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Legal Watch: Reconsidering (Again) Graduate Assistants' Rights to Unionize

By Risa L. Lieberwitz

Decisions by the National Labor Relations Board (NLRB) about the employee status of graduate assistants (GAs) at private universities have been a political seesaw of competing ideologies. Until 2000, the NLRB took the position that GAs are primarily students, not employees with rights to unionize and collectively bargain. In its New York University decision in 2000, the board opened a brief period that redefined GAs as employees; this was followed in 2004 by the Brown University decision, which returned to the previous doctrine. The pending Columbia University case raises the issue once again.

The seeds of Brown were planted shortly after the US Supreme Court decided, in 1970, that nonprofit private colleges and universities are covered by the National Labor Relations Act (NLRA). In 1974, the NLRB held, with little explanation, that graduate research assistants at Stanford University were “primarily students” and therefore not employees under the NLRA. The following year, the board provided more extensive reasoning to find that medical interns and residents were “primarily students” precluded from employee status, because their work as physicians in teaching hospitals was an educational requirement for certification in a medical specialty. The board found that the educational relationship between universities and graduate students was intentionally unequal and thus incompatible with collective bargaining, which would interfere with the university’s academic freedom to control degree programs. This reasoning, though, rested on a shaky foundation. Interns and residents are undeniably practicing medicine, as anyone who has needed medical care in the middle of the night knows. Further, under difficult working conditions— including long shifts with little or no sleep—who needs a union and collective bargaining more than medical interns and residents?

In 1999, the board under the Clinton administration saw the light and held that medical interns and residents can have a dual status as students and employees. In the wake of this turnabout, the board applied the same reasoning in New York University, finding that GAs have an employee status as paid teaching and research assistants, which may or may not be required for a graduate degree and may not even be related to the focus of their dissertation. This window quickly closed in 2004 in Brown University. Under the Bush administration, the board concluded, yet again, that GAs are “primarily students” whose relationship with the university was academic, not economic. Collective bargaining, the board found, could disrupt universities’ academic freedom and the mentoring relationship between faculty members and students.

In the pending Columbia University case, the Obama board invited amicus briefs to address whether Brown should be overruled. In keeping with its long history supporting the rights of graduate student employees to unionize, the AAUP filed an amicus brief, arguing that GAs’ paid work is essential to the university’s ability to carry out its teaching and research missions. Further, years of public university unionization show that collective bargaining agreements include economic benefits as well as provisions that respect individual academic freedom and universities’ decision making about degree programs. Additionally, with NYU’s voluntary recognition of the GA union in 2013, graduate student employees again have a collective bargaining agreement in the private sector.

Several large empirical studies of unionized public universities show that unionization does not interfere with faculty-student relationships or harm the education or training of graduate students. Moreover, the AAUP amicus brief highlights a 2013 study by Sean Rogers, Adrienne E. Eaton, and Paula B. Voos that demonstrates the positive effects of unionization. Survey data analysis revealed that unionized GAs “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.”

The debate over the status of GAs is, of course, more than a game of political ping-pong. Brown disenfranchised GAs by excluding them from statutory rights exercised by millions of other workers. The board should now return to the reality that GAs are employees whose teaching and research enable universities to function. Without a doubt, GAs learn on the job, as do millions of other employees outside of academia with rights to unionize. This should teach us a broader lesson that learning and working go hand in hand—and that GAs, like other employees, should have a right to participate collectively in determining their working conditions.

Risa L. Lieberwitz is professor of labor and employment law at Cornell University and general counsel of the AAUP.

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