Partisan Politics in Labor Law: Do Graduate Students have the Right to make their Voices Heard?

What role do graduate students have at universities? Although they are themselves students, many work as teaching and research assistants. But despite benefiting from this labor, universities are hostile to the prospect of graduate students unionizing, contending that unionization creates an adversarial relationship between graduate students and faculty, which would sidetrack the university’s educational purposes. Most recently, the National Labor Relations Board (NLRB) proposed a new regulation in September of 2019 that will overturn federal recognition of graduate student employees’ right to unionize. Although these students attend universities to learn, their learning experience requires that many of them also work. As in all workplaces, unions are vital for the protection of workers’ rights, distribution of fair pay, and the providing of safe working conditions. Without collective bargaining rights, it becomes significantly more difficult for graduate students to have a voice. 

An essential element of protecting the rights of employees is the ability to collectively bargain, which is guaranteed for employees in the private sector under The National Labor Relations Act (NLRA). But for graduate student workers in nonstandard work arrangements, unionization is not guaranteed. The NLRB hears challenges to this policy through typical court proceedings in which both parties are expected to provide evidence, witnesses, and experts. The board consists of five members who are appointed by the president to five-year terms, resulting in a high degree of partisan policy reversal. In 2000, the Democratic majority gave graduate student employees at private universities the right to organize and collectively bargain in a case brought against New York University. [1] Four years later, under a Republican majority, the NLRB reversed their position in a case involving Brown University, arguing that graduate students did not have the right to unionize. [2] In 2016, after hearing a case brought against Columbia University the Board once again gave graduate students the federally-backed right to unionize. [3] Now, however, with conservative members appointed by Trump in the majority, the NLRB has reverted to its stance in Brown. 

This pattern of partisan reversal decreases the Board’s control in protecting labor rights. Labor analyst and former NLRB chairman, William Gould predicted that Board would overturn the 2016 Columbia decision. After Harvard’s teaching and research assistants voted to unionize in 2018, Gould noted that the university “could simply refuse to bargain on the theory that Columbia University is not good law.” [4] Similarly at Yale in 2017, the graduate student union held votes, but they were never formally recognized by the administration. In this way, the predictable pattern of partisan reversal in labor law weakens the power of existing unions by giving private universities the flexibility to consider denying recognition of unions in the absence of long-standing established practice and precedent. 

The right to unionize is important for protecting the rights of graduate student employees who draw power from numbers rather than position within the institution. Unionization gives graduate students the power to advocate for change. Even without a union in place, graduate students at the University of Chicago demonstrated that it was possible to secure child-care grants and parental-leave policies through direct action protest. [5] But without formal recognition, universities can easily challenge the legitimacy of union votes, which has happened at schools such as Harvard, The University of Pennsylvania, and The University of Chicago. While other policies that might involve protection from sexual harassment or setting fair wages can be enacted either at the federal or university level, unionization ensures that these policies are actually in practice and provides a check on the institutional power of the university. 

In the Brown decision, despite the fact that graduate students teach classes, lead discussion sections, and hold office hours, Republicans chose to identify them as students, characterizing their relationship at the university as “primarily educational, not economic.” [6] They positioned being a student and being a worker into related, yet distinct categories which carries a profound implication for the rights they have access to. This policy, the board claimed, was in the mutual interest of both graduate students and the university because it decreased the possibility of an adversarial relationship between faculty and students. 

Democrats challenged the idea that the nature of the academic realm was outside of labor law’s economic concerns. They also argued that the “inequality of bargaining power” between the university and graduate student employees resulted in policies that favored the university’s interest such as lower wages [7] and cited research that showed universities using graduate student labor to cut costs. Democrats underscored how anti-unionization policies are favorable for universities because of economic interest. Legal scholar Julia Tomassetti argues that Republican theories of labor as presented in Brown ignore the financial interests of the institution, and pointed out that Democrats focused on this omission in their dissent. [8] They acknowledged the work that graduate students performed as teaching and research assistants and pointed to the NLRA as a means to negotiate better pay and working conditions. 

At the core of the Republican argument in Brown was the negative impact unionization might have on faculty-student relations and on academic freedom. In 2013, a study entitled, “Effects of Unionization on Graduate Student Employees: Faculty-Student Relations, Academic Freedom, and Pay,” provided empirical evidence to refute the Republican basis for these claims. [9] Researchers found that graduate student employees in unions reported feeling more supported personally and professionally. In addition, unionization did not undermine academic freedom: unionized graduate student employees reported the same access to educational liberty as non-unionized students. The researchers argued that the potential negative effects on faculty-student relationships and academic freedom cannot be used as evidence to deny graduate student employees collective bargaining rights through unions. This study was then cited in the 2016 Columbia decision that restored the right to unionize for graduate student workers. 

Collective bargaining rights are necessary for workers to voice interests and concerns. Beyond fair pay, graduate students are also focused on negotiating health care coverage, paid parental leave and protections against sexual harassment from advisors. The Board in Columbia University pointed out that “the traditional model of relations between university and student assistants is insufficiently responsive” to their needs. Colleen Baublitz, a union organizer and graduate student at Columbia echoed this idea in an interview with The New York Times, claiming that “Student workers have come together to fight for our shared interests, to fight for protections that we need to feel safe in our workplace.” [10] For Baublitz, unions are essential because of the power drawn from the collective. Beyond partisan interest, labor policy should respect the rights of graduate student employees by acknowledging their dual roles as learners and as teachers.

[1] New York Univ., 332 N.L.R.B. 1205 (2000).

[2] Brown Univ., 342 N.L.R.B. 483 (2004).

[3] Columbia Univ., 364 N.L.R.B. 90 (2016).

[4] Avi-Yonah, Shira, and Molly McCafferty. “Harvard Rep Declines to Say Whether School   Will Bargain With New Union.” The Harvard Crimson. April 23, 2018. https://www.thecrimson.com/article/2018/4/23/university-bargaining-open-question/.

[5]Yaffe-Bellany, David. “Graduate Students, After Gains in Union Efforts, Face a Federal Setback.” The New York Times. September 22, 2019. https://www.nytimes.com/2019/09/20/business/economy/grad-students-labor.html.

[6] Brown Univ., 342 N.L.R.B. 487 (2004).

[7] Ibid., 494. 

[8] Tomassetti, Julia. "Who Is a Worker? Partisanship, the National Labor Relations Board, and the Social Content of Employment." Law & Social Inquiry 37, no. 4 (2012): 815-47. http://www.jstor.org/stable/23357592.

[9] Rogers, Sean E., Adrienne E. Eaton, and Paula B. Voos. “Effects of Unionization on Graduate Student Employees: Faculty-Student Relations, Academic Freedom, and Pay.” ILR Review 66, no. 2 (2013): 487-510. http://www.jstor.org/stable/24369542.

[10] Yaffe-Bellany, David. “Graduate Students, After Gains in Union Efforts, Face a Federal Setback.” The New York Times. September 22, 2019. https://www.nytimes.com/2019/09/20/business/economy/grad-students-labor.html.