Effectuating Our National Labor Policy

Two pending National Labor Relations Board (NLRB) cases on graduate student workers provide an opportunity to develop effective strategies to respond to attacks on employee rights under National Labor Relations Act (NLRA).

The key issue in New York University and Polytechnic Institute of New York University is whether their teaching and research assistants (TAs and RAs), who want to be represented by a union, are employees. If they are employees, the NLRA protects their rights to make common cause with other employees to improve working conditions and to have union representation.

The roots of this case go back over a decade. In the 2000 NYU case, the Democratic Board majority reviewed detailed evidence about the NYU graduate student working conditions and concluded that the facts showed they were employees. Four years later, the Republican Board majority in Brown University overruled NYU and held that “it simply does not effectuate the national labor policy to accord [graduate student TAs and RAs] collective bargaining rights, because they are primarily students.” Now the two new NYU cases have the NLRB again sorting out whether graduate student workers are employees. These shifting decisions may seem to be Exhibit A that elections have consequences, and that those in power get to make the rules.

Laws are also supposed to have consequences. The Brown majority, however, did not apply those consequences. Instead, the Brown majority flouted the law and joined decades of powerful NLRA enemies who have not been shy about attacking the law.

The good news is that Brown’s missed opportunities provide lessons for a strategy for restoring workers’ NLRA rights. A good example can be found in the Brown majority’s claim that it had a right, “as a matter of policy”, to decide that graduate students were not employees – as a class and not limited to just the Brown University graduate students.

No one challenged the Brown majority’s legal right to decide whether grad students, as a class, were employees based on a claim of “policy”, even though there were strong grounds for making that challenge.

First, section 9(b) says that decisions in election cases must be made on the facts presented in the case. It says nothing about making a decision “as a matter of policy”.

Second, the NLRA does have a policy to guide election case decisions. That policy is to ensure that employees have “the fullest freedom in exercising the rights guaranteed by this Act.”

Third, NLRA section 6 does give the Board rule-making authority, but not to apply it with the broad brush the Brown majority used. To make a rule, section 6 requires the Board to follow the Administrative Procedure Act (APA). Had the Brown majority’s “policy” that graduate students were not employees been challenged under the APA, that “policy” would have been found to be “not in accordance with law” and “without observance of procedure required by law”, at the least.

Constructing a litigation strategy that both protects NLRA rights and reins in attacks on those rights is a fight worth having.

The NLRA has had implacable enemies bent on destroying employee rights from the moment the law was introduced into Congress. For example, when the NLRA was enacted, the American Liberty League, made up of leaders of major U.S. corporations, filed roughly 100 injunctions to keep the NLRA from functioning. And that was not the end. That fight has continued to this day.

That multi-decade attack explains why we have a labor “law” whose rules can be found nowhere in the NLRA. For example, NLRA § 10(c) says that remedies must promote the Act’s policies, but the “judicial amendment” that created the doctrine that says remedies cannot punish the wrongdoer, constrict the remedies that can be ordered.

It is not too late to to support, strengthen, and restore NLRA rights. The NLRA provides tools that can and should be used to ensure its rights are enforced. Learning this largely forgotten history provides a foundation for restoring and preserving rights under the National Labor Relations Act.

First, as Brown shows, attention must be paid to procedural details, such as whether a case is an election or an unfair labor practice case. These two basic types of NLRA cases may look similar when there is a hearing, but the procedures, evidentiary standards, and outcomes differ greatly. In unfair labor practice cases, evidence and burdens of proof are similar to civil trials. In election cases, the obligation is to make decisions “that assure to employees the fullest freedom in exercising the rights guaranteed by this Act”. Had the Brown majority wanted to make a decision based on policy, this was the policy it should have applied.

Second, fundamental to the jurisdiction of the NLRA – and all employment laws – is the definition of employee. Employee status is a fact question and not a matter of titles or labels. Its definition across legal regimes varies widely. The NLRA defines “employee” in § 2(3) as “any employee” and not limited to employees of an employer. This definition promotes Congress’ intent that employees, as a class, have a protected right to support one another’s efforts to improve their work conditions.

These definitions matter. It is disheartening how often in NLRB cases the common law definition of employee is used instead of section 2(3). The common law defines an employee as having an employment relation with an employer. In the Supreme Court’s Lechmere case, for example, had the NLRA’s definition of employee been used, a much stronger case could have been made for the union organizers’ right to have access to the employees they were trying to organize.

Third, the newest NYU case, in which the Board invited the submission of amicus briefs, raises a number of issues that are discussed in the Board’s helpful treatises and publications. https://nlrb.gov/publications/manuals They can be a great resource for those who want to restore the NLRA. These books, which are searchable and user-friendly, can now be found on-line. Two of the most useful of these books to prepare for hearings are the National Labor Relations Board Division of Judges, Bench Book: An NLRB Trial Manual and National Labor Relations Board, An Outline of Law and Procedure in Representation Cases, which explains what a dual function employee is and includes a discussion of types of work that overlap with with dual function employment. Those manuals are helpful in assessing the new roles NYU has created for graduate students in recent years and their rights to union representation.

It is possible to restore the NLRA that Congress enacted but only through collective action that uses all the tools we have and can create.