Students or Employees?

WASHINGTON -- Are graduate students who work as teaching assistants and research assistants at private universities entitled to collective bargaining? The answer depends on whether these graduate student employees should be seen primarily as students or employees. If the former, the National Labor Relations Board would have a tough time saying that they have unionization rights. If the latter, the NLRB could easily say that they are entitled to unions.

Many observers of graduate education might well say that these graduate student employees are both students and employees. But when the NLRB last month announced that it was reconsidering the issue, it renewed a debate in which advocates are pushing the idea that one status is clearly primary. The board's announcement suggested that it would like to again declare such graduate students as union-eligible. Such a move (if not blocked in likely court action) would reverse a 2004 decision by the NLRB in a case involving a union bid at Brown University.

Monday was the deadline for interested parties to make their arguments to the NLRB, which has used unionization bids by graduate teaching assistants at New York University and graduate research assistants at the Polytechnic Institute of NYU to reconsider the issue. The dispute is being watched closely by many people without any connection to NYU, as a union victory at the NLRB would boost drives to unionize graduate student employees at many other private research universities. (State laws govern the unionization rights of graduate student employees at public institutions, and states are split on the issue.)

So on Monday, the NLRB received briefs not only from NYU and the United Auto Workers, which is seeking to unionize the graduate students there, but from many other groups as well. The AFL-CIO -- joined by the three major faculty unions in the United States -- is backing the UAW. The American Council on Education, meanwhile, filed a brief backing NYU's position that graduate students are not entitled to collective bargaining. Several other higher education associations joined the ACE brief, and Brown University -- which is content with the 2004 decision -- filed its own brief backing NYU.

Many of the arguments in the briefs go back to the students vs. employees arguments that have resulted in previous NLRB rulings on both sides of the issue (with the union side carrying the day when Democratic nominees dominate the NLRB and the university side carrying the day when Republican nominees dominate the board).

But more attention than in the past goes to a question of whether graduate student employees could be represented by adjunct unions -- a position NYU says it would accept, but that union groups consider inappropriate.

Students or Employees?

In its brief, the UAW argued that the NLRB should abandon the Brown decision and return to the one that was previously the precedent -- a ruling on New York University graduate assistants that found they were eligible for unionization. That ruling led to a contract between the UAW and NYU that marks the only time graduate students have won union rights at a private university. (NYU invoked its right under the Brown decision in 2004 not to negotiate a second contract, and a strike by graduate students failed.)

The UAW brief says that there is no reason to worry about whether teaching or research assistants are also students. "This reflects the simple reality that there is no inconsistency between being a student and being an employee. It is possible to work and to learn at the same time," the brief says. Quoting the decision that was in place before the Brown ruling, the UAW says that what matters is what the NLRB previously held, that graduate student employers are "workers who are compensated by, and under the control of, a statutory employer" and that they should not lose unionization rights "simply because they are also students."

The AFL-CIO brief takes on one of the reasons cited by the NLRB in 2004 to deny collective bargaining rights -- a fear that "the collective-bargaining process will be detrimental to the educational process.” The AFL-CIO brief cites a variety of reasons this should not be a factor, including the record of graduate student unions at public universities, and agreements in which such unions (including the one briefly in place at NYU) pledged not to negotiate over academic requirements. (The brief was backed by the American Association of University Professors, the American Federation of Teachers and the National Education Association.)

The ACE brief, in contrast, frames the issue in the context of the academic freedom that universities need to teach and conduct research.

"The student-faculty relationship is not a static one: Progress in demonstrating a master of subject areas must be guided and monitored and, ultimately a degree awarded, based on academic, not labor standards," the brief says. "Teaching assignments and research requirements for a dissertation are an integral part of doctorate programs and involve quintessentially academic concerns. An improvident exercise of NLRB's jurisdiction over these matters inevitably would harm the universities' core education mission." (Joining the ACE brief were the Association of American Medical Colleges, the Association of American Universities, the College and University Professional Association for Human Resources, and the National Association of Independent Colleges and Universities.)

Brown University's brief says that it is "no exaggeration to state that the future of American private graduate education is at stake in these cases." The brief explains that statement this way: "For graduate students at Brown, both teaching and research are required educational components of their departmental curriculum.... Characterizing graduate students in such fully integrated programs as 'employees' would undermine the fundamental nature and purpose of this model of graduate education. Students are admitted to a graduate program -- not hired into a program. Yet such students would likely have to pay union dues or an agency fee in order to retain their student status if Brown were overturned. This result stands Brown’s model of graduate education on its head."

What About Adjunct Unions?

In 2009, when NYU was starting to face the organizing drive that led to the current cases before the NLRB, the university floated the idea of letting graduate students join the union that represents adjuncts at NYU. The graduate students rejected the idea, saying that they needed their own union to focus on graduate student issues. But the idea was largely adopted by NYU as policy, and the university also moved to stop requiring all doctoral students to take teaching positions. As a result, the university argues in its brief, its graduate students aren't like those at Brown or even like a previous generation of NYU grad students.

Current NYU grad students "volunteer to teach as adjunct faculty, are paid separately for such teaching and are treated in all respects the same as non-student adjunct faculty in the adjunct faculty bargaining unit," the brief says.

As a result, the university argues, graduate students who teach belong in the adjunct union, not a separate body. This isn't just a theory, the brief argues. For the last eight years, some members of the adjunct union have been graduate students and they have been "represented effectively."

The UAW brief questions these ideas, noting past NLRB decisions that have differentiated between the interests of graduate students and faculty members. For instance, graduate teaching assistants aren't generally identified as faculty members in course descriptions, and campus governance systems feature election of graduate student leaders by graduate students, and faculty leaders by faculty members.

"In summary, the board has long recognized that graduate student employees have a separate community of interest because they are students," the UAW brief says. "Their student status does not mean that they are not employees, only that they have interests that differ from those of faculty and other employees."