Over the past few years, the attention given to the employment status of student athletes has resulted in increased scrutiny over labor issues at universities.   Indeed, just a year after the NLRB declined to assert jurisdiction in Northwestern University, a case involving student athletes, the Board agreed to revisit the status of graduate assistants in Columbia University.  In earlier posts on this blog, Professor Catherine Fisk and Jon Weinberg argued that the NLRB should use Columbia as an opportunity to reverse its 2004 Brown University decision, which held that graduate assistants are not statutory employees under the National Labor Relations Act.  However, these arguments to overturn Brown ignore years of precedent and do not fully address the substantial risk that graduate student unionization poses to academic freedom at private universities.

The Union’s Argument

The United Auto Workers (UAW), which hopes to unionize Columbia graduate assistants, argues that these graduate students are statutory employees under Section 2(3) of the NLRA.  The union’s theory is relatively straightforward; they contend that under a plain reading of the statute, the payment of stipends to graduate students in return for services (teaching, grading, etc.) creates an employment relationship.  They contend that this, in turn, establishes graduate assistants as employees under the NLRA who are entitled to unionization.  After all, this was the determination of the NLRB in New York University (2000).

The union’s argument in Columbia asks the NLRB to overturn its Brown decision, which considered and disposed of the misclassification argument.  In doing so, Brown overruled the short-lived NYU decision, returning to the 25-year precedent from Leland Stanford (1974). Brown relied on the longstanding principle that “a reviewing court should not confine itself to examining a particular statutory provision in isolation.”  Since the Board determined that the NLRA was intended to cover “primarily economic” relationships, the Board declined to assert jurisdiction over the graduate student-university relationship, which it deemed “primarily educational.”

In the years since Brown, labor organizers have maintained that the decision was wrongly decided.  These objections are often based on the dissent in Brown, in which two Board members argued that the “primarily economic” test was not only inconsistent with the plain text of the NLRA, but also woefully outdated.  First, the dissenters claimed that Boston Medical Center (1999), which allowed unionization of medical residents and fellows, produced a standard that the centrality of education and training to a job doesn’t prevent classification as an employee.  Next, they argued that the changing economic environment in academia left the Leland Stanford standard obsolete.  Now, in Columbia, pro-labor groups, such as the American Association of University Professors (AAUP), have adopted these arguments in support of the UAW.

Reliance on Weak and Misleading Precedent

Although advocates of graduate assistant unionization would argue that Brown was based on shaky precedent and misinterpreted the statute, it was actually NYU that ignored years of strong and consistent interpretation.  The NYU standard, which labor organizers seek a return to, was only good law for 4 years.  Prior to that, Leland Stanford had been the standard-bearer for 25 years.  In Brown, the majority correctly noted that NYU’s reliance on Boston Medical Center was misplaced and misleading.  While Boston Medical Center allowed medical interns, residents, and fellows to unionize, all of those individuals had already completed their academic degrees.  Even though those individuals undoubtedly had a training component to their work, they were definitely not students.  Additionally, NYU ignored years of guidance from the Supreme Court that “principles developed for use in the industrial setting cannot be ‘imposed blindly on the academic world.’”

The Risk to Academic Freedom

If the NLRB chooses to overturn Brown it would fundamentally change the academic environment at universities.  In an amicus brief submitted by a group of nine universities (the remaining seven Ivy League schools, MIT, and Stanford), the schools explain that unionization would force universities and professors to negotiate everything from class size to the content of the syllabus.   The universities’ fears are not unreasonable; unionization would subject many academic decisions relating to the terms and conditions of graduate student “employment” to collective bargaining or “effects” bargaining. As the universities’ amicus brief outlines, even a situation as simple as a professor changing the grading structure of an exam could become the subject of a grievance or negotiation.

The proponents of unionizing graduate students often point to certain studies and NYU’s voluntary recognition of a union, as proof that unionization actually improves the academic experience.  However, this argument fails to acknowledge the disastrous protracted negotiations at NYU, in which the graduate students threatened to go on strike and disrupt the entire university.  Additionally, just because one union agreed to reserve academic rights to management, does not mean that other unions would do the same.  Furthermore, the studies referenced by proponents, like the AAUP, are based on results from public universities.  These public university labor-management relationships are subject to state laws and have significant differences from what would be imposed under the NLRA.

Not only would the introduction of collective bargaining disrupt the academic freedom of professors and universities, it would also negatively impact the university’s educational relationship with graduate students.  In Brown, the Board noted that the adversarial nature of collective bargaining would drive a wedge between graduate students and their teachers. “[W]hile teachers and students have a mutual interest in the advancement of the student’s education, in an employment relationship such mutuality of goals ‘rarely exists.’” Essentially, introducing collective bargaining to the university setting would force educators to negotiate academic decisions with unions and follow a rigid contract, rather than create individualized educational experiences for students. As stated in a brief for the Employment Law Alliance’s Higher Education Council, “not only are such decisions inappropriate in the collective bargaining context, the very nature of such an adversarial, economic relationship could undermine the fundamentally academic nature of the relationship between faculty and their graduate students.” Thus, it would be contrary to Board precedent to place the economic relationship between graduate students and universities ahead of the educational relationship.

The Path Forward

While universities should certainly ensure that graduate students receive fair treatment and appropriate financial aid, it would be inappropriate for the Board to insert itself into a “primarily educational” relationship.  The stakes are high, and a decision to overturn Brown might force universities to entirely restructure their graduate student programs and financial aid packages.  The Board should not ignore years of precedent and significant public policy considerations by defining graduate assistants as statutory employees under the NLRA.  The Board’s reasoning in Brown is just as solid today as it was when the case was decided in 2004.  Then and now, “there is a significant risk, and indeed a strong likelihood, that the collective-bargaining process will be detrimental to the educational process.”