More Routes to T.A. Unions

N.L.R.B. revives bids for collective bargaining for graduate students at Columbia and the New School, potentially permitting new challenges to ruling that has limited unionization.

March 16, 2015

WASHINGTON -- The National Labor Relations Board, in two decisions on Friday, gave a lift to efforts to unionize teaching and research assistants at private universities.

The board reversed decisions by an N.L.R.B. regional director to reject union petitions filed by the United Auto Workers on behalf of graduate students at Columbia University and the New School. The union bids had been rejected on the basis of a 2004 N.L.R.B. decision that graduate teaching assistants at Brown University were primarily students and not employees, and thus could not unionize.

The N.L.R.B. has flip-flopped on the issue, and the current board has indicated interest in reviewing and possibly overturning the Brown ruling. While Friday's action did not do so, it created a new vehicle for the board to do so. And further, it means that the U.A.W. may also proceed with other arguments it has made, to date not given a full hearing, that the graduate teaching assistants at Columbia and the New School are sufficiently different from those at Brown in 2004 that they should be given collective bargaining rights even if the Brown decision is not reversed.

So while the N.L.R.B. decisions were a paragraph each, with little indication of the reasoning behind them, they are being viewed as a win for those seeking union rights for graduate students at private universities.

Julie Kushner, director of the U.A.W. region that includes New York City,  issued a statement calling the rulings "a tremendous victory" for a movement that had pushed on despite the Brown decision. "For more than a decade the U.A.W. has fought relentlessly alongside graduate student employees in private universities to win the right to bargain collectively," she said. (The right to unionize at public institutions is governed by state laws, which vary, and some public universities have had teaching assistant unions for decades.)

William A. Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, at Hunter College of the City University of New York, called the N.L.R.B. actions Friday "major procedural steps toward a complete re-examination of the Brown University decision."

Officials of Columbia and the New School did not respond to requests for comment.

Multiple Paths

As the U.A.W. director noted, graduate students have been pushing for years to reverse the Brown decision.

One possibility that has existed since last year is a case involving the right of football players to unionize at private universities. Northwestern University, the subject of the union bid, has urged the N.L.R.B. to reject union rights for the athletes. And one of Northwestern's arguments is that a union at a private university would violate the ruling in the Brown case. The N.L.R.B. could use that case (on which the full board has not ruled) to say something about the Brown ruling. But many legal experts have predicted that, given the apparent differences between football players and teaching assistants, the board will decide on the football players without relying on (or throwing out) the ruling in the Brown case.

But until Friday, that was the only case pending before the N.L.R.B. in which it could take up the ruling on Brown.

Now, there are the Columbia and New School cases. And based on the reports filed by the board's regional director, the full board could use those cases to reconsider the Brown ruling

Or the regional director (and then the board) could grant collective bargaining rights based on the arguments put forward by the U.A.W., which argues to overturn the Brown ruling but also to recognize union rights even if that ruling stands.

In the case of Columbia, the U.A.W. argues that its teaching and research assistants play more of an economic role at the institution than do Brown graduate students. A brief filed by the union says that the substantial revenue Columbia makes from research grants couldn't happen without the economic contribution of graduate students, as employees who bring in revenue.

On the teaching side, the brief argues that Columbia teaching assistants "teach independently" and regularly teach courses that have little to do with their graduate studies. These findings, which the brief says the union can prove, would be different from the N.L.R.B. findings on Brown's teaching assistants.

Columbia's briefs dismissed these arguments, saying that the ruling on Brown University was still valid and that the U.A.W. had only promised proof, not provided proof, that the teaching assistants it seeks to represent are different from those at Brown.

The N.Y.U. Example

Both sides are also looking at the example of New York University. Twice N.Y.U. -- including now -- has been the sole private university with unionized teaching assistants. Both times, the recognition came voluntarily, when the university opted to enter into negotiations without being forced to do so by the N.L.R.B.

The U.A.W. has been regularly reminding the universities where it is seeking to represent graduate students that they could follow the N.Y.U. example. And they can also now point to a tentative agreement on a contract between N.Y.U. and its graduate students that was reached last week, with both sides praising the deal.

The American Council on Education, meanwhile, has urged the N.L.R.B. to preserve the ruling it made in 2004 that teaching assistants are primarily students.

Peter McDonough, interim general counsel of the American Council on Education and formerly the general counsel at Princeton University, said that he thought the "principles" of the board's analysis of Brown T.A.s were still valid, even if there may be some facts that differ in the way Brown and other universities treat their T.A.s. Any review of this kind is likely to be "fact intensive," he said, so a review of facts at Columbia and New School is not bothersome to him.

The key issue, McDonough said, is that the teaching and research performed by doctoral students is "a baked-in component of the educational experience" and not something separate from doctoral education. Graduate teaching and research assistants are "first and foremost students," and not employees, he said.


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