Six Reasons You Should Care About the NLRB’s Graduate Employee Decision

A surprising amount has been written about the National Labor Relations Board’s (NLRB) recent decision to grant collective bargaining rights to graduate student employees at private universities, likely because many of the authors attended the prestigious institutions affected by the decision. However, most of the articles have generated little in the way of new insight, which is a pity because there’s much that could be said about the landmark Columbia University decision (Columbia Univ., 2016 BL 273040, 364 N.L.R.B. No. 90, 8/23/16).

Below are five issues that the Columbia decision has put into sharp focus.

1. The 2004 decision by the Bush NLRB to strip collective bargaining rights from graduate student employees at private universities was a purely political decision designed to stop organizing campaigns in their tracks. After the Board granted collective bargaining rights to graduate employees in 2000 (by unanimous decision) graduate student employees organized at New York University (NYU) in 2001 and negotiated and ratified a 3-year contract. Encouraged by the NYU contract’s substantial improvements in pay, benefits and working conditions, graduate employees at several other universities, including Harvard, Yale, and Columbia — organized unions. Many voted on unionization in NLRB elections, but after the Bush labor board (in a 3-2 decision) decided to remove their collective bargaining rights, their votes were impounded and never counted. The board’s weak justification for denying basic rights to graduate employees was that collective bargaining would hurt the educational process — an area in which it had no expertise whatsoever and no evidence to back up its decision. By the mid-2000s, many public research universities had decades of experience with bargaining and, according to peer-reviewed studies, graduate student employees and academics believe that it has enhanced the educational process. The Bush NLRB’s decision was a brazen attempt to prevent graduate student employees from getting a free choice on unionization.

2. Collective bargaining has not disrupted the education experience, but the attempt by private universities to deny fundamental rights to their graduate student employees has. After NYU withdrew recognition from its graduate student union with the expiration of the collective agreement in 2005, graduate employees went on strike for 7 months in an attempt to force the university administration back to the bargaining table. Graduate student activists alleged that the university had taken discriminatory action against them, and leading academics throughout the country criticized the anti-union behavior of the NYU administration. More recently, graduate student employees at NYU, Columbia and Yale have engaged in recognition strikes to try to get a free choice on unionization. With the exception of NYU, which agreed to an election conducted by the American Arbitration Association in 2013, the university administrations have continued to deny student employees a choice on unionization. This denial of basic rights, not collective bargaining, is what has been responsible for disrupting the educational process.

3. Graduate student employees face workplace problems similar to those of other groups of employees, and unionization would solve most of these. Their issues include low pay, inferior benefits (including lack of access to affordable childcare and poor benefits for dependents), excessive workloads, lack of a proper grievance procedure, poor sexual harassment procedures, and lack respect and a voice on the job. For graduate students at dozens of public universities and at NYU, unionization has improved the lot of graduate student employees in all of these areas. Having a stable and routinized process for dealing with employment problems, moreover, has enabled unionized graduate students and their faculty supervisors to concentrate much more on their education.

4. Graduate student employees at private universities have indicated overwhelmingly that they support unionization and collective bargaining. When NYU graduate employees were given a free choice, over 95% voted in favor of unionization. Graduate employees at several other universities, including Columbia, the New School and Yale, have already indicated majority support for unionization. Graduate student employees are now organizing at multiple other private universities. Like their NYU counterparts, they recognize the clear benefits of unionization and, like most other American employees, when given a free and fair choice, graduate student employees will overwhelmingly choose unionization.

5. Despite this widespread support for unionization, most elite private universities appear intent on denying their graduate student employees the right to choose unions. In the wake of the Columbia NLRB decision, administrators at several universities have employed anti-union messages similar to those one would find in campaigns run by Wal-Mart or Home Deport. Under the pretense of educating graduate students, Ivy League administrators have told graduate employees that unionization is a risk because they may not get any improvements in wages, benefits and working conditions, and indeed things could get worse. They have stated that unionization would likely result in acrimonious strikes that would interfere with the educational process and impede their academic progress. And they have emphasized that graduate students would be required to pay union dues even though the union cannot guarantee them any improvements in pay and benefits. The impact of anti-union behavior by senior university officials should not be underestimated. Most graduate student employees are facing uncertain job markets, and graduate students who find themselves without strong allies among senior faculty members — even if their only transgression was to engage in lawful union activities — may have an extremely difficult time. Just as it is for other employers, fear is a potent anti-union weapon for university administrators.

6. Finally, the so-called “policy oscillation” at the NLRB over bargaining rights for graduate student employees demonstrates the need for a more flexible and inclusive a labor law. Graduate student employees are just one of many groups who have been unjustly excluded from the protections of federal labor law. Tens of millions of workers have been told that they do not fit within the law’s definition of an employee because they are wrongly misclassified as “independent contractors,” “gig employees,” “freelancers” or other contingent workers. The economy and the nature of employment have changed in fundamental ways, but due to Republicans and business obstructionism, labor law has become ossified. The law must accommodate old and new forms of employment, standard or not. If people earn their living by selling their labor to others — rather than, say, by owning a business or living off their investments — they should enjoy the protections of the law. The NLRB’s recent decision in Columbia University was at least a small step in the right direction.