Duke is seeking to overturn the 2016 National Labor Relations Board decision that affirms the legal right for graduate students to unionize as employees, but this is not the first time the University has challenged this.
Here’s what’s changed since last time, and how a new decision might affect the Duke Graduate Students Union and graduate students nationwide.
In 2016, the NLRB decided in favor of graduate students at Columbia University, ruling that they are university employees and have a right to collectively bargain. This had a nationwide ripple — soon after, graduate students at universities across the country started organizing, including at Duke.
The DGSU attempted to hold an NLRB-certified election later that year. In turn, Duke challenged the NLRB’s ruling in favor of graduate students at Columbia. A regional board of the NLRB ultimately ruled in favor of Duke’s graduate students in 2017, finding “that the students sought in the petition are employees,” and the DGSU proceeded with its election. However, this election was unsuccessful after over 500 ballots were challenged, and since then, the DGSU has functioned as a direct-join union.
The DGSU is not the only graduate student union currently seeking legal recognition. Unionization movements across private universities in the United States have been progressively gaining momentum since the 2016 NLRB decision.
The University will be represented by Proskauer Rose Law Firm, the same firm that previously represented Columbia in its case.
The 2016 National Labor Relations Board decision that Columbia graduate students were employees was based on the “specific facts” at Columbia, according to Chris Simmons, vice president for government relations. However, a court of law did not review this decision, he wrote in an email to The Chronicle.
In March, the two parties agreed upon a stipulation of facts, which the union requested, in order to speed up the hearing process and allow for a decision by the NLRB to be rendered faster.
The stipulated agreement of facts includes “virtually all the facts from the 2017 decision,” with updates “to reflect the modifications Duke has made to the graduate experience since then,” wrote Simmons in an email to The Chronicle.
These changes include the formation of Duke’s Re-imagining Doctoral Education Committee, mentoring and career development programs such as Graduate Student Training Enhancement Grants, the Duke Graduate Academy, program mentoring statements and the implementation of “intellectual development plans” to help doctoral students establish long-term goals. There have also been initiatives to increase doctoral student stipends, offer financial support for housing, and provide benefits, such as dental insurance and childcare subsidies.
Simmons also pointed to tuition scholarships for doctoral students in their sixth year introduced in 2017, as well as stipend extensions and tuition and fee scholarships offered to sixth-year and seventh-year doctoral candidates during the COVID-19 pandemic.
Despite agreeing that there has been the introduction of new initiatives, the DGSU alleges that not much has changed in their experience as graduate students, said Jingxuan Zhang, a third-year doctoral candidate in the music department and the DGSU’s secretary. According to Zhang, the University is saying “that ‘Duke, by implementing this RiDE program, has fundamentally changed the nature of graduate students’ experience,’ which from the perspective of graduate students is a completely empty statement.”
Daniel Bowling, a senior lecturing fellow in the Law School, is skeptical of Duke’s chances of success with the NLRB. But Bowling believes that if the University were to pursue the matter in a federal court, it might succeed.
“Duke has a much better chance in federal court if it decides to pursue it,” he wrote in an email to The Chronicle, adding that no federal court of appeals has adopted the NLRB’s position.
According to Bowling, even if the NLRB decides in the DGSU’s favor as it did in 2017, the University, for all intents and purposes, can choose to ignore the NLRB ruling and refuse to bargain until the matter is considered by a federal court.
“Since NLRB findings and rules are subject to appeal to the federal courts prior to enforcement, an employer can refuse to bargain with an elected union on eligibility grounds such as this despite the NLRB's position,” Bowling wrote.
Although Bowling is skeptical of Duke’s overall ability to overturn the NLRB’s 2017 decision, he believes that the University’s argument that “[graduate] students are at Duke to learn and research and earn a Ph.D., not for the teaching pay, and as such aren't really employees under the [National Labor Relations Act]” is a strong one.
Historically, the NLRB has gone back and forth on its stance on the role of students who teach or research at a private university. Since the passage of the National Labor Relations Act in 1935, students have been considered employees under the NLRA from 2000 to 2004 and from 2016 to present, according to the NLRB fact sheet.
Regardless of whether this NLRB decision contestation falls in favor of Duke or the DSGU, it will “buy Duke time” to mount an anti-union campaign, Bowling wrote, calling it “right out of the management labor law textbook.”
“Maybe the Duke case will resolve it once and for all, but it will take years,” he added.
Correction: A previous version of this read that DGSU requested a hearing and that Xuyang Xia is DGSU's secretary. This article was updated Monday afternoon to reflect that DGSU did not request a hearing, but requested a stipulated agreement of facts, and that DGSU's secretary is Jingxuan Zhang. The Chronicle regrets the error.
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Audrey Patterson is a Trinity sophomore and local and national news editor of The Chronicle's 119th volume.