NLRB DECISION ON GRAD STUDENTS

Three GW Bush appointees to the National Labor Relations Board ruled last week that graduate teaching and research assistants at Brown University are not employees for the purposes of the National Labor Relations Act's protection of collective bargaining rights. A press release from the NLRB on the decision is here, and the decision itself is available here as a PDF file. The decision overturns a unanimous NLRB decision from a mere four years ago (the NYU decision, here).

The opinions themselves give a good introduction to the dispute over TA unionization. The majority opinion repeats the university administrators' line that unionization will interfere with educational decisions and impair academic freedom. The dissent counters that such interference would come as a surprise to the students and faculty at the many universities (mostly public) that already have TA unions. The majority argues that the educational relationship between TA and university outweighs any employment relationship that might be present. The dissent focuses on the realities of the employment relationship. The dissent is particularly good on the subject of recent trends in university reliance on teaching assistant labor.

I don't want to be uncharitable, but the majority seems to have little interest in the function of labor law. They seem to view it as a collection of information about congressional views on categories of relationships between people rather than as an attempt to reduce labor conflicts. For the majority, the relevant question is whether TA's have a primarily "economic" or a primarily "educational" relationship to the university; if it's the latter, then the administrators win, because educational relationships are not covered by the rules.

In contrast, the dissent seems to indicate that the function of labor law is to provide a regularization of existing disputes that are characterized by the unionizing participants themselves as labor disputes. It's the disputes themselves that matter, not the formal relationship categories that Congress has helped create. ("Helped create," because even the majority itself argues that congressional silence in the face of NLRB decisions can be indicative of congressional intent. This is a dubious proposition, probably more attractive to advocates than to those who study Congress.) The statute exempts some relationships for policy reasons, to be sure, but the overall function of the act in question is to give legal regularity to disputes that already exist on the ground.

The dissent correctly notes that the majority's ruling is not going to help regularize those disputes. Here are two key passages from the dissent, footnotes omitted:

The question [. . .] is whether the collective efforts of these workers will be protected by federal labor law and channeled into the processes the law creates. Given the likelihood that graduate students will continue to pursue their economic interests through union organizing—even those who live the life of the mind must eat—there are powerful reasons to apply the Act and so encourage collective bargaining to avoid labor disputes, as Congress envisioned. The prospect of continued labor unrest on campus, with or without federal regulation, is precisely what prompted the Board to assert jurisdiction over private nonprofit universities in the first place, three decades ago.

. . .

[The majority's decision] leaves graduate students outside the Act’s protection and without recourse to its mechanisms for resolving labor disputes. The developments that brought graduate students to the Board will not go away, but they will have to be addressed elsewhere, if the majority’s decision stands. That result does American universities no favors.

One final thing that is particularly interesting in this decision, to my mind, is that the majority argues -- and for aught I know sincerely believes -- that university teaching assistantships have not changed in any significant fashion since the 1970s, or at least in any fashion that ought to change how the Board itself interprets the relevant statutes. ["For aught I know?" You've been reading too much William Manning, buddy --Ed.] According to the Republican members of the Board, it seems, "following the law" means rejecting "industrial era" concepts and replacing them exclusively with analysis that the Board itself developed from 1975 until 1999 -- but not a year later. Figure that one out.

The Yale Daily News has an article here, and NYT has an article here.

GW's appointees to the Board are Chairman Robert Battista, Ronald Meisberg, and Peter Schaumber. Two Clinton appointees (Liebman and Walsh) dissented.


MORE: See the AFL-CIO's press release, here. For some pithy commentary, see also Chris Bowers at MyDD here (against the ruling), Evan at The Scope here (ditto), and QD at Southern Appeal here (for the ruling).