Campus Protester Arrests Draw Labor Charges as Unions Cry Foul

Unions representing students at universities roiled by campus protests related to the Israel-Hamas war are starting to file unfair labor practice charges over the educational institutions’ response to the unrest.

The students, who work in a variety of positions such as teaching and research assistants, are demanding accountability for what they say is unlawful repression of their right to organize under the National Labor Relations Act, following college administrators seeking or allowing the arrests of thousands of students and other protesters within the last two weeks.

The actions come amid pro-Palestinian encampments on at least 100 college campuses across the nation, leading to more than 2,000 arrests since protesters first erected tents on Columbia University’s quad on April 17.

The demonstrations have sparked a heated debate over freedom of speech and police violence on US campuses, as well as questions about the schools’ ties to Israel.

The unions are charging at least two universities—Brown University and the University of Southern California—with violating federal labor law by retaliating against workers for protesting and altering working conditions in response to the encampments.

Nearly 30 university unions, which say they represent over 100,000 workers at 58 campuses across the nation, released a joint letter of support for protesting students Monday, saying they “strongly condemn the use of violent force and disciplinary actions by university administrations against students and workers peacefully protesting.”

But legal observers say their claims are likely to face scrutiny at the National Labor Relations Board.

The merits of the unfair labor practice charges will depend on the facts of each case, said William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College-City University of New York.

For private colleges subject to the NLRA, the key issues will be whether the conduct constituted “protected concerted activity” and whether the behavior at issue was offensive enough to lose the law’s protection, he said.

“If a university takes an action that they say is just about their student status, it’s also going to affect their employment,” said Marc Gursky, an attorney at Gursky, Wiens & Shanley Attorneys at Law Ltd., who is representing the workers at Brown. “I think we’ll see quite a few of these” ULP charges, he said.

United Auto Workers President Shawn Fain, whose union is affiliated with many of the graduate student unions, spoke out generally against the arrests on May 1. UAW will “never support the mass arrest or intimidation of those exercising their right to protest, strike, or speak out against injustice,” he said in a statement on X.

“We call on the powers that be to release the students and employees who have been arrested, and if you can’t take the outcry, stop supporting this war,” Fain said.

Strikes and Charges

UAW Local 4811, which represents graduate student workers at the University of California, already has vowed to hold a strike authorization vote among its 48,000 members and file charges over how the university system has responded to the uprisings.

Police have arrested hundreds of UC students within the past several days, clearing out encampments at UCLA. The union blasted the university online for failing to protect students when pro-Israel demonstrators and pro-Palestinian protesters clashed April 30.

“UC had the option to de-escalate and negotiate with the protesters, but it chose instead to tear down the Palestine Solidarity Encampment using flash bang grenades and rubber bullets,” Local 4811 said in a post on X. “Arrests have been made including of UAW 4811 members.”

The Graduate Labor Organization, which represents over 1,500 teaching assistants, fellows, and researchers at Brown University, filed three ULPs against the Ivy League school within the last month. The charges allege the university unilaterally instituted policies restricting large gatherings on the College Green, and then illegally threatened and surveilled workers for protesting the policy.

Michael Ziegler, GLO’s political director and a Ph.D. student at Brown, said the university’s actions came in response to protests over its affiliation with Israel and defense manufacturers. Students occupied the Green for six days until Brown agreed to hold a vote later this year on divestment from Israeli companies and institutions.

Ziegler said that when union-represented students held a ULP picket next to the encampment, union leaders were brought into hearings with administrators, who then refused to allow other union members to act as the workers’ representatives. The right to union representation in disciplinary hearings is guaranteed under the US Supreme Court’s 1975 decision in NLRB v. J. Weingarten Inc.

Other union members had their identities recorded by campus police while they were mingling near the encampment.

“This goes to the heart of our ability as a union to hold our employer to account,” Ziegler said. “The students are unionized but they want to deal with us as students rather than as workers and in doing so, they’re often violating labor law, as we believe they are here.”

Graduate students at the University of Southern California, represented by UAW Local 872, filed at least one unfair labor practice charge last month, alleging that the university had violated federal labor law by calling the Los Angeles Police Department to arrest around 100 people on campus.

Union organizer Maile McCann said the student workers were engaging in legally protected activity by requesting information from their employer, and by working together to improve their working conditions.

“Our members’ research work sometimes involves interaction with Israeli universities,” McCann said. “They have a right to oppose that and call for academic freedom and transparency.”

Representatives for the University of Southern California and Brown University both said they believe the charges filed against them lack merit.

“If a union member participates in a protest unrelated to their employment and does not comply with university rules, that individual can be held accountable for failing to follow university policies—just like every other member of our community,” Brian Clark, a Brown spokesperson, said in an emailed statement. “Individuals are not absolved from abiding by Brown policies by virtue of union membership.”

Protected Activity?

The labor board is no stranger to worker protests, having grappled with cases stemming from the Black Lives Matter movement in 2020 and 2021.

NLRB General Counsel Jennifer Abruzzo, the agency’s top lawyer, has said she believes civil rights protests in the workplace are inherently concerted.

But in its February Home Depot ruling, the board stopped short of calling a worker wearing a BLM sign on his apron “inherently concerted.” The NLRB’s Democratic majority did, however, find the particular conduct in the case to be protected because the worker had also raised concerns of racism at the company.

Daniel Schudroff, a principal at Jackson Lewis PC, said the student unions might struggle to connect the dots between the protests and workplace conditions that are subject to union activity and protected conduct.

“The university has the prerogative to do business with whomever it wants to do business with and I don’t know if there’s necessarily a tie between who the university does business with and the working conditions,” he said.

But there are multiple ways that college administrations’ responses to protests could be actionable under labor law, said Risa Lieberwitz, a labor law professor at Cornell University.

For example, a university imposing new rules about expression that apply to unionized student workers when they’re on the job could be an unlawful unilateral change to working conditions, she said.

And suspending student workers for participating in a demonstration would clearly be a workplace issue if doing so prohibits them from working their school-related jobs, said Lieberwitz, who also serves as general counsel for the American Association of University Professors.

Academic freedom—included in many collective bargaining agreements—also can connect a student worker’s protest activity to NLRA-protected conduct, Lieberwitz said. Inclusion in a labor contract makes the topic an employment condition that could create the nexus between labor law and discipline related to free expression, she said.

Ziegler said this could be an important moment for the labor board to clarify student workers’ rights.

“If we do get a lot of these cases where it’s pretty clear the university is using students’ status to violate our rights as workers, I hope that would result in a favorable decision that better protects us from retaliation,” he said.