NLRB Clears Way for Graduate Student Union Organizing

columbia-universityGraduate student collective bargaining with public universities is no longer a novelty. The National Labor Relations Board is determined to make it common at private institutions as well. On August 23, the NLRB ruled 3-1 that grad school teaching assistants and researchers at private nonprofit universities, as primarily employees, can unionize. The ruling, which originated with several Columbia University students, overturns a 2004 board decision against a group of graduate students at Brown University. Organized labor is delighted. “It’s an incredible opportunity the NLRB is giving to students, really giving them the ability to have a voice on important issues like their stipends and health care,” said Heather Conroy, executive vice president of the Service Employees International Union. Campus officials fear higher education is being corrupted. And they are right.

University teaching and research assistants, at first glance, are about the last people one would expect to form or join a labor union. Their employment status is transitory. They are training for a profession. They seek to get their desired advanced degree and move on to full-time employment. At the same time, they regularly experience the pressure that comes with balancing their job responsibilities and fulfilling their degree requirements. And while they do receive a stipend, that does not translate into job security. Discontent inevitably rears its head. The situation of such students is not that different from that of undergraduate college athletes. Union Corruption Update over the past couple of years, in fact, has analyzed a high-profile case over the right of college football and basketball scholarship athletes at private institutions to unionize. Kain Colter, a former football player at Northwestern University, an NCAA Division 1 school, had filed suit with the NLRB to gain collective bargaining rights. He and a former UCLA football player, Ramogi Huma, head of a labor group known as the College Athletes Players Association, had been working with United Steelworkers. In January 2014 they filed a representation petition with the NLRB. Two months later, the regional board director ruled in their favor. Northwestern administration appealed the case to the national board. And last August the university won a reversal, albeit without the NLRB addressing the issue of whether student athletes qualify as employees. Unionization, I argued then (and still argue), was a bad idea. If college football jocks want to unionize, they have the option of turning pro and joining the NFL Players Association. College students are students first and employees a distant second, not the other way around.

The “student or employee” distinction lies at the heart of the case at hand. Graduate students for years have been able to unionize at public universities. Yet state governments, not the National Labor Relations Board, have jurisdiction there. Currently, there are 34 graduate student collective bargaining units across the U.S., virtually all of them representing students enrolled at public universities. The private sector, by contrast, is virgin territory. Last year, a group of students at Columbia University, known as the Graduate Workers of Columbia, along with the United Auto Workers filed a petition with the NLRB to test the waters. The students had sought to negotiate with the university over issues such as stipends, coursework, health care coverage and paid leave. Putting in long hours, they believed, entitled them to receive employee status and thus union representation.

This was the latest volley in a more than decade-and-a-half battle over this issue relating to private institutions. Back in 2000, the board had ruled in favor of a group of New York University graduate assistants who had sought to affiliate with the United Auto Workers. Since many had put in long hours, the NLRB concluded, the assistants’ primary duties were to their employment rather than their studies. Two years later, in 2002, NYU recognized the UAW as the certified bargaining agent for the graduate students, the first time ever a private institution had taken this step. In 2004, the tide turned. In a case involving the Auto Workers and a group of graduate assistants at Brown University in Providence, R.I., the NLRB reversed the 2000 ruling, concluding that the students could not be considered employees. Their primary relationship to the university was educational, not economic. Subsequently, New York University in 2005 withdrew its recognition of the UAW. A number of graduate students at NYU, not liking this move a bit, went on strike to demand restoration of union recognition. The walkout would fizzle. The issue seemed settled.

As it turned out, the issue was just getting off the ground. In 2011, a regional NLRB official, in response to a new NYU student petition to affiliate with the United Auto Workers, issued an opinion that the Brown University ruling rested on weak reasoning. While allowing that decision to remain in force, the new opinion created a window of opportunity for the NYU graduate students to appeal. And in 2012, the full NLRB announced that it would use the appeal as a basis for reconsidering its 2004 decision. A year later, in 2013, the NYU administration and the UAW announced they had reached a compromise plan under which the appeal to the National Labor Relations Board would be withdrawn. But on October 21, 2015, the NLRB, by a 3-1 majority – the board once again was short-handed because the term of Harry Johnson III, a Republican, had expired that August 27 – announced that it would review its Brown University decision in conjunction with a UAW bid to organize graduate students at the New School for Social Research in New York City. And this August 23, the board, again by a 3-1 margin, ruled in favor of the Columbia University students. The majority reasoned:

The Board has the statutory authority to treat student assistants as statutory employees, where they perform work, at the direction of the university, for which they are compensated. Statutory coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the Act does not reach.

The three Democrats on the board – Chairman Mark Gaston Pearce, Lauren McFerran and Kent Hirozawa (who would resign four days later) – sided with the students. The lone Republican, Philip Miscimarra, sided with the university.

Union officials, predictably, are applauding the NLRB ruling. The Service Employees, the prime force behind numerous active unionization campaigns at private institutions, issued a press release acknowledging that graduate students at a number of such universities “are launching a massive drive to build unions with SEIU.” The American Federation of Teachers, which represents a group of graduate teaching assistants at the University of Chicago, also is gearing up for membership drives. AFT President Randi Weingarten explained: “The truth is graduate workers are the glue that holds higher education institutions together – without their labor, classes wouldn’t get taught, exams wouldn’t get graded and office hours wouldn’t be held. The evidence considered by the board clearly showed that far from being detrimental, collective representation enhances the professor-graduate employee relationship so important to academic success.”

But there are voices of principled opposition. The NLRB dissenter, Philip Miscimarra, noted that collective bargaining status, with its accompanying strike threat, would divert students from “the far more important goal of completing degree requirements in the allotted time.” He wrote:

For most students including student assistants, attending college is the most important investment they will ever make. I do not believe our statute contemplates that it should be governed by bargaining leverage, the potential resort to economic weapons, and the threat or infliction of economic injury by or against students, on the one hand, and colleges and universities, on the other.

Joseph Ambash, who is an attorney with the Atlanta-based litigation firm of Fisher Phillips and who represented Brown University a dozen years ago, criticized the latest NLRB ruling as having “transformed our private higher education systems from educational institutions into workplaces.” The decision, he added, could create “extremely disruptive and contentious” conditions. And Columbia University issued a statement clearly hinting at a court appeal. “Columbia – along with many of our peer institutions – disagrees with this outcome because we believe the academic relationship students have with faculty members and departments as part of their studies is not the same as between employer and employee,” read the statement. “First and foremost, students serving as research or teaching assistants come to Columbia to gain knowledge and expertise, and we believe there are legitimate concerns about the impact of involving a non-academic third party in this scholarly training.”

There is a case for authorizing graduate teaching and research assistants to unionize. For one thing, there are a lot of them. According to the American Association of University Professors, graduate students constitute about one-fifth of the higher education instructional staff. And that’s not even including other “contingent” faculty such as part-time adjunct professors and full-time non-tenured professors. Second, a lot of these instructors have a full schedule even without performing their teaching and/or research responsibilities. As Christopher Shreve, a grad student biology instructor at Duke University, puts it: “I am painfully aware with the plight of the graduate student expected to learn full-time, work full-time, teach full-time. You can’t work three full-time jobs, you just can’t.” This either is an exaggeration or an extreme exception. Nobody bent on preserving their health and sanity is going to work three full-time jobs – a combined roughly 120 hours a week – in any field. Still, the larger point cannot be denied: Graduate students have relatively little free time on their hands. Third, whether teaching and research job duties constitute a primary or secondary share of a student’s time, those who perform these tasks should have the right to organize for better pay, benefits and conditions. Bob Bruno, professor of labor relations at the University of Illinois, put it this way: “Grad students are doing work, and nothing about being a student subtracts from that employment reality. The Board’s ruling is part of a larger recognition that the workplace is changing and that who performs that work has evolved, and it’s necessary that the protections of the nation’s labor law be extended.”

Having been a graduate student assistant myself (at Rutgers) back in the late Seventies and early Eighties, I can sympathize with this argument. But there is a good deal more to the story. And taking certain inconvenient realities into account, the union side looks far less compelling.

First, for what effectively are apprenticeships, graduate teaching and research assistantships pay well. According to the U.S. Bureau of Labor Statistics (BLS), the annual median wage for the nation’s roughly 125,000 graduate teaching assistants is $30,810. That’s hardly poverty-level, particularly if the instructor has no dependent children. And pay isn’t necessarily stagnating. Northwestern University, for example, invested $6 million in boosting annual stipends to $29,000 during the previous academic year, a hike of 26 percent. The university raised that sum to $29,880 for the current year. Vanderbilt, another private institution, offers an average salary of $26,922. If the SEIU, the United Auto Workers and the American Federation of Teachers want to organize such campuses, they won’t have a strong argument in claiming financial exploitation.

Second, a graduate education is an investment in one’s professional future, and by extension, lifetime income. And it is a necessary one, providing invaluable experience to a young adult in the worlds of instruction and research. Whether or not they seek a career in academia, graduate students attain problem-solving skills necessary for full-time work beyond graduation. A graduate student implicitly accepts the fact that a sub-professional income is the price one pays for enjoying a higher income over decades following graduation. BLS data show that full-time employees age 25 and over whose highest attained level of education was a doctoral degree had median weekly earnings of $1,623 in 2015. The median figure for workers with a master’s degree (but not a doctorate) was $1,341. For those with no more than a bachelor’s degree, the figure was $1,137.

Third, to the extent that graduate teaching assistants are overworked, it is because many of the professors to whom they are assigned are underworked. It is a fact of life: Academic prestige, especially at universities (as opposed to four-year colleges), is gained more through research and publishing than through teaching. Indeed, a teaching award can be the kiss of death for a professor up for tenure or a promotion. For a reputation as a great teacher, rightly or wrongly, connotes a lack of time and commitment to research and publishing. Whether this judgment is “fair” is a separate issue. What is relevant is the resulting de-emphasis on teaching. In response, many professors hand off their teaching responsibilities (including grading tests and term papers), wherever possible, to graduate students. Many of the students really are exploited. But fixing the problem depends on imposing greater teaching requirements upon tenured professors, not transforming students into labor negotiators.

Fourth, encouraging student instructors and researchers to unionize would give them an incentive to remain in graduate school longer than they would. Union membership likely would delay looking for a full-time job if it can raise stipends and benefits to levels matching an outside salary offer. Of course, unionization won’t produce armies of professional students. Graduate students still prefer to graduate. But it likely will delay entry into the professional world by a year or two. And that in turn could reduce available graduate student slots.

The National Labor Relations Board erred last month in expanding the realm of graduate student unionism to include the private sector. That it exists at roughly 30 public universities is misguided enough. Graduate students, whatever their financial situation, are students first and employees second. While many perform the role of a professor all but in name, unionization would create a disincentive for on-time graduation, and with the possible unintended effect of inducing professors to bargain collectively for higher salaries and benefits. Union membership has its advantages. But looking at the bigger picture, it would force universities into an awkward role of negotiating with the students upon whom they pass academic judgment. It’s not an arrangement conducive to good labor relations – or education.


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