A New Chapter for Bargaining?

It still uncertain how the National Labor Relations Board will rule, but a decision for grad student unionization would most likely increase diversity and clarify roles, writes Robert M. O'Neil.

November 19, 2015

The recent resignation of the president of the University of Missouri System and the chancellor of its Columbia campus followed a strike of sorts by university football players. While the athletes did so without benefit of a union, their success draws attention to the way students who have organized -- for collective bargaining or otherwise -- can significantly alter a university’s policies.

In fact, grad students at Missouri had already successfully campaigned against a plan to terminate summarily their health insurance (the administration rescinded the edict for this year), and they continue to seek a longer-term insurance commitment, better pay and full tuition waivers -- as well as to pursue unionization.

For graduate students at private universities, the real action may occur in the wake of last month’s vote by the National Labor Relations Board to reconsider collective bargaining by teaching and research assistants at such institutions. The groundbreaking case involves the New School University in New York City and the United Auto Workers, and the NLRB’s final decision in the matter could have far-reaching implications.

The issue of grad student unionization at private higher education institutions has a curiously checkered history, reflecting political fortunes since World War II. In 1951, the NLRB declined to offer bargaining rights for private university employees, including academic personnel. Two decades later, however, the board reversed that ruling and declared that the federal labor laws covered academic employees in private institutions. In 2000, when the NLRB ruled that graduate teaching assistants are eligible for collective bargaining and can be considered employees, New York University became the first private university to recognize a graduate student union.

But in 2004, the NLRB changed course yet again, ruling that graduate teaching and research assistants at Brown University were not “employees” because “they have a primarily educational, not economic, relationship with their university.” Thus, when NYU’s initial contract expired, the university’s board declined to renew it in response to the intervening ruling concerning Brown. Keeping the players -- and the rules -- straight during this ever-changing saga has understandably posed a challenge.

To put the issue of grad student unionization at private institutions in a broader context, the legal status of full-time, tenure-track professors has remained far more consistent. Most of those professors are effectively barred from unionizing in the private sector by the Supreme Court’s 35-year-old ruling in the Yeshiva University case, under which faculty members at independent campuses are considered to be “managers” because of their involvement in the governance of their institutions. While there has been much recent discussion of possible reopening of the Yeshiva ruling, such a prospect seems increasingly unlikely.

Indeed, as the Supreme Court in its current term revisits the status of public school unions among K-12 teachers, the primacy of Yeshiva today seems, in most cases, if anything even clearer than it was a decade ago. (I say, “in most cases” because a handful of private campuses, such as Goddard College in Vermont, have voluntarily recognized bargaining efforts by its professors and have simply declined to oppose union efforts. In addition, the labor board indicated last December its potential readiness, specifically in the case of Pacific Lutheran University, to distinguish Yeshiva in certain cases that involve religiously affiliated institutions and non-tenure-track faculty whose role clearly involves less “managerial authority” than that of tenured professors.)

Between the two extremes of graduate students, on the one hand, and full-time faculty members, on the other, lies the anomalous legal status of adjuncts and part-time faculty. Especially in the Boston and Washington regions, aggressive organizing activity by unions such as Service Employees International Union and United Auto Workers has greatly expanded bargaining rights for such contingent faculty, including not only improved salaries and working conditions but even opportunities for promotion to tenure-track positions. Most academic employers at such independent campuses as American University, Georgetown University, Tufts University and a host of others have welcomed such efforts and have been quick to negotiate bargaining agreements.

The legal landscape differs sharply when it comes to unionization in the public sector. Full-time professors, adjuncts and graduate students are mainly either covered by state-enacted public employee bargaining laws or are barred from unionizing by “right to work” legislation. At this point, 28 states have embraced or sanction public employee bargaining, and many public universities have long had unionized graduate teaching assistants. Enjoying hybrid status, some graduate students at three New York private universities (Alfred, Cornell and Syracuse) are already covered by a union contract because they are enrolled at academic units of the State University of New York within those three affiliated upstate private institutions.

The Shape of Things to Come

What will be the long-term implications of NLRB’s recent agreement to reconsider whether graduate assistants at all private institutions are entitled to collective bargaining? Until the board actually rules, the ramifications will remain to be fully appraised. And even then, given the tortured and protracted history of the central issue, it seems unlikely that in this area the board would issue detailed guidance to potential institutions and unions.

Rather, we might expect the shaping of that emerging landscape would generally follow the experience within public colleges and universities. We should also recognize that each state is free to adopt whatever laws and regulations it may choose to govern graduate student organizing, as with full-time and adjunct faculty, including the option to be either more or less welcoming to graduate organizing than it is with regard to other public-sector teachers. The potential for such state-level regulatory variation does not, however, necessarily make the eventual outcome any easier to predict or assess.

Meanwhile, as we await further developments from the NLRB, the higher education community remains sharply divided on this issue. Groups like the American Association of University Professors and the Association of American Universities are, for example, diametrically opposed in this respect, despite concordance on many other matters like race-sensitive admissions.

Those boards and administrators (and some faculty groups) that strongly oppose graduate student organizing argue that unionization would inevitably intrude upon the optimally collegial professor-student relationship and jeopardize academic freedom. Harvard University President Drew Faust may have put it most forcefully in a recent Harvard Crimson interview: “We really think that it’s a mistake for graduate students to unionize, that it changes a mentoring relationship between faculty and students into a labor relationship, which is not appropriate [and] is not what is represented by the experience of graduate students in the university.” (It is also worth noting that despite their resistance to unionization, a few major private universities have made commendable efforts to enhance both tangible and intangible benefits for graduated student employees. Graduate Students United at the University of Chicago, for example, won substantial pay raises for its members after a series of rallies and “teach outs.”)

On the other side of the table, proponents of the revised NLRB policy argue with equal force that the universities’ fears are at least exaggerated if not wholly misplaced. Such advocates insist that several decades of experience at major public research campuses simply have not documented such concerns. Moreover, the steady explosion of student indebtedness, increased demands upon the time and energy of already burdened graduates, and diminished opportunities for advancement only underscore the case for unionization.

In fact, amid the seemingly endless debates about graduate student unionization, several practical issues have been somewhat overlooked. For one, the growing costs of graduate education (especially for independent institutions) may well diminish racial, ethnic and socioeconomic diversity at a time when the higher education community seeks greater inclusiveness and students are demanding it. Graduate student organizers argue that the mounting financial burdens on such students will inevitably and regrettably diminish diversity.

Indeed, graduate student unionization would appear to enhance prospects both for greater diversity and for the mitigation of onerous financial burdens. Speaking in support of organizing efforts for TAs and RAs, Matt Canfield (an NYU doctoral student and member of the Student Organizing Committee) has argued that “academia will become closed off to people of color, and people with children -- and we want to be ensure that NYU reflects the diversity of the city we’re in.”

In addition, while graduate teaching assistants and graduate research assistants are often treated as homogeneous, there may be reasons for separately reviewing their respective statuses. The mere fact of unionization and the evolution of contract negotiations and board approval could well differentiate more sharply the respective roles and responsibilities of graduate teaching assistants, on one hand, and advanced students who aid laboratory research, on the other. The distinction, though subtle, nonetheless offers clarity. For example, under the exemplary personnel policies of the University of California at Los Angeles, TAs “serve an apprenticeship under the tutelage and supervision of regular faculty members who are responsible for curriculum and instruction in the university,” while RAs “are selected on the basis of scholastic achievement and promise as creative scholars and serve an apprenticeship under the direction and supervision of a faculty member.”

Whatever the NLRB’s final decision and its implications, it’s clear that grad students remain relatively overworked and underpaid -- at the bottom of the academic food chain, one might say. The reality is that they make up a significant portion of the instructional workforce in higher education. The Coalition of Graduate Employee Unions ventures that between half and three-quarters of all university classes are actually taught by graduate assistants or contingent faculty.

Thus, as we await further developments in this already complex and contentious field of law and policy, we might invoke the wisdom of Lisa Simpson (of The Simpsons) regarding student unionization.

As Lisa throws bread on the ground to feed some ducks, a hungry student cohort converges, while a professor with a whip appears and barks, “No food for you grad students until you grade 3,000 papers.” Lisa should claim the final word.


Robert M. O’Neil is the former president of the University of Virginia and of the University of Wisconsin System, former director of the Ford Foundation’s Difficult Dialogues Initiative, and former general counsel of the American Association of University Professors. He is currently a senior fellow at the Association of Governing Boards of Colleges and Universities.


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