A Debate Reopened

New decision sets stage for fresh look at whether graduate and research assistants have right to unionize.
June 21, 2011

When graduate students teach some classes as instructors while also taking others as students, what are they, exactly -- workers or students?

This question has been at the heart of a series of National Labor Relations Board decisions over the past 10 years that have tried to determine whether graduate and research assistants have the right to unionize. Each new decision has reinterpreted the precedent set in the previous one, with each new ruling often depending on the political make-up of the board (which, in turn, depends on the party occupying the White House).

Last week, a regional official of the NLRB issued a new ruling that set the stage for the NLRB to find that teaching assistants are employees entitled to unionize. The decision technically cited the most recent NLRB ruling, which found that T.A.s are students and not given the right to unionize at private colleges and universities. But the decision used language to suggest that this precedent was incorrect -- and the decision's logic was embraced by union advocates who will now bring the case to the NLRB asking for a new ruling.

In his decision, Elbert F. Tellem, acting regional director in the NLRB's New York office, did not grant a petition that was filed by the Graduate Student Organizing Committee/United Auto Workers, in which the union was asking the board to review a previous decision to dismiss the union's bid to represent graduate students at New York University. At the same time, he also noted that past precedent may need reconsideration and that "a unit including all graduate students would be appropriate."

The precedent controlling Tellem's decision was a 2004 NLRB decision involving Brown University graduate students. That decision held that graduate students who are admitted to -- but not hired by -- a university, and who teach and conduct research as a key part of their academic development, are not considered employees. Therefore, the ruling's logic has held, graduate and research assistants are not eligible for collective bargaining rights.

But Tellem questioned the logic that undergirds the Brown decision and that buttresses NYU's argument, saying that, at NYU, evidence suggests that the relationship between the graduate students and the university is both academic and economic -- and that this relationship holds constant regardless of the ways in which the students are funded, and regardless of whether the university thinks the graduate students and research assistants have enough interests in common.

"Whether through teaching or research, the graduate students are performing services for pay which also are in furtherance [of] their studies," Tellem wrote. "That the employer pays for these services pursuant to its financial aid budget, instructional budget, operational budget, or through federal grants, is irrelevant to an analysis of employee status or community of interest."

NYU has seen perhaps the fiercest battles over the rights of graduate and research assistants to unionize at private universities (state law governs these rights at publics, many of which have unions). Last month, graduate and research assistants at Polytechnic Institute of New York University filed a petition to form their own union. The UAW said that NYU and NYU-Poly were the only two private campuses at which the union was organizing graduate students and research assistants (it is more active at public universities). Graduate students at other private universities, however, have been closely watching the NYU organizing drives to see if they could also win backing from the NLRB.

In the case involving NYU's main campus, the university is arguing that graduate students have more in common in their teaching duties with adjuncts, especially since teaching assistant positions had been eliminated for graduate students. Those who choose to teach do so as adjunct faculty, NYU has said, and these T.A.s are represented by the UAW -- an arrangement to which the university has not objected.

The university reiterated this position in a statement it issued in response to Tellem's ruling. "We fundamentally disagree with his analysis and conclusion that a graduate student bargaining unit would be appropriate in the event that the Brown case is reversed," said John Beckman, NYU spokesman. "The regional director's analysis ignores the facts of this case." (NYU has also argued that graduate students are students, not workers.)

But Tellem concluded otherwise, citing the testimony of faculty members and the university's manuals and handbooks. The decision quoted Andrew Ross, professor of social and cultural analysis and a union supporter, as saying that faculty members do not consider graduate students to be adjuncts. "They're not treated as adjuncts, they're not perceived as adjuncts, they're not referred to as adjuncts," the ruling quoted him as saying.

Adjuncts teach their courses without interacting with the regular faculty, and they have no role in the social, political and cultural life of the department, Tellem wrote. In contrast, he observed, graduate students are seen as being part of the intellectual life of the department: they regularly attend colloquiums, workshops and meetings and work closely with the faculty.

NYU also argued that the establishment of fellowships, which no longer require teaching and research as a condition of funding, had effectively uncoupled the academic and economic functions of graduate students. The fellowships, which are chiefly for those in the Graduate School of Arts and Science, come with a $23,000 stipend plus full tuition remission and fully paid health insurance. They are intended, said NYU, to guarantee graduate students five years of funding without the burdens of teaching or research; the idea is to help shorten doctoral candidates' time to degree.

Similarly, NYU contended that decades of precedent had held that research assistants who conduct their doctoral research with money from external grants should also be barred from a bargaining unit since they are not paid by NYU. Tellem disputed this logic, writing that NYU's argument that graduate students are not employees because they are not required by their financial aid packages to work "appear[s] to be a too narrow view of case law," and that many graduate students apparently still teach -- though they do so separately from their fellowships.

He also reasoned that research assistants and their relationship with faculty are the same regardless of the funding source. This research, he continued, is inherently academic in nature. "Because the research itself is intertwined with the subject matter of the student's dissertation," he wrote, "it is often difficult to tease apart the hours worked as RA from the hours spent advancing the dissertation."

Labor advocates hailed the ruling.

"This decision clearly recognizes that we are employees, who work for and receive compensation from NYU," said Jan Padios, a teaching assistant in NYU’s Department of Social and Cultural Analysis. “We’re glad we got a timely ruling. Now we’re going to take this case to the NLRB in Washington D.C., and claim our rights as workers.”


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