Yale University

National Labor Relations Board - Board Decisions

Nov 29, 1999

330 N.L.R.B. 246 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 246
Yale University and Graduate Employees and Stu-
dents Organization (GESO), a/w Hotel Employ-
ees and Restaurant Employees International Un-
ion, AFL–CIO. Case 34–CA–7347
November 29, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
On August 6, 1997, Administrative Law Judge Mi-
chael O. Miller issued the attached decision granting the
Respondent’s motion to dismiss the complaint at the
close of the General Counsel’s case-in-chief. The Gen-
eral Counsel and the Charging Party filed exceptions
with supporting briefs, the Respondent filed an answer-
ing brief, and the General Counsel and the Charging
Party filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s findings and conclusions that the Gen-
eral Counsel failed to prove the strike at issue in this case
was protected under Section 7 of the Act, but, for the
reasons set forth below, to remand this case to the judge
for further hearing on whether certain statements violated
Section 8(a)(1).
Factual Background
As presently developed, the record establishes the fol-
lowing facts. After many years of organizing in an at-
tempt to obtain recognition from and bargain collectively
with Yale University, the members of the Graduate Em-
ployees and Students Organization (GESO) voted on
December 7, 1995, to conduct a “grade strike” at the end
of the fall 19951 semester. Approximately 200 graduate
students who were either teaching their own classes or
assisting faculty in teaching classes (teaching fellows or
TFs) refused to submit their students’ final grades for the
semester to the University.2 The striking TFs hoped that
their action would cause the University to begin negotia-
tions toward a labor agreement.
The record establishes that in the period between De-
cember 7 and the deadlines for grade submissions,3 strik-
ing TFs were repeatedly told by faculty members and
administrators that their future teaching, any requested
letters of professional recommendation, and perhaps their
careers beyond Yale would suffer if they did not submit
final grades in a timely fashion.4 The TFs ended the
strike and submitted their grades on January 15, 1996.

1 All dates refer to 1995 unless otherwise specified.
2 The judge indicated that approximately 100 graduate students par-
ticipated in the grade strike. The testimony of Robin Brown indicates
that approximately 200 graduate students participated in the grade
strike.
3 The original grade submission deadline was January 2, 1996. This
was the date by which all course instructors, whether faculty or gradu-
ate students, were to submit final semester grades for their courses to
the registrar. In cases in which graduate students assisted course in-
structors in grading materials but were not themselves responsible for
submitting grades to the registrar, the graded materials were to be sub-
mitted to the course instructors by a “reasonable” time prior to the
registrar’s deadline to enable the instructor to submit the final grades in
a timely fashion. As a result of the grade strike, the Respondent ex-
tended the registrar’s deadline to January 15, 1996.
Based on the University’s response to the grade strike,
the General Counsel alleged that the Respondent violated
Section 8(a)(1) of the Act by issuing various oral and
written threats of reprisals against a number of graduate
students for engaging in protected concerted activity.
The General Counsel also alleged that the Respondent
discriminated against striking TFs in violation of Section
8(a)(3) by disciplining them, removing them from teach-
ing assignments, demoting them, subjecting them to
closer supervision, and/or eliminating their classes.
At the close of the General Counsel’s case, the Re-
spondent moved to dismiss the complaint, arguing that
the General Counsel had failed to show that the grade
strike was protected activity, which is an essential ele-
ment of the General Counsel’s case. The judge agreed
with the Respondent. The judge found that the grade
strike was unprotected because it was a partial strike and
because the strikers had misappropriated university prop-
erty. The judge also rejected the General Counsel’s alter-
native theory that, even if the grade strike is found to be
unprotected, certain statements by the University consti-
tuted “overbroad” threats because they could reasonably
be understood as broadly directed against participation in
protected concerted activity in general. Therefore, the
judge granted the Respondent’s motion to dismiss, and
recommended that the Board dismiss the complaint.5
A majority of the Board6 agrees with the judge’s find-
ings that the grade strike was a partial strike and that the
strikers misappropriated university property. A different
majority7 finds that it is necessary to remand this pro-
ceeding to the judge for further hearing on whether cer-
tain statements violated Section 8(a)(1).
Standard of Review
In reviewing the Respondent’s motion to dismiss the
complaint for failure of proof as to an essential element
of the General Counsel’s case, we are guided by

4 The judge did not make individual findings as to the coercive na-
ture of each separately alleged threat by faculty members or administra-
tors, of which there are many in the complaint. Instead, the judge
found that “the statements made by Yale’s supervisors and agents to
discourage the teaching fellows from engaging in the grade strike
[were] undoubtedly coercive.”
5 The judge assumed, for the purposes of resolving Yale’s motion to
dismiss, that the graduate students are employees within the meaning of
the Act. (ALJD at fn. 5.) We agree with the judge that it is not neces-
sary for us to resolve this issue prior to determining the merits of the
Respondent’s motion to dismiss the complaint.
6 Chairman Truesdale and Member Hurtgen (Member Liebman dis-
sents).
7 Members Liebman and Hurtgen (Chairman Truesdale dissents).
330 NLRB No. 28
YALE UNIVERSITY 247
Fed.R.Civ.P. 52(c), which permits the trial judge to enter
judgment against a party when the evidence shows that
that party has not sustained its burden of proof.8 Auto
Workers Local 122 (Chrysler Corp.), 239 NLRB 1108,
1112 (1978). In order to overcome a motion to dismiss
at the close of his case-in-chief, the General Counsel
must satisfy his duty to establish a prima facie case by
presenting evidence sufficient to demonstrate the occur-
rence of an unfair labor practice. Id. at fn. 3.
1. The partial strike and misappropriation
of property issues

The judge also based his partial strike conclusion on
the testimony of several TFs, as well as a stipulation by
a. The partial strike issue
A majority of the Board9 agrees with the judge’s con-
clusion that the General Counsel failed to make a prima
facie showing in his case-in-chief that the TFs engaged
in a complete work stoppage that is protected by Section
7 of the Act. We agree with the judge that the TFs’
strike was partial, and, thus, unprotected by the Act.
The judge found that the grade strike began on De-
cember 7, when the GESO membership voted to conduct
the strike, or, at the latest, on December 13, when TFs
began to refuse directives to turn in grades or materials
necessary to compute grades. Between December 7,
1995, and January 2, 1996, most teaching fellows con-
tinued to perform job-related duties, including meeting
discussion sessions, proctoring exams, and grading stu-
dent materials. Even after the original January 2, 1996
grade-submission deadline, the date on which the Gen-
eral Counsel contends the strike began and TFs ceased
working, some TFs “were prepared to write, and appar-
ently wrote, letters of evaluations and recommendation
for their students,” which the judge found to be a “regu-
lar, if not required, aspect of their work.” Clearly, as the
judge concluded, from December 7 (or, at the latest, De-
cember 13) and continuing beyond January 2, 1996, the
TFs were both working and striking. This, the judge
found, constituted a classic partial strike, which lies out-
side the protection of Section 7 of the Act. See Valley
City Furniture Co., 110 NLRB 1589, 1594–1595 (1954),
enfd. 230 F.2d 947 (6th Cir. 1956).

8 The Federal Rules of Civil Procedure apply to Board proceedings
“so far as practicable.” 29 U.S.C. § 160(b); see also Excel DPM of
Arkansas, Inc., 324 NLRB 880 fn. 1 (1997).
Fed.R.Civ.P. 52(c), which replaces that part of Fed.R.Civ.P. 41(b)
authorizing dismissal at the close of the plaintiff’s case if the plaintiff
had failed to carry an essential burden of proof, states:
Judgment on Partial Findings. If during a trial without a jury a party
has been fully heard on an issue and the court finds against the party
on that issue, the court may enter judgment as a matter of law against
that party with respect to a claim or defense that cannot under the con-
trolling law be maintained or defeated without a favorable ruling on
that issue, or the court may decline to render any judgment until the
close of all the evidence.
9 Chairman Truesdale and Member Hurtgen join in this section of
the decision. Member Liebman dissents.
the General Counsel, that the intent of the grade strike
was solely to withhold grades for the fall 1995 semester
and was not to withhold teaching services for the spring
1996 semester. Based on this evidence, the judge con-
cluded that had the grade strike continued into the spring
semester, the TFs planned to teach, and probably would
have taught, in that semester while still withholding
grades for the fall semester. This, too, the judge found,
was incompatible with a full strike, and thus constituted
conduct outside of the protection of the Act.
We agree with the judge’s analysis of the record and
his legal conclusion derived therefrom. Based on our
review, we believe the judge reasonably determined from
the facts developed during the General Counsel’s case-
in-chief that the grade strike commenced, at the latest, on
December 13, when TFs began withholding papers and
test materials. Further, the judge correctly found that
after December 13 the TFs continued to perform other
duties, such as meeting with students, grading materials,
writing letters of evaluation, and preparing for the next
term’s classes. Thus, as the judge found, the TFs
“sought to bring about a condition that would be neither
strike nor work.” Valley City, 110 NLRB at 1595. We
also agree with the judge that the TFs planned to con-
tinue withholding the fall 1995 grades even after the
spring 1996 semester bagan. Since the TFs planned to
otherwise perform work in the spring of 1996, they were
planning to work and strike at the same time.10 We,
therefore, agree with the judge’s finding that it was ap-
propriate to grant the Respondent’s motion to dismiss
because the General Counsel failed to establish that the
TFs action was protected by Section 7 of the Act.
Citing testimony of GESO leaders, our dissenting col-
league argues that the record does not support the judge’s
finding that the strike began in December. We disagree.
GESO’s research director, Gordon Lafer, referred, on
January 17, 1996, to the “five weeks of the grade strike,”
thereby clearly indicating that it commenced in Decem-
ber. And GESO’s cochair, Michelle Stephens, testified
that the grade strike “was . . . an action that kind of began
from December 7.” Thus, even GESO officers recog-
nized, as did the University, that the strike began on its
announcement on December 7.
Our colleague says that the grade strike began on
January 2, 1996, the date on which most grades were
due. However, it is clear that, from and after December
7 (or at least from and after December 13), there were
directives to submit the grades, and such directives were
disobeyed. In addition, in some instances, the grades
were due a “reasonable time” before January 2, 1996 (see
fn. 3, above). These due dates were not met. Thus, it is
clear that the grade strike began before January 2, 1996,
10 Hotel Holiday Inn de Isla Verde, 259 NLRB 496 (1981), cited by
our colleague, is distinguishable. There, the plan for the unprotected
activity was forestalled. By contrast, in the instant case, the activity
occurred and was not forestalled.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 248
and that other work was being performed during this
period. Further, even after January 2, 1996 (the grade
strike commencement date according to our colleague),
TFs were performing other work.
b. The misappropriation of property issue
We also agree with the judge’s conclusion that the
grade strike was unprotected because it involved the
withholding of papers and test materials. The papers and
test materials were university property that the Respon-
dent needed to attempt continued operations in the ab-
sence of the striking TFs. As the judge determined, even
if the TFs’ strike was not an unprotected partial strike,
their conduct was otherwise unprotected because it
amounted to misappropriation of university property,
analogizing to sit-down strike cases and others where
strikers withhold the employer’s goods or materials. See,
e.g., NLRB v. Fansteel Metallurgical Corp., 306 U.S.
240, 256 (1939); and Beacon Upholstery Co., 226 NLRB
1360, 1366–1367 (1976).
We agree with this conclusion. In refusing to turn over
student work that had already been performed during the
semester, the striking TFs withheld from their employer
essential materials that would have permitted the em-
ployer to reassign the struck work—final evaluations—to
nonstriking employees.11 Such conduct prevented the
Respondent from effectively maintaining its business,
and therefore lies outside of the protection of the Act.
Beacon Upholstery, 226 NLRB at 1366–1367.
Our dissenting colleague says that only a few TFs re-
fused to turn over papers and materials. Thus, it is ar-
gued that others should not be tainted by this misconduct.
However, this misconduct was part and parcel of the
grade strike. Indeed, the Union was the repository for
some of these papers and materials. Thus, the grade
strike, including all of its manifestations, was unpro-
tected, and all who participated therein were unprotected.
Our colleague argues that the Union was divided on the
issue of whether the TFs should refuse to turn over pa-
pers and materials. The matter was not resolved, and the
individual TFs were thus left free to decide for them-
selves whether to do so. Significantly, as noted above,

11 The Respondent concedes that it has a property interest only “in
the grades actually provided during the semester, not the teaching assis-
tants’ (TAs) mental impressions,” and acknowledges that outside the
strike context, “teachers are replaced for countless reasons, including
maternity leave, illness or even death, at times subsequent to the start of
the semester.” Respondent’s answering brief at 39. We therefore find
it unnecessary to pass on the judge’s conclusion (sec. IV,C,2) that the
TFs would nevertheless have engaged in the misappropriation of uni-
versity property had they complied with all directives to turn over
graded materials to their superiors before final grades were due, and
had refused only to submit the final grades themselves.
Member Hurtgen finds that there is a property interest in the papers
and materials on which a grade is based, as well as in the document that
contains the final grade. He finds it unnecessary to reach the hypo-
thetical issue of whether there is a property interest in the mental im-
pressions of the TFs.
the Union was the repository for those who chose to
withhold papers and materials.12
c. Conclusion
Because the TFs’ grade strike was unprotected, any
discrimination that the TFs may have suffered as a result
of their participation in the grade strike could not consti-
tute a violation of the Act. Accordingly, we affirm the
judge’s dismissal of the 8(a)(3) allegations of the com-
plaint.
2. The alleged 8(a)(1) conduct
A majority of the Board13 disagrees with the judge’s
conclusion that the General Counsel failed to make a
prima facie showing that a violation of Section 8(a)(1)
occurred. The General Counsel alleges that the Univer-
sity directed five specific threats—two written and three
oral statements made by faculty and administrators—at
protected concerted activity that went beyond the scope
of the grade strike itself, and that such “overbroad”
threats that address otherwise protected activity violate
Section 8(a)(1). The judge rejected this contention, find-
ing that each one of the five alleged threats was derived
from, and thus directed solely to, the TFs’ conduct dur-
ing the unprotected grade strike. Therefore, the judge
found that none of the five statements constitutes a viola-
tion of the Act. The judge further found that even if any
of the five statements was technically overbroad, i.e.,
directed to more generalized protected conduct, they
were nevertheless de minimis, and therefore not violative
of the Act.14
The General Counsel and the Charging Party except,
arguing that Yale violated the Act by issuing broad warn-
ings to the TFs about engaging in protected activity in
general.15 They also argue that the statements them-
12 Although the Union allegedly had a policy to return the materials
if requested to do so by a faculty member, there is no showing that
faculty members were told of this policy.
13 Members Liebman and Hurtgen join in this section of the decision.
Chairman Truesdale dissents.
14 Chairman Truesdale would adopt the judge’s finding that the
statements were not overbroad threats. Here, the entire campaign con-
sisted of the grade strike, conduct which we are finding is unprotected.
As fully explained by the judge, each of the statements referred to or
was derived from the grade strike. Thus, Chairman Truesdale agrees
with the judge that there are no “overbroad” threats directed against the
exercise of protected activity. Chairman Truesdale also agrees with the
judge that even if one or two of the statements were to be deemed tech-
nically overborad they should be considered isolated and de minimis in
the context of this litigation and hardly worth returning for many days
of hearing, briefs, and a decision on many other issues raised by the
complaint.
15 The Charging Party argues that only three of the disputed state-
ments (1, 4, and 5, below) are overbroad and therefore violate the Act.
The Respondent contends that the General Counsel and the Charging
Party should be precluded from relying on the “overbroad threats”
theory because it was not specifically alleged in the complaint and was
raised only in posthearing briefs to the judge. The General Counsel
responds that he is not required to plead legal theories in the complaint,
but in an abundance of caution, moves to amend the complaint to re-
YALE UNIVERSITY 249
selves were not de minimis, but were strategically timed,
widely disseminated threats that warned about grievous
consequences to all graduate students for engaging in
protected conduct beyond the grade strike.
The five statements at issue are as follows:

1. Statements made in the December 12, 1995
letter from Deans Applequist and Brodhead to
graduate students with teaching responsibilities, in-
cluding the comment that the “failure to perform the
tasks of evaluating student work and reporting
grades in a timely fashion is a serious breach of aca-
demic responsibility [which] should be expected to
bear on the evaluation of the graduate student in-
structor’s performance as a teacher and on the as-
sessment of his or her suitability for teaching ap-
pointments during the spring semester.”
2. Statements by members of the French Depart-
ment faculty, on or about December 12, 1995, con-
cerning the inappropriateness of the union model in
the academic setting, and the loss of teaching ap-
pointments in the Spring semester.
3. Statements by French Department Director of
Graduate Studies Edwin Duvall made at a December
14, 1995, meeting concerning the grade strike and
the inappropriateness of unions in the academic set-
ting.
4. Statements made in the December 15, 1995
memo from members of the French Department to
graduate students with present or future teaching as-
signments, including the comment that the “[f]ailure
to perform any aspect of a graduate teaching as-
signment—e.g. meeting all classes, grading and re-
turning all papers, holding regular office hours,
submitting final grades, etc.—would (1) be a de
facto dereliction of professional duties to our stu-
dents . . . and (2) constitute behavior unacceptable
anywhere in the profession” that could negatively af-
fect evaluations and jeopardize future teaching as-
signments.
5. Statements made by Professor Brad Wester-
field during a December 18, 1995 meeting concern-
ing the imprudence of a graduate student work stop-
page and the negative consequences that could flow
from it.

We agree with the judge that the first statement listed
above was limited to the grade strike, and thus not viola-
tive of the Act. However, contrary to the judge, we con-
clude that the General Counsel has made a prima facie
case on the record before us that the remaining four
statements refer to protected conduct other than the grade
strike.

flect that threats were made against activity other than the grade strike.
The Respondent opposes the motion to amend.
By their very nature, statements 2, 3, 4, and 5 encom-
passed more than just the grade strike. Thus, both the
second and third statements broadly declared that a union
is not appropriate in academe. The fourth statement is
not limited to the grade strike because it referred to the
“[f]ailure to perform any aspect of a graduate teaching
assignment” as providing grounds for negative evalua-
tions and loss of teaching opportunities. (Emphasis
added.) The final statement condemned strike activity by
graduate students “under any circumstances.”
In finding that these statements were not unlawful
threats, the judge distinguished the instant case from New
Fairview Hall Convalescent Home, 206 NLRB 688
(1973), enfd. sub nom. Donovan v. NLRB, 520 F.2d 1316
(2d Cir. 1975), a case in which the employees engaged in
a series of unprotected work stoppages during the course
of an organizational campaign. The Board in New Fair-
view adopted the judge’s findings that although the em-
ployer lawfully warned employees against participating
in the unprotected activity, it violated Section 8(a)(1)
when it broadly prohibited employees from engaging in
“any strike, work stoppage, slow down, or withholding
of any good or services.” 206 NLRB at 747.
The judge attempted to distinguish New Fairview on
two grounds. First, he stated that in New Fairview there
was an “otherwise protected” union campaign for recog-
nition, while in this case GESO’s “entire campaign” con-
sisted of the unprotected grade strike. Second, the judge
stated that, unlike in New Fairview, each statement al-
leged by the General Counsel to be “overbroad” in this
case “referred to or was derived from the grade strike.”
We disagree with the judge that the instant case can
fairly be distinguished from New Fairview. First, the
record does not support the purported distinction that
GESO’s entire organizational campaign consisted of an
unprotected grade strike. As the judge himself found,
GESO has for many years been engaged in organiza-
tional activities among the teaching fellows that are unre-
lated to the grade strike.16 Second, the facts of New
16 GESO’s activities apart from the grade strike extend back to at
least 1989. Gordon Lafer, a 1995 graduate of Yale with a Ph.D. in
political science and research director for the Federation of University
Employees, an affiliation of GESO and the two recognized unions at
Yale, testified that he first got involved with GESO in 1989. In the
1990–1991 academic year, Lafer was a staff organizer for GESO, dur-
ing which time GESO began a formal membership campaign, soliciting
graduate student signatures on membership cards that designated GESO
as a collective-bargaining representative. In 1993, GESO again solic-
ited signatures on membership cards, and this time the cards also called
for the University to hold an election among teaching assistants and
graduate instructors to ascertain their desire to be represented for the
purposes of collective bargaining.
Similarly, Robin Brown, GESO chairperson and a Ph.D. candidate
in comparative literature, testified that in the academic year 1993–1994,
she also worked on GESO’s organizing drives, meeting with people
individually or in small groups to talk about the benefits of GESO
membership and the activities that GESO was planning. Brown also
helped train organizers, participated in meetings with university repre-
sentatives on issues such as health care, wages, class section sizes, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 250
Fairview show that the statement found to be overbroad
in that case similarly “derived from” the employees’ un-
protected activity. 206 NLRB at 746–747. Thus, neither
of the two grounds given by the judge for distinguishing
New Fairview is persuasive.
We find that the General Counsel has satisfied his bur-
den to establish a prima facie case that four of these
statements enumerated above violated Section 8(a)(1).
We shall therefore remand this case for the Respondent
to present its defense. Further, we grant the General
Counsel’s motion to amend the complaint to specifically
allege the alternative theory that, even though the grade
strike itself is unprotected by the Act, at least some of the
above statements are “overbroad threats” because they
could reasonably be understood to be directed against
participation in protected concerted activity in general.
The Respondent is not prejudiced by our granting of the
General Counsel’s motion because it will have the oppor-
tunity at the reopened hearing to fully present its defense
to the issues raised by the complaint amendment. See
Section 102.17 of the Board’s Rules.
In his supplemental decision, we direct that the judge
provide the Board with findings of fact and conclusions
of law on the issue of the employee status of the TFs
under Section 2(3) of the Act, regardless of his ultimate
findings on the issue of whether the Respondent violated
Section 8(a)(1) of the Act.
In sum, we remand this case to the judge for further
hearing consistent with this decision, and direct that the
Respondent be given the opportunity to present evidence
to refute the General Counsel’s prima facie case.
ORDER
It is ordered that the complaint is dismissed insofar as
it alleges violations of Section 8(a)(3) of the Act.
IT IS FURTHER ORDERED that the case is remanded to
Administrative Law Judge Michael O. Miller for further
proceedings consistent with this Decision and Order,
including completion of the hearing.17 The judge shall
thereafter prepare and serve on the parties a supplemental
decision containing findings of fact, conclusions of law,
and a recommended Order. Following service of the
supplemental decision on the parties, the provisions of
Section 102.46 of the Board’s Rules and Regulations
shall apply.

.

other workplace issues, and assisted in organizing rallies, demonstra-
tions, marches, and job actions, including two strikes in 1992 and 1995.
In April 1995, TFs participated in an election conducted by the League
of Women Voters, in which an overwhelming majority of the electorate
voted in favor of being represented by GESO for the purposes of
collective bargaining
17 Because the Board has been advised that Judge Miller has retired
from the Agency, the Board requests that the chief administrative law
judge ascertain the availability of Judge Miller. In the event that Judge
Miller is not available, the case is remanded to the chief administrative
law judge who may designate another administrative law judge in ac-
cordance with Sec. 102.36 of the Board’s Rules.
MEMBER LIEBMAN, dissenting in part.
Contrary to my colleagues, I would find, for the rea-
sons set forth below, that the General Counsel estab-
lished a prima facie case that the teaching fellows (TFs)
were engaged in a strike that was protected by Sections 7
and 13 of the National Labor Relations Act.1 In my
view, the strike did not lose the protections of the Act on
either of the grounds asserted by the majority: the strike
was not “partial,” and it did not involve the widespread
withholding of university property. Accordingly, I must
dissent from the majority’s dismissal of the 8(a)(3) alle-
gations of the complaint that the Respondent unlawfully
discriminated against the TFs for engaging in protected
strike activity.
With respect to the key issue of when the strike began,
I believe the preponderance of the evidence on the record
at the close of the General Counsel’s case shows the fol-
lowing. The striking TFs established a time certain be-
yond which no TF work would be performed, i.e., the
date on which grades were due (January 2, 1996, in the
case of graduate instructors, or a reasonable time before
January 2, 1996, in the case of graduate teaching assis-
tants (TAs)). Prior to the grade submission deadline,
TFs, as a group, completed all other teaching functions,
such as meeting classes and discussion sections, proctor-
ing exams, and grading papers. When the strike began,
the TFs refused to perform only the last remaining chore
of their assigned tasks—that of evaluating student mate-
rials and submitting grades to the designated authority.
Thus, the record demonstrates that the grade strike con-
sisted of TFs withholding the final grades assigned to
students enrolled in their courses when the grades were
due to the registrar, and that TFs, as a group, did not con-
tinue to perform other work after that point. In other
words, TFs were not working and striking simultane-
ously.
Testimony of GESO leaders and other TFs clearly
supports this conclusion. The strike resolution passed at
the December 7, 1995 meeting stated that the TFs are to
“withhold [their] grades” until the University begins ne-
gotiating a labor agreement, thus indicating that TFs
planned to work up until the grade submission deadline
and then begin a total strike at that point. Robin Brown,
GESO chairperson, testified that the scope of the strike
was as stated in the resolution—TFs were to strike by
withholding final grades from the University at the end
of the term, essentially refusing to perform the labor as-
sociated with the last act of the teaching function.
Brown testified that, in accordance with the strike resolu-
tion, her participation in the strike involved completing
her teaching responsibilities and then striking at the time
her grades were due by withholding them from the regis-
trar. Brown underscored the timing of the actual cessa-
1 As indicated in the majority opinion, I am joining Member Hurt-
gen in the remand of the 8(a)(1) allegations of the complaint.
YALE UNIVERSITY 251
tion of work in her statement to the press, which affirmed
that “grades are not due to the Registrar until January
2nd [1996, and, as a result, the] administration has al-
most a full month to begin negotiations before the grade
strike will affect transcripts and we are confident that the
issue can be resolved in a reasonable and cooperative
fashion before this date.” Similarly, Andrew Rich and
Michele Stephens, both graduate students and GESO
representatives who spoke to the GESO membership on
December 7, 1995, in support of the strike resolution,
stated at that meeting that the grade strike entailed com-
pletion of the TFs’ work for the semester followed by the
withholding of final grades. Numerous other graduate
students testified that their individual participation in the
grade strike began by withholding their final grades, and
did not involve withholding of other services prior to the
grade submission deadline.
Contrary to the judge’s finding, which the majority
adopts, the December 7 GESO membership strike resolu-
tion did not constitute an “announce[ment]” that the
grade strike was to begin that day. Rather, the strike
resolution announced GESO’s intent to strike at a future
time certain—i.e., when grades were due—should their
demands for recognition and bargaining not be met by
the University. Like many strike resolutions, GESO
gave advance notice of a strike deadline, thereby giving
the University time to take action to avert a strike.
The majority adopts the judge’s finding that “even af-
ter the [grade submission] deadline, the [TFs] were pre-
pared to write, and apparently wrote, letters of evalua-
tions and recommendation for their students they taught
in the first semester.” I can find no testimony to support
this finding. Only one student testified that she may have
written recommendations after January 2, 1996. Even
assuming writing letters of recommendation could con-
vert the TFs’ activity to a partial strike, such testimony is
insufficient to demonstrate that TFs as a group wrote
letters of recommendation while on strike.
Similarly, I reject the majority’s reliance on the TFs’
stated plans to teach in the spring semester to support the
conclusion that the grade strike was unprotected conduct.
Evidence regarding the TFs’ unexecuted future plans
cannot be relied on to determine whether actual, tran-
spired conduct is protected. See, e.g., Hotel Holiday Inn
de Isla Verde, 259 NLRB 496, 500–501 (1981) (employ-
ees’ conduct protected despite union’s plan to stage un-
protected sit-down strike, because plan for unprotected
activity was forestalled), enfd. sub nom. Isla Verde Hotel
Corp., 702 F.2d 268 (1st Cir. 1983). We need not, on
this record, address the issue whether withholding one
semester’s grades while teaching in the subsequent se-
mester would be protected activity.2 That scenario sim-

2 The judge based his partial strike conclusion in part on the fact that
the TFs prepared to teach courses in the spring semester while on strike
in the fall semester, thus demonstrating that the TFs must have worked
ply did not occur in this case, as the TFs ended the grade
strike before any teaching began in the spring semester.
Nor does the action of a few individual graduate stu-
dents who refused directives to return papers and test
materials to the University in December support a find-
ing that the strike commenced in December. While cer-
tain students’ refusal to return papers and exams to the
University may represent misconduct, I do not believe
the actions were coordinated or so widespread as to ne-
gate the overwhelming documentary and testimonial evi-
dence that the strike did not commence until grades were
due. See, e.g., City Dodge Center, 289 NLRB 194 fn. 2
(1988) (misconduct of a few employees does not convert
the group’s protected concerted activity into unprotected
action), enfd. sub nom. Roseville Dodge, Inc. v. NLRB,
882 F.2d 1355 (8th Cir. 1989).
My colleagues suggest that the misconduct of a few
individuals was “part and parcel” of the grade strike, and
that such misconduct was sanctioned by GESO, in whose
office some of the withheld papers and test materials
were stored. I disagree.
The record shows that the grade strike itself was
planned over a period of at least several weeks, if not
months, but that the guidelines for participating in it were
loosely set by GESO’s leaders. Robin Brown, GESO’s
chairperson, testified that GESO’s coordinating commit-
tee discussed broad parameters of how the grade strike
would unfold, but did not reach consensus on what strik-
ing TFs should do with the papers and exams on which
the final course grades were based, and that they made no
formal recommendation on this subject to the member-
ship at the December 7 meeting. Two speakers at that
meeting advised the strikers of two different courses of
conduct. In her speech to the membership, Michelle
Stephens, cochair of GESO, advised against the with-
holding of tests and papers, arguing that she did not want
to get into a “struggle” with the faculty over their physi-
cal custody, particularly because the strike would achieve
a significant impact if the faculty performed the final
grading themselves. Conversely, Andrew Rich, a GESO
representative from the political science department, ad-
vised students to retain the students’ papers and test ma-
terials. Brown testified that, as a result, several students
turned over tests and papers to the GESO office, but that
GESO’s policy was to return those materials to the fac-
ulty member if such a request was made.
In sum, the record does not show that, as an institution,
GESO—which made policy by consensus decisionmak-

while striking. While we recognize that preparation to teach one or
more courses may occur in the previous semester, this fact alone does
not convert the TFs’ action into a partial strike. Such preparation was
necessitated by the possibility that the grade strike would achieve its
objective (i.e., Yale would agree to bargain with GESO), in which case
the TFs would end the strike and return to work. Thus, there was no
inconsistency between preparing to teach spring semester courses and
engaging in a total work stoppage during the fall semester.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 252
ing—sanctioned the withholding of student tests and
papers. GESO’s coordinating committee and its co-
chairs recommended against their withholding, and
GESO’s policy was to return them upon request. Only
one GESO representative recommended the course of
conduct on which my colleagues rely to find the grade
strike unprotected. Considering the record as a whole,
this one recommendation, on which there was no consen-
sus among GESO’s leaders, does not constitute substan-
tial evidence supporting the majority’s finding that the
grade strike falls outside the protection of the Act.
Finally, I do not agree with my colleagues that the evi-
dence showing that a few TFs withheld papers and test
materials warrants a finding that the grade strike was
unprotected. The majority adopts the judge’s findings
that the grade strike began in December, that the with-
holding of papers and test materials in December inter-
fered with the work of the course instructors and univer-
sity administrators (because Yale was unable to substi-
tute others to perform the grading function), and that the
withholding of these documents was a misappropriation
of university property.
As stated above, I would find that the grade strike be-
gan only when final grades were due. Just as I rejected
the majority’s reliance on the withholding of papers and
test materials by a handful of students as showing that
the TFs as a group began striking in December, so, too,
do I believe that such individual misconduct cannot,
without more substantial evidence, be attributed to the
strikers as a group and, therefore, cannot transform an
otherwise lawful strike into unprotected conduct.
For the reasons set out above, I believe that my col-
leagues err in finding the grade strike to be unprotected.
I, therefore, would remand this case to the judge for fur-
ther hearing on the issue of whether the Respondent vio-
lated Section 8(a)(3) of the Act by discriminating against
the TFs for engaging in protected concerted activity.

Darryl Hale, Esq. and Jennifer F. Creaturo, Esq., for the Gen-
eral Counsel.
Saul G. Kramer, Esq., Edward A. Brill, Esq., and Lloyd B.
Chinn, Esq. (Proskauer Rose LLP), and Dorothy K. Robin-
son and Jonathon E. Clune, for the Respondent.
Richard G. McCracken, Esq. and Michael T. Anderson, Esq.
(Davis, Cowell & Bowe), for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. The unfair
labor practice charge here was filed by Graduate Employees
and Students Organization (GESO), a/w Hotel Employees and
Restaurant Employees International Union, AFL–CIO, on
January 11, 1996, as thereafter amended. Based thereon, a
complaint was issued on January 31, 1997, and amended on
March 14, 1997, by the Regional Director for Region 34 of the
National Labor Relations Board (the Board). That complaint
alleges that Yale University (Yale, the University, or the Em-
ployer) violated Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act) by threatening reprisals against gradu-
ate students serving as teaching assistants (TAs) and part-time
acting instructors (PTAIs),1 and discriminatorily denied them
future teaching assignments, because of their participation in
what was termed a “grade strike.” Yale’s timely filed answer
denies the commission of any unfair labor practices.
On the close of the General Counsel’s case-in-chief,2 Re-
spondent filed a motion to dismiss the complaint.3 Both the
General Counsel and the Charging Party have filed responses to
that motion and Respondent has filed a brief in reply to their
responses.
Based on my careful consideration of the evidence presented
thus far, and of the parties’ briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Connecticut corporation, with its offices
and other facilities located in New Haven, Connecticut, is en-
gaged in the operation of a private nonprofit university. In the
12-month period ending October 31, 1996, it derived gross
revenues (excluding contributions which were not available for
operating expenses) in excess of $1 million and, in conducting
its educational operations, it purchased and received at its New
Haven, Connecticut facility goods valued in excess of $50,000
directly from points located outside the State of Connecticut.
While the employee status of the teaching fellows is an issue
raised by the pleadings, Yale acknowledges that it is the em-
ployer of other individuals who are employees within the mean-
ing of the Act.4 The Respondent admits and I find and conclude

1 The term “teaching fellow” will be used to refer to both the teach-
ing assistants and the part-time acting instructors.
2 The General Counsel’s case was heard over 15 days between April
14 and May 29, 1997; the 2400-page record includes the testimony of
31 individuals, past and present teaching fellows, and approximately
400 exhibits.
3 On review of the relevant precedent, I am satisfied that the granting
of such a motion is appropriate where the General Counsel has failed,
at that stage, to establish a prima facie violation of the Act. Goodyear
Tire & Rubber Co., 312 NLRB 674 (1993); Sun Electric Corp., 266
NLRB 37 (1983); and Electrical Workers Local 613 (M.H.E. Contract-
ing), 227 NLRB 1954 (1977).
4 The Charging Party raised a novel issue, contending that I must re-
solve the issue of the employee status of the teaching fellows, as a
jurisdictional matter, prior to any resolution of the merits, citing
Murray v. City of Pocatello, 226 U.S. 318, 324 (1912); Barnett v.
Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), and other cases. Analysis
of this issue requires its rejection. Jurisdiction is based on the involve-
ment of an employer who is engaged in commerce or in operations
affecting commerce, as those terms are defined in the Act; that em-
ployer need not stand as an employer of those who are allegedly subject
to the unfair labor practices set out in the complaint. See Secs. 2(6),
(7), and (9) of the Act. See also St. Clare’s Hospital & Health Center,
229 NLRB 1000, 1003–1004 (1977), wherein the Board, while finding
that “housestaff,” i.e., residents, interns and fellows, were “primarily
students rather than employees,” expressly disclaimed any intention to
renounce its jurisdiction over such classifications, stating instead that it
had determined that extending bargaining privileges to them would be
contrary to “the best interest of national labor policy.” Its disposition
with respect to such individuals, it stated, was an exercise of its “discre-
tionary authority,” not a matter of its statutory jurisdiction. See also
Hafadai Beach Hotel, 320 NLRB 192 fn. 2 (1995), citing Management
Training Corp., 317 NLRB 1355, 1358 (1995), where the Board stated
that it “will only consider whether the employer meets the definition of
YALE UNIVERSITY 253
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.5
II. BACKGROUND
Yale University is one of the nation’s oldest and most re-
nowned educational institutions. Encompassed within the Uni-
versity are 12 schools, including Yale College, providing un-
dergraduate education, and the Yale Graduate School of Arts
and Sciences, where study leads to the award of masters de-
grees in philosophy, the arts and the sciences, and doctorates in
philosophy, the Ph.D. degree. The graduate school community
includes approximately 2500 students and 750 faculty.
The road to the coveted Ph.D. is long and arduous. Doctoral
candidates typically spend 6 or 7 years in its pursuit. During
the first 3 years, they are principally engaged in required course
work, the satisfactory completion of preliminary examinations
and the selection and approval of their dissertation topics.
Thereafter, they research their chosen topics (not infrequently
changing directions or subjects), write and then submit their
dissertations.
The road to the Ph.D. is also expensive. Tuition exceeds
$16,000 per year, exclusive of living expenses. The rigors of
the educational program, however, leave little opportunity for
remunerative employment outside of the University. Indeed,
outside employment is discouraged. To help defray their ex-
penses, Yale provides or makes available to graduate students
substantial financial assistance, with fellowships covering all or
part of the tuition and loans and stipends for subsistence.
Additionally, Yale provides opportunities for the graduate
students to serve as teaching assistants and part-time acting
instructors, primarily in their third and fourth years, but also
both earlier and later in their student careers. The compensa-
tion for these services, based at least in part on the approximate
amount of time (generally between 5 and 20 hours) and effort
required, supplants (and sometimes supplements) the stipends
and fellowships awarded upon admission to the graduate
schools. With a few limited exceptions, service as a teaching
fellow is not a degree requirement in any educational disci-
pline. The amount of time a student may spend in teaching is
expressly limited by the University’s policies and students may
be discouraged by their faculty advisors from spending too
much time in teaching.
As teaching assistants, the graduate students assist faculty in
the undergraduate programs. They sit in on the professors’
lectures, conduct sections with smaller groups of undergradu-
ates where they lead discussions of the course material, they
help prepare quizzes, problem sets and examinations, they as-
sign, correct, and grade course work, including midterm and
final papers, exams and themes, they work closely with under-
graduates to improve their writing skills, they conduct pre-
examination reviews of the course work and proctor examina-
tions and they meet individually with students to assist them in
their work or answer their questions. The teaching assistants
report the students’ grades to the instructors, generally at the
end of the semester in the form of a compilation of the final

‘employer’ under Sec. 2(2) of the Act, and whether such employer
meets the applicable monetary jurisdictional standards.”
5 The question of GESO’s labor organization status is bound up in
the issue of whether the TAs and PTAIs are statutory employees. That
issue will not be addressed here. For the purpose of this decision, I will
assume, arguendo, that they are employees and that GESO is a labor
organization within the ambit of Sec. 2(5) of the Act.
grade; some instructors require that the student work and grades
be turned in as it is completed. PTAIs independently develop
and teach their own courses and turn the final grades in to the
Registrar.
The teaching fellows write letters of evaluation or recom-
mendation when requested by their students. Whether or not
the writing of recommendations and evaluations is a required
function of a teaching fellow, it is a function regularly per-
formed by, and expected of, them. They are better acquainted
with the students through their 15–20 student sections than are
the professors who address large numbers of students in lecture
format. References to, and guidance for, the writing of such
recommendations are set forth in at least two publications for
teaching fellows, “The Teaching Fellows Handbook” and the
student published “Becoming Teachers” handbook. In the
1995–1996 edition of the former, at page 45, it states: “Al-
though you need not feel compelled to write a recommendation
when asked (especially if you cannot give the student unquali-
fied support), it is entirely appropriate to agree to such requests,
and most Teaching Fellows do so. Indeed, this is yet another
introduction to a standard and intrinsic part of the teaching
profession.”
Perhaps as many as 75 percent of the graduate students will
seek teaching positions upon completion of their courses of
study. A somewhat smaller percentage will succeed in securing
teaching positions at the college or university level. It is clear,
and acknowledged by some of the teaching fellows, that they
gain valuable teaching experience as TAs and PTAIs. How-
ever, the material they teach is generally more basic than the
work they are doing toward their doctorate and, for the most
part, the teaching they do contributes little toward the body of
knowledge they must acquire for that degree. Not infrequently,
the courses in which they serve as teaching fellows are courses
chosen by them to teach and may be similar to the courses they
will be expected to teach if they are successful in securing
teaching positions upon graduation. However, the record also
reveals instances of students serving as teaching fellows in
schools other than those in which they are enrolled. For exam-
ple, law students with undergraduate concentrations in history
teach in the history department, divinity students teach in the
philosophy department and students from the architecture
school teach in the art department. Law and Architecture are
professional schools leading generally to careers in those pro-
fessions rather than careers in academe. However significant
their teaching functions may be to their own educational pro-
gress and career plans, it is abundantly clear that the the teach-
ing fellows are a major resource for the University in providing
undergraduate education.
Without exception, the graduate students I observed in these
proceedings were bright, intelligent, articulate and sincere. As
might be expected, they sought a larger role in the working
aspects of their lives than they perceived had accorded been
them by the University.6 Out of this desire arose GESO, an
organization of graduate students, at least some of whom are
TAs and PTAIs.
GESO first sought Yale’s recognition as the representative of
the teaching fellows in 1992. In February of that year, it staged
6 Among other things, graduate students presently participate with
faculty on committees which seek out junior faculty, develop guidelines
for teaching fellowships, select and allocate teaching fellowships and
hear student grievances against faculty.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 254
a 3-day strike wherein the teaching fellows refused to teach
their classes. The strike was unsuccessful and recognition was
not granted. In October 1994, GESO sought an election among
Yale’s teaching fellows in the humanities and social sciences.
This request was similarly denied. A second conventional
strike, lasting a week, was conducted in April 1995. During
that time, an election among the graduate students in the hu-
manities and social sciences was conducted by the League of
Women Voters. Although a majority of those students voted
for representation, Yale continued to reject GESO’s call for
recognition.
In denying GESO’s October 1994 request for an election,
Yale’s president, Richard Levin, set forth the University’s posi-
tion:

The request that some of our graduate students be
polled to determine whether they wish to be represented
by an exclusive bargaining agent is based on the flawed
premise that the primary relationship between the Univer-
sity and graduate students is that of employer to employee.
Yale has consistently and correctly viewed study, research,
and teaching as integral to the educational program of each
graduate student. Acquiring teaching experience is, for
most students, an important part of the Ph.D. program, and
the faculty plays a major role in this aspect of a student’s
education and training. Moreover, there is and should be a
direct educational relationship between a student and fac-
ulty member who serves as his or her teacher, research ad-
visor, or supervisor in teaching. The effect of mandating
the interposition of a third party, whether GESO or any
other, into such a relationship would be to chill, rigidify
and diminish it. Beyond these reasons, asking students to
assume time-consuming tasks of negotiating and adminis-
tering labor agreements would only divert their energies
away from their primary responsibilities.

In that letter, dated November 14, 1994, President Levin went
on to point out that the NLRB considered “graduate students,
even when teaching, primarily as students and not employees
for the purposes of the National Labor Relations Act,” exclud-
ing them from inclusion in bargaining units.7

His rejection of GESO’s 1995 demand was more succinctly
stated:

It is my firm belief that relationships between teachers
and students who will become professional colleagues
could be profoundly damaged by the insertion of formal
collective bargaining into the process of graduate educa-
tion. The University’s position on this issue has not
changed and will not change.

The record is devoid of any evidence that the University’s
response to the prior, conventional, strikes resulted any unfair
labor practice charges against it.

7 In so stating, President Levin was apparently referencing the
Board’s decision in St. Clare’s Hospital & Health Center, supra. I note
that his reference to “teaching as integral to the educational program of
each graduate student,” which phrase is found in virtually every letter
to the students concerning teaching fellowships and financial aid, as
well as throughout the University’s other literature, also appears to be
derived from this decision (at p. 1002).
III. THE GRADE STRIKE
The GESO leadership began planning for the grade strike in
mid-November, 1995.8 At that time, a decision was made to
recommend to the membership that they vote to withhold final
grades until the Yale administration agreed to negotiate toward
a written and binding agreement with GESO’s elected represen-
tatives.
On December 7, GESO held a membership meeting. Follow-
ing a description of the efforts, over five years, to secure recog-
nition and bargaining from the Yale administration, and a re-
view of their concerns,9 the following motion was presented:

Motion: We call upon the Yale Administration to sit down
with our elected negotiating committee and to commit to sign-
ing a written and binding agreement. If I am a TA or PTAI, I
will withhold my grades until the Yale Administration does
so. If I am neither a TA nor a PTAI, I will not do the work of
any striking TA or PTAI, nor will I take the job of any TA or
PTAI who is denied work because he or she is striking.

In speeches by Michelle Stephens, GESO cochair, and An-
drew Rich, a member of GESO’s organizing committee, it was
explained that the strike participants would complete their work
for the semester, holding both the grades for the exams and
papers assigned during the semester and the grades for the final
papers and exams until the demand for recognition and bargain-
ing was met. It was suggested that they turn in their class mate-
rials and grade sheets to the GESO office. The speakers recog-
nized that this would substantially burden the faculty, who
would have to grade their own final exams and papers, and
might particularly distress graduating seniors awaiting grades
for employment or graduate school applications.
The GESO members voted to engage in the grade strike.
The resolution was announced to, and publicized in, the press.
In its press release, GESO stated, “Grades are not due to the
Registrar until January 2. The administration has almost a full
month to begin negotiations.” The TAs were also asked to
discuss the grade strike with the faculty members with whom
they worked. At least one TA, Sarah Rich, testified that she told
her department chairperson, Professor Mary Miller, that the
students had voted “that as of January 2, 1996, they were going
on strike and would not be turning in grades.” (Emphasis sup-
plied.) There is no question but that the Yale administration
was aware of the intended grade strike by, or even before, De-
cember 7.
In the December 7 meeting, Andrew Rich suggested that the
teaching fellows offer to write recommendations for the seniors
to any of the institutions, which would otherwise be receiving
their grades. As late as December 28, Robin Brown, a GESO
cochair, wrote the parents of Yale’s undergraduates, explaining
that “the graduate teachers voted to withhold fall-semester
grades until the Administration agrees to negotiate a binding
agreement.” “On behalf of the teaching fellows, she acknowl-
edged the problem the absence of grades might pose for those
who were applying to graduate schools and other similar pro-
grams; she offered to have “instructors . . . write detailed letters
8 All dates are between November 1995 and January 1996 unless
otherwise specified.
9 Among the issues of concern to the graduate students were recogni-
tion of the contribution they made to undergraduate education, appro-
priate compensation for the hours actually required to perform their
teaching fellow duties, increased funding for teacher training and af-
fordable health care.
YALE UNIVERSITY 255
of evaluation for any student whose course grade is late or
missing.” She also noted that the final grades assigned by the
professors in the absence of the teaching fellows’ reporting of
grades would not accurately reflect “mid-term and paper
grades” which some professors were having students self-
report, or would entirely fail to reflect such grades and be based
upon the final exam alone.
Classes and exams ended about December 18; final grades
were due to be submitted to the Registrar by January 2. Accord-
ing to the Teaching Fellows Handbook, the authority and re-
sponsibility for grades resides in the course instructors who are
required to sign the grade sheets. The TAs are expected to turn
in their grades to their course instructors in time for them to
meet the deadline. PTAIs, as the course instructors, turn the
grades in directly to the Registrar.
Following the December 7 vote and prior to January 2, the
TAs continued to conduct their sections and/or review sessions.
They also proctored exams, corrected and graded those exams
when the faculty permitted them to do so, graded the papers
students had turned in, calculated final grades and recorded
those grades on to grade sheets. In some cases, they turned in
the papers, exam books and grade sheets to the GESO office
prior to January 2, where they were retained in a file cabinet
with nominal security. Some of them were requested by their
students to write letters of recommendation and apparently did
so during this period and even after January 2. Those who
participated in the grade strike did not turn their final grades
(i.e., the compilation of the various grades earned during the
semester) to either their professors or the Registrar before the
due date.
In many cases, the assignments for teaching positions for
both the fall and spring semesters are made in the prior spring
(subject to changes due to class enrollments and other exigen-
cies). Some TAs receive assignments to serve as the TA for
successive portions of the same course over the two semesters.
In other cases, they are assigned to distinct courses or do not
receive their teaching assignments for the spring semester until
some time in the fall. The teaching fellows prepared to teach
the courses they had been assigned for the spring semester and
fully expected to teach those courses even in the highly prob-
able event that the grade strike was still continuing. That was
stipulated to in this hearing10 and abundantly clear from the
record. Thus, the strike resolution, itself, calls upon graduate
students without teaching responsibilities to refrain from
“tak[ing] the job of any TA or PTAI who is denied work be-
cause he or she is striking.” (Emphasis added.) And, the ques-
tions teaching fellows asked various administrators and faculty
members, concerning what the impact of the grade strike might
be upon their teaching assignments for the next semester, dem-
onstrated their intention to teach in that semester even if the
strike was ongoing.
At least some GESO members and officers believed, as did
the University, that the grade strike began upon its announce-
ment on December 7. Thus, Gordon Lafer, GESO’s research

10 The language of that stipulation, that “the intent was, if permitted,
[that the teaching fellows] would continue to teach even if the grade
strike was still ongoing” and that the the grade strike “was solely to
withhold grades and not to withhold teaching services in the second
semester,” is clear. The context of that stipulation, questions to a wit-
ness as to her intent to teach in the spring semester notwithstanding the
grade strike and her concern that she might not be allowed to do so,
remove any possible ambiguity.
director (and a former Yale graduate student) referred, on Janu-
ary 17, to the “five weeks of the grade strike. “Michelle
Stephens, GESO cochair, testified that the grade strike “was . . .
an action that kind of began from December 7.” And, Nilan-
jana Dasgupta, in a note to her students on December 8, wrote
that the “graduate student teachers are participating in a grade
strike this semester.” (Emphasis added.)
Shortly after the announcement of the grade strike, Dean of
the Graduate School Thomas Appelquist and Dean of Yale
College Richard Brodhead wrote to all of the graduate students
with teaching responsibilities in Yale College. Their letter ar-
gued against the propriety of such a tactic and warned of “the
risk of serious consequences.” It urged the TAs and PTAIs “to
submit [their] grades in the usual manner.” On January 4, the
PTAIs were given a deadline of January 9 to turn in their
grades.
On January 10, Dean Appelquist issued letters to the striking
TAs, stating:

If you are deliberately withholding grades. . . . I urge
you to reconsider this course of action. . . . If the instructor
can still incorporate your grades into the grade for the
course, please deliver them to the instructor by noon on
Monday 15 January, 1996. If you have not performed
your grading tasks, or it is too late to incorporate your
grades, or if you fail to hand them in as requested in this
letter, then your teaching assignment for the coming term,
which was premised upon your acceptance of the duties
associated with teaching at Yale, will be withdrawn.

On January 12, the PTAIs in the English department re-
ceived a letter from Linda Peterson, departmental chair. In it,
she reviewed the fact that they had chosen not to turn in their
grades for the courses taught in the prior semester and urged
them to “reconsider” and do so. She went on:

For those sections for which grades remain missing, the fac-
ulty of the English department has decided to complete grad-
ing. In order to do so, we ask that you return all papers and
exams, graded or ungraded, now in your possession. We also
ask that you return any grade records that might help us in as-
signing final grades . . . by Tuesday, January 16. [Emphasis
added.]

Nilanjana Dasgupta, an international student in her fifth year
in the psychology department, participated in the teaching fel-
lowship program during four semesters.11 In the fall of 1995,
she was a teaching assistant in Psych 317 under Professor Di-
ana Cordova. During the semester, she lectured twice, graded
biweekly assignments, created part of the final research papers,
and met individually with students. She submitted the grades
for the biweekly assignments to Professor Cordova as she
would grade them, before the next class. The professor returned
those assignments to the students at class.
The final paper for Psych 317 was due on December 1, pur-
posely timed with the understanding that Dasgupta would grade
and return them to Professor Cordova before she left for India
in December 8.12 By agreement with the professor, Dasgupta
took half of those papers for grading. On December 8, she
informed Professor Cordova of her participation in the grade
11 The psychology department was one of the few which required
teaching as a degree requirement.
12 There was also a final exam; however, because of her travel plans,
Dasgupta was not asked to grade it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 256
strike, stating that she had completed grading the papers and
would place the papers, together with her comments and
grades, in the Union’s office for safekeeping while she was out
of the country. She gave Professor Cordova the phone number
where she could be reached in India as well as the numbers for
the GESO representative who would serve as her primary con-
tact. She also left a memo for the students, informing them of
her actions, and she departed for India on that same day. Ac-
cording to Dasgupta and fellow graduate student Wendi Walsh,
the professor did not ask her to return the papers.
About December 11, Professor Cordova attempted, unsuc-
cessfully, to have GESO return the papers which she under-
stood Dasgupta to have placed with it for safekeeping. In fact,
Wendi Walsh had the papers at her home and those papers were
not returned in response to Cordova’s request.13 On December
13, Professor Carew, the departmental chair, called Dasgupta at
her family’s home in India. Professor Carew directed that she
turn in both the papers and the grades by December 15, threat-
ening adverse effects upon her career if she refused. She re-
plied that she would contact her colleagues in New Haven to
determine what she could do. She did not arrange for the papers
and grades to be turned in, as Professor Carew had demanded.
About December 24, Dasgupta received a letter from Dean
Appelquist, dated December 18. It recited that she had refused
repeated requests to turn in the grade records and papers and
threatened her with disciplinary sanctions under the Univer-
sity’s disciplinary procedures. It also informed her that a disci-
plinary hearing would be held on January 10.14 On December
29, she directed that the papers be handed in. They were, ab-
sent the grades. Professor Cordova completed the grading and
turned the grades in to the Registrar by January 2.
On December 13, another TA, Chris Dumler, was requested
by a visiting professor, Tracy, to turn in the grades for midterm
exams and homework in his section. Tracy asserted that such
information was university property. Dumler refused, noting
that the “vote was to withhold our grades and evaluations of
students for the term, not just the final grades for the class.” On
December 18, after they had completed the grading of a final
exam in the German department, TAs Nesheim and Knight
were similarly requested to turn in copies of their grade sheets
by Professor Hubrey. Each of these TAs refused to comply.
Over 100 teaching fellows participated in the grade strike.
At least one, Jennifer Phillips,15 withheld the grades with re-
spect to one course, Art History, in which she was a TA, while
declining to participate in the strike with respect to another
course in which she was serving as a PTAI, French 130.
The grade strike ended with GESO’s capitulation on January
14. The grade sheets for all of the TAs and PTAIs were turned
over to the Registrar on that day or on January 15.

13 Both GESO officers and Dasgupta were aware that Walsh had,
through simple procrastination, failed to turn the papers in to the union
office.
14 Dasgupta returned early and at extra expense from her vacation, in
order to attend the hearing. That hearing was postponed several times
and ultimately canceled. She was never disciplined. At her own choos-
ing, she did not participate in the teaching fellowship program in the
spring of 1996.
15 Phillips was a fourth year graduate student in the French depart-
ment and a GESO organizer.
IV. ANALYSIS AND CONCLUSIONS
A. The Parties’ Contentions
Respondent asserts several bases for concluding that the
grade strike was unprotected. First, it argues that it was a partial
strike in that it began with its announcement on December 7
and, thereafter, the teaching fellows performed some of their
duties while refusing to perform others. Further with respect to
the partial strike contention, Yale argues that the partial strike
character of the job action is demonstrated by the stipulated fact
that the TAs and PTAIs intended to withhold the first semester
grades for as long as it took to secure recognition and a com-
mitment to bargain while simultaneously intending to resume
or continue their teaching functions in the second semester.
Second, Yale argues that that the strike was unprotected be-
cause it involved an arrogation of Yale’s property. Finally,
Yale contends that the particular conduct engaged in was in-
subordinate.
Counsel for the General Counsel contends that the teaching
fellows were engaged in a full strike, protected by the Act.
Specifically, he contends that the strike did not commence until
January 2, when the grades were due and that the teaching fel-
lows withheld all of the labor required of them at that point, the
actual turning in of the grades. He contends further that both
the writing of recommendations and evaluations and the report-
ing of grades before the end of the semester were discretionary
functions, such that the performance of, or the refusal to per-
form, those functions was not inconsistent with striking and
that the teaching assignments for the first and second semesters
constitute separate jobs such that working in the second semes-
ter was not inconsistent with a continued strike as to first se-
mester employment. Counsel for the General Counsel also as-
serts that the grades and grade sheets were the property of the
teaching fellows, not the University, and that the conduct en-
gaged in was not insubordinate.
Additionally, the General Counsel and the Charging Party
argue that dismissal upon Respondent’s motion would be inap-
propriate because Respondent’s threats were “overbroad,” in
that they restrained all strike activity and not merely that which
was unprotected. Finally, the Charging Party argues that dis-
missal at this juncture would be inappropriate because Respon-
dent condoned the grade strike, thus rendering any discipline
assigned unlawful.
As discussed below, the Board’s longstanding precedent
compels me to reject the contentions of the General Counsel
and the Charging Party and to grant Respondent’s motion to
dismiss.
B. Strike Activity—The Legal Parameters
That employees possess the right to strike as a means of
achieving their lawful concerted goals, free from employer
discrimination and retaliation, is undeniable. See NLRB v.
Fansteel Metallurgical Corp., 306 U.S. 240, 256 (1939). Strike
activity, however, is unprotected when it is “unlawful, violent,
in breach of contract, or otherwise indefensible.” Phase Inc.,
263 NLRB 1168 1169 (1982). Partial strikes and slowdowns
are unprotected. Restaurant Horikawa, 260 NLRB 197, 198
(1982).
In Valley City Furniture Co., 110 NLRB 1589 (1954), the
union engaged in one work stoppage (a refusal to work manda-
tory overtime hours) and announced its intention to regularly
engage in similar refusals. The Board found this to be a plan to
YALE UNIVERSITY 257
engage in a series of partial strikes and unprotected from its
inception. It stated, at 1594–1595:

The vice in such a strike derives from two sources. First, the
Union sought to bring about a condition that would be neither
strike nor work. And, second, in doing so, the Union in effect
was attempting to dictate the terms and conditions of em-
ployment. Were we to countenance such a strike, we would
be allowing a union to do what we would not allow any em-
ployer to do, that is to unilaterally determine conditions of
employment. Such a result would be foreign to the policy ob-
jectives of the Act.

See also Highlands Medical Center, 278 NLRB 1097 (1986)
(refusal by guards to clean up nails and glass from picket line
and escort nonstriking employees through that picket line);
Audubon Health Care Center, 268 NLRB 135 (1983) (refusal
to cover work station left uncovered by absent employee, work
the employees regularly performed); John S. Swift Co., 124
NLRB 394, 396 (1959) (repeated refusals to work mandatory
overtime).
Employees do not retain their statutory protection when they
perform only part of their job functions while accepting their
pay and avoiding the risks and disadvantages of a complete
strike action. Vic Koenig Chevrolet, 263 NLRB 646, 650
(1982) (refusal to perform struck work). They must choose
between working and striking. Pacific Telephone &Telegraph
Co., 107 NLRB 1547, 1549 (1954) (“hit and run” work stop-
pages). When they strike, they must be willing “to assume the
status of strikers-a status contemplating a risk of replacement
and a loss of pay.” Polytech, Inc., supra at 696. They must be
willing to engage “in a total strike with the loss of wages and
risk of lawful replacement incident thereto.” Phelps Dodge
Copper Products Corp., 101 NLRB 360, 368 (1952) (slow-
down). An employee “may not continue to work and at the
same time strike.” Classic Products Corp., 226 NLRB 170,
177 (1976).
Where, however, the duties the employees refuse to perform
are voluntary or discretionary, the refusal to perform them can-
not be deemed a partial strike. Thus, in Riverside Cement Co.,
296 NLRB 840 (1989), the employees’ refusal to provide their
own tools, where the providing of personal tools had always
been discretionary, was deemed protected concerted activity
and not an unlawful partial strike. Similarly, the refusal to
work voluntary overtime is a protected activity, not a partial
strike. Jasta Mfg. Co., 246 NLRB 48 (1979); Dow Chemical
Co., 152 NLRB 1150 (1965). And, where the refusal occurs
but once, so that it cannot be said that the employees intended
to engage in recurrent work stoppages, there is no partial strike
or loss of statutory protection. Polytech, Inc., 195 NLRB 695,
696 (1972).
Sit-down strikes, where employees occupy the employer’s
facility and refuse to leave when asked, do not enjoy the Act’s
protection. The most extreme example is NLRB v. Fansteel,
supra. Therein, a large group of employees seized and pos-
sessed key buildings, holding them for more than a week. Dur-
ing that time, they ousted and excluded representatives of man-
agement and perpetrated acts of violence and vandalism. A less
extreme example, also resulting in a loss of the Act’s protec-
tion, is Waco, Inc., 273 NLRB 746 (1984). In that case, the
employees remained in the employer’s lunchroom for more
than 3 hours, mostly subsequent to having been told that the
employer would not accede to their demand for a group meet-
ing and after having been ordered to either return to work or
leave. Similarly, in Cambro Mfg. Co., 312 NLRB 634 (1993),
a group of employees ceased work in midshift (between 2:30
and 3 a.m.) and remained in the lunchroom, demanding an im-
mediate meeting with the employer. They were assured that
they could meet with the employer after the end of their shift (7
a.m.) and were ordered to return to work or clock out. They
rejected these demands and were discharged. The Board found
their protest unprotected. In so doing, it quoted the following
language from Molon Motor & Coil v. NLRB, 965 F.2d 523
(7th Cir. 1992):

Not every work stoppage is protected activity, however; at
some point, an employer is entitled to assert its private prop-
erty rights and demand its premises back. The line between a
protected work stoppage and an illegal trespass is not clear-
cut, and varies from case to case depending on the nature and
strength of the competing interests at stake. [Citations omit-
ted.]

Drawing that line requires courts to balance “whether
the means utilized by the employee in protesting, when
balanced against the employer’s property rights, are enti-
tled to the protection of the Act.16

See also Mal Landfill Corp., 210 NLRB 167 (1974), in which a
work stoppage wherein the employees’ closed the gates for a
period of 20 minutes, preventing both egress and ingress, was
held unprotected.
Similar to the sit-down strike cases, and more apposite here,
are those in which the striking employees withhold the em-
ployer’s goods or materials. In Beacon Upholstery Co., 226
NLRB 1361 (1976), a group of salesmen went on strike, taking
with them the employer’s essentially irreplaceable sample
books as well as order forms and price lists. They retained
those items, the importance of which they were well aware,
even after repeated demands that they be returned. The Board
held, at 1366:

The employees’ action . . . was not protected by the Act, and
Respondent would not have violated the Act if it discharged
those employees solely because they had withheld that mate-
rial. If in fact the discharge was solely for that reason, it
would not matter whether or not Respondent had requested
the material or notified the employees that they would be dis-
charged unless they returned it.

The withholding of these materials was found to be the sole
reason for the discharges and the complaint’s allegations of
discriminatory discharges were dismissed. Similarly, in Phase
Inc., 263 NLRB 1168, 1169 fn. 9 (1982), the Board, in dicta,
noted that the conduct of employees in leaving work while
retaining the keys to file cabinets to which the employer needed
immediate access, “makes a strong case for a finding that the
employees exceeded the bounds of permissible conduct,” citing
Beacon Upholstery, infra.
Other cases, however, establish that not all “sitdown” strikes
lose statutory protection. In Advance Industries, 220 NLRB

16 In Member Devaney’s dissent in Cambro, he likened the facts to
NLRB v. Pepsi-Cola Bottling Co. of Miami, 449 F.2d 824, 829 (5th Cir.
1971), enfg. 186 NLRB 477 (1970); and Roseville Dodge, Inc. v.
NLRB, 882 F.2d 1355 (8th Cir. 1989), enfg. sub nom. City Dodge Cen-
ter, 289 NLRB 194 (1988), discussed below, noting particularly that
the Cambro strikers had not interfered with the work performance of
nonstriking employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 258
432 (1975), five employees returned to work following a con-
ventional strike. On the day of their return, to what they had
been told was their regular shift, they had expected to work
until midnight. However, part way into the shift, they were
informed that they would be sent home at 10 p.m. In protest,
they refused to leave; instead, after their 10 p.m. break, they
returned to their machines and resumed work. They were or-
dered to leave, clocked out by a supervisor and finally arrested
and expelled by the police. The Board expressly rejected the
analogy to Fansteel and found that they had not forfeited the
Act’s protections. It noted that the employees only occupied the
facility for 45 minutes, that during that time they did not bar
access to or exclude management, that they continued to seek to
discuss their concerns with management, that their actions were
entirely nonviolent, and that “[t]hey did not interfere with pro-
duction.” Similarly, in NLRB v. Pepsi-Cola Bottling Co. of
Miami, supra, and in Roseville Dodge, supra, employees en-
gaged in brief work stoppages wherein they refused the em-
ployers’ orders to leave or return to work. In both of these
cases, it was noted that they did not “seize the plant or machin-
ery” in “defiance of the employer’s right of possession,” they
were nonviolent and they did not interfere with the work per-
formance of nonstriking employees. In each of those cases, the
Board found that the employees had not lost the Act’s protec-
tions, conclusions enforced by the courts.
C. Application of the Law to the Facts
1. Partial strike—working while striking
GESO announced the grade strike on December 7 and to at
least some of its officers, it began on that date. The expressed
intent was to complete the teaching fellows’ work for the se-
mester but, on the due date, refuse to turn in the final grades
(including grades for exams and papers completed earlier dur-
ing the term), with the hope that the University would commit
to good-faith negotiations by that time. Thereafter, many of the
teaching fellows did just that, performing all of their teaching
duties until the deadline for grades, at which point they refused
to submit the final grades for the semester.17 Several TAs were
given deadlines as early as December 13 or were asked to turn
in the students’ midterm and final work and grades; those TAs
refused to comply, because they were on strike.
I reject the argument that, because the teaching assistants
were not generally asked to turn in grades or papers before the
end of the semester, they had the discretion to refuse to do so.
The discretion in this case rested with the instructors, to ask for
grades and papers during the term or not.18 That instructors did
not require that grades and papers be turned in until the strike
made it essential that they take possession in order to complete
their work for the semester (grades were, after all, their respon-
sibility) did not give the TAs the option to refuse. This case is
thus distinguishable from such cases as Riverside Cement, su-
pra, Jasta, supra, and Dow, supra, where overtime or the pro-
viding of one’s own tools was within the employees’ discretion.
Even after the deadline, the TAs were prepared to write, and
apparently wrote, letters of evaluation and recommendation for

17 The TAs and PTAIs accepted their salaries for the full semester,
receiving at least one check after January 2. However, I cannot hold
this against them as evidencing a partial strike. Respondent could have
withheld all or part of that last paycheck but did not do so.
18 Some TAs, such as Dasgupta, were required to submit the grades
as the semester progressed.
the students they taught in the first semester. The writing of
evaluations and letters of recommendation for their students is a
job function, which I have found to be a regular, if not required,
aspect of their work. The TAs and PTAIs continued to perform
this function, even committing to write such letters for con-
cerned seniors after the January 2 deadline for grades (i.e.,
when GESO contends the strike began). At least one TA, Sarah
Rich, acknowledged that she may have written such letters after
January 2. Counsel for the General Counsel argues that the
writing of such recommendations was voluntary and thus, like
the refusal to perform a voluntary act, the performance of a
voluntary act is not inconsistent with fully striking. I must
reject this argument. The refusal to perform a discretionary
duty is plainly distinguishable from striking while continuing to
do it.19 Moreover, what the teaching fellows were offering to do
on behalf of their students was to write letters and evaluations
which would take the place of the grades. They were offering
to complete their duties, in their own fashion, for Yale’s “cus-
tomers” while refusing to perform those duties for, and in the
manner directed by, Yale.
The teaching fellows also prepared to teach the courses they
had been assigned for the spring semester and fully expected to
teach those courses even in the highly probable event (given
Yale’s adamant position regarding recognition) that the grade
strike was still continuing. I am convinced that one cannot
separate each semester’s teaching into distinct jobs. I reject the
assumption that the teaching assignment in one semester was a
discrete period of employment such that the teaching fellows
could continue to maintain a strike with respect to it while
teaching in the next semester. If the teaching fellows were em-
ployees, their employment was to teach, not just to teach one
specific course. They frequently received their teaching as-
signments for both the fall and spring semesters at one time,
during the preceding spring semester, and they sometimes
taught courses in the spring semester which were continuations
of courses begun the preceding fall.20 Yale argues, and I agree,
that they are akin to seasonal employees who work in distinct
periods according to the employer’s needs. Where such em-
ployees have a reasonable expectation of future employment
they are included within the bargaining unit, demonstrating a
continuing employer-employee relationship. See L & B Cool-
ing, 267 NLRB 1, 2 (1983); Maine Apple Growers, Inc., 254
NLRB 501, 502–503 (1981).21 I also note that all of the gradu-
ate students appear to have been eligible to vote for GESO
19 To illustrate, a striker could not, consistent with normal strike ac-
tivity, refuse to work his or her regular shift but insist on working vol-
untary overtime hours.
20 In his opposition to Respondent’s reply brief, the General Counsel
attached a position letter submitted by prior counsel on Yale’s behalf
during the investigation of this unfair labor practice charge and asked
that it be received in evidence as G.C. Exh. 251. It is received. In that
position statement, Yale’s then counsel asserted, in arguing against a
condonation theory, that the fall and spring semesters were distinct
periods of employment. While this “admission” may have some proba-
tive weight, I find that it is contrary to the evidence established on the
record. Moreover, while it may demonstrate that there was a change in
legal theory, it does not evidence that Respondent’s claim of a partial
strike is pretextual.
21 Applying the factors applicable to seasonal employees as set forth
in these cases, I note that Yale draws all of its teaching fellows from
within the local graduate student community, has an essentially stable
need for teaching fellows, and regularly re-employs the graduate stu-
dents for successive semesters or “seasons.”
YALE UNIVERSITY 259
representation in the election conduct in April 1995 and to vote
for or against the grade strike, whether or not they were cur-
rently serving as teaching fellows. This demonstrates that, to
the GESO leadership at least, there was a continuing employer-
employee relationship throughout the students’ years of gradu-
ate study.
Moreover, Yale was not required to wait and see whether the
teaching fellows would report for work in the second semester
while continuing to withhold the first semester grades. They
had clearly announced their intention to do so and that is suffi-
cient. Sawyer of Napa, 300 NLRB 131, 137 (1990); Valley
City Furniture, supra at 1595.
Based on the foregoing, I am compelled to conclude that the
grade strike was a partial strike, unprotected by the Act. The
strike, I find, began with its December 7 announcement or, at
the latest, by December 13, when TAs began to refuse direc-
tives to turn in the grades, which they had already assigned to
the student work. Some of them turned in their grades to
GESO, not the Registrar, an act which, I find, further evidences
that the strike had begun. After it began, they continued to
perform virtually all of their job duties and they accepted their
pay for that work. And, they planned and intended to resume
teaching in the spring semester while continuing to strike, if
they had not achieved their objectives by that time. Thereby,
they were engaged in an activity which was “neither strike nor
work.” Valley City Furniture, supra at 1594–1595.
2. Withholding the University’s property
Grades evidence student achievement. They are the basis on
which students pass from one level to another, receive their
degrees and are awarded honors. They are the basis for the
credentials awarded by Yale as a credentialing institution. Yale
argues, and I agree, that the University has a strong property
interest in the students’ grades. The General Counsel and
GESO argue that the grade sheets, on which they recorded
those grades, were the property of the teaching fellows, which
they could lawfully withhold. That argument, I find, fails to
accord proper significance to the grades themselves as distin-
guished from the paper on which they were recorded.
The grades, however incorporeal they may be, are separate
from the teaching fellows’ grade sheets. They are also more
than the teaching fellows’ mental processes. They are, in cer-
tain respects, that which is produced by a semester of teach-
ing.22 To withhold those grades is essentially to withhold an
aspect of the semester’s production. The withholding of the
goods produced, whether grades or widgets, as distinguished
from the refusal to produce additional goods, is not a lawful
element of a strike. It is essentially like the conduct con-
demned in Fansteel and other sitdown cases,23 and such cases
as Beacon Upholstery, where employees not only refused to
work but also interfered with the performance of the nonstrik-

22 To say this is not to denigrate that which is the real “product” of
education, learning and growth. An admittedly poor analogy could be
drawn between teaching and programming a computer to solve a prob-
lem. The semester’s learning could thus be equated to the program
“learned” by the computer, the final examination to the process by
which the computer solves the problem for which the program was
intended, and the solution of that problem to the grade assigned for the
work. The solution belongs to the employer, regardless of who owns
the paper in the printer.
23 Absent the violence, of course. The grade strike was entirely non-
violent. Violence, however, is not a critical element in the unlawfulness
of a sitdown strike. See, for example, Cambro, supra, and Waco, supra.
ing employees by preventing access to the plant or by withhold-
ing from the employer materials essential to the performance of
the work by others. In this case, by withholding the grades,
including grades assigned for mid term examinations, quizzes
and papers, the teaching fellows interfered with the work of the
course instructors and university administrators whose function
it was to assign, issue and ultimately distribute those grades.24
Moreover, even assuming that the strike did not begin until
January 2, and even assuming further that the first semester was
a discrete period of employment, they so timed their action as
to totally insulate themselves from “the loss of wages and the
risk of lawful replacement” which are incident to a total strike.
Polytech, supra; Vic Koenig Chevrolet, supra; Phelps-Dodge,
supra. No one else could step in, as their replacements, and
assign those grades. This is not a case where, like professional
athletes, the striking workers were irreplaceable because of
their skill level or popularity. Neither is it a case of employees
striking at a critical moment. The teaching fellows could no
longer be replaced after January 2 because only they had ob-
served the classroom performance of the undergraduates and
only they had read and evaluated their work. They took those
observations and evaluations with them when they struck. This
case is thus distinguishable from Leprino Cheese Mfg. Co., 170
NLRB 601, 606–607 (1968), where the employees’ conduct in
striking at a critical point in the production process, causing
economic loss to their employer, was deemed protected. If they
are comparable to Leprino’s cheesemakers, the teaching fel-
lows did not merely leave the cheese unfinished, they took with
them the milk and other ingredients from which the cheese is
made.
Thus, I must conclude that the teaching fellows were en-
gaged in a partial strike. They could not invoke the Act’s pro-
tections for striking while continuing to perform some of their
duties in the first semester and/or striking with respect to the
fall semester while intending, and preparing, to teach in the
spring semester. Neither could they claim the Act’s protections
while withholding the semester’s grades, which I find to be
university property.
Accordingly, the statements made by Yale’s supervisors and
agents to discourage the teaching fellows from engaging in the
grade strike, while undoubtedly coercive,25 were not violative
of the Act. Similarly, any discipline assigned for participation
was not discriminatory.
3. Alleged insubordination
Respondent argues, additionally, that the grade strike consti-
tuted insubordination and was therefore unprotected. It is inap-
propriate, I believe, to apply the concept of insubordination to
strike activity. A lawful strike will almost always be conducted
contrary to the wishes of the employer. As such, it may be said
to be insubordinate but is protected nonetheless. A strike which
is violent, in breach of contract, less than complete or a sitdown
24 Contrary to the General Counsel’s contention, there was no way
that Yale could have effectively engaged in self-help and substituted
others to compile grades accumulated throughout the semester. Indeed,
in those instances of record where instructors sought the underlying
materials or midterm grades to attempt to do just that, they were re-
buffed.
25 A number of these statements were in writing and are thus do not
require a credibility analysis. I have not, of course, resolved issues of
credibility, which would only become apparent if the verbal statements
were to be disputed upon presentation of Respondent’s case-in-chief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 260
is unprotected for the reasons discussed supra, without in-
volvement of the concept of insubordination.26
4. Overbroad threats
Both the General Counsel and the Charging Party argue that
at least some of the threats attributed to Yale’s agents were
directed at any work stoppage or other protected concerted
activity generally, and thus warrant denial of the motion to
dismiss and, ultimately, a remedial order even if the grade
strike is found to be unprotected. They point to the following
evidence, contending that each includes an overbroad threat:

1. The December 12, 1995 letter from Deans Ap-
pelquist and Brodhead to graduate students with teaching
responsibilities, stating that “[t]he failure to perform the
tasks of evaluating student work and reporting grades in a
timely fashion is a serious breach of academic responsibil-
ity [which] should be expected to bear on the evaluation of
the graduate student instructor’s performance as a teacher
and on the assessment of his or her suitability for teaching
appointments during the spring semester.”
2. Expressions by the faculty of the French Depart-
ment, about December 12, 1995 concerning the appropri-
ateness of the union model in the academic setting and the
loss of teaching appointments in the spring semester.
3. December 14 statements by the Director of Graduate
studies in the French Department about the grade strike
and the place of unions in academe.
4. The December 15, 1995 letter from the French De-
partment faculty to graduate students with current or even-
tual teaching assignments, wherein it was stated that
“[f]ailure to perform any aspect of a graduate teaching as-
signment—e.g. meeting all classes, grading and returning
all papers . . . would (1) be a de facto dereliction of profes-
sional duty to our students . . . and (2) constitute behavior
unacceptable anywhere in the profession for which gradu-
ate teaching is an apprenticeship.” That letter went on to
suggest that “any failure of this kind . . .” could be consid-
ered in faculty evaluations and possibly jeopardize future
teaching opportunities.
5. Professor Westerfield’s statements on December 18,
1995 concerning the inappropriateness of the strike
weapon in the academic setting and the possibility that
such conduct could give rise to negative evaluations and
loss of future teaching positions.

They cite New Fairview Hall Convalescent Home, 206 NLRB
688, 747 (1973), enfd. 520 F.2d 1316 (2d Cir. 1975), in support
of this contention. In that case, employees engaged in unpro-
tected partial strikes in the course of a large and otherwise pro-
tected organizing campaign. The employer responded to that

26 The cases cited by Respondent did not involve strike activity and
are thus inapposite. Carolina Freight Carriers Corp., 295 NLRB 1080
(1989), involved a single-employee’s persistent refusal to obey his
supervisor’s order to clock out and leave work, not a concerted refusal
to work. Bird Engineering, 270 NLRB 1415 (1984), involved a group
of employees who disobeyed a rule prohibiting them from leaving the
plant during their lunch hour. The Board expressly found that they were
not engaged “in a strike, withholding of work or other permissible form
of protest.” They simply chose to ignore the employer’s rules. G & H
Products, Inc., 261 NLRB 298 (1982), involved deferral to an arbitra-
tor’s finding that a union steward had been insubordinate in advising of
other employees to engage in the insubordinate act of failing to obey
the employer’s order that they properly fill out their timecards.
campaign with numerous coercive statements unrelated to the
partial strikes, including threats to close the plant, interroga-
tions, and solicitations to abandon the union, and with 8(a)(3)
violations. The employer’s statements and warnings which
responded to the partial strikes, however, were held nonviola-
tive except for one statement uttered in that context which
could have been understood by employees to prohibit all oth-
erwise protected activities.
I find New Fairview Hall distinguishable from the instant
case. There, the employees engaged in some unprotected strike
activity in the course of an otherwise protected campaign for
recognition. Here, the entire campaign consisted of the grade
strike, conduct which I have found to be unprotected. More-
over, each of the statements relied on as overbroad referred to
or was derived from the grade strike, as was alleged in the Gen-
eral Counsel’s complaint.27
Thus, the December 12 Appelquist/Brodhead letter begins
with the statement, “Certain graduate students have announced
plans to withhold grades in undergraduate courses in which
they have teaching responsibilities.” It goes on to state, “In the
name of the educational values we all share, we urge anyone
contemplating the non-submission of grades . . . to submit your
grades in the usual manner.” It is in this context that they then
speak of “[t]he failure to perform the tasks of evaluating stu-
dent work and reporting grades in a timely fashion [as] a seri-
ous breach of academic responsibility [which] should be ex-
pected to bear on the evaluation . . . as a teacher and on the . . .
suitability for teaching appointments during the spring semes-
ter.”
Similarly, the December 12 meeting in the French depart-
ment was expressly held to deal with the grade strike. In that
meeting, the threatened loss of spring appointments was solely
related to participation in the grade strike and the statement
concerning the appropriateness of the union model in the aca-
demic setting was a distinct expression of opinion, protected by
8(c). There was no threat implied or expressed concerning
adverse consequences for supporting a union or seeking repre-
sentation. The December 14 statements were uttered when
students sought clarification of the December 12 meeting; any
threats made therein related solely to participation in the grade
strike and not to unionization in general. The December 15
letter was, expressly, a further followup to the December 12
meeting.
And, the meeting at which Professor Westerfield spoke on
December 18 was also expressly “about the grade strike.” In
that meeting, he candidly expressed his strongly negative opin-
ion about the use of the strike weapon by teachers. However,
his threats of adverse recommendations and redesign of his
courses to eliminate teaching fellows were related to the teach-
ing fellows “do[ing] this” or engaging in “this action,” i.e.,
engaging in a grade strike.
27 The complaint, par. 9, alleges that “[f]rom about January 2 to
January 14. . . . Part-time Acting Instructors and Teaching Fellows . .
ceased work concertedly and engaged in a strike.” Par. 10 alleges
various threats “if [the employees] engaged in the strike described
above in paragraph 9” and par. 11 similarly alleges threats directed
against the teaching fellows “if they did not cease the strike described
above in paragraph 9.” Encompassed within these paragraphs are the
threats now contended to be overbroad because they could allegedly be
understood to restrain conduct beyond the strike “described above in
par. 9.”
YALE UNIVERSITY 261
Thus, I find that there were no “overbroad” threats directed
against the exercise of protected activity, even assuming that
New Fairview Hall would mandate that such threats be found
violative. I would further find that, even if one or two of these
statements were to be deemed technically overbroad, they
should be considered isolated and de minimus in the context of
this litigation and hardly worth returning for many days of
hearing, briefs and a decision on the many other issues raised
by this complaint.
5. Condonation
The Charging Party contends that, by extending the deadline
for the submission of final grades, Yale condoned the actions of
those teaching fellows who met the extended deadline, thus
precluding discipline, citing Asbestos Removal, Inc., 293 NLRB
352, 356 (1989), and Jones & McKnight, Inc., 183 NLRB 82
fn. 3, 89–90 (1970). In each of those cases, the employees had
engaged in unprotected walkouts. In Asbestos Removal, con-
donation was found where the employer had stated, as they
were walking out, that there would be a meeting to discuss their
concerns on the following day, that there would probably be
work on the day after that and that the employer would get in
touch with them. In Jones & McKnight, condonation was found
upon an express promise to forgive unprotected conduct if the
striking employees would cease their picketing and allow other
employees to come to work.
As the trial examiner quoted in Jones & McKnight:

Condonation is a question of fact, and a determination of
whether an employer has forgiven unprotected activity of its
employees requires an evaluation of all the relevant conduct.
[Citing and quoting from M. Eskin & Son, 135 NLRB 666,
667 (1962).] Also, “condonation requires a demonstrated
willingness to forgive the improper aspect of concerted action,
to ‘wipe the slate clean.’ After a condonation the employer
may not rely upon prior unprotected activities of employees to
deny reinstatement to, or otherwise discriminate against,
them.” [Citing and quoting from Confectionery Workers, Lo-
cal 805, 312 F.2d 108 (2d Cir. 1963).]

Condonation requires “clear and convincing evidence” of an
agreement to “wipe the slate clean” and “is not to be lightly
inferred.” International Paper Co., 309 NLRB 31, 38 (1992).
Here, the teaching fellows engaged in what I have found to
be an unprotected strike. On its conclusion, eight who had been
PTAIs in the fall 1995 semester allegedly suffered discrimina-
tory reassignments, dissolution of their courses, and/or greater
supervision. One teaching assistant, Dasgupta, was made the
subject of disciplinary charges.
The record reflects that, on January 10, Dean Appelquist ex-
tended to January 15 the deadline for the TAs to turn in their
final grades. He warned that, if they failed to do so, their “eli-
gibility for a teaching assignment for the coming term will be
withdrawn.” While it is implicit that such eligibility would not
be withdrawn if they complied (as they did), he made no other
promises or assurances of forgiveness. Neither did he condone
any conduct beyond the withholding of final grades. Only one
TA, Dasgupta, is alleged to have suffered discriminatory treat-
ment. That discrimination consisted of Yale’s instituting of
disciplinary proceedings against her. Those proceedings were
instituted on December 18, before the alleged condonation, and
were based on her refusal, on request, to turn over both the
grades and the graded papers as well as her delivery of the
grades and papers to the union office. Her hearing was post-
poned from January 10 to 15 and from January 15 to 31. On
January 22, Dean Appelquist informed Dasgupta that, with the
grade strike behind them, he had decided to “withdraw [her]
case from consideration by the Committee on Regulations and
Discipline.” This record does not support a conclusion of con-
donation of her actions. Even if it did, the Dean’s actions con-
stituted effectuation of the condonation.
All the remaining alleged discriminatees were PTAIs. Their
deadline for the submission of final grades had only been ex-
tended to January 9, a deadline they did not meet. In the Eng-
lish department, where four of the eight PTAIs were teaching,
another “deadline” had issued. On January 12, the departmen-
tal chair asked them to “reconsider . . . and assign . . . the
grades.” Short of that, she asked that they return all papers and
exams, and any grade records, so that the English department
faculty could complete the grading process, by January 16.
There was no promise, express or implied, of forgiveness. All
the teaching fellows, including the English department PTAIs,
turned in their final grades on January 15.
The foregoing evidence, I find, falls short of establishing
condonation, even for those PTAIs in the English department.
Unlike the employers’ statements in Asbestos Removal and
Jones and McKnight, there were no statements made from
which the PTAIs could conclude that their unprotected conduct
would be overlooked or forgiven if they complied with their
department’s request.
6. Conclusion
I find, as a matter of law, that the teaching fellows, whatever
their employee status, were not engaged in a protected strike
activity, for each of the reasons set forth above, and that the
General Counsel has thus failed to establish an essential ele-
ment to his prima facie case. This hearing has, thus far, occu-
pied 15-trial days, with over 30 witnesses and nearly 400 exhib-
its. It may well be anticipated that to conclude this hearing with
the Respondent’s case-in-chief and possible rebuttal will oc-
cupy at least as much time and require at least as much effort
on the part of all the parties. Given my conclusion that the
General Counsel’s case must fall as a matter of law, I further
find that judicial economy and administrative efficiency war-
rant that I grant Respondent’s motion to dismiss at this stage of
the proceeding.28 Accordingly, I make the following
CONCLUSION OF LAW
The Respondent has not violated the Act in any man-
ner alleged in the complaint.

28 Sun Electric Corp., 266 NLRB 37, 45 (1983); Cherry Rivet Co.,
97 NLRB 1303, 1304 fn. 1 (1951).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 262
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended29

29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
ORDER
The complaint is dismissed in its entirety.

adopted by the Board and all objections to them shall be deemed
waived for all purposes.