On Oct. 21, Kenyon filed a motion to dismiss or stay Kenyon Student Worker Organizing Committee’s (K-SWOC) petition to hold a union certification election with the National Labor Relations Board (NLRB). The College also filed a motion for an indefinite extension of time to post the Notice of Petition for Election, to file a Statement of Position and to indefinitely postpone hearings that will determine the details of the union certification election. The College has since posted the Notice of Petition, which was sent in an email to the community on Oct. 27.
Kenyon’s challenge to K-SWOC’s petition is the latest development in the 14-month-long attempt by the organization to gain union recognition. K-SWOC first called for voluntary recognition in August 2020, and was rejected by the Board of Trustees that December. K-SWOC also called for a community election last April but was again rejected by the Board.
Recent changes in the NLRB’s administration have included the confirmation of the Board’s new general counsel, Jennifer Abruzzo — a notable supporter of worker’s rights — which has created a window of opportunity for labor groups looking to organize on college and university campuses. Last month, Abruzzo issued a memo classifying certain “Players at Academic Institutions” (referred to as student-athletes) as employees under the National Labor Relations Act (NRLA).
Just last week, K-SWOC took this opportunity to file a petition with the NLRB to hold a secret-ballot union certification election. If K-SWOC is recognized, it will be the first wall-to-wall undergraduate student worker union in the United States.
The College’s recent motions come after days of silence on the part of the College. K-SWOC delivered an official notice to Kenyon on Oct. 18 at an event in front of Ransom Hall announcing their filing for a secret-ballot union certification election. According to the NLRB website, Kenyon was notified of K-SWOC’s filing on Oct. 20.
The College filed both of these motions under Cleveland-based Jones Day, the seventh largest law firm in the nation and 13th in the world. Jones Day brought in over $2 billion in gross revenue in 2020 and has been linked to former President Donald Trump. The firm also represented the Pennsylvania GOP in its challenge to the 2020 presidential election. Additionally, some partners at Jones Day left the firm to work for the Trump administration and the Department of Justice during Trump’s presidency. Other members of Trump’s administration joined the firm in the wake of the transition of power to President Biden.
The law firm has represented a variety of controversial clients, including the National Rifle Association (NRA), the family of Osama Bin Laden and members of the Kremlin. They have also represented Walmart and McDonalds in their fights against labor unions.
When asked about Jones Day’s reputation, President Sean Decatur offered very little. “No comment,” he said. “It’s a large firm that has represented a lot of different entities and organizations and people.”
In a statement from the College, Vice President for Communications Janet Marsden wrote that Kenyon chose Jones Day because of their “deep expertise in labor issues.”
In a separate statement, Marsden also wrote that Kenyon filed the motion because the College does not have the right to disclose private educational records of students under the Family Educational Rights and Privacy Act (FERPA).
“The NLRB’s election rules would require Kenyon to disclose private information contained in education records of the hundreds of students whom the union seeks to represent. Providing this information to the NLRB under the election rules’ compressed timelines risks violating the privacy rights of students under the Family Educational Rights and Privacy Act (FERPA),” Marsden wrote.
She claimed that these issues must be resolved before the NLRB can consider the request for an election. Decatur reiterated Marsden’s point, stating that the College cannot proceed with an election without more information about FERPA protection.
“Before moving forward with an election, we either need an official ruling waiver that the College can’t be held responsible for violating FERPA while actually following the election rules, or vice versa,” Decatur said.
In response to the motions, K-SWOC posted a statement on its website stating that the College’s claims regarding FERPA are false and unoriginal, citing the successful organization of other undergraduate units at private colleges, such as Grinnell College in Iowa. These students are also protected under FERPA, as are the tens of thousands of unionized graduate student workers across the country.
Student workers at Kenyon are not the only undergraduate student workers seeking union recognition: Student admissions workers at Hamilton College, one of Kenyon’s peer institutions, recently won their election for a union. They petitioned the NLRB in August and voted in October, winning 25-20 in favor of union recognition.
Nick Becker ’22, a member of K-SWOC’s steering committee, emphasized that the College is using the FERPA argument to delay the election as much as possible. “What the College is doing — and this is something that many colleges and universities before them have done, especially recently — is they’re trying to throw every legal argument they can, in terms of trying to prevent the unionization of student workers,” he said.
Another one of the College’s central legal arguments is that its undergraduate student workers are not statutory employees under the NLRA, due to their brief tenure as employees and because students’ working conditions are fundamentally different from the typical employment relationships covered by the Act.
“Kenyon’s student workers perform various part-time roles flexibly and episodically over the course of four years while they focus on getting their college degrees, working some semesters but not others, some weeks but not others, and some days but not others, based on their academic demands,” the motion read.
The College additionally emphasized that student positions are only open to Kenyon students and are created for their educational and professional development, not to assist the College in the administration of its core functions.
However, in 2016, the NLRB ruled that certain student assistants working at private colleges and universities are, in fact, statutory employees covered by the NLRA.
K-SWOC claims that Kenyon student workers do provide essential work to the College’s core business operations, arguing that the College’s core business operation is the education of its students. K-SWOC says that the NLRB has made it clear, contrary to the College’s arguments, that all student workers are workers and that they have the right to form a union.
“That assertion is clearly false,” Becker said. “There’s a reason why they have all of these workplaces, because they actually do contribute to the College’s core business operations.”
Looking forward, K-SWOC has said that the United Electrical, Radio and Machine Workers of America (UE), the union with which they are affiliated, is preparing a legal challenge to Kenyon’s motions. If the NLRB rules to dismiss or stay the petition, UE will work with K-SWOC to appeal the Board’s decision.
However, if the NLRB decides to dismiss Kenyon’s motions, there will be a hearing to decide the details of the election and which student workers will be eligible to vote.