NIH researchers say agency seeks to block unionization effort

 Early-career researchers who work in labs operated by the U.S. National Institutes of Health (NIH) have hit a roadblock on their way to unionizing. In June, a group of postdocs, graduate students, and postbaccalaureate researchers asked the agency that oversees the certification of unions by federal employees, the Federal Labor Relations Authority (FLRA), for permission to hold an election to determine whether early-career researchers at NIH are in favor of forming a union. But on Monday, the organizers say, they were told that NIH had submitted paperwork to FLRA arguing that many of the union’s potential members are not employees and don’t have standing to form a union.

“The NIH treats postdocs like employees when it suits them and then tries to claim we do not have the same rights enjoyed by other workers at the NIH when they think it serves their interests,” says Marjorie Levinstein, a neuropharmacology postdoc at the National Institute on Drug Abuse (NIDA) and an organizer for the proposed union, called NIH Fellows United. “But the fact is, the NIH controls postdocs’ terms of employment, working conditions, intellectual property and more, and we deserve a say in determining our rights at work.”

In an email to Science, an NIH spokesperson declined to confirm the agency’s position. “The NIH is unable to comment on matters that are pending before the Federal Labor Relations Authority. The NIH adheres to all procedures and obligations under the Federal Service Labor-Management Relations Statute.”

Union representatives also declined to send Science the entirety of the document NIH submitted to FLRA. But they did share one excerpt, which argued that most of the potential union’s 4800 likely members cannot be considered employees. “The Agency is of the view that individuals in all categories appointed under the CRTA [Cancer Research Training Award] and IRTA [Intramural Research Training Award] authorities, i.e., all categories other than Clinical Fellows, Research Fellows, and Senior Research Fellows, are not employees under the Statute,” the document states, according to the union.

Another union organizer expressed annoyance with NIH’s apparent maneuver. “I'm not surprised they're taking this avenue,” says Emilya Ventriglia, a neuroscientist who has worked full time at NIDA for the past 3 years as a postbaccalaureate fellow and is starting a Ph.D. at Brown University later this year. “But it is frustrating because at the NIH nothing would get done if it weren't for us. We are the ones with boots on the ground doing the labor—in the bench, on the computer, at conferences. So we are workers and we do have a right to collective bargaining.”

Ventriglia acknowledges that the agency’s intramural training program puts on “workshops and things like that. So, there is an air of supporting growth and … different aspects of training us to be scientists,” she says. “But I do fail to see how that negates us being workers at all.”

Universities have made a similar argument—that early-career researchers aren’t employees—in cases adjudicated by the National Labor Relations Board (NLRB), FLRA’s sibling agency that oversees the certification of unions by private sector employees. In 2018, for instance, Columbia University opposed a petition by postdocs to form a union, arguing that “such individuals are research trainees who require additional mentoring and training on how to conduct independent research.” But NLRB dismissed that argument, opening the door for the country’s first postdoc union at a private university. (Other postdoc unions had previously been established at public universities, but their formation was governed by state labor laws.)

NLRB has also weighed in on whether graduate students who do labor for a private university can be considered employees. After a series of conflicting rulings over recent decades, it ruled most recently in 2016 that graduate students at Columbia University could be considered employees with a right to unionize, establishing the current precedent.

FLRA, however, hasn’t yet ruled on the legal standing of unionization efforts by postdocs and graduate students at NIH or other federal agencies. As an independent agency, “it is not bound by National Labor Relations Board precedent or the decisions by analogous state public sector labor relations agencies,” says William Herbert, a collective bargaining scholar at Hunter College, City University of New York. “However, precedent from those agencies can be persuasive authority for the FLRA.”

Union representatives say the ball is in the agency’s court to decide what happens next, but it’s likely that FLRA will opt to hold a hearing to give both sides a chance to voice their arguments. “We’ve been working with a legal team to make it an effective case,” Ventriglia says.

https://www.science.org/content/article/nih-researchers-say-agency-seeks-to-block-unionization-effort