Graduate students will win union rights…for now

This past June the National Labor Relations Board (NLRB) sought written opinions on whether the board should reconsider the Brown University case which prohibited unionization at private universities. The request was only surprising in that it came so late in the President Obama’s administration, caused by the Senate Republicans stubborn refusal to nominate NLRB members. But it only delayed the inevitable, that students will be able to unionize at private universities.

The recent board activity has sparked new articles on the unionization movement. Commentators have focused their attention on the whirlwind period between the New York University case, which permitted unionization in 2000, and the Brown case which prohibited it only 4 years later. But this understates the significant history of graduate unionization. The legal history is now 40 years old and its history gives us insight toward its future. The arguments have remained nearly the same and board members have voted along party lines, which is determined by the president’s political party. This history can help us predict the outcome of the upcoming case and its aftermath.

The first ruling on graduate unions came in 1972 for a case concerning Adelphi University, a private college in Long Island. The NLRB unanimously dismissed the notion that graduate assistants could be a part of the university’s bargaining unit. The board opined the intent of assistants were primarily education in nature, outside the scope of collected bargaining protection under Federal law.

The NLRB crystallized their position four years later in a case involving medical interns and residents at Cedars-Sinai medical center. “[T]hey participate in these programs not for the purpose of earning living,” the majority opinion wrote, “instead, they are to pursue the graduate medical education that is a requirement for the practice of medicine.”

The lone Democrat provided a dissent: “the term employee is meant to ‘include any employee…unless the Act explicitly states otherwise’.” Member Fanning noted students were not within those exceptions.

Groundwork in the 1970s and 1980s led to substantial growth in public sector unionization–25 contracts through 2000 . It was time for the NLRB to consider unionization at private universities again. The NLRB, appointed by President Clinton, cited the then 24 year-old Cedars-Sinai dissent by Fanning and determined graduate assistants are employees.

Less than two months later, Governor George W. Bush won the presidency. With that victory, he earned the right to appoint a new board. By 2004, the Republican majority in the NLRB overturned NYU on an appeal from a recent union election at Brown University . Citing the majority in the Adelphi and Cedar-Sinai cases, NLRB halted election results at Pennsylvania, Columbia, and Yale. NYU was the only union to negotiate a contract in that window, while Cornell students rejected union membership. NYU’s contract expired in 2005 and administrators refused to recognize the union.

Now, 39 unions have contracts with two more pending negotiations. With a Democratic president, the prospect for unionization has returned. After Senate Republicans stalled nominations, President Obama used recess appointments to allow the board to resume. It was the graduate students from NYU who appealed their case again, which prompted NLRB to seek petitions for rehearing the case for graduate-student unionization.

Not surprisingly, three Democratic members voted in favor of seeking written opinions to reconsider Brown, with the lone Republican member dissenting–citing the Brown case . In several months–provided board membership remains unchanged–the NLRB will vote to permit unionization at private universities. We can expect the vote will go along party lines and we can anticipate the written opinion: Democrats will note graduate assistants meet the definition of “employee” under labor laws. The dissenter will note that the primary intent of unionization is for education.

In July, union organizations and universities submitted opinions to the NLRB, taking the expected stances. Both sides have repeated the same arguments addressed in previous cases, including the definition of employee, the dualism of graduate assistants as employees and students, and how unionization may affect relationships with employers.

Neither de jure arguments for or against unionization are completely convincing. While graduate assistants perform work for universities, there is little connection between the amount of work and their compensation—which is typically fixed stipends determined paired with tuition remission with little regard to work hours, performance, or work experience. Indeed, assistantships seem to be a reason to provide money while students are learning important aspects of their future occupation. Nevertheless, the notion that assistantships are short-term jobs preparing the student for their career is almost equating a graduate assistant to an apprentice, which are allowed to unionize in other sectors.

Even though the NLRB is likely to approve unionization at private universities, union members will have a relatively short time to rejoice. If history is a proper guide, we should expect that a future unionization attempt at a private university will to the NLRB. As the President’s political party inevitably changes, it is likely a board with a Republican majority will overturn the decision. We seem to be stuck on revisiting graduate unionization without any significant changes that demand the issue to be revisited. Instead, it is being discussed because of opportune changed to the NLRB’s political composition.

It is time for either Congress or the Supreme Court to adjudicate on graduate unions. By the nature of those political institutions, an amendment to the National Labor Relations Act or court ruling is less likely to be immediately revisited. Unfortunately, Congress is unlikely to adequately address this issue, one which should have input from the electorate. Thus, this would be an opportune time for the Supreme Court to hear the current cases in unionization.

In 1980, the Supreme Court heard an appeal of an NLRB ruling preventing faculty members from unionizing at private universities. Although this has been a sore spot of union advocates, it has created steadiness for both administrators and faculty. The NLRB is only now reconsidering the 22 year-old ruling–an appropriate decision given the change in faculty duties and relationships over that time.

Universities need to be given time to adjust to a new reality, instead of constantly appealing decisions. If unionization is to stay, administrators need to deal with the concerns of the unions instead of using their time forming new legal briefs. Likewise, if graduate assistants cannot unionize, we need to spare the faculty and students from the strikes that take place. The debate over unionization does need to happen with each generation, but it doesn’t need to happen with every change in political office.

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