During the past year, AFT and other graduate employee unions have had to confront a new management tactic that throws a wrench in the workings of the union. University lawyers have figured out a way to withhold from unions and organizing committees the names of graduate employees who are working for the institution.

Citing the Family Educational Rights and Privacy Act (FERPA), the universities say that divulging the employee's status as a graduate assistant indicates that the employee is a graduate student at the university. That piece of information qualifies as an educational record, and its release to a third party, the lawyers maintain, is what FERPA prohibits.

FERPA was passed 26 years ago at about the same time the College Work-Study financial aid program was created. Among other things, FERPA protects a student's right not to have his or her grades disclosed to an employer or other third party without the student's permission. The law does allow the disclosure of "directory" information, such as name, address, phone number, birth date and so on. Until this year, FERPA was not associated with the work of unions.

When an organizing committee forms to gather signatures on petitions to hold a collective bargaining election, the state employee relations board asks the employer to provide what is known as an excelsior list, which includes the names and addresses of employees defined to be part of the potential bargaining unit. Once a union is elected, it negotiates for the regular release of information on employees such as name, address, salary, position, so that the union can monitor and enforce the contract. This is the kind of information that some universities now say they cannot supply.

The FERPA challenge was born in California when the University of California was in the final throes of a losing battle to prevent graduate employee organizing. In March 1999, a university lawyer asked the U.S. Department of Education if the Family Educational Rights and Privacy Act allowed the release of graduate employees' names and addresses to a third party--the union organizing committee. The department's answer did not come out until the fall, after the graduate employees had won the right to bargain. But the department's answer--that the employee information should be disclosed only with the student's permission--quickly found its way like a virus to infect other campuses, where unions were in the process of organizing, negotiating contracts or managing them.

One place it stopped was Oregon, where a zealous administrator let it loose on the University of Oregon's Graduate Teaching Fellows Federation AFT contract. In March 2000, as the 20-year old union was negotiating a new contract, the university announced that it could not provide the names of the people the union represented because the employees had not signed waivers. This had an immediate effect on the GTFF members' health benefits because the union administers the health plan, says Paul Prew, GTFF president.

Eventually, the union and university were able to arrive at a solution, although not before the union filed an unfair labor practice with the state PERB. This fall, the students got the opportunity to waive FERPA when they received their letter offering employment. As the semester began, says Prew, only 13 of the nearly 1,200 teaching fellows the union represents had not signed the waiver. The union has no way of knowing if those 13 understand the full implications of not signing. The union also is aware that, for budgetary reasons, the university is using undergraduates to do work that has been the work of graduate employees, but because of FERPA, it is not able to follow up on this with the undergraduates. "It interferes with our duty to provide fair representation," says Prew.

All of this is ironic, notes Prew, because the university has no qualms about providing the information to many other third parties, such as credit card companies. It is also printed in catalogs and is available from the library. The administration is "selectively enforcing FERPA," he says.

In fact, FERPA has proven to be a relatively benign law over the years and has produced few court challenges, say legal experts. Some of AFT's graduate employee locals have learned that their employers will continue their past practices and will not invoke FERPA now.

"Almost everyone recognizes that this is not what Congress intended when it authorized the law," says AFT legal counsel David Strom. The national office has been working quietly with federal agencies to solve the FERPA problem legally, administratively or legislatively, he notes. "We're fighting for these locals, and we're not going to give up," he says. "The union has to be able to do its job."