On Nov. 24, under the counsel of law firm Jones Day, Kenyon College submitted a formal reply to the National Labor Relations Board (NLRB) in support of its motion to dismiss or stay Kenyon Student Worker Organizing Committee’s (K-SWOC) petition for a union certification election. The filing comes in response to K-SWOC’s Nov. 8 counter-motion, which was aimed at reversing the NLRB’s decision to indefinitely postpone a Nov. 9 hearing. The hearing was set to determine the date of K-SWOC’s certification election.
The reply is the latest in the nearly 18-month-long campaign to achieve union recognition, which began in Aug. 2020 when K-SWOC petitioned Kenyon for voluntary recognition. In Oct. 2021, K-SWOC filed for a community election with the NLRB, but is waiting for the board to set an official election date.
The College reiterated its claim that providing the NLRB with information it requires would violate student privacy rights guaranteed by the Family Educational Rights and Privacy Act (FERPA). Kenyon emphasized this claim by saying that it would be at risk of incurring retaliation from the Department of Education in the form of reduced federal funding — which the College says is crucial to supporting students’ education, providing funding to low-income students in the form of Pell Grants and bolstering the viability of student positions.
LeRoy Rooker — who served as the director of the Department of Education’s Family Policy Compliance Office, which was responsible for administering FERPA, for 21 years — submitted a written testimony in support of the College’s reply.
He said that Kenyon can only share “public directory information,” which can include students’ names, email addresses, attended high schools, majors, and graduation years. Importantly, the College can define what constitutes directory information, as long as it does not exceed FERPA’s limitations.
In his testimony, Rooker writes that much of the information required by the NLRB — including the names of workers, their positions, work locations and work performance — are not considered directory information and is protected by FERPA as a part of students’ educational records.
“There are four principal circumstances in which an institution may disclose student records,” Rooker wrote. “(a) if the student (or, in the case of a minor student, his or her parent) consents in writing; (b) if the information is directory information, and the institution has previously provided both notice of the specific items it has designated as directory information and an opportunity to take protective action; and (c) other specifically enumerated statutory exceptions set forth in [FERPA].”
However, in an email to the Collegian, K-SWOC expressed skepticism that the union certification process would violate FERPA rules. “Over 80,000 graduate and undergraduate student workers have unionized through the NLRB, state labor boards, or related processes since the Columbia decision (2016) and no University or College involved has been found to be in violation,” the organization wrote. In the email, K-SWOC also expressed frustration with what it calls the College’s actions to “further delay hearing the democratic voices.”
Continuing in their response, the College argues that student workers are common-law employees and are not covered by the National Labor Relations Act (NLRA). It argues that with roughly 25% of workers leaving each year and jobs often changing each semester, it would be impossible for a union to appropriately represent such a body. The workers voting for a union today, according to the College, would not “defeat” the policy of a “guarantee of free choice for or against collective representation” for future workers.
Furthermore, the College asserted that student positions serve the purpose of education. In the reply, Jones Day quoted a statement from President Sean Decatur, where he said there is a “traditional employer-employee component,” but he distinguished between graduate and undergraduate work. “The fundamental relationship a College has with its students is educational, and that campus work exists to further that education and make it financially accessible to students across incomes,” he said. Finally, the College says there is an undeniable difference in the nature of its relationship between student workers and that of its employees.
Amid this back-and-forth, members of K-SWOC delivered two letters in support of their cause to the College administration on Wednesday: one from faculty members, and one from the broader Kenyon and labor communities. The former, signed by 61 faculty members, outlines their respect for the organizing efforts of students, and urges Decatur to hold an election for union recognition “as expeditiously as possible.”
“We are disappointed in the actions of the College to delay democratic processes,” K-SWOC steering committee member Sally Smith ’23 said at the gathering. The event, run by K-SWOC representatives, featured two speeches, one by Associate Professor of German Paul Gebhardt, and another from alumnus Matthew Christopher ’17. Christopher said that Kenyon is “no stranger” to practices such as tier pay systems, labor outsourcing, wage theft and lockouts that “pave the roads of Kenyon’s history.”
Gebhardt, in a similar fashion, opened by stating that his Apprentice Teachers are “absolutely essential” to his course, and that he found the response from the College and Board of Trustees to be “absolutely deplorable.” He refuted the claim that the jobs of student workers are created only for their education and are not vital to the school’s function. In response to the administration’s use of the law firm Jones Day, Gebhardt accused the College of hiring “the enemies of democracy.”
“[K-SWOC is] not beholden, like Kenyon’s top administrative office, to the college-industrial complex that sees education as nothing else but an opportunity to line their pockets with hundreds of thousands of dollars,” he said.
News Editor Adam Margolis contributed to reporting.