An administrative law judge of the National Labor Relations Board (NLRB) has dismissed a complaint against Yale stemming from a "grade strike" by students of the Graduate School led by the Graduate Employees and Students Organization (GESO) from December of 1995 through January of 1996. Deputy Chief Administrative Law Judge Michael O. Miller, in dismissing the case, ruled that the withholding of undergraduate grades by graduate teaching fellows was not conduct that is protected by the National Labor Relations Act, and that the General Counsel of the NLRB had therefore failed to establish an essential element of his prima facie case.
"Employees do not retain their statutory protection when they perform only part of their job functions while accepting their pay and avoiding the risks and disadvantages of a complete strike action," the judge wrote in his opinion characterizing the grade withholding as a "partial strike."
The judge's ruling, which was announced July 28, was in response to a motion to dismiss the complaint filed by the University in June. The University's motion had argued that the grade withholding was an unprotected "partial strike" because the students refused to perform only one aspect of their teaching responsibilities, which was the submission of grades. GESO's action contemplated that the students would resume teaching in the spring while still continuing to withhold fall grades of undergraduates.
The judge's decision did not address the question of whether graduate teaching assistants are "employees" for purposes of the National Labor Relations Act, nor did the University's motion to dismiss request Judge Miller to do so. Yale, however, has long maintained that graduate students at a private university are not employees entitled to unionize, and has argued that decisions of the National Labor Relations Board that have stood for over two decades have supported that view. The University's motion did not concede its position that graduate teaching assistants are properly considered students and not employees for purposes of the Act.
The University filed its motion to dismiss the complaint following 17 days of hearings before Judge Miller. During the hearings in April and May, the General Counsel of the NLRB had presented its case in support of the complaint. At the time the complaint was dismissed, the University was preparing its case for presentation before Judge Miller.
The NLRB General Counsel's complaint against Yale was issued in January of 1997, based on an unfair labor practice charge by the Graduate Employees and Students Organization. GESO had claimed that the University's response to the grade withholding violated federal labor law. Yale had informed graduate students who were withholding undergraduate grades for the fall 1995 semester that they would not be eligible for teaching assignments in the spring 1996 semester unless they submitted the grades by the relevant deadlines.
"We are gratified that the Judge agreed with Yale's position that the grade strike was not legally protected, and has saved us the time and expense of further hearings on this claim," said Dorothy K. Robinson, Yale's Vice President and General Counsel. "Judge Miller's decision makes it very clear that holding undergraduate grades hostage to GESO's demand for recognition as a labor union was not a tactic that federal law protected. While we were prepared to argue that the Board's position on the status of students under the Act both fits Yale's situation and should not be changed, that question, if GESO wishes to pursue it, will have to remain for another day."