for review of the NLRB’s interpretation of the Act in Columbia.

Without an active question of employee status before the Board and with appellate review some steps away, Columbia does not face imminent reversal.

 

Bargaining Unit Composition

While leaving Columbia untouched, other reversals by the Trump NLRB have limited the legally available options for employees to organize into bargaining units. Following Columbia, union campaigns took divergent approaches to bargaining unit composition as the law then sanctioned. At Yale, for example, graduate student assistants pursued separate union elections by academic department relying on the Obama-era Specialty Healthcare decision, which allowed bargaining units tailored to specialized communities of interest within a larger workplace. At Harvard, on the other hand, the union proposed a university-wide bargaining unit that included student assistants from all departments and schools. Harvard’s student assistants reasoned that a university-wide union would maximize bargaining power without sacrificing adaptability. In its December 2017 decision PCC Structurals, Inc., the Board overturned Specialty Healthcare, eliminating Yale’s department-specific approach as a legally permissible configuration. In the current climate, a university-wide approach to organizing is the legally safe and practically sensible route.

 

Voluntary Recognition

Since new petitions for union representation can trigger a reversal of Columbia, graduate student assistants at schools that would challenge employee status are seeking an alternative to the NLRB process. Voluntary recognition of unions by university employers is not only legally permissible but can also save cost and time for both sides. After Brown reversed NYU in 2004, a majority of New York University student employees continued to demand recognition of their union, which they received in 2013. On April 2 of this year, Georgetown University signed a private election agreement with its graduate student assistant union, submitting to a representation election conducted by a third-party organization rather than the NLRB and contracting to bargain in good faith if employees vote for unionization. While Brandeis University, The New School, and Tufts University student employees won their unions in NLRB-run elections, their administrations have voluntarily pledged to bargain. Graduate student employees at Boston College, the University of Chicago, Yale University, and other schools are now working to secure recognition.

 

Public Universities

Currently, some 35,000 graduate student assistants at public universities, including the University of California, the University of Florida, the University of Michigan, and the University of Washington, belong to unions, most often the UAW. Such unions have decades of experience winning measurable wage and benefit improvements for graduate student assistants without disturbing academic relationships. Changes at the NLRB have no direct impact on unions at public universities, which are governed by state labor laws rather than the National Labor Relations Act. Student assistants at Penn State, for instance, will vote on union representation April 10-17 without risking employee status for assistants at private schools.

While the Trump NLRB poses new obstacles to graduate student assistant unionization, the movement continues to grow. Through voluntary recognition campaigns and continued organizing at public universities with favorable state laws, graduate student assistants in the Trump era are continuing to fight for a voice on the job in a changing academic workplace.

 

*Jared Odessky is a 1L at Harvard Law School. He previously was an organizer of the Graduate Workers of Columbia (GWC-UAW) and is currently a Law School leader of the Harvard Graduate Students Union (HGSU-UAW).

By Reveena Kumari Sethia*

Antitrust laws have evolved across the globe to ensure that consumer welfare and effective competition remain the priority while balancing the promotion of liberalism and uninterrupted world trade. The intervention of executive action where antitrust and economic policies could’ve brought an acceptable balance may be seen as a step backward in the larger move towards global liberalization and free markets.

A recent example of this can be seen in President Trump’s Executive Order blocking Broadcom’s bid for Qualcomm in the semiconductor industry. The proposed merger would’ve been the largest in its field and would’ve meant a Singapore-based entity gaining a stronghold over a large, pioneering American company in an industry that America expressly wants to dominate. The bid was blocked on national security grounds and is the third of its kind. The President feared a Chinese stronghold in the industry if the bid were to go through. Interestingly, two large Chinese smartphone makers (who generate more than 10% of Qualcomm’s revenue) have openly expressed their disapproval of the deal, noting that it would squeeze profit margins and benefit other global rivals. If the Chinese didn’t want the deal to go through in the first place, then what did the Executive Order actually achieve and was there a more rational alternative?

The Executive Order reflects a subconscious move to the Harvard school-type approach to antitrust. The Harvard approach sees dominance in the market as the ability to act and hence, advocates for frequent intervention because it assumes price discrimination or exclusive dealing by a dominant firm will necessarily be harmful since they have the ability to harm and would therefore act on it. It also uses policy considerations to justify intervention and thus, substantiates itself on non-economic grounds as well. It makes sense that the Executive Order reflects this approach because it comes across as a worried response to Chinese influence in the sector and isn’t based on any economic rationale at all. Economically, Chinese firms feared that they would’ve suffered had the deal gone through! The order defeated its own purpose in a way by putting Chinese fears to rest.

Instead of using this extreme interventionist approach, had antitrust authorities been allowed to complete their review, they could’ve followed the European Commission’s more Chicago-style approach in the Qualcomm-NXP deal focussing on consumer welfare and economic theory; and accepted commitments including divestments in certain sensitive markets like defence and behavioural commitments like royalty-free licensing or non-discrimination even by ensuring a neutral third party’s presence.

The Executive Order, in effect, has been politically futile in terms of blocking Chinese presence in US industries and progressively, a step back for an industry that relies on progress.

Now, as of 5 April 2018, Broadcom has moved its headquarters to Delaware to secure further deals, indicating that the Executive Order route was not the most effective in securing a larger political agenda and may result in a waste of taxpayer money. As a US-entity, Broadcom will again fall under the antitrust radar if it aims to acquire any other US-based technological companies or bid for Qualcomm again. Therefore, there would again be a significant wastage of administrative resources and judicial in-economy in examining the deal again by antitrust regulators (as they were doing for the last few months till the Executive Order was passed), and possibly being tied to accept commitments and divestitures as they would’ve had to even at present, had the deal gone through. Interestingly, this move to shift headquarters to Delaware was announced even before the Executive Order was passed, indicating that the Order is genuinely over-interventionist and not in keeping with globalization or free markets as it couldn’t have genuinely tackled Broadcom’s bid for Qualcomm in itself (since they can rebid as a US-based corporation now) and was probably just a desperate effort at curbing Chinese stronghold in the market without any direct link establishing Chinese presence in the Broadcom bid. Further, it hasn’t dissuaded Chinese companies from investing in the US either. What the order has done is chilled competition and innovation in a market which runs on new technology. The impact of this could be a significant impediment in the development of 5G technology, which directly impacts consumers and innovation in competition.

Had the merger had gone through, it would’ve ensured a higher responsibility on the newly dominant entity to behave in a manner that doesn’t impede competition on merits and warranted close attention by antitrust watchdogs around the world. Additionally, it could’ve ensured some clarity in the debate on royalties for standard essential patents . Last year, the UK High Court of Patents directed worldwide SEP holders like Huawei to issue universal licensing conditions applicable on a worldwide basis. The US had the opportunity to analyze that approach (and bring clarity to the market which largely relies on Qualcomm for chips), which it missed due to executive intervention as the executive order killed the chance for both the FTC and the courts from making any antitrust determination. It seems likely that we may have to wait several years before such an opportunity arises again. Executive orders seem to be moving us backward from embracing the global nature of the economy today and undermining the ability of antitrust laws to strike a balance between consumer welfare and policy considerations.

*Raveena Sethia is an LLM candidate and Trust Scholar at the University of Cambridge.