Key Points

  • The First Circuit affirmed an arbitration award requiring Harvard to include psychology doctoral students in the graduate students union bargaining unit.
  • The court held that whether individuals fit within an already-established bargaining unit is a contract interpretation question for the arbitrator, not a threshold NLRB determination.
  • The public policy exception to arbitral finality requires an explicit, well-defined, and dominant policy conflict that Harvard's general NLRA invocation did not supply.
  • The CBA's opt-in/opt-out provision meant the award did not infringe students' associational rights but rather gave them the opportunity to exercise those rights.
  • The court emphasized that arbitral awards are 'nearly impervious to judicial oversight' and that courts cannot second-guess an arbitrator's plausible contract interpretation.

The First Circuit on Tuesday affirmed an arbitration award that added psychology doctoral students to a Harvard graduate student union's bargaining unit, holding that the university could not escape the arbitrator's contract interpretation by invoking National Labor Relations Board procedures. The decision leaves Harvard bound by an award requiring it to recognize psychology PhD students as union-represented research assistants.

Writing for a unanimous panel that included Judges Gelpí and Dunlap, Circuit Judge Thompson rejected all three of Harvard's arguments for vacating the award. The court emphasized the near-total deference federal courts must give to arbitration decisions, declaring that "[a]rbitral awards are nearly impervious to judicial oversight" and that "[a] federal court's authority to defenestrate an arbitration award is extremely limited."

The dispute arose after the union discovered that Harvard had excluded psychology department graduate students from weekly bargaining unit lists required under the parties' 2021 collective bargaining agreement. The union filed grievances claiming Harvard violated the CBA's Recognition Clause by failing to classify these students as Research Assistants entitled to union representation.

At arbitration, Harvard argued that the psychology doctoral students were not statutory employees under the National Labor Relations Act because they received funding for academic goals rather than compensation for services. Harvard contended that only the NLRB could make such a determination, and that without it, the dispute was not arbitrable.

The arbitrator disagreed. She declined to rule on whether the students were NLRA employees, concluding that her role was to interpret the CBA's language defining bargaining unit eligibility. She found that the agreement's plain language, the parties' history, and past practices established that psychology doctoral students conducting supervised research qualified as Research Assistants under the contract.

Harvard lost before U.S. District Judge Leo T. Sorokin of the District of Massachusetts, who confirmed the arbitration award. Harvard then appealed to the First Circuit, raising three arguments: that the grievance was not substantively arbitrable, that the arbitrator exceeded her authority, and that the award violated public policy.

On substantive arbitrability, Judge Thompson acknowledged that under First Circuit precedent, the scope of a bargaining unit is for the NLRB to decide. But the court drew a critical distinction. "But that's not to be confused with who fits within the definition of an already-established, NLRB-recognized unit," Thompson wrote. The union's grievance sought an interpretation of who was within the bargaining unit -- a classic contract interpretation question for the arbitrator.

"Once the parties were before the arbitrator, she necessarily had to review the CBA to interpret the bargaining unit parameters," Judge Thompson wrote. The arbitrator "confined her focus to the issue of whether Harvard violated the CBA, not -- as Harvard contends -- whether to expand the scope of the bargaining unit."

On Harvard's second argument -- that the arbitrator exceeded her authority -- the court applied the demanding standard for vacating awards. A successful challenge requires showing that the award is "unfounded in reason and fact," "based on reasoning so palpably faulty that no judge, or group of judges, ever could conceivably have made such a ruling," or "mistakenly based on a crucial assumption that is concededly a non-fact."

Harvard failed to meet these standards. The court found that the arbitrator premised her decision on testimony, contract provisions, and past practices. "[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision," Judge Thompson wrote, quoting the Supreme Court's 1987 decision in United Paperworkers International Union v. Misco, Inc.

Harvard's final argument invoked public policy, contending that the award violated the NLRA's policy of protecting workers' rights to determine whether they want union representation. The court recognized a narrow public policy exception but emphasized that it applies only when an award violates "an 'explicit . . . well defined and dominant' public policy, as ascertained 'by reference to . . . laws and legal precedents.'"

The court turned Harvard's argument against it. The NLRA protects workers' freedom of association and their right to engage in collective bargaining. Far from infringing those rights, the award gave the psychology doctoral students the opportunity to exercise them. The CBA explicitly states that graduate students within the bargaining unit "are free to decide whether or not they wish to join the Union and pay membership dues and fees."

"The award only declares that the psychology doctoral students belong in the already-established bargaining unit, giving them an opportunity to decide whether they want to belong to the Union, without infringing on their associational rights," Judge Thompson wrote. "Vacating the award would deprive these students of that opportunity to opt in or out -- which Harvard concedes they should have."

The arbitration award requires Harvard to designate all psychology doctoral students performing lab-based research as members of the bargaining unit, provide lost benefits and payments to the formerly omitted students, and process claims they had submitted. The district court awarded the union costs but denied its request for attorneys' fees, finding that Harvard's challenge was not "frivolous, unreasonable, or without foundation."

Robert A. Fisher of Seyfarth Shaw LLP represented Harvard, and Patrick N. Bryant of Pyle Rome Ehrenberg PC represented the union.

The case is President and Fellows of Harvard College v. Harvard Graduate Students Union-UAW, Local 5118, No. 25-1598 (1st Cir.).