As we enter the examination period in the fifth week of the multi-unit UAW strike, uneven flows of information, with competing understandings of the law, have left many faculty unsure about their rights to withhold grades and the potential impact of doing so on undergraduate students. To help faculty navigate these complexities the Berkeley Faculty Association, working in conjunction with the Council of UC Faculty Associations, has regularly received legal advice. It is our duty and responsibility to only provide faculty with accurate information in which we have significant confidence.
As Academic Senate has reminded us, faculty have a legally protected right to respect the picket line and withdraw all forms of academic labor in sympathy with the UAW strike. If faculty chose to go on strike their pay can be docked – but only for the period of time during which they withdrew their labor, not for the duration of the multi-unit strike itself.
The majority of faculty have not been on strike; they have continued to teach their classes, sometimes in modified forms, such as changing their syllabi and requirements for final exams. The question then becomes what rights and responsibilities do these faculty have as they consider whether or how to grade that work.
Here there is an important legal distinction between being on strike and not picking up the struck labor of grading that would ordinarily be performed by Academic Student Employees (GSIs and readers). In classes that are taught with ASEs, were faculty to grade final exams, and in some cases to calculate and return grades, that would constitute struck work. That is to say, it is labor that would have been performed by ASEs on strike.
Refusing to perform struck work is not the same as being on strike, because it is additional work that you are not compensated for. Your pay cannot be docked for not performing work that would ordinarily be the responsibility of someone else. The closest case law in these cases is available here and here. The university would face legal peril, and considerable expense, in attempting to punish faculty who do not perform struck work or return grades.
Of course, even if faculty chose to pick up struck work there are real practical challenges to doing so despite the extension of the deadlines for grades over the holiday period. Although the APM’s Faculty Code of Conduct lists “undue and unexcused delay in evaluating student work” (APM-015.II.A.1e) as a potential cause of discipline, it is hard to imagine that the circumstances faculty now face with the UAW strike, and a grading deadline over the holiday period, would qualify as an undue delay.
Understandably many faculty are concerned about the impact on their undergraduate students of not picking up struck work. Campus has informed us that there are particular groups of students whose “eligibility for graduation, financial aid, or veterans benefits; and/or applications to certain majors and higher degree programs” would be impacted if their grades are not returned. The campus has made several changes to its processes to ensure that students who are not in good academic standing or otherwise need grades will not be adversely affected by the strike; these processes have just been outlined on the Academic Accommodations Hub and the Students Section of the strike website. Faculty will be sent a list of potentially impacted students in their classes by December 19. Students who need grades for fall graduation are indicated in the grade rosters in Cal Central.
As there has been particular concern about students who receive financial aid it should be noted that academic progress for most students on financial aid is assessed annually in June. Only those who were already on academic probation in the Fall need grades to determine whether their progress is satisfactory. UCOP has calculated that students on academic probation and in receipt of financial aid represent just 1 per cent of the undergraduate population across the entire system.
Our latest FAQ on grading responds to a range of other practical questions we have received from faculty, we urge you to read it here.
Finally, we are aware that Senate faculty may receive attestation forms to declare whether they are on strike. We have many questions about these documents and are seeking further information from multiple sources; we are also discussing the possibility of filing an Unfair Labor Practice charge around their issuance. If you receive such a form do not complete it until we can offer guidance.
Please do not hesitate to be in touch if you have additional questions or concerns.