Duke University intends to challenge whether its graduate students can be considered employees under the National Labor Relations Act, likely delaying students from holding an election and possibly forming a union.
Duke University made a similar — and unsuccessful — attempt in 2017.
The National Labor Relations Board (NLRB) in Washington, DC ruled in 2016, in a decision concerning Columbia University, that graduate students at private universities meet the definition of employees and have the right to form a union. That spurred unionization efforts at private universities across the country.
Later that year, Duke graduate students filed a petition for a union vote, and the university challenged it on the grounds that they were not employees. A regional labor relations board ruled in favor of the students in 2017, in line with the national board’s prior decision. The graduate students held an election in which students failed to garner enough votes and were unable to form a union.
BREAKING: Duke attys have indicated they intend to challenge the legal standing of grad workers as employees, aiming to reverse the NLRB’s 2016 Columbia decision. @DukeU: stop these reprehensible union-busting tactics, recognize our majority, and meet us at the bargaining table.
— Duke Grad Union (@dukegradunion) March 10, 2023
Now the university plans to relitigate the issue. Duke University’s interim Vice President for Public Affairs and Government Relations Chris Simmons said in a written statement to WUNC:
In 2016 the National Labor Relations Board decided that graduate assistants at Columbia University — based on the specific facts at Columbia University — were employees and therefore had a right to unionize. However, a court of law did not review this decision. Duke provides significant financial and programmatic support for PhD students to help them reach their academic goals. That support is very different from an employment relationship.
Duke will seek to present evidence demonstrating that its graduate students in their academic programs are not employees, and that the NLRB’s 2016 reasoning was incorrect.
“I was shocked to hear this,” says Matt Thomas, a co-chair of the Duke Graduate Student Union. “Graduate students have been making these historic wins at universities across the country since September, but also in the past couple years, and graduate students have had unions at private universities for several years now.”
The Duke Graduate Student Union, also referred to as the DGSU, advocates for graduate student workers, but is not formally recognized by the university and does not have collective bargaining rights to negotiate a contract.
The DGSU’s priorities in recent years have included seeking a raise in stipends to meet Durham’s growing cost of living. The students have seen some recent wins. On the day DGSU announced its union drive in September, the university raised graduate student stipends to $38,000, just below the living wage for Durham of $39,000. Following an email campaign, the university reduced parking costs for graduate students.
Student leaders say they hope that union representation will allow them to continue to advocate for employee benefits on a regular basis for future generations, and to have union representation during complaints against faculty advisers or disciplinary hearings for student workers.
This month, the DGSU filed a petition to hold a union election. Student organizers say they had hoped to hold a vote by the end of March, and have more confidence they will win this time around.
More than a thousand students have signed union cards indicating their intent to vote for unionization, according to the DGSU. They are attempting to unionize 2,500 PhD students, and believe they have the numbers to succeed.
Earlier this week, Duke University interim provost Jennifer Francis emailed a statement to Duke graduate students and faculty opposing unionization:
“The university’s institutional position remains that Duke’s relationship with our students is centered on education, training, and mentorship, fundamentally different from that of employer to employee.”
“PhD students are not admitted to do a job; they are selected because of their potential to be exceptional scholars,” Francis said.
“It's just really disappointing to know that they're choosing this path,” says Anita Simha, a co-chair of the DGSU. “The main function of it is just going to be to really delay the process of us eventually winning our union and getting a contract.”
“I think that's really what Duke is doing. They're [saying], ‘we're just going to drag our feet and make this as hard as possible,’” says Jeffrey Hirsch, a law professor at UNC-Chapel Hill who specializes in labor relations law. “Which is what employers often times do, because delay is a significant hurdle to unions organizing.”
Hirsch says in order for Duke University to take their challenge to a court of law, it would likely first have to work its way through the NLRB’s own appeals process, starting with the regional board that ruled against Duke in 2017. He says that the board could order a union election.
“What's more likely than not to happen is probably within the next couple months, though, we'll be in an election,” Hirsch said.
Then, if students win the union election, Hirsch says Duke University could continue to appeal the decision to the NLRB in Washington, D.C. and to a federal appeals court, which could take years, he says.
“Duke is really… choosing the nuclear option,” says Simha. “When 45,000 graduate student workers across the country are organizing at this moment, Duke is trying to assert that we don't have the right to do that – and by extension, neither do any of them.”
