On Aug. 23, the National Labor Relations Board issued its long-awaited decision in a case involving whether graduate teaching and research assistants at Columbia University could unionize, resulting in a significant decision that overruled existing precedent on the issue. In its ruling, a majority of the board concluded that student assistants employed by private institutions of higher education can be considered employees for the purposes of organizing and collective bargaining under the National Labor Relations Act. While the decision dealt with graduate assistants, the potential impact on each institution must be assessed on a case-by-case basis. The broad ruling has potential application to both undergraduate and graduate-level teaching and research assistants and thus may have substantial ramifications.
Tracing the history of NLRB precedent, which has changed course over the years, a majority of the board reduced the analysis to its essence: Do graduate assistants function as employees as that term is understood under the labor relations act? The difficulty has been that the act does not actually define the term “employee” in a useful or precise manner and simply applies to “any employee,” subject to certain specified exceptions. And while the definition of “employee” might seem to be universal, the board has applied several different tests to define the term.
For example, in a 2000 case involving graduate assistants at New York University, it used a common law agency test. The common law agency test employs the “doctrine of the conventional master-servant relationship,” which establishes that such a “relationship exists when a servant performs services for another, under the other’s control or right of control, and in return for payment.” The NYU board held that “ample evidence exists to find that graduate assistants plainly and literally fall within the meaning of ‘employee’ as defined in Section 2(3) and by the common law.” However, as one could imagine, the difficulty in applying the common law of agency test at institutions of higher education lies in determining whether the source of that control is primarily educational rather than economic.
Thus, in another case in 2004, the board applied an economic relationship test in order to determine whether graduate assistants and researchers at Brown were employees under the act. Concluding that graduate assistants had a “primarily educational” employment relationship with their universities, the board determined that the primary purposes of the relationship were not economic in nature.
The Columbia Decision
In the recent case, upon weighing the issue of what constitutes an employee, the current board concluded that it “has the statutory authority to treat student assistants as statutory employees, where they perform work, at the direction of the university, for which they are compensated. Statutory coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the act does not reach.”
With this deceptively simple analysis, and by overturning the economic relationship test used in the Brown ruling, the board disregarded the concurrent and requisite student relationship that these graduate assistants have with Columbia. By professing the legal fiction that the existence of this concurrent relationship effectively did not matter -- or would not affect collective bargaining -- the board was able to overlook the myriad of complexities that will be created by its decision and instead relied on its analysis that its decision would further the aims of the act.
Notably, the board dropped a footnote to explain any allegations of an inconsistency between its decision in the Columbia University case to characterize graduate students as employees in order to further the aims of the NLRA and its decision in the Northwestern University case, stating:
“In Northwestern University, 362 NLRB No. 167 (2015), we denied the protections of the act to certain college athletes -- without ruling on their employee status -- because, due to their situation within and governance by an athletic consortium dominated by public universities, we found that our extending coverage to them would not advance the purposes of the act. Here, conversely, we have no reason to believe that extending bargaining rights will not meaningfully advance the goals of the act.”
NLRB member Philip A. Miscimarra criticized that seemingly straightforward analysis in a lengthy dissent to the Columbia decision in which he concluded that the board should not have reduced it to straight employer-employee analysis, given the complexities of institutions of higher education compared to industrial workplaces and the dynamics of the student-university relationship. He raised concerns about the applicability of the NLRB’s policies and procedures, noting “the best interests of students, however, necessarily revolves around whether they obtain the education that costs so much in time and money and means so much to their future. The board has no expertise regarding these issues, and Congress did not adopt our statute to advance the best interests of college and university students.”
Although the decision may be appealed, given the recent ruling, many institutions have immediately begun to examine what life would look like if student assistants unionized. The public sector may prove instructive for this analysis.
Models for the Way Forward?
The NLRB noted that unionization of and “‘collective bargaining by graduate student employees is increasingly a fact of American university life.’ Recent data show that more than 64,000 graduate student employees are organized at 28 institutions of higher education ….”
That is because state public employee relations boards -- the equivalent to the NLRB for public institutions, which do not fall under the jurisdiction of the NLRB -- have characterized student assistants as employees for the purposes of unionizing and collective bargaining.
Citing the American Federation of Teachers’amicus brief, the board noted that “the University of Illinois, Michigan State University and Wayne State University include language in their graduate-assistant collective-bargaining agreements giving management defined rights concerning courses, course content, course assignments, exams, class size, grading policies and methods of instruction, as well as graduate students’ progress on their own degrees … these agreements show that parties can and successfully have navigated delicate topics near the intersection of the university’s dual role as educator and employer.”
Indeed, if the decision stands, the delicate balance that such public universities have struck with regard to that dual role may prove to be the way forward, but it likely does not resolve all the open questions. One example is the yet-to-be-determined impact of an economic strike on a graduate student and their ability to complete their program in the anticipated time. Indeed, in his dissent, Miscimarra notes that “Columbia University and other parties have identified cases where bargaining by student assistants ‘has proven detrimental to the pursuit of the school’s educational goals,’ with ‘strikes and grievances over teaching workload and tuition waivers’ and ‘grievances over classroom assignments and eligibility criteria for assistantships ….’”
Time will tell whether the NLRB’s procedures are the appropriate venue for resolving the concerns of student assistants. In the meantime, given the success of Adjunct Action in organizing adjunct faculty, institutions would be well served to evaluate the current nature of their relationship with student assistants and determine whether the economic and procedural remedies available under the NLRA will further the educator-student relationship or substantially alter a fundamentally academic relationship. As noted in our amicus brief, very real concerns exist about the tension between “collective bargaining under the NLRA (for the protection of the individual worker through the power of the group)” and “the type of individualized educational decision making that is necessary to mentor, guide and evaluate graduate students on their academic paths. Not only are such decisions inappropriate in the collective bargaining context, the very nature of such an adversarial economic relationship could undermine the fundamentally academic nature of the relationship between faculty members and their graduate students.”
As recognized by the NLRB in the Brown decision, the danger of characterizing graduate student assistants as statutory employees under the act is that purely academic decisions could become the subject of collective bargaining, such as course length and content, standards for advancement and graduation, and administration of exams under the broad definition of items subject to collective bargaining. For example, negotiations over whether there must be just cause for discharging a graduate student assistant will be inseparable from negotiations regarding whether a faculty member can exercise his or her discretion to determine whether a graduate student is meeting the academic requirements to continue in the graduate program.
Such decisions regarding a graduate student’s progression toward their degree and their fulfillment of academic requirements are exactly the types that faculty members must have the discretion to make on an individualized basis while exercising due concern for a student’s academic progress and career -- without being hampered by the provisions of a collective bargaining agreement. In the Brown ruling, the board noted that “collective bargaining is not particularly well suited to educational decision making and … any change in emphasis from quality education to economic concerns will prove detrimental to both labor and educational policies.” (Italics added.)
Unfortunately, such complexities will have to be sorted out with current cohorts of student assistants serving as test cases. Perhaps that risk is outweighed by the harm of the current terms and conditions under which student assistants serve. Where people stand on that issue probably depends on their general views of unionization and the specific conditions of their institutions.
Natasha Baker is a partner at Hirschfeld Kraemer LLP in San Francisco. She is on the Board of Directors for the National Association of College and University Attorneys, the co-founder of Title IX ASAP, and the chair of the Higher Education Council of the Employment Law Alliance. In the Columbia University case, the author participated in an amicus brief filed on behalf of the council.
The recent National Labor Relations Board decision granting graduate students at private colleges and universities the right to unionize takes me back to 2000, the last time the NLRB ruled similarly (3 to 2). I was a first-year Ph.D. student at Tufts University at the time, excited to be pursuing a path in literary and critical study.
Not long after that historic NLRB decision bore its first juicy fruit -- an epic 2002 contract for the unionized grad students at New York University -- we began a campaign at Tufts as well. The NYU contract had shown that it was possible for graduate students to receive not only increased stipends across the board but also free health care and other crucial benefits. Moreover, it demonstrated that unionization could win graduate student teachers, TAs and researchers respect that had previously been denied them. Professors from NYU were quoted in the news as saying how the new contract was actually improving their relations with students -- that the respect and decent pay afforded grad students was making it possible to do a better job in general.
Along with a collection of other humanities departments, English became the hub of the organizing for our union effort. We went with the acronym ASET, the Association of Student Employees at Tufts, and affiliated with the UAW -- cool folks with experience from NYU and other grad student campaigns.
Why did English become the hub of our organizing committee? It wasn't because we were the worst-treated or the worst-paid graduate students. As we came to learn, grad student lecturers and TAs in departments like drama or art history were paid just a fraction of what we were receiving for similar work, while some research assistants in the sciences were working far longer hours -- 40 or even 60 hours per week -- for little more pay than we got. Indeed, the gross inequities that became apparent when we started talking to people and gathering union cards from beyond our own departments became yet another impetus for organizing.
It wasn't because we were a bunch of intellectual radicals, either-- although a few of us were, and a few more would become radicalized through the work of the campaign. More crucial, I think, was the fact that it was clear to all of us in the English Department that we were teachers, providing the same type of work, delivering the same courses and awarding the same grades and credits that both adjunct and even some tenure-track professors were. The idea that we weren't employees -- that we were simply “apprentices,” as the private universities were then arguing -- was clearly bogus. (I credit many of our English Department faculty for treating us collegially as well, which helped to reinforce the notion that we were, in a sense, colleagues -- albeit junior ones.)
I found while organizing in other departments that grad students who didn't have that experience of teaching their own courses were more likely to be sucked into the ideology of apprenticeship -- even though their labor was just as essential as ours was. So there would be discussions and arguments.
But it was never just about ideology. There were barriers to organizing that weren't mainly about ideas: the fear of retaliation from hostile faculty, cynicism that students couldn’t really change things, plain old workload exhaustion and backgrounds of privilege that buffered peers from caring too much for the fate of others.
People offered plenty of passive support. They would sign a card and maybe agree to vote for a union if given a chance, and of course they would gladly accept its benefits. Who wouldn't want free health care? But for many of those folks, taking that next step to get actively involved was not on their agenda -- they were busy as heck, after all. Many of our supporters saw the union as a kind of third-party representation that would do stuff for them -- not as a community organization of which they themselves were an essential part.
A related and perhaps even greater barrier we encountered was that many grad students had a willingness to live in poverty for the promise (perhaps some imagined it as a guarantee) that at the end of their three, five or seven years of study, training and research -- and playing nice with their adviser -- they would be rewarded with a well-paid, secure and honorable position as a tenure-track faculty member. They assumed they’d become an assistant professor at an institution -- if not of their choice, then at least on earth and in this lifetime.
Looking back, I can see that even I was subject to that way of thinking at times -- budding Marxist intellectual and reader of Marc Bousquet though I was. Thus, borrowing $10,000 or $15,000 a year in living expenses for several years to supplement inadequate pay for teaching was something I didn't think twice about. I figured I'd be making $70,000 a year before too long. Wasn't I "wicked smaht," like all my professors told me? Given that, the six-figure debt load I was saddled with -- undergrad loans from a private college plus several years of grad student living expenses -- would not be too much to bear.
I'm sure I wasn't alone in this. At least in the early 2000s, the myth that we'd all be able to land that tenure-track job still had considerably more purchase than it does today (although even back then those who studied the trends closely knew better). I remember walking down the hallways at Tufts, confident that, in the near future, I would be like my professors, those well-dressed scholars whom I was wowing with my insightful comments in grad seminars. I would not be like the adjuncts teaching the intro classes and sharing offices and occasionally kicking the copy machine in despair. I would have an office all to myself … with my own starry-eyed grad students lined up around the corner.
Of course, graduate education is in various ways designed to encourage grad students to see themselves as the future tenured star professor -- not as the “lowly” adjunct. (Who were those people, anyway? And did they do research or write or have, you know, ideas? I’m sure that they did, and do. But we ambitious grad students did not want to find out.)
Yet the reality was that the vast majority of us were not going to be landing tenure-track jobs in the near future -- certainly not unless we were willing to move to Timbuktu or Dubai. Indeed, to multiply the tragic irony, as graduate students accepting low pay and a lack of benefits, we were effectively -- if for the most part unknowingly -- helping to undermine the future of our own profession, making it possible for universities to staff classes without investing in solid full-time (let alone tenure-track) positions. We were helping our own longed-for full-time tenure-track jobs to disappear. In effect, to use the vulgar term, we were scabbing on our future selves.
Of course, we could only do this because we were all, each of us, convinced we were sitting on a winning lottery ticket -- or, more precisely, scribbling one at night in the form of our beloved dissertations. And we could only maintain that illusion because we kept our distance from those abject adjuncts.
I've come to see this disavowal of the adjunct as a major weakness, one that we failed to take on adequately in our grad student organizing back in the day. That alienated way of (not) thinking cut us off from the reality of our situation, from our colleagues and our own likely futures. It was the antisocial underside of the belief that we had a merit-based path to a solid middle-class life. This individualist outlook in turn discouraged people -- at least at a place like Tufts -- from fully recognizing either their exploited status or their collective potential. We consoled ourselves with the (debt-buffered) fantasy that these low wages were temporary and that our best bet was to go it alone. Certainly we could hold our breath for a few more years, right?
Don't get me wrong -- most of the grad students that ASET was able to reach were in favor of joining the union. In 2003, our committee collected hundreds of union cards and held an election, which we think we won -- at least, according to our internal polling. We never found out for sure, because Tufts followed the lead of Brown and NYU and filed an appeal with the NLRB claiming that we were "apprentices, not employees" and therefore should not have been able to have a union vote in the first place. Alas, the ballots were boxed, pending the appeal. And after the Brown decision came down in 2004 (with a Bush-appointed board flipping 3 to 2 against our rights), they were destroyed.
Our union campaign didn't cease immediately. Throughout 2004, we kept working to hold things together, aiming our efforts at putting community pressure on the administration to recognize the union voluntarily. We used moral suasion, we wrote op-eds, we held rallies. The administration even made some adjustments and some concessions. Stipends in many departments were raised, and some grievances were addressed. It wasn't a total loss.
But it was a loss nonetheless. To compel the administration, we probably needed something like a work stoppage (or a plausible threat of one), backed by support from community allies. But we hadn't laid the basis for that kind of militancy. In our more immediate focus on merely gathering cards and winning votes, we ducked the difficult yet necessary work of pressing our peers to see themselves as having genuine power, power that stemmed not from the NLRB but from ourselves: our social networks, our labor, our principled arguments and our solidarity with other university workers. Rather than dig a firm foundation, we built on sand. Stripped of NLRB backing, ASET/UAW collapsed into history.
Looking back on it now, I wonder if we should have made the argument for unionizing in deeper terms from the get-go, in more radical and existential terms, instead of lulling our peers with the assurance that all we needed to do was vote and the NLRB would do the rest.
Grad student organizers today should not make our mistakes. Even as they surge to take advantage of this terrific legal opening, they would do well to place their faith not primarily in the NLRB but in themselves --including their future selves (those contingent faculty) -- and in their honest community allies.
One thing that makes the recent NLRB decision exciting is that it seems like grad students today -- at least the ones that I know -- may be less caught up in the individualist and meritocratic fantasies that many of us still had in our heads in the early 2000s. Facts that used to be the property of activists and experts are now widely known: most graduating Ph.D.s won't be landing tenure-track jobs (pending major structural change); most university teaching is now done by contingent faculty; most of those contingent faculty, unless they have the protection of a union, are exploited, expendable and often crammed in a shared closet-office. And also this: contingent faculty across the country are now unionizing in droves and winning contracts and respect that might just make being one of them not such a bad thing after all. (Here I should mention the lecturers at Tufts, who have recently won a union and a solid contract, inspiring further adjunct organizing across the Boston area.)
With such long-disavowed specters assuming flesh and blood among us -- I speak as one of them -- a legally rejuvenated grad student labor movement might become something much more exciting than it was a decade ago. No longer floating meritocratic fantasies on bubbles of debt but instead embracing its fighting future, this new wave of organized grad students might just help change everything.
Joseph G. Ramsey is editor of the volume Scholactivism: Reflections on Transforming Praxis in and Beyond Classroom, now available from Works & Days. A frequent contributor to Counterpunch and Socialism and Democracy, he is a full-time lecturer in the English and American Studies Departments at the University of Massachusetts Boston, where he is active in the Faculty Staff Union and the All-Union Organizing Committee.
The ruling comes at a time of increased financial stress for institutions. Research funding costs are increasing, tuition prices are under pressure and endowments face declines in value, Moody's said. Graduate students are also becoming more important to higher education's business model. However, the ratings agency went on to note that large, research-intensive universities will be most affected by the ruling -- and those institutions tend to be wealthier and are best situated to absorb higher costs and wages from unionization.
Since most graduate student assistants are enrolled at public universities governed by state labor law and not covered under the ruling, the NLRB's decision affects fewer than 78,000 graduate assistants, Moody's estimated. It said about 40 percent of graduate assistants in private higher education are at just 10 universities: Boston, Carnegie Mellon, Columbia, Cornell, Harvard, Johns Hopkins, Stanford and Yale Universities, the Massachusetts Institute of Technology, and the University of Southern California. Increasing the average wage for graduate teaching assistants at those universities would cost each one between $7 million and $11 million annually, Moody's estimated. The increase would be the equivalent of less than 1 percent of each institution's operating expenses.
However, Moody's also pointed out that institutions more moderate in size and means will be pushed to boost their graduate assistant compensation to keep up with larger competitors.
"Increased graduate assistant compensation or a material change in workload could cause modest pressure on operating performance," Moody's wrote. "Since universities with large graduate populations tend to compete nationally, if not internationally, the actions of their peers will outweigh regional standards in shaping the potential financial effects."
After months of deliberation, the National Labor Relations Board (NLRB) has ruled that graduate research and teaching assistants at private universities can form unions, overturning a 2004 decision. Graduate employee unions and graduate students have hailed the ruling -- a response to a petition by graduate employees at Columbia University seeking to form a union -- as a victory for graduate student rights. The decision to allow graduate employees at private universities to unionize has potential to alter the lives of thousands of graduate employees around the United States.
Graduate employees at Columbia will still need to hold an official vote to form a union, but this is a step in the right direction. Of course, administrations of both public and private universities remain critical of the effect that unions will have on institutions of higher learning. However, those criticisms largely reflect the questionable views that there is a special “student-teacher relationship” and that scholarship is more important than compensation.
For the past four years, I have attended the University of Illinois in Urbana as a graduate student. To date, the majority of graduate employee unions have been formed at public universities because, in contrast to private universities, public universities are governed by state labor boards and state labor laws. The Graduate Employees’ Organization (GEO) at the University of Illinois represents nearly 3,000 graduate employees working as teaching and graduate assistants across campus.
What I’ve learned in my time at the university is that a graduate union is not the end of the struggle for grad rights. The experiences of graduate employees at the University of Illinois and other protected institutions demonstrate the overwhelming pressures on those employees to sacrifice their health and well-being to a centuries-old model of education.
In their amicus brief for the NLRB case, The American Council on Education (ACE) criticizes graduate students for wanting to be recognized as employees; they state, “[The] Petitioner’s unabashed purpose is to extend its reach by intruding collective bargaining as broadly as possible into academic matters at the expense of the student-teacher relationship (emphasis added).” ACE assumes that the student-teacher relationship is always beneficial to graduate student education, but the reality is that it can be exploitative. The system as it operates now means poverty and hardship for many graduate employees. Graduate students are increasingly in debt, depressed, and overworked.
In addition, by focusing on the student-teacher relationship, ACE obscures the panoply of relationships that affect graduate employee well-being on university campuses, such as corporate partners, budgetary officers and the board of trustees.
When I served as the grievance officer for the GEO during the 2015-2016 school year, I often saw overworked graduate employees. Even with the protection of a union, graduate employees frequently came to me as someone who would listen to them, but they did not want to report problems to their departments. The student-teacher relationship is one kind of relationship that exists within a complicated web of departmental and university politics. Academic disciplines are microcosms; graduate students often fear being informally black-listed if they speak up about any issues they have with the system, even when their complaints are about violations of the contract, such as overwork and religious discrimination.
ACE is arguing for an outdated image of the university that perpetuates a system in which graduate employees should be grateful for working at all, even if they are overworked, underpaid and lack benefits. In its response to the ruling, Columbia similarly emphasized the primacy of the student-teacher relations. The administration stated that it did not support the involvement of a “nonacademic third party in this scholarly training,” However, the reality is that concerns of other parties often impact university decisions; universities are businesses enterprises, not scholarly silos. Despite the assertion that the student-teacher relationship is at the heart from graduate employee labor, a variety of other parties directly and indirectly affect the availability of appointments, compensation and other benefits. At the University of Illinois, departments are given funding by the college and then determine how to spend that funding; however, other universities may use a more top-down managerial style. In either situation, those people allocating budgets play a crucial role in determining what departments can offer graduate employees.
Although opposition to graduate employee unions is couched in language about the “student-teacher relationship” or scholarly pursuits, university administrators have shown that the conflict is often over money. For institutions across the United States, budgets are tight. For example, the University of Illinois claims to be in a budget crisis, but with a $3.3 billion dollar endowment, there is room for changes to budget priorities. In the past, when the university has been in a financial “crisis,” often of its own making, it has attempted to balance the budget on the backs of graduate employees, despite the fact that graduate employee compensation makes up a miniscule percent of the university’s budget. Similarly, the University of Missouri revoked health insurance coverage for graduate employees because of budget concerns in August 2015. That sparked outrage and ultimately resulted in a vote by graduate employees there to form a union.
Faced with mounting budgetary pressures, some universities have looked to requiring graduate employees pay tuition. At the University of Illinois, graduate employees covered by the GEO receive tuition waivers; that means that their tuition will be waived up to a certain amount, although graduate employees will still have to pay some fees. That right was hard-won after a strike in 2009. However, in 2010, despite their agreement with the GEO, the university attempted to revoke tuition waivers for some graduate employees in the College of Fine and Applied Arts through a change in policy. The GEO challenged that policy change through a grievance and won arbitration in 2011. The university had to repay students in Fine and Applied Arts for tuition paid under that policy.
In January 2016, GEO won another victory in arbitration. In that case, some programs were asking departments that hired their graduate students to pay those employees’ tuition rather than those employees earning a tuition waiver. The arbitrator ruled that asking departments to pay a graduate employee’s tuition effectively kept many qualified graduate students from getting employment. Students affected by these policy changes were struggling to pay bills and to concentrate on teaching and research due to stress. Even in that situation, students were hesitant to come forward, fearing isolation or pushback from their departments.
Graduate employees are in the precarious position of being both students and employees. We face the challenge of navigating departmental and campus politics, while trying to teach, research and publish. The student-teacher relationship allows for exploitation on the basis of future employment, meaning graduate employees must sacrifice their health and well-being for the chance of a good future, an increasingly slim chance.
It is in the interest of everyone in the university system to treat graduate employees as employees. High quality recruits will be more likely to apply a place with more protections. The job security offered by a union contract will also raise the quality of graduate and undergraduate education and research. In addition, unions can foster interdisciplinarity among graduate employees, creating networks that can foster research projects, educational innovation and emotional support. Graduate employees work hard to keep university campuses running; we deserve respect for the work that we do.
Mary Grace B. Hébert is a Ph.D. student at the University of Illinois at Urbana.
Point Park U recognizes a faculty union -- after 12 years and many battles. Could this be sign that NLRB has eroded power of a Supreme Court ruling that limited collective bargaining at private colleges?
Academic labor conference panel discussion focuses on contract provisions for adjuncts that go beyond better pay. Data suggest larger gains for part-timers in bargaining units that are separate from full-time faculty.