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).

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