When the statements of a United States Senator lead to the conclusion that he is either ignorant or acting in bad faith, I think the more charitable approach is to assume that the Senator is simply uninformed. And, after watching Senator Lamar Alexander, the Chairman of the Senate Health, Education, Labor & Pension (“HELP”) Committee at the hearing on President Trump’s nominees to the National Labor Relations Board, I have reached the unfortunate conclusion that Senator Alexander doesn’t have a clue when it comes to one of the most basic principles of federal labor law.
I don’t expect every U.S. Senator to understand labor law, but Senator Alexander has served on the HELP committee for many years, and he has chosen to become the Chairman of this committee, which is responsible for oversight of the National Labor Relations Board. Yet, his questioning of the NLRB nominees revealed that he apparently has no idea how collective bargaining actually works. Before he became a Senator, Alexander was President of the University of Tennessee, and at the hearing he made it clear that he was quite upset about the Board’s decision in the Columbia University case, finding that teaching assistants who are also graduate students are employees under the National Labor Relations Act. In his questioning of William Emanuel, Alexander started spinning out wild hypotheticals that showed he didn’t understand the holding in that case. Alexander asked whether undergraduates who had work-study jobs could be considered employees, and then demand that the university bargain about whether they could be required to take geology classes. Emanuel, who should know better, refused to set Alexander straight, but the question is based on a basic misunderstanding of the Columbia University decision. Any bargaining would be limited to the employment relationship – the whole point of the Columbia University decision is that the teaching assistants do not lose the protection of the Act because they also happen to be students. But, nothing in the decision suggests that the teaching assistants would have the right to bargain about issues that do not affect their status as employees.
Senator Alexander then went on to lay out some more hypotheticals that he found alarming. For instance, he suggested that the teaching assistants might object to teaching classes before Noon. And while this clearly would be a subject of bargaining, this is where Alexander displayed his ignorance of how bargaining works. Section 8(d) of the NLRA provides that the obligation to bargain in good faith “does not compel either party to agree to a proposal or require the making of a concession.” In other words, teaching assistants can propose that no classes shall begin before Noon, just as they can propose that the university will provide them with free ice cream sundaes every day. In both cases, the university just has to say, “No.”
One bright spot at the dismal confirmation hearing was the concession by both prospective Board Members, in response to questioning by Senator Robert Casey, that it should be the policy of the United States to protect the rights of employees to bargain collectively. While this is simply an acknowledgment of language in the preamble of the NLRA, it is at odds with the actions of Senator Alexander and other Republicans in Congress. Recall that the Browning-Ferris decision, which has generated so much hysteria from Republicans, is simply a holding that a lead firm may have to bargain with its contractors’ employees regarding terms and conditions of employment that the lead firm controls. Similarly, the Columbia University case only holds that teaching assistants have a right to organize and bargain collectively. If they make crazy demands, the universities can just say, “no.” But, the more likely outcome, once the two sides sit down across the table from each other, is that cooler heads will prevail, both sides will make compromises, and the result will be an agreement that everyone can live with.