Legal scholars divided over graduate striking

The impending strike that Graduate Employees-Together- University of Pennsylvania is planning for Thursday and Friday remains intertwined with several broader legal issues. The actions of the University in response to GET-UP's efforts, as well as the long-term effects of possible unionization, remain subject to individual discretion.

The main issue that stands unresolved is the discrepancy between the University's definition of "employees" and the definition that GET-UP hopes will be confirmed by the National Labor Relations Board.

The University contends that graduate students should not be considered employees and therefore should not be granted the opportunity to unionize.

"They teach as part of the educational requirements -- it's just like any other assignment," said Eric Tilles, associate general counsel for the University.

He also said that the graduate students' financial aid packages should preclude them from employee status.

"When they get accepted to the graduate program at Penn, they get a four- or five-year package, and that package is at least a $15,000 stipend, health insurance and full tuition," Tilles said.

However, many believe that these factors should not prohibit graduate students from achieving employee status.

"The University insists that they're students. In my view, that's a stupid view -- it's perverse," said School of Law professor Clyde Summers, who, according to the Penn Law School Web site, is "one of the leading scholars in the fields of labor and employment law."

The graduate students are "providing services to the University. They're subject to the rules; they're being compensated for it -- they're employees in that regard," he said. "They're filling jobs that would otherwise be filled by faculty members, so ... they're doing the same thing that a lot of admitted employees are."

According to Law professor Amy Wax, graduate students play a "dual role" that has historically been the center of much controversy at universities nationwide.

According to Summers, the NLRB initially classified graduate students as simply students. However, "several years ago, the board changed its view and said legally that they were also employees, and so they were entitled to organize and bargain collectively," Summers said.

In December of 2002, the University filed an appeal with the NLRB in the hopes that "the board will reverse itself and say that [the graduate students are] not employees," according to Summers.

Though the appeal was filed over a year ago, the NLRB has not yet announced a decision. They concluded that the University "had raised substantial issues warranting review," according to Tilles, and are still examining the issue.

"Our understanding is that apparently, there is a 2 to 2 split on the National Labor Relations Board," Tilles said, though he is hopeful that a decision will be announced soon.

Though Tilles stressed that "the delay has not been because of the University," Summers maintains that Penn is simply "stalling for the purpose of destroying the union."

"The majority [of GET-UP members] vote for the union and the University says 'no, we're not going to do it -- we're not going to recognize you, we're not going to talk with you, we're not going to deal with you,'" Summers said.

But University officials believe that the vote itself may have also been biased, or as Tilles puts it, "carved out."

"There are a bunch of graduate students out there, like in Wharton and the biomedical sciences, who were totally excluded -- they weren't permitted to vote by the labor board," Tilles said.

"What GET-UP and the labor board did was they fixed the election," he said. "It wasn't democratic because they didn't permit everybody who was going to be affected to have a say."

But Summers sees the University's comments as scare tactics.

"It's very common for employers who don't want a union to raise questions about the election -- to postpone it as much as possible -- in the hopes that people in the union will get discouraged and give up and the union will disappear," he said.

If the union doesn't disappear and in fact eventually achieves official status, then Tilles believes that there would "be a major change in the running of the University."

"We have graduate students like GET-UP people saying, 'we want to be able to bargain our training as teaching assistants,' and really what they're saying is that they want to bargain over how they're going to be taught," he said, comparing it to as if undergraduate students "bargained with [their] professors over the curriculum."

Summers is in complete disagreement.

"All this talk that it changes the academic climate is hogwash," he said, using the unionization of Temple University faculty and numerous high school teachers as evidence that unionization does not significantly alter educational institutions.

GET-UP "will be able to bargain to get more money or better medical coverage or better benefits, but in terms of the running and the organization of the University, it won't make any major difference," he said.

Summers said he saw the controversy as more of a power struggle.

"It's just that the administration and the faculty want to have full control -- they don't want to deal with these people, they don't want to be obligated to consider them."

Though Summers said that he "doesn't like the notion of the strike," he said that the graduate students have "been backed into a corner."

"Are [the graduate students] just going to sit and wait? Are they going to talk and the University will turn a deaf ear? What else can they do?"

Tilles said he still sees the strike as inappropriate.

"It's just unfair to the undergraduates that [GET-UP] would try to promote their own individual agendas at the expense of the undergraduates," he said.

"This is supposed to be a community, and they're tearing that apart."

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