Hunton Employment & Labor Perspectives

By now, most in the employer community are all too familiar with the NLRB’s controversial “micro-bargaining unit” standard announced in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011).  In that case, the Board announced a standard that in almost all instances results in approval of a union-requested bargaining unit, unless the employer can show that an “overwhelming community-of-interest” exists between the requested unit and some other part of its workforce.  This standard has proven difficult, if not impossible, for employers to meet, and the Board has pushed the standard into retail, manufacturing, and even wineries.  Now, the Board has introduced its micro-unit rule in higher education, and the results could be disastrous for universities across the nation.In Yale University, UNITE-HERE Local 33 filed petitions with the NLRB’s Boston regional office to represent graduate fellows working in nine different academic departments at the university.  The Union sought separate units in each of the English, East Asian language and literature, history, history of art, political science, sociology, physics, geology, geophysics and mathematics departments.  Despite the fact that UNITE HERE locals represent existing, university-wide bargaining units (one for clerical and technical employees and one for service and maintenance employees), Local 33 argued that each department should be an individual unit under Specialty.

The University objected to the Union’s extreme proposal and argued that the only appropriate unit was a university-wide group of teaching fellows, much like the school’s other bargaining units.  Yale contended teaching fellows in every department (not just the nine at issue) had centralized oversight by the university and shared the same duties, hours, wages and benefits.  Amazingly, the Regional Director discounted this evidence and ruled that each department should be a separate unit.  Citing to Specialty, the Regional Director held that while a university-wide unit might also be appropriate, “Yale has failed to meet its burden of demonstrating that there is such an overwhelming community of interest among all of the teaching fellows at the University that there is no rational basis for approving units based on academic departments.” [Decision at 36].  The Regional Director also ruled that graduate fellows are “employees” under the National Labor Relations Act and therefore eligible to organize.

The Yale University decision is a deeply troubling development for higher education.  The practical upshot is that the Board will conduct nine separate elections.  And, if the Union is successful, Yale will have to bargain nine different collective bargaining agreements, one for each department.  This nonsensically inefficient result is exactly what most pundits predicted would happen under the Specialty standard.

It remains to be seen whether Yale will appeal the Regional Director’s decision.  However, his ruling should come as a warning shot to colleges and universities that they may be subject to similar efforts to unionize (and balkanize) their academic departments.  Both the SEIU and UNITE HERE unions have increased their organizing efforts in higher education and show no signs of slowing down. Thanks to the Board’s decision in Yale University, their task has just gotten a whole lot easier.