An Invitation to Unionize

April 13, 2010

NEW YORK -- The chair of the National Labor Relations Board gave a strong indication here Monday that, now that the board has new members appointed by President Obama, unions could expect it to back collective bargaining rights for graduate teaching assistants at private universities. Her remarks came as graduate students at the University of Chicago -- in what could be a test case -- are considering affiliation with national unions for an organizing drive.

Wilma B. Liebman, the NLRB chair, made her remarks in a speech to leaders of academic labor and management, gathered here at Baruch College of the City University of New York for the annual meeting of the National Center for the Study of Collective Bargaining in Higher Education (which is based on CUNY's Hunter College). Liebman stressed that the NLRB does not have "a list" of Bush-era NLRB decisions that it is planning to overturn. But she said that the new NLRB will take a "more dynamic" approach to deciding cases, noted that she had dissented from the ruling denying collective bargaining rights to graduate students at private universities, and cited that ruling as the type of decision that might now be decided another way.

She even went so far as to remind the audience (which didn't need any reminding) that what the NLRB needs to reconsider the earlier ruling is a legal dispute to resolve. "We wait for cases to be presented to us," she said, adding that while she had heard that there are organizing drives "out there in the works," none have made their way to the board.

The unionization of teaching assistants at private universities was effectively shut down by an NLRB ruling in 2004, on a party-line vote in a case involving Brown University. (The legal status of unions for public universities' teaching and research assistants is governed by state law, not the NLRB, and unions are common in the Northeast, Midwest and the West.) The board ruled that graduate teaching assistants are primarily students, not employees, and thus are not eligible for collective bargaining.

The ruling reversed a 2000 ruling by a previous NLRB that had found that they were eligible. In the interim, graduate students at New York University voted to unionize and NYU negotiated a contract with the union, affiliated with the United Auto Workers. But in the wake of the 2004 ruling, NYU announced that it would not continue to negotiate a new contract with the union, and a strike that would have forced negotiations failed.

Since then, some graduate students and unions have been waiting for an NLRB that might reverse itself once again. But the start of the Obama administration has been disappointing, with Senate Republicans blocking votes on the president's nominees -- two of whom were seated this month only after President Obama used a recess appointment to put them in office without a confirmation vote.

With the new members, the board will "look at the real-world consequences" of decisions, at "social needs and social facts," and "not just dive into dictionaries" to discuss the meanings of various words, Liebman said. She gave an example of how this approach might work by noting her dissent in the decision denying that graduate students are entitled to collective bargaining. "I took the view that graduate teaching assistants provided services to their employer in return for compensation" and thus were clearly entitled to the protections of employees, including the right to unionize, she said.

To bring a case to the NLRB, a group would need to attempt to unionize, and a university would have to contest its right to do so. At that point, the dispute would move to the NLRB, with a regional officer most likely reviewing the case first, before it later moved to the full labor board. All of which raises the question of where graduate students might make their move. Several universities -- including Columbia and Yale Universities and NYU -- have long organizing histories and were in various stages of unionization when the NLRB's ruling in the Brown case came down.

Graduate students at one private university -- the University of Chicago -- are talking openly about a challenge to the NLRB's ruling. A group called Graduate Students United is currently reviewing the options, including remaining independent of national unions, or joining one of four with which it has been in touch: the American Association of University Professors, the American Federation of Teachers, the Industrial Workers of the World and the Service Employees International Union. The Web site of Graduate Students United outlines a number of grievances with the university, over issues of pay, health insurance and working conditions.

Andrew Yale, a Chicago graduate student on the Affiliation Committee of the group, said that the union has also talked with the United Auto Workers. He said that in addition to the possibility of affiliating with one of the national unions or remaining independent, the students have asked about joint affiliations, where two national unions might organize together. In May, each union will visit the campus to meet graduate students, who will vote on the decision about which group to work with later that month.

With a few (brief) exceptions, private research universities have generally opposed unionization of their graduate teaching assistants. However, a statement issued Monday by Jeremy Manier, a Chicago spokesman, in response to a question about whether the university would invoke the NLRB ruling, was low key. "University administrators are engaged in constant dialogue with graduate students about a range of issues, and are always open to input or suggestions from any campus group," he said. "The decision of whether to form a union belongs to the university’s graduate students. It would be premature for the university to take a stance on this issue before learning what the majority of graduate students wishes to do.”

Dealing With the Yeshiva Decision

While Liebman was encouraging to union leaders about graduate students at private universities, she was less encouraging about the unionization of faculty members at private colleges and universities. As Liebman noted, the standards on this issue were set not by the NLRB but by the U.S. Supreme Court, in the 1980 Yeshiva decision that found that private tenure-track faculty members have too much managerial authority to be eligible for collective bargaining.

That decision largely killed off organizing of tenure-track faculty members at private colleges, although some existing unions were not challenged and, in a few cases, the NLRB or courts have found working conditions for faculty members at specific colleges to be sufficiently different from those examined by the Supreme Court that Yeshiva need not be applied to bar a union.

Liebman said that the NLRB "has had difficulty with the courts" when trying to outline areas where private college faculty members might unionize. The board "has tried to limit the adverse impact of the Yeshiva doctrine," she said, "but it seems like every time we do that we get shot down by the courts." She said she believes that many federal courts would have "skepticism if not hostility" to any decisions clearing the way for private faculty unions.

Given that NLRB rulings can be challenged in court, she said it was important not to expect "too much radical change."

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