What is collective bargaining?
Collective bargaining is the process in which an employer and a union representing all members of a bargaining unit negotiate over the members’ wages, hours, and other terms and conditions of employment. If a graduate student assistant union were formed, the union would be the exclusive representative of the students, so students would not be able to make individual arrangements about these aspects of their relationship with the university.
How does collective bargaining work?
A union and employer are obligated to meet and confer in good faith. The union may make proposals and request changes, but the employer is under no obligation to agree to its proposals and requests.
Does the law require the parties to complete their negotiations within a certain period of time?
No. It often takes more than a year to negotiate a first collective bargaining agreement. The law does not require any specific frequency of meetings. It simply requires that the parties “meet at reasonable times and confer in good faith.”
If a union were formed, what would happen to graduate student assistants’ stipends and benefits while the collective bargaining agreement is being negotiated?
Typically, there would be no increases in stipends or enhancements to benefits during negotiations because as a general rule, such matters will be subject to bargaining and could not be changed without mutual agreement of the university and the union.
What happens if the university does not agree to all of the union’s requests?
The union can either accept the university’s position or ask the student assistants to vote in favor of going out on strike in an effort to apply pressure to the university to change its position.
Could a graduate student assistant opt out of union representation if a union won an election?
No. If a union were elected to represent a bargaining unit that covered a graduate student who did not want to be represented, there is no mechanism under federal labor law for that graduate student to opt out of union representation. All graduate students in the bargaining unit would be represented by the union and could be required to pay money to the union even if they voted against union representation. If a union represents a graduate student, the university may not work directly with that graduate student to alter any of the terms and conditions of that student’s assistantship, even if the student preferred working directly with his or her faculty advisors on these issues.
If graduate students vote for a union and then decide they don’t like it, can they change their minds about unionization?
Not easily. If a union is certified as the exclusive representative of an employee group, that status cannot be challenged for at least one year. Even after that one-year period, the only way to challenge the union’s status is for the employees to petition the NLRB for another election.
If there were a union, could graduate students sit on departmental or school committees?
It is uncertain. We do know that the union would be the exclusive voice for all students it represents with respect to the terms and conditions of teaching and research assistantships. This means that other avenues of communication between graduate student teachers/research assistants and Washington University such as departmental/school leadership committees might be restricted or limited.
How are disputes resolved if there is a union contract?
Union contracts usually have grievance and arbitration provisions that call for resolving disputes through grievances brought internally and ultimately resolved through the binding decision of an outside arbitrator. The grievance and arbitration process can be time-consuming and often legalistic. There are very few arbitrators with experience resolving disputes between graduate students and private colleges and universities. This makes it difficult to predict how a dispute may be resolved in arbitration.
What could happen if the students went on strike?
The dissent in the Columbia University decision notes that if the union called a strike requiring students in the bargaining unit to stop their teaching and research duties, the university could temporarily or permanently replace those striking graduate student assistants. In addition, the university could stop providing stipends and suspend tuition waivers while they were on strike. Even if the university did not replace striking graduate student assistants, the time lost to a strike could delay a student’s completion of his or her studies and result in payment of additional tuition in order to complete his or her academic program. Those students who chose to work during a strike could be subject to fines by the union.
Could a strike potentially have an impact on my F-1 visa status?
Many graduate students have posed this question to the University. To obtain an answer, the University contacted an outside immigration attorney and U.S. Immigration and Customs Enforcement (Department of Homeland Security). The information provided to the University is set out below. Students also may wish to consult with an immigration attorney for personalized legal advice.
Foreign national students in F-1 status are required to participate in a “full course of study” in order to maintain their F-1 status. 8 CFR § 214.2(f)(5)(i). For Ph.D. programs, what constitutes a “full course of study” is set by the educational institution for the particular academic program. 8 CFR § 214.2(f)(6)(i)(A). The regulations further state that “[o]n-campus employment pursuant to the terms of a scholarship, fellowship, or assistantship is deemed to be part of the academic program of a student otherwise taking a full course of study.” 8 CFR § 214.2(f)(6)(iii). If graduate students are required as part of their academic program to “work” as graduate assistants teaching classes or conducting research, then continuing to serve in that capacity is required in order for the student to maintain a “full course of study” and thus to maintain their F-1 status. (The regulations permit an educational institution to allow an F-1 student to engage in less than a full course of study only for specific reasons enumerated in the regulations, none of which include that the student is unable to continue working due to a strike. 8 CFR § 214.2(f)(6)(iii).)
Any individual on an F-1 visa automatically has their work authorization suspended if a work stoppage occurs in their classification at their location of employment. As 8 CFR § 214.2(f)(14), entitled “Effect of strike or other labor dispute,” states:
Any employment authorization, whether or not part of an academic program, is automatically suspended upon certification by the Secretary of Labor or the Secretary’s designee to the Commissioner of the Immigration and Naturalization Service or the Commissioner’s designee, that a strike or other labor dispute involving a work stoppage of workers is in progress in the occupation at the place of employment. As used in this paragraph, “place of employment” means the facility or facilities where a labor dispute exists. The employer is prohibited from transferring F-1 students working at other facilities to the facility where the work stoppage is occurring.
Therefore, if the union were to engage in a strike, F-1 visa students engaged in graduate teaching and research experiences could be legally prohibited from continuing to “work” in that capacity.
Under such circumstances, F-1 visa students could be subject to deportation whether they continued to “work” or not. If students honored the strike and caused the suspension of their work status under 8 CFR § 214.2(f)(14), they could be deemed out of status for having failed to maintain a “full course of study.” 8 CFR § 214.2(f)(5)(i); § 214.2(f)(6)(iii). And if, despite the automatic suspension of their work authorization, students disregarded the strike and continued to perform their teaching or research responsibilities, they would be out of status. 8 CFR § 214.1(e) (a nonimmigrant “may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status . . . .”). An F-1 student who has failed to maintain status is subject to deportation. 8 U.S.C. § 1227(a)(1)(C)(i) (“Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted . . ., or to comply with the conditions of any such status, is deportable.”); see also 8 CFR § 214.2(f)(5)(iv) (“an F-1 student who fails to maintain a full course of study without the approval of the DSO or otherwise fails to maintain status is not eligible for an additional period for departure”).
Furthermore, universities are legally required to report to U.S. Immigration and Customs Enforcement (Department of Homeland Security) if a student fails to maintain status. 8 CFR § 214.3(g)(2)(ii)(A); see also SEVIS Reporting Requirements for Designated School Officials (www.ice.gov/sevis/dso-requirements).
U.S. Immigration and Customs Enforcement has confirmed this understanding in writing to the University, stating: “If the student has stopped taking courses or stopped performing research and that is what is required for their program, the student’s record should be terminated immediately and they will have to leave the U.S. as soon as possible.”
The University would not report a student’s change in status to the government unless it determined that, under the particular circumstances, it must do so in order to be legally compliant.