University, Union Effort Argue Over Voter Eligibility in Hearing's Second Day

In the second day of a hearing that could decide whether Harvard teaching and research assistants may unionize, lawyers from the University and union effort continued to contest which groups of voters were eligible to cast ballots in November's election.

Thursday’s arguments focused on the “lookback list,” a list of students who were defined as workers one year ago and therefore included in the bargaining unit, but did not work in the fall of 2016. Before the November election, which remains too close to call, Harvard and the union agreed that this group of students would vote under challenge. Now, remaining challenged ballots may determine the fate of the election.

By the time the National Labor Relations Board counted ballots from the election in December, Harvard and the union had resolved the eligibility of most of the challenged ballots, but 313 remained in question.

In December, 1,272 students voted in favor of forming a student union, while 1,456 voted against it. Since the margin of votes was smaller than the number of remaining challenged ballots, the National Labor Relations Board decided to resolve them in hearings.

A sign directs voters to the polling place for the Harvard Graduate Students Union-UAW unionization vote in Phillips Brooks House in November. By Timothy R. O'Meara

Harvard’s evidence on Thursday centered around a subgroup of students on the lookback list—Graduate School of Arts and Sciences students who have finished “guaranteed teaching.”

Harvard ensures Graduate School of Arts and Sciences students work as teaching fellows for four semesters, but permits them to teach for more semesters after that. University lawyers argued that students whose guaranteed teaching periods have expired and who are not currently teaching should not count in the election.

Union organizer Andrew B. Donnelly disagreed and said these students should have their ballots counted. “If the administration thinks that its humanities graduate students only teach for four semesters then they have no idea what happens here,” Donnelly said after the hearing.

“The hearing process will continue until all the relevant facts and evidence are presented, and the NLRB issues its decisions based on the totality of these proceedings,” Faculty of Arts and Sciences spokesperson Anna Cowenhoven wrote in a statement. “We are eager to conclude this hearing process and confirm the results of this election."

During the first day of the hearing Wednesday, union lawyer Thomas W. Meiklejohn argued there should be a “lookback period” to allow students who had worked at most one year prior to the election to vote, pointing to previous NLRB decisions. The unionization effort argued that these students will likely work for the University again.

“It is Harvard’s contention that none of these individuals should be counted,” Joseph P. McConnell, a lawyer for Harvard, said. “There should be no lookback period. And it’s certainly not an anathema to the Board’s policies that there not be a lookback period.”

Challenged ballots are not the only issue that the NLRB will rule on during the ongoing hearing. Hearing officer Thomas A. Miller will also consider evidence about objections filed by both the union and the University in coming days.

After the vote count in December, the union effort filed an objection arguing that the NLRB should invalidate the results of the November election and call for a re-vote. The union’s lawyers asserted that Harvard’s list of eligible voters was incomplete and prevented eligible voters from casting ballots.

Harvard, too, filed an objection, albeit on a smaller scale. The University argued that the NLRB improperly voided one ballot because the voter wrote a note to the vote counter and drew a smiley face.

According to an order from NLRB Regional Director John J. Walsh, Jr., the hearing will continue until March 3. If discussions have not concluded by that date, the hearing will resume March 13.

—Staff writer Phelan Yu contributed reporting to this story.

—Staff writer Caroline S. Engelmayer can be reached at caroline.engelmayer@thecrimson.com. Follow her on Twitter @cengelmayer13.