On Nov. 8, the Kenyon Student Worker Organizing Committee (K-SWOC) and the United Electrical, Radio, and Machine Workers of America (UE) filed a counter motion with the National Labor Relations Board (NLRB) to oppose Kenyon’s Oct. 18 motion to dismiss or stay K-SWOC’s petition for a union certification election. K-SWOC requested an in-person certification election be scheduled for Nov. 8 and 9.
Members of K-SWOC also met with Sen. Sherrod Brown (D-Ohio) this week to discuss their campaign for recognition.
“We really appreciate the support that Senator Brown has shown this campaign and the right for student workers to organize from the beginning,” K-SWOC Steering Committee member Nick Becker ’22 said.
K-SWOC’s counter motion and meeting with Sen. Brown mark the latest developments in their nearly 16-month-long effort to achieve union recognition. K-SWOC first petitioned the College for voluntary recognition in August 2020, but the Board of Trustees ultimately rejected K-SWOC’s request last December. Since then, K-SWOC has called for both an informal and formal community election, and has filed Unfair Labor Practice charges in May and September, which the NLRB dismissed.
Most recently, K-SWOC filed a petition with the NLRB for a union certification election in October. However, on Oct. 18, prior to the Nov. 9 hearing date, the College filed two motions, one to dismiss or stay K-SWOC’s petition and one to indefinitely postpone the hearing. On Oct. 29, the NLRB decided to indefinitely postpone this hearing.
NLRB Assistant Regional Iva Y. Choe postponed the election hearing in order to consider both Kenyon and K-SWOC’s positions about whether or not NLRB’s administrative election rules create an “inescapable conflict” with the privacy interests of undergraduate students under the Family Educational Rights and Privacy Act (FERPA). The College argues that this election would violate FERPA, though K-SWOC refutes this claim.
“The goal of the counter motion really is to get the process back on the right track,” Becker said. “[The NLRB is] waiting for us to make the argument of why FERPA was not a roadblock to continuing with this process.”
K-SWOC and UE hold that FERPA does not prevent or limit employers from following the NLRB’s election rules. “Nothing in FERPA limits the Board’s power to issue orders, hold hearing and elections, and certify bargaining units pursuant to the NLRA,” the counter motion reads. “Likewise, nothing in FERPA prevents the employer from complying with the Board’s Rules other than its unwillingness to do so.”
Columbus-based law firm Joyce Goldstein and Associates filed the counter motion on behalf of K-SWOC and UE. According to its website, the firm specializes in representing labor unions and employee benefit trusts, and has experience in employment law, employee benefits and litigation. The firm is retained by UE.
In its Oct. 18 motion filed by Jones Day, the College also claimed that its student employees are not statutory employees under the NLRA due to their brief and transient tenure as employees, because the conditions in which they work differ from typical employment relationships covered under the Act and because their employment is tied to their academic status. “Kenyon’s relationship with its students is indisputably an academic one; it is entirely unlike a typical employment relationship where the employee performs work for the employer’s benefit and receives remuneration in return,” the Oct. 18 motion reads.
In support of their argument, however, K-SWOC and UE’s counter motion makes notice of a contradictory comment made by President Decatur in a 2020 article in the Chronicle of Higher Education. In the article, Decatur admits that education and employment are inextricably linked. “One of the arguments that’s often made, especially around graduate-student unions, is that if it’s connected to the educational mission, then, by definition, it isn’t employment. That’s not a position I would take,” he said. “There are multiple dimensions to the role of student employment on campus. I don’t want to underestimate that it’s a job. There’s a traditional employer-employee component to it.”
K-SWOC’s counter motion argues that students are statutory employees covered by the National Labor Relations Act (NLRA), citing the NLRB’s 2016 Columbia University decision, which ruled that the NLRA encompasses certain, mainly graduate, student workers at private institutions of higher education. The counter motion also argues that Kenyon’s student employees meet the criteria to be considered common-law employees.
“The employees perform work for the employer for compensation and are under the direction and control of the employer,” the counter motion reads. “Accordingly, K-SWOC says that undergraduate student workers satisfy the common law standard, and are statutory employees under the Act.”
Becker concurred with the motion’s claims. “The fact that we are students as well as committee employees of the same institution shouldn’t take away the fact that, as common law employees, we have rights under the NLRA,” he said.
Becker also expressed frustration at the College, saying that they have the power to end the legal fight currently underway. “This is a situation that is totally of Kenyon’s making,” he said. “They did not have to do this. What we’ve been saying from the beginning, what we’ve been asking … that we wanted to have a discussion about signing a stipulated election agreement.”
Decatur noted that the College is still processing the counter motion, and declined to comment on the filing.