Fact and Fiction About Graduate Student Unionizing

Catherine Fisk

Catherine Fisk is the Barbara Nachtrieb Armstrong Professor of Law at UC Berkeley Law, where she teaches and writes on the law of the workplace, legal history, civil rights and the legal profession. She is the author of dozens of articles and four books, including the prize-winning Working Knowledge: Employee Innovation and the Rise of the Corporate Intellectual Property, 1800-1930, and Labor Law in the Contemporary Workplace. Her research focuses on workers at both the high end and the low end of the wage spectrum.  She has written on union organizing among low-wage and immigrant workers as well as on labor issues in the entertainment industry, employee mobility in technology sectors, employer-employee disputes over attribution and ownership of intellectual property, the rights of employees and unions to engage in political activity, and labor law reform.  She is the co-author, with UCI Law Professor Ann Southworth, of an innovative interdisciplinary casebook, The Legal Profession. Her current public service includes membership on the SEIU Ethics Review Board, the Board of Directors of the Wage Justice Center, and committees of the Law & Society Association.  Prior to joining the founding faculty of UC Irvine School of Law, Fisk was a chaired professor at Duke Law School, and was on the faculty of the University of Southern California Gould School of Law and Loyola Law School in Los Angeles.  She practiced law at a boutique Washington, D.C. firm and at the U.S. Department of Justice.  She received her J.D. at UC Berkeley, and an A.B., summa cum laude, from Princeton University.

When the NLRB in Columbia University held that university student workers are “employees” with the right to unionize, it restored at private universities a right student workers had between 2000 and 2004, a right that their counterparts have had in medical education for almost 20 years, and, most compelling, a right that many public university student workers have had for almost 50 years.  Given this long history of unionization — about 64,000 grad students at public universities in ten states are unionized — I am astonished that university lawyers and PR people are still arguing with a straight face that unionization will undermine education.  Let’s look at the universities’ arguments and at the facts.

Mentoring Relationships.  Universities argued to the NLRB, and to the press, that graduate student unions prevent or undermine the mentoring relationship between faculty and students.  The NLRB majority thought the empirical studies of the effect of unionization on educational mentoring relationships showed otherwise.  A 2013 study comparing student-faculty relationships, academic freedom, and economic well-being across unionized and non-unionized campuses confirmed the findings of prior surveys: unionization does not interfere with faculty-student relationships or harm the education or training of graduate students.  Indeed, unionized graduate students reported higher levels of personal and professional support and unionized graduate student employees fared better on pay.  Additionally, 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.”

One reason that unionization does not affect mentoring is that faculty mentors do not set teaching assistants’ or research assistants’ terms of employment; the university administration does that.  As the California Public Employee Relations Board explained 20 years ago in finding that grad students at the University of California are employees under California labor law, “[t]he mentor relationship . . . is limited primarily to the relationship between a graduate student and a dissertation committee chair, or sometimes a committee member.” Collective bargaining over teaching would have no impact upon that relationship because it is “extremely rare for the same individuals to have been in both an employee-supervisor relationship and a student-faculty mentor relationship.”

Educational Requirements.  The dissent in the Columbia case also echoed the complaint of universities that collective bargaining over terms of employment will prevent universities from dictating which kinds of hands-on training in teaching and research are required to obtain a degree.  Again, the years of experience at public universities, and the recent experience at NYU (which voluntarily recognized a student employee union and has negotiated two collective agreements with it), suggests otherwise.

As the Columbia majority explained (relying in part on briefs filed by the American Federation of Teachers and the American Association of University Professors, the latter of which, I co-authored), universities with graduate student unions typically have contracts giving the university the right to dictate courses taught, course content, methods of instruction and assessment, and the requirements for obtaining a degree.  The current NYU graduate student union contract gives the university the right to “determine … qualifications … and assignment of graduate employees; to determine the process and criteria by which graduate employees’ performance is evaluated; … to schedule hours of work; … to determine how and when and by whom instruction is delivered; … to introduce new methods of instruction; … and to exercise sole authority on all decisions involving academic matters.”

Honor Codes.  In a recent piece in the Huffington Post, a law professor suggested that the Columbia decision will make university honor codes unenforceable.  He uses the example of my alma mater, Princeton, whose Policy on “Respect for Others” he says is “dead on arrival if it ever comes before the Board.” Princeton’s policy, he says, bans “abusive or harassing behavior, verbal or physical, which demeans, intimidates, or injures another because of personal characteristics or beliefs or expression,” and “expressions of hatred directed against any individual or group,” which he says conflicts with rights under the NLRA.  Not so.  The Board has upheld courtesy policies so long as they are not overbroad.  And plenty of universities with unionized student employees, including my own (the University of California) have and enforce such policies.  When such a policy prohibits criticism of co-workers or management, it violates the NLRA.  The Columbia dissenter complains that unionization will prevent universities from maintaining rules requiring “harmonious interactions and relationships” with co-workers.  Indeed, it should. No employee (grad student or faculty) should be disciplined simply for being inharmonious, if the reason is that the employee complained about pay or abuse.

Strikes.  The Columbia dissent’s principal argument about how the right to unionize will “wreak havoc” on education is that student workers might strike, or universities might lock out and/or permanently replace student workers.  There are few examples of graduate student strikes, and none (so far as I am aware) of universities locking out or permanently replacing striking teaching or research assistants or cafeteria workers.  The reason is obvious:  both the workers and the universities apparently feel there are better ways to resolve disputes.  Of course, grad students have from time to time gone on strike, as recalled by a New Yorker writer who remembered a two week grade strike when he was a Yale senior in 1996.  But what the Yale history shows is that workers can strike whether they have a legal right to do so or not.  Indeed, Congress enacted the NLRA in 1935 precisely because they thought requiring employers to negotiate with unhappy workers would provide a peaceful outlet for complaints about working conditions.

Intellectual and short-term employment.  A final argument made by the Columbia dissenter is “the inappropriateness of blindly imposing collective bargaining and the rest of the NLRA on students in the academic world” because, he says, “instruction-related positions do not turn the academic institution they attend into something that can fairly be characterized as a workplace” and because there is frequent turnover in student employment.  Graduate student unionizing has caught on precisely because the pay and benefits grad students receive for teaching, research, and working in labs matters.  Intellectual work is work nonetheless, especially for those who depend on it for their livelihood.  Eighty years ago, when screen writers sought to unionize, the movie studios argued that they weren’t employees because they worked for short periods, often at odd hours, with little supervision, doing work that could not be standardized, and many were highly paid.  The NLRB rejected those arguments, finding that the short-term nature of the work and frequent turnover weren’t much different from construction work, and intellectual and collaborative workers had the same concerns about money as factory workers.  And so collective bargaining has worked in Hollywood ever since, just as it has in the university where I teach.

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