Why The NLRB Should Allow Graduate Student Bargaining

Jon Weinberg’s recent post analyzed why the Board should overrule Brown University and hold that Columbia University graduate student assistants are statutory employees within the meaning of Section 2(3) of the NLRA.  In a brief I co-authored and filed on behalf of the American Association of University Professors, AAUP explained why the Board should allow graduate student bargaining in the Columbia University case.  The brief makes three main arguments.  First, that the money graduate students are paid to teach, do administrative work, and research is called financial aid is not determinative; more important than the name financial aid is the substantive fact that the money is compensation for services performed.  Second, academic freedom exists at public universities where faculty and graduate students bargain collectively and at New York University, a private university that has voluntarily recognized and entered a collective agreement with a union of graduate student assistants.  Third, the best available empirical research on higher education practice shows unionization enhances student-faculty relationships rather than harming them.

Throughout the American economy, employers and their lawyers are devising methods to manage labor forces performing the company’s core services while avoiding the legal responsibilities inherent in the employment relationship.  Universities are no exception.  Graduate student teaching, research assistance, and administrative work is integral to the modern research university, and universities should not be able to evade collective bargaining by labeling their labor educational.

The fact that graduate student assistants have an educational relationship with the university does not mean they are not also employees when performing the work of teaching or research for which they are paid.  The Regional Director’s findings in the Columbia University case establish graduate student assistants “work[] for another in return for financial or other compensation,” which is the test laid down by the Supreme Court for NLRA employee status in NLRB v. Town & Country Electric, 516 U.S. 85, 91 (1995).  In Boston Medical Center the Board held that residents and interns are employees, even though their work is required to complete the educational requirements for certification in a medical specialty.  330 NLRB 152, 160 (1999).  Similarly, in Shephard’s Uniform and Linen Supply, 274 NLRB 1423 (1985), the Board ruled, in part, that students performing maintenance work for academic credit as part of a high school vocational educational program are employees under the Act.

At Columbia, graduate students sometimes substitute entirely for permanent or adjunct faculty, such as in teaching a section of a core humanities course, an elementary or intermediate language class, or an undergraduate writing class.  The Trustees of Columbia University in the City of New York, Supplemental Decision and Order Dismissing Petition at 18-19, 21.  These graduate student instructors typically “develop a syllabus, select reading texts, and create lesson plans,” and they conduct all classes and grade all exams and papers.  Id. at 21.  At Columbia, 700 undergraduates take the Core Curriculum Art Humanities Course each semester, which requires that the Department of Art History and Archeology run 40 sections of the course each semester.  Two to five regular faculty teach in the section, along with eight to twelve graduate students, twelve or thirteen post-doctoral fellows, and a few adjuncts.  Id. at 18.  It would be impossible for Columbia to teach that many undergraduates in that many sections relying solely on the faculty and adjuncts without dramatically increasing the faculty teaching load.  The relatively slight training in teaching that Columbia offers to its graduate student assistants suggests that Columbia aims less at cultivating graduate students as classroom teachers for the benefit of the graduate students and more at ensuring that they teach competently for the sake of Columbia undergraduates whom they serve.

Moreover, like universities generally, Columbia treats the stipend as payment for teaching or assisting research, not as general financial support to enable the graduate student to attend class or conduct his or her own dissertation research, and the funding is contingent on teaching or on doing the professor’s research.  Id. at 6.  As Longxi Zhao, a Columbia doctoral student, testified at the hearing, when he was fired for allegedly unsatisfactory performance as a TA, his stipend was eliminated even though his status as a student remained unchanged.  Id. at 27.

Collective bargaining by both faculty and graduate assistants is one of several ways to promote academic freedom, as it allows faculty, students, and administrators to discuss collectively how best to do their shared work of teaching and research.  Contractual guarantees to preserve individual academic freedom are an increasingly standard feature of graduate assistant collective bargaining agreements.  The basis for the claim that graduate student unionization would harm academic freedom is the possibility that mandatory subjects of bargaining would include the subjects of study or requirements to obtain a degree.  Such concerns involve the scope of bargaining under the NLRA’s Section 8(d), however, rather than the scope of representation, which is the issue before the Board in the Columbia case.  The Board retains the power to define the subjects of bargaining to exclude subjects that would infringe the academic freedom of faculty and universities.  State courts have found not only that collective bargaining for student employees is compatible with institutional academic freedom, but also that any academic freedom concerns that may arise are best dealt with through collective bargaining.  Regents of the University of California v. PERB, 715 P.2d 590 (Cal. 1986).  Moreover, the Board may seldom need to construe Section 8(d) in the context of graduate students because many collective bargaining agreements covering graduate student assistants expressly recognize the University’s right to control academic matters.

Finally, empirical research finds that graduate student unionization has no adverse effect on faculty-student relations.  Studies published in 2000, 2003, and 2013 have found, as the 2003 study put it, “no conclusive evidence that collective bargaining in and of itself is compromising the student-faculty relationship in general, or the willingness of faculty to serve in a mentoring capacity”; indeed, “data suggest that the clarification of roles and employment policies can enhance mentoring relationships.”  The 2013 study comparing unionized and non-unionized graduate student employees in the humanities, social sciences, and science, technology, engineering and mathematics (“STEM fields”) at eight universities analyzed student-faculty relationships, academic freedom, and economic well-being.  It found that union-represented graduate student employees reported higher levels of personal and professional support and unionized graduate student employees fared better on pay.  Unionized graduate students “had higher mean ratings on their advisors accepting them as competent professionals, serving as a role model to them, being someone they wanted to become like, and being effective in his or her role.”