Some cursory/introductory research on Student Workers’ Right to Organize

As a union organizer in the UC system–who deals extensively with the Higher Education Employer-Employee Relations Act (HEERA), the Public Employee Relations Board (PERB), and Campus and UCOP Labor Relations–I’ve been asked a few times what it would take to organize student workers (or put more idealistically, what it would take for them to organize themselves).  Apart from the typical problems and difficulties associated with union organizing drives, and some potential hurdles like student turnover, it may not actually be that difficult for student workers on UC (and presumably CSU) campuses to form unions, based on the “three-prong test” devised by PERB Administrative Law Judge Tamm (Regents of the University of California [1999] PERB No. 1359-H, 139 CPER 62).

Since I’m not a lawyer, I don’t want to risk giving false information by summarizing; instead, I’ve typed out 2 key sections from a book published by California Public Employee Relations (CPER) and the Institute for Industrial Relations at UC Berkeley, which reviews relevant case law for public employees’ unions, in this case employees covered under HEERA.

For your reference, the text of HEERA can be found here: http://www.perb.ca.gov/laws/heera.asp
PERB Decision Bank (for searching PERB decisions cited in the notes): http://www.perb.ca.gov/decisionbank/default.aspx
California Public Employee Relations: http://cper.berkeley.edu/

From California Public Employee Relations’ “Pocket Guide to the Higher Education Employer-Employee Relations Act” (First Edition, June 2003):

Student employees
. Perhaps the greatest controversy regarding the scope of HEERA’s coverage has concerned the lengthy battle for recognition of graduate students, interns, and residents at the University of California as employees entitled to collective bargaining rights under the act.  Since its inception, the language of HEERA has not included under its jurisdiction student employees whose employment is contingent on their status as students unless “the services they provide are unrelated to their educational objectives, or, that those educational objectives are subordinate to the services they perform and that coverage under this chapter would further the purposes of this chapter” (Sec. 3562[e]).  Whether students’ educational objectives are subordinate to the services they provide is a determination made by PERB on a case-by-case basis, looking “not only at the students’ goals, but also at the services they actually perform, to see if the students’ educational objectives, however personally important, are nonetheless subordinate to the services they are required to perform.” [15] (p. 6)

Graduate student instructors and researchers.  The second major challenge regarding the status of student employees concerned graduate student instructors and research assistants (GSIs and GSRs, respectively) of the University of California.  Four years after the enactment of HEERA, GSIs at UC Berkeley formed the Association of Graduate Student Employees (AGSE) and requested to bargain with the UC administrators pursuant to Sec. 3562(e) (then Sec. 3562[f]) of HEERA.  The university refused to recognize the union, and an unfair practice charge was filed.  What followed was a legal and political struggle that lasted nearly 16 years until it was resolved in favor of coverage.

PERB first addressed the issue in 1989, ruling that GSIs and GSRs did not qualify as “employees” under the statutory framework of HEERA.[20] AGSE appealed the board’s ruling to the California Court of Appeals and, in May 1992, the court affirmed the board’s decision that GSIs and GSRs were “students” rather than “employees” under HEERA.[21]  Reaffirming the statutory balancing test outlined by the Supreme Court in Regents, the court concluded that under the second prong of the test, the purposes of HEERA would not be served by including graduate students under its coverage.

Next, PERB ALJ Tamm ruled in 1996 that GSIs as well as readers, special readers, tutors, and remedial tutor/part-time learning skills counselors at UCLA were “employees” under HEERA, and were thereby entitled to collective bargaining rights.[22]  The ruling specifically excluded GSRs, whose research services the ALJ held were not subordinate to their educational objectives.  This decision was preceded one year earlier by another ruling by Tamm that readers, tutors, and teaching associates at UC San Diego were “employees” under the act.[23]  Neither campus agreed to recognize the respective unions, and the decisions were immediately appealed.[24]

In its appeal in the UCLA case, the university argued that extending collective bargaining rights to graduate student employees would violate Art. IX, Sec. 9, of the California Constitution, which declares UC to be a public trust.  According to the argument, this granted the university “general immunity from legislative action.”  The university argued that HEERA was constitutional only as an exception to the university’s general immunity and only insofar as it did not regulate matters involving internal university affairs.”

The first of PERB’s final decisions came in the San Diego case, rendered in April 1998.  The board affirmed the ALJ’s ruling that readers, tutors, and teaching associates at the campus were “employees” entitled to collective bargaining under HEERA.[25]  In its decision, the board adopted the following three-part test first outlined by ALJ Tamm:

(1) Is the employment of the student employees contingent on their status as students? If not, they are deemed employees under HEERA.  If so, then,
(2) Are the services provided to the university related to the students’ educational objectives?  If not, they are “employees.” If so, then,
(3) (a) Are the students’ educational objectives subordinate to the services they provide to the university?  If not, they are not “employees.” If so, then,
(b) Would coverage of the student employees further the purposes of HEERA?[26]

Whether the educational objectives of the student employees are subordinate to the services they perform for the university, the majority concluded, requires the board to make a “value judgment,” rather than conducting a “scientific weighing process.”  The board’s determination turns on how vital the employment is to both the students’ educational objectives and to the services provided to the university.

The majority found that HEERA’s purposes would be served by including readers, tutors, and teaching associates in the collective bargaining process, despite earlier rulings to the contrary regarding UC Berkeley student employees.  Following this decision, PERB refused to join in the university’s request for judicial review of the case, making PERB’s ruling final.[27]

PERB further solidified the collective bargaining rights of graduate student academic employees in its follow-up decision in the UCLA case in December 1998, where it applied the same reasoning to hold that GSIs, readers, special readers, tutors, remedial tutors, and part-time learning skills counselors at that campus were “employees” entitled to collective bargaining under HEERA.[28]

In March 1999, the University of California agreed to honor the results of the representation elections scheduled by PERB at each of the campuses and agreed to negotiate with chosen exclusive representatives. (pp. 8-10)

 

[15] Regents of the University of California v. PERB; California Association of Interns and Residents (1986) 41 Cal.3d 601, 614, 69 CPER 56.

[20] University of California (Berkeley) (1989) PERB No. 730-H, 81 CPER 81.  The board made exceptions for graduate students serving as community teaching fellows, nursery school assistants, and acting instructors, finding that these employees were entitled to coverage under HEERA.
[21] Association of Graduate Student Employees v. PERB; University of California (Berkeley) (1992) 6 Cal.App.4th 1133, 94 CPER 39.
[22] For an in-depth discussion of the ALJ’s ruling and its implications, see Eric Borgerson, “Higher Education Special Report: Graduate Students Win Bargaining Rights But University Refuses Recognition,” CPER No. 120, pp. 24-34 (October 1996).
[23] Regents of the University of California, ALJ Proposed Decision, PERB No. SF-RR-805-H (Oct. 20, 1995); see also “Student Employees at UC San Diego Make Up Appropriate Bargaining Unit,” CPER No. 115, pp. 51-53 (December 1995).
[24] See Borgerson, “Higher Education Special Report,” supra note 22.
[25] Regents of the University of California (1998) PERB No. 1261-H, 130 CPER 76; see also “PERB Affirms Student Employee Bargaining Rights in Split Decision,” CPER No. 130, pp. 45-49 (June 1998).
[26] This is the same three-part test outlined by ALJ Tamm and adopted by PERB in determining whether interns and residents are entitled to collective bargaining under HEERA.  See discussion of interns and residents, supra.
[27] See “PERB Refuses to Certify Appeal of Student Employee HEERA Ruling,” CPER No. 132, pp. 43-44. Because of PERB’s decision in the San Diego case was a unit determination decision, HEERA Sec. 3564(a) provides that the order is not subject to judicial review unless the board agrees with the party seeking review that the decision carries special importance and joins in the request.  See infra, Unit Determination.
[28] See Regents of the University of California (Los Angeles) (1998) PERB No. 1301-H, 134 CPER 73; see also “Another Victory for Graduate Student Employees,” CPER No. 134, pp. 45-49 (February 1999).

Still Waiting for ‘Real Action’: UC’s Repeated Failure to Address Campus Racism

As many in the UCLA community are now aware, the door to students’ off-campus apartment was vandalized with anti-Mexican and sexist messages on the morning of Monday, February 27.  As tragic as this isolated event was, it is more illustrative of the broader campus climate on one hand, and, on the other, the complete inability of campus and system administrators to effectively address these situations and ensure the safety of their female students and students of color.

Before looking at the Daily Bruin editorial penned by Christine Mata, Assistant Dean of Students for Campus Climate, it’s important to rewind several years and place this event in the proper context.

The weekend of February 13, 2010, the Pi Kappa Alpha chapter at UC San Diego hosted a theme party intended to mock Black History Month, titled the “Compton Cookout.”  The theme, if not immediately obvious by the name, was to caricature black culture, serving “chicken, coolade, and of course Watermelon,” and encouraging female attendees to dress and act like “ghetto bitches.”  Within just a few days of the party, which black students—who constitute just 2% of a campus that is 70% non-white—protested, students on a student government-owned television station ridiculed the protests, going so far as to call the black students “ungrateful n—–s”—yes, the actual n-word, and on live television.  On the 24th, UCSD Chancellor Fox planned a teach-in to discuss the racist events on campus and regain the trust of the student body, after allowing the events to spiral out of control.  Reportedly 1200 students attended the teach-in before walking out en masse to do their own teach-out, leaving only a handful of administrators and loyal faculty to continue listening to Fox’s speech—which she continued even after the students left.  Angus Johnson, a CUNY History professor who wrote frequently on the student protests nationally and internationally during the 2009/10 school year, wrote:

I don’t get it. Your campus is in crisis. Your students are in crisis. And your students are taking the lead in forging a response to that crisis. They’re voting with their voices and with their feet, saying that they want to discuss the situation in their own venue, on their own terms. They’re having that discussion right now, right outside the room in which you’re sitting. And you don’t follow them? You don’t join them? You don’t seize this extraordinary opportunity to watch and listen and learn?

Now, it seems like this should have been the sad conclusion to this incident.  Except that it wasn’t.  The night of the 25th—less than two weeks following the “Compton Cookout” party—a noose was found hanging in Geisel Library at UCSD.  Students began a sit-in the next day at Chancellor Fox’s office, with UCLA students sitting in at Murphy Hall in solidarity.   Throughout the day, rumors surfaced that a second noose had been found, though UCPD refused to confirm this, and calls were made to the student paper that more nooses would be hung around campus.  UCSD students set a 5pm deadline for the administration to meet their demands, with about 100 students willing to risk arrest.  The administration finally issued a bogus response letter which set no firm commitments to change the campus climate; however, student leaders convinced the crowd of angry students to leave the office with promises of future action, but no significant actions followed.

Earlier that same month, at UC Irvine, 11 students—8 from UCI and 3 from UC Riverside—were arrested for heckling a university-sponsored talk by Israeli Ambassador Michael Oren.  In previous years, Zionist community members have heckled speakers brought in by the Muslim Student Union, including Green Party Presidential candidate and former House Representative Cynthia McKinney, while armed UCPD watched on.  At one point, a mock separation wall erected, with permits, by a student organization preceding the MSU was burned down to the ground—again, as police watched.  In another incident, a plainclothes FBI agent drove a car through a crowd of pro-Palestinian students—once more, as UCPD officers watched on.  Barely a year after the 11 students were arrested, and while they and 19 other UCI students were facing criminal charges for protesting on campus, it was revealed that UC Student Regent and UCI student Jesse Cheng had been arrested for attempted rape.  UCI administrators, even the campus assault resource center (CARE), circled wagons around Cheng; one administrator approached female students with the Justice For Laya Campaign protesting outside the administration building, asking “why are you doing this to him?”  The CARE Director even tried to prevent Justice For Laya organizers from distributing any literature about Cheng at the campus Take Back the Night event.  Eventually, bowing to student pressure, the Student Conduct Office found Cheng guilty of “unwanted touching,” and sentenced Cheng to disciplinary probation, which wouldn’t go into effect until after he graduated.  This was just a slap on the wrist compared to the charges and sentences received by dozens of UCI students—primarily black, Latin@, and Middle Eastern—whose only “crime” was protesting, and the banning of the Muslim Student Union for the organization’s dubious role in the Michael Oren protest.  Ultimately, as the Occupy UCI blog noted, the “conviction” of Cheng was intended to serve two functions: 1) to placate angry students, who demanded Cheng’s resignation and genuine concern from administrators, and 2) to validate and legitimize the use of Student Conduct charges against activists.  It should come as no surprise that institutional racism coalesced with institutional sexism/patriarchy, just as this most recent event at UCLA combined individual racism and sexism.

Barely 9 months after the Compton Cookout, and around the same time as the campaign against Jesse Cheng, ANOTHER racist and sexist party surfaced, this time at UCI.  Instead of targeting black students, though, this party went after native students, with a “Pilgrims and Indians” party, with flyers featuring silhouettes of scantily-clad women with feathers in their hair.  And, following the pattern that is becoming all too obvious and infuriating, the UCI administration did nothing to hold event organizers accountable or make students on campus feel included.  While black students at UCSD make up only 2% of the student population there, American Indian students make up a miniscule 0.01% of the UCI student body.  Furthermore, at the time, there was not a single American Indian professor on campus, nor were there any courses about the indigenous population; only a handful of students outside of the American Indian Student Association knew that the land UCI is located on once belonged to the Acagchemem prior to colonization.

And then, in March 2011, a UCLA undergraduate gained notoriety for releasing a video on YouTube, titled “Asians in the Library,” where she complains that Asian students disrupt her frequent “epiphanies” by loudly saying things like “Oh ching chong ling long ting tong, ooohh.”  However, UCLA administrators declined to punish her in any way, and—amazingly—were more concerned with the criticisms of her video than the impact of the video itself on the Asian-American student population, and students of color on campus more generally.  While Chancellor Block offered a token condemnation of the video, UCLA spokesperson Phil Hampton stated that “right now, the campus is focused on ensuring [the student’s] well-being so she can complete her finals.”

Finally, then, we can return to the most recent incident at UCLA, and the response by Mata.  The Assistant Dean for Campus Climate position, created eight months ago, has been Chancellor Block’s most meaningful gesture towards addressing diversity and racism on campus; but Mata’s letter demonstrates just what an empty gesture it is, and really the lack of commitment from the UCLA administration to increasing diversity on campus and ensuring the safety and security of students of color.

Two quotes from Mata’s article emphasize this point:

“This incident was not the first of its kind but it presents the opportunity for us to engage in dialogue and identify how we can become agents of change toward making it the last time we see such hate against members of our community.”

“Combating bias begins with each of ourselves on the individual level.”

Both of these statements, representative of the rest of the article, point to two related goals of the administrative response:

1)   To make this a definite incident, not something that is part of a long pattern of racism and sexism on UC campuses, as described at length here, or, more importantly, part of a larger structure of racism and sexism—or to put it another way, white supremacy and patriarchy, both of which intersect in much more profound and oppressive ways than the compound slurs written on the apartment door.  If this event were to be linked to past events, students might question why President Yudof and Chancellor Block, and their administrations, have allowed this to happen over and over.

2)   To make this a question of just individual action, rather than a product of systematic and institutional phenomena.  An individual issue—in this case, “bias”—can supposedly be solved through greater understanding and increased dialogue; but a systemic or institutional issue requires controversial and scrutinizable action by the administration, and likely the loss of power and privilege by already powerful and privileged groups—Block’s constituency.  This constituency is made up of the white super-majority in the administration, the white super-majority in the faculty, and the white middle and upper class in the student body.  The appeals to “dialogue” and combating “bias” also assumes a symmetry of power between the oppressor and the oppressed that can only exist in a rhetorical situation decoupled from persistent systems of oppression and racial violence; but in the real world, where some groups and people hold structural power over others, such attempts at dialogue are meaningless.

An article by the Daily Bruin editorial board follows this campaign of distancing, individualizing, and emphasizing dialogue over systemic change in its closing call to “Join the conversation. Keep up the discussion. That’s only the first step, but it’s in the right direction.”  However, a look at the demands issued by students demonstrate the very low level of accommodation that has been denied students of color at UCLA:

1)   Adoption of a UCLA diversity requirement
2)   UCPD accountability to students
3)   Formal response from Chancellor Block condemning these actions
4)   Formal apology from ASUCLA (regarding a separate incident)
5)   Support for growth of Ethnic Studies at UCLA
6)   Creation of a campus multicultural center
7)   Greater diversity within administration and the student body

Aside from the apology from ASUCLA and possibly a statement from Chancellor Block, it seems likely that the first of these demands to be met will be greater diversity in the administration.

The emphasis on policing as a solution—i.e. treating this particular incident as a matter of law and order—raised in the editorial board article and in similar articles elsewhere again removes culpability from the administration; but it also provides a stark irony given the relationship of police to communities of color.  If we look at another incident on campus—when UCPD beat, tased, and arrested students, again primarily students of color, protesting a 32% tuition increase in November 2009 outside Covel Commons, then it should be absolutely clear that police will never be able to eradicate racism, and their very involvement in this case likely will further entrench institutionalized racism.

Given this long history of inadequate responses, decreasing enrollment of students of color, and lack of resources and support structures for those students who are able to attend, it’s important that we recognize that this administration is not designed to meet the needs of students, only placate when necessary.  Instead, we need to start organizing ourselves to build the support structures and create the campus climate that we need, while increasing pressure on the administration to be accountable and serve us.

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Since writing this, I came across an email sent from UC President Mark Yudof to all UC students earlier today, which again emphasized Yudof’s trademark appeals to “civility” and “discourse,” this time ignoring the constant violent response to protesters seeking to engage in discourse with UC officials and the Regents; nor does he condemn the racist vandalism at UCLA.  Instead, his objection is to students engaging in political dissent against paid representatives of the Israeli government and the Israeli Defense Forces; statements like “It is an action meant to deny others their right to free speech” seemingly apply only to criticism of Israel, not protests of campus policy.  Never mind that heckling—up until the Irvine 11 arrests—has been considered a common, albeit occasionally unpopular, form of protest (See Occupy UCI for a long list of past heckling which never resulted in arrest).  Similarly, racial and sexist slurs seem to be accepted as “free speech,” while dissent against a foreign government’s agents, brought to campus with official university sponsorship, to sell that government’s policies… well, that’s a crime.  Another paragraph from Yudof’s email heightens his own bias for Zionist students (a political identity, not a religious one):

“Among other initiatives, the system’s central office has worked with the campuses and various groups, including students, to revise policies on student conduct; the new provisions strengthen prohibitions on threatening conduct and acts motivated by bias, including religious bias. We also are working with the Museum of Tolerance and the Anti-Defamation League to improve campus climate for all students and to take full advantage of our marvelous diversity.”

Is this same effort being made for black, Latin@, Muslim, or Asian students?  NO.  These students do not fall under his category of “all students,” otherwise they would have their concerns taken seriously.  Now, this is not to say that Jewish students should not have the right to feel safe on campus; they do, the same as everyone else, and the incidents of swastikas being drawn on doors is just as reprehensible as what was directed against black students at UCSD, American Indian students at UCI, and Asian and Mexican students at UCLA.  But to equate politicized disruptions of speeches by Israeli officials with racist attacks against Jewish students, while ignoring (with only passing reference to) similar attacks on all other students of color, emphasizes a desired demography for the UC system that is as hypocritical as it is racist in its own right.

The continuing appeals to “civility” are meant less to encourage open discourse–since this arguably doesn’t exist in the UC, judging by the actions of the UCPD–and more to invoke archetypes of “the barbarian,” the opposite of “civility” and “the civilized,” which have classically been used to otherize, marginalize, and derationalize primarily Arabs, but also Africans and indigenous Americans (both American Indians and Latin Americans).  Thus, these appeals to civility, revived every time UC students protest the Israeli occupation of Palestine, are clearly intended to divide the student body into groups of “desirables” and “undesirables,” with the safety and speech of the former defended at any cost, and that of the latter discardable and acknowledged only to prevent their revolt.