K-SWOC/UE NLRB Union Election Update
Dear members of the Kenyon community,
K-SWOC/UE is committed to keeping the campus community informed on the process of student workers holding an election for a union through the National Labor Relations Board (NLRB). We would, therefore, like to share a few updates regarding the College’s recent actions to dismiss and delay a democratic union recognition election.
First, the College has decided to retain lawyers from Jones Day to represent them in the NLRB election proceedings. Jones Day is one of the largest law firms in the world and has a history of defending controversial clients. Jones Day’s previous clients include Donald Trump’s 2016 and 2020 election campaigns, Fox News, Goldman Sachs, McDonald’s, the National Rifle Association, Vladimir Putin’s inner circle, and representing the Pennsylvania Republican Party in its efforts to challenge the results of the 2020 presidential election. Jones Day also specializes in union-busting in the news media industry by pursuing “ugly” negotiation tactics that “carve employee benefits to the bone.” The two lawyers who the College has retained are based in New York City and Washington, D.C., and have prior experience in breaking strikes for Verizon in 2016 and defending corporations against charges of workplace safety violations. We are disappointed the College has chosen to retain this outside third-party, rather than utilize their traditional Columbus-based legal counsel, and have so far refused to work with their student workers in good faith to hold a free and fair union election.
According to 2018 data from Reuters, the average billing partner at Jones Day makes $950/hour, which would be $7,600/day and $38,000/week. In light of this data, we ask the community to consider the College’s allocation of financial resources using the following comparisons to student worker wages:
In one day, one Jones Day lawyer (two lawyers are listed in the College’s legal motions) will be paid more by the College than if all MLL ATs were moved from Tier II (10.03/hour) to Tier III (11.30/hour) this semester (likely overestimating AT hours/week).
2 hours paying one Jones Day lawyer costs more than giving a raise from Tier II to Tier III to all Helpliners working for the entire semester.
3 weeks of paying one Jones Day lawyer will cost the College more than paying the entire CA staff this semester.
6 weeks of paying one Jones Day lawyer = an entire semester of raising ALL student workers to $15/hour.
LBIS workers, ATs, and other student workers have consistently made the case to the College for fairer wages, in particular asking for workers to be paid Tier III when their job description matches the College’s very own Tier III job description. The College has repeatedly refused these demands, often citing vague financial difficulties. Their decision to hire expensive anti-union lawyers demonstrates what the College’s priorities are: a few hours of a third-party’s advice to beat back student workers organizing is more valuable to them than the countless hours of labor their own students provide to our community.
On Thursday, October 21, the College, through its Jones Day lawyers, filed a motion to postpone the NLRB election hearing and a motion to dismiss the election altogether that consisted of a series of unoriginal arguments and assertions used by every college and university administration to prevent the democratic unionization of its student workers in the past. Currently, K-SWOC is working with Ohio-based union-side legal counsel provided by our national affiliate union, the United Electrical, Radio, and Machine Workers of America (UE), to contest these motions before the NLRB vigorously and continue to work towards an election in which all student workers can make their voices heard on whether to form a union and bargain collectively to improve our working lives at the College.
The motions include a technical argument that the College cannot provide information requested by the NLRB to conduct the election because it would violate the Family Educational Rights and Privacy Act (FERPA). As the College admits on page 21 of their motion to dismiss, the information the NLRB requires is limited to “full names, work locations, shifts, job classifications, and contact information” of student workers eligible to vote in the election. As such, it is evident that sensitive student information like private education and financial aid records would not be shared nor compromised; indeed, most of the information the NLRB requests is available on the Kenyon College directory. It is also important to recognize that there are over 83,000 graduate and undergraduate student workers nationwide who have unionized through NLRB elections or related processes without violating FERPA. We are confident that the NLRB will work diligently to ensure our election proceeds in the same manner.
Beyond the technical argument that the College raises in regards to potential (and easily-resolvable) conflicts with FERPA, the College raises more misleading and dangerous arguments regarding whether student workers even have the legal right to organize a union. Despite the fact that the NLRB ruled in the 2016 Columbia University decision that private-sector graduate and undergraduate student workers are statutory employees under the National Labor Relations Act (NLRA), and thus have the right to form unions and engage in concerted labor activity, the College’s motion cites a list of previous NLRB decisions (San Francisco Art Institute, Northwestern University) to argue the NLRB does not have jurisdiction over a unit of undergraduate-only student workers. The fact remains that the 2016 Columbia decision is the law of the land and citing case law preceding Columbia that has been overturned by the NLRB cannot deprive student workers of our rights and is a reckless waste of both the College’s and the NLRB’s resources to litigate.
Even when the College’s efforts to dismiss the election are ultimately proven futile, the Kenyon community should know the consequences of their legal arguments. Not only is the College arguing student workers should not be allowed to vote to unionize, they believe that we are not covered by the NLRA at all and thus should not be entitled to federal labor law protections for concerted activity. That means the College is arguing it can fire, discipline, demote, cut pay, and otherwise economically retaliate against its student workers for activities such as wearing a union button at work, signing a petition with coworkers, speaking out publicly about workplace issues, and participating in protected strikes and that student workers do not have the right to appeal the College’s retaliation to the NLRB through unfair labor practice charges. During our protected strikes last year, the College circulated memos to supervisors instructing them to follow the protections in the NLRA and avoid retaliation; now the College is effectively asking the NLRB to remove these protections for student workers so it no longer has to abide by them. Therefore, the College is jeopardizing the rights and workplace protections of not only Kenyon student workers, but undergraduate student workers nationwide, to pursue their campaign of maximum legal resistance against K-SWOC’s efforts to provide student workers a democratic choice to form a union.
One of the most insulting parts of the College’s motion to dismiss our election was that student work at Kenyon “does not fill any function that is core to any key business operation at the College” (page 10 of the motion to dismiss). This is not just a throw-away line; it is the centerpiece of the College’s argument about the nature of student work. According to the College, student workers at Kenyon seek on-campus employment only to benefit our “educational and personal development,” (page 12 of the motion to dismiss) and that our labor does absolutely nothing to benefit the College. The College’s argument implies they offer student employment only as charity for its students, not because it relies upon these positions, and can take them away at any time.
Student workers’ experiences in the workplace prove this picture of student employment is false. We ask the Kenyon community, what is the College’s “core business operation”? If the College’s core business operation is the education of the students who are enrolled here, then how are student workers unessential to that operation? Are Community Advisors who are critical front-line resources to all of their residents, but especially first-year students, unessential to the College? Are Lifeguards who ensure the safety of all students and community members who use the pool, unessential to the College? Are LBIS workers who ensure smooth access to technology and library resources for students, faculty, and staff, unessential to the College? Are Bookstore student workers who often staff early morning and late-night shifts literally selling products for the College, have nothing to do with its core business operations? Are Admissions tour guides and senior fellows, who are tasked with the responsibility of recruiting each subsequent class of Kenyon students, unessential to the College? Does the College seriously want us to believe that ATs, STEM TAs and graders, MSSC tutors, and Writing Center workers—whose paid work directly relates to and enhances the College’s primary educational mission—are unessential to the College’s “core business operations”?
Student workers know the answer to all of those questions is no. We know the value that student workers provide to this community and the College because we live those experiences. No outside union-busting lawyers can take that away from us. Put simply, the College’s legal campaign is relying on a series of distortions, insulting characterizations of the value of student labor, and poor legal reasoning to deny student workers a vote on whether to form a union. It is an effort not only meant to convince the NLRB to stop the election, but also to convince student workers unionization is a futile effort. But the very fact that the College is putting so much effort (and money) into delaying our election proves unionizing is not futile and can transform student work for the better. While the College has made their aggressive stance against the democratic process for unionization clear, we agree with Richard Brean ‘70 H’19, that signing a stipulated election agreement and forgoing a drawn-out legal fight at the NLRB would be a “crucial first step in building a cooperative — rather than adversarial — relationship between the College and the hundreds of students who desire union representation.” We want the Kenyon community to know that our position on opening dialogue with the College has not changed and, if the College leadership ever decides to deviate from their “scorched-earth” adversarialism, K-SWOC will be ready to engage with them in good faith.
If you are a student worker, we strongly encourage you to attend our regular General Meeting this Tuesday, November 2 at 10:10pm ET and fill out this testimonial form about how your work for the College is essential. In addition, we encourage you to join your coworkers in your office if there are regular meetings to discuss the NLRB process and organizing; if your workplace does not have those meetings, please reach out to union@kswoc.org to discuss setting them up. For the broader community, we have deeply appreciated the support you have demonstrated so far for the rights of student workers to organize. We invite you to sign this petition asking the College to support a fair and free election without undue delays. Faculty and staff members can also sign this staff-specific petition to College leadership.
As we said in our previous community message, we understand that this process is a novel one for all members of the community — student workers, faculty, staff, and the administration — and K-SWOC remains committed to conducting it in the most transparent and accessible manner possible. If any member of the community has any questions about the NLRB election process or K-SWOC’s role in it, please feel free to reach out to union@kswoc.org or sign up for office hours to talk to a member of K-SWOC one-on-one here.
In solidarity,
The Kenyon Student Worker Organizing Committee (K-SWOC/UE)