Running Out of Time

NLRB gridlock may mean that grad students at private universities don’t get the chance to unionize.

November 28, 2011

When Barack Obama was elected president, union activists cheered -- and advocates for graduate student unions were particularly hopeful. Their assumption was that President Obama’s nominees to the National Labor Relations Board would rule that graduate student teaching assistants at private universities have the right to bargain collectively. And union groups at several campuses were prepared to use such a ruling to push for a vote on collective bargaining.

President Obama has in fact nominated to the NLRB people sympathetic to the labor movement. But nominating is one thing -- getting confirmed by the Senate is another entirely. With a Democratic NLRB member’s term set to expire next month, and Senate Republicans vowing to block any Obama NLRB nominees, there is suddenly a real possibility that the NLRB will not grant graduate students union rights at private universities during the current administration.

That's because when the term of the Democratic member expires, the board will lack the quorum needed to make any decisions. While President Obama could, as he and other presidents have done in the past, use a "recess" appointment to bypass the confirmation process, such moves are highly controversial, and he has been sparing in his use of that process.

The disputes over the NLRB relate to a number of labor-management issues that do not focus on higher education. But the impact on private higher education could be significant. The NLRB has flip-flopped on the issue of whether graduate students at public universities have the right to unionize (with the flips and flops occurring in administrations led by different parties). The currently standing ruling answers that question with a No, and a petition from graduate students at New York University -- designed to lead to a reversal of the previous ruling -- has been sitting and sitting on the NLRB docket.

Graduate students at the University of Chicago – who are hoping a ruling in the NYU case would allow them to unionize as well – last week launched an online petition to encourage the NLRB to rule quickly on the NYU case. The petition calls the decision from the NLRB “long overdue” and urges the board to act before any other terms of board members expire.

"[T]he board’s current approach to graduate student employees is a violation of the internationally recognized right to organize. The denial of this right is part of the broader attack on the labor rights of private and, most recently, public sector workers in the United States," says the petition.

Another potential roadblock to any action by the NLRB emerged last week when The New York Times reported that Brian E. Hayes, a Republican on the NLRB, has threatened to quit before the board can take action on anything. Hayes has in the past questioned the right of graduate students at private universities to unionize. But if he quits – which would suggest confidence on his part that Senate Republicans will block any new Obama nominees – the likely support for graduate student unions by the remaining two members would be irrelevant, as the board would lack a quorum.

The NYU case currently before the NLRB reflects considerable history and contention in higher education. In 2002, with private university graduate students earning union rights under a ruling by the Clinton administration's NLRB, NYU became the first (and, to date, only) private university to recognize a grad student union. The university negotiated a contract with the United Auto Workers unit at the university.

In 2005, after a 2004 ruling by the NLRB took away grad students' right to a union, NYU announced that it would not negotiate a new contract with the UAW and that it believed the union relationship had not been productive for the university. The union went on strike in November of that year, hoping to force the university to recognize the union -- even without NLRB requiring that it do so. The strike was highly visible at the beginning, but gradually lost force and officially ended in September 2006, without NYU recognizing the union.

Leaders of NYU and other private universities have generally argued against graduate student unions, saying that graduate students should be seen primarily as students, not employees – and that collective bargaining interferes with academic decision-making. Union advocates dispute those views, and argue that grad student teaching and research assistants have legitimate issues over wages, benefits, grievance procedures and so forth that are appropriately governed through negotiated contracts.

The right of graduate students to unionize at public universities is governed by state law, not by the NLRB. As a result, some states have had public university teaching assistant unions for decades.


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