WASHINGTON -- The National Labor Relations Board announced Friday that it will reconsider a 2004 ruling by the board that took away the right of graduate students at private universities to unionize.
The 3-to-1 vote to reconsider the 2004 ruling was brought about by efforts to unionize graduate teaching assistants at New York University and graduate research assistants at the Polytechnic Institute of NYU. In both of those cases, regional NLRB officials ruled that the graduate students could not unionize because of the 2004 ruling, in which the board found that teaching assistants at Brown University were primarily students, not employees, and thus lacked the right to collective bargaining. (State law governs the unionization rights of graduate students at public universities, and some states permit collective bargaining while others do not.)
In accepting both NYU cases for review, the NLRB specifically said it was going to review the Brown decision, and it invited comment on the issues.
The NLRB has flip-flopped on the issue of graduate student unions at private universities, with votes to back the practice when Democratic appointees have held the upper hand on the board, and votes to take away union rights for graduate students when Republican appointees have been in the majority. Many in the academic labor movement had hoped for the NLRB to move quickly, once President Obama was in office, to restore union rights to graduate students. But the NLRB under President Obama has been the site of intense partisan battles, controversial rulings, blocked nominees and threats by Congressional Republicans to legislate to counter some NLRB rulings. While higher education unions have not been at the center of these fights, the NLRB has been divided on a number of issues along the same way it may split on graduate student unions.
The United Auto Workers, which is seeking to represent both NYU graduate student groups, hoped to use the NYU cases to restore the right for graduate unions. Graduate students and union organizers at other private universities -- especially at the University of Chicago -- are hoping a win by the NYU unions will open the door to unions at many other private universities.
The NLRB regional officials who heard the cases set the stage for the new review when they rejected the union bids, citing the Brown decision. They said that they had to find as they did because of the Brown ruling, but questioned that precedent.
In the ruling on the teaching assistants, the NLRB regional office said: "Whether through teaching or research, the graduate students are performing services for pay which also are in furtherance [of] their studies. 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." The ruling on NYU Polytechnic's graduate research assistants was less explicit in rejecting the Brown decision, but said that the interaction between graduate research assistants resembled a student relationship in some ways but an employee relationship in other ways.
The majority decision announcing review of the Brown ruling was brief, but cited "compelling reasons for reconsideration."
A dissent by Brian E. Hayes said that the only real change since the Brown decision was "a change in the board’s membership."
Hayes also argued that the NLRB shouldn't keep reversing itself on this issue. "Even absent any supplemental information or argument of significance, there is the distinct possibility that my colleagues will change the law in this area for the third time in twelve years," he wrote. "Such a course would tend to undermine both the predictability inherent in the rule of law as well as the Board’s credibility. It would also impermissibly distort both labor relations and student relations stability in the higher education industry."
Officials of the UAW did not respond to requests for comments, but those on the NYU UAW group on Facebook were cheering the NLRB news as a key move forward in their drive for a union. And University of Chicago graduate students are endorsing the NLRB move, via Twitter, as a "major next step" in their drive to unionize.
A spokesman for NYU, John Beckman, said via e-mail that the NLRB move to review the Brown decision was "regrettable" and "particularly unwarranted" in the case of NYU.
"At NYU, we have always believed these individuals are students, not employees: they are admitted as students because of their academic promise, not hired as employees because of their job skills. But beyond that, in the years since 2004, the facts at NYU changed in ways that make the case for grad student unionization even less cogent: assistantships are no longer part of our graduate students’ financial aid packages – for several years, they have received full fellowship support for five years (including full scholarship, a stipend of more than $23,000, and their health care premiums paid for by NYU – a package worth over $75,000 annually) without assistantship responsibilities, such as teaching or grading. Those who do want to teach are hired as adjunct faculty, and as such are paid over and above their financial aid package and are eligible to be represented by the adjunct faculty collective bargaining unit," Beckman said.
Further, he said that including research assistants "is a particularly worrisome development for higher education. What research assistants do is inextricably connected to their personal research and their pursuit of their degrees, and unionization of RAs would raise serious concerns about bringing collective bargaining into the middle of academic decision-making."
NYU has a unique history with regard to graduate student unions. In 2002, NYU became the only private university to recognize a T.A. union. At the time, the relevant NLRB ruling recognized the right of graduate students to collective bargaining. After the Brown decision, NYU regained the right to reject collective bargaining, and it did so in 2005. The union went on strike to try to force the university to recognize it, but the strike fizzled out.
Friday's announcement was the second by the NLRB in recent weeks that it would reconsider important legal issues regarding unions and private universities.
In May, the NLRB requested comment on whether faculty members at private colleges should be eligible to unionize -- something that a 1980 Supreme Court decision largely blocked them from doing.
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