On Oct. 29, Region 8 of the National Labor Relations Board (NLRB) filed an order that indefinitely postponed a Nov. 9 hearing to determine the date of Kenyon Student Worker Organizing Committee’s (K-SWOC) union certification election. NLRB Assistant Regional Director Iva Y. Choe communicated the decision to both K-SWOC’s and the College’s counsels on Oct. 27.
According to the two-page order, Choe postponed the hearing in order to “consider the parties’ positions” on certain legal matters regarding the election.
In addition to the postponement, on Oct. 28, the NLRB also dismissed an Unfair Labor Practice (ULP) charge filed by a student worker on Sep. 28. In an email to the Collegian, Vice President of Communications Janet Marsden wrote that the student’s case was dismissed due to a “failure to present any evidence in support of the charge.”
In response to the dismissal of this ULP charge, K-SWOC reiterated that its members continue to stand by all student workers in their fight for labor justice. “We supported the anonymous student worker in their decision to file an unfair labor practice back in September in order to prompt an investigation when they believed they had been retaliated against and we continue to support student workers in exercising their rights as statutory employees as established by the National Labor Relations Act (NLRA) and affirmed by the 2016 Columbia decision,” K-SWOC wrote in a message to the Collegian.
The order of postponement comes almost 10 days after K-SWOC filed a petition with the NLRB to hold a union certification election, and just under a week after the College filed two motions, one to dismiss or stay the group’s petition, and another to indefinitely postpone the hearing and to indefinitely extend the due date to post the election notice and for a statement of position. The College posted a Notice of Election on Oct. 21 in an email to the campus community.
Sally Smith ’23, a member of K-SWOC’s steering committee, expressed K-SWOC’s disappointment about the NLRB’s order to postpone the hearing and about Kenyon’s decision to file the motion in the first place.
“We were incredibly disappointed by the College’s decision to file the motion to dismiss and postpone a democratic election amongst student workers, and challenging whether or not we have the right to form a union and whether or not we are statutory employees under the Act, which of course has really dangerous implications not only for us but for the 80-something-thousand student workers across the country,” Smith said.
In response to the postponement, the College issued a statement on its website explaining that the election hearing had been postponed because K-SWOC’s petition raised important legal issues that had not yet been addressed by the Board.
“The NLRB’s action responds to an Oct. 21 motion filed by Kenyon College to dismiss or stay the petition. In its motion, Kenyon points out that the NLRB has not decided previously whether an election in a campus-wide unit of exclusively undergraduate students is appropriate under federal labor law,” the statement read.
In both Oct. 21 motions, Kenyon used this lack of precedent to argue that the NLRB should dismiss K-SWOC’s petition. The College argued that student employees were not statutory employees under the NLRA because of the temporary nature of student workers’ positions, and because student working conditions differ from the typical employment relationships covered by the Act. They also argued that the College does not have the right to disclose the private educational information and records of students under the Family Educational Rights and Privacy Act (FERPA).
“KSWOC asks Region 8 to take the unprecedented step of exercising jurisdiction over a proposed wall-to-wall bargaining unit composed entirely of undergraduate student workers, raising a threshold jurisdictional question that the Board must resolve,” the motion read.
K-SWOC has argued that the NLRA does, in fact, extend to undergraduate units, citing the 2016 Columbia University decision that ruled certain — mainly graduate — student assistants at private universities and colleges have the right to unionize. According to Smith, K-SWOC believes that the NLRB will follow the precedent set by the decision and rule in their favor.
She also said that the College still has the option to rescind its motions and to enter into a stipulated election agreement. However, when asked if the College would reconsider negotiating with K-SWOC, Marsden specified that Kenyon was no longer open to the “question of voluntary recognition.”
Moving forward, K-SWOC will wait for the regional director’s decision and continue to work with their legal counsel — provided by the United Electrical, Radio and Machine Workers of America (UE) Local 712 — to determine the best path forward for reaching an election. If the regional director decides that the NLRB has jurisdiction over undergraduate units and that they are covered under the NLRA, it is likely that the NLRB will set a hearing date to schedule a certification election. However, if the NLRB sides with the College, it is unclear what K-SWOC’s next steps will be.
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Expected. Not surprised.
Reply to Anon