Briefs filed with the National Labor Relations Board on Monday differed sharply in their view of a potential board decision to allow the unionization of private colleges' graduate-student employees in two cases involving New York University. While union advocates said such a move would simply recognize the reality of how private colleges depend on graduate-student workers, private colleges and their supporters warned the board that it appeared poised to change graduate education in ways that would curtail academic freedom and sabotage relations between students and their instructors.
"It is no exaggeration to state that the future of American private graduate education is at stake in these cases," argued a brief submitted by Brown University, which faces the prospect of the board reversing a 2004 decision that prohibited the unionization of its graduate-student assistants.
The American Council on Education joined several other higher-education associations in arguing, "Students enroll in graduate school to complete their higher education, not to work for wages. Their relationship with the university is fundamentally one of a student and teacher, not master-servant."
On the other side of the issue, the Graduate Student Organizing Committee of the United Auto Workers, which is seeking the board's permission to unionize graduate-student assistants at New York University and its affiliated Polytechnic Institute of NYU, argued that the board has been denying such college employees the same basic rights allowed other workers in refusing to let the students unionize. "There is simply no reason why one cannot be both a student and an employee at the same time," its brief said.
The board's solicitation of the briefs—in itself controversial—came as a result of its decision to revisit its 2004 Brown University decision at the behest of union organizers at New York University and Polytechnic Institute. In 2001, NYU became the first private university in the country to recognize a graduate-employee union. But the labor-relations board subsequently held in its Brown ruling that graduate assistants should not be thought of as workers because they "have a primarily educational, not economic, relationship with their university." New York University refused to renew the contract with its graduate employees when it expired in 2005. A regional NLRB official opened the door for the board to revisit the Brown decision by holding last year that some of NYU's graduate assistants have "a dual relationship" with the university that is "both academic and economic," and actually could be considered its employees.
Fight Over Freedoms
The Graduate Student Organizing Committee's brief says the board's 2004 ruling "cannot be reconciled" with a long history of board decisions recognizing various categories of student workers, such as apprentices, as employees under the National Labor Relations Act. "Like apprentices," it says, "graduate student workers are engaged in education while simultaneously performing services for an employer designed to prepare them for their post-graduation careers."
With its holding that graduate students should be thought of as students, and not employees, the Brown decision "also suffers from a fundamental logical flaw that has tremendous potential to distort thinking about academic employment," the brief says. "We all have several identities including our personal, family, demographic and job characteristics," the brief said. "No one would think to question whether someone can be both a father and an employee at the same time, or to create a balancing test to try to determine whether an individual is "primarily" a father or "primarily" an employee."
In addition, the brief argues, the Brown decision relied "on unsubstantiated and unsupported speculation about damage that collective bargaining might cause to academic freedom and student-faculty relationships." It argues that the unionization of graduate-student employees has not had negative consequences—an assessment that is disputed in briefs filed by private colleges and higher-education associations.
Brown University's brief argues that characterizing its graduate assistants as employees "would undermine the fundamental nature and purpose of this model of graduate education." It says such students "are admitted to a graduate program—not hired into a program," yet would likely have pay dues or fees to their union "in order to retain their student status" if the 2004 decision is reversed. It characterizes academic freedom and graduate-student unionization as irreconcilable, saying there is "no empirical research whatsoever suggesting that collective bargaining could be reconciled with the right of faculty to establish degree and curricular requirements at private institutions of higher education."
A brief filed by New York University argues that the board's decision to solicit outside advice on questions decided in the Brown case suggest that the board intends to use the New York University and Polytechnic Institute cases "as a vehicle to make sweeping changes in settled law regarding graduate students at the nation's private universities." It accuses the board of heading in such a direction "based not on any new evidence or arguments, but solely on its changed political composition," which flipped from majority-Republican to majority-Democratic when President Obama succeeded President George W. Bush.
New York University's brief also alleges that the collective-bargaining agreement in place there before 2005 led to the filing of multiple union grievances threatening its academic autonomy.
"Petitioners urge a cynical view, that the university is just another big business, that graduate students are no more than wage earners, and that using graduate student teachers and researchers is merely a cost-saving measure," argues the brief that the American Council of Education filed in conjunction with the Association of American Medical Colleges, the Association of American Universities, the College and University Professional Association for Human Resources, and the National Association of Independent Colleges and Universities. It argues that "the essential nature and mission of the university has not changed," and continues to depend on the university's academic freedom to make decisions on educational matters. "The academic student/teacher relationship is, and should remain, removed from the issues that our labor laws address," the brief says.
Too Wide a Net?
The regional NLRB official who suggested that New York University's graduate students could potentially be thought of as employees held that graduate-student adjuncts, research assistants in all disciplines, and graduate students in certain part-time hourly jobs share common interests that would entitle them to belong to a single bargaining unit, if their unionization were allowed.
New York University's brief challenges the idea that the unionization of research assistants should even be a consideration in the case, arguing that they do not provide services in exchange for compensation and are simply performing the research required by their academic programs. The union's brief argues that research assistants at NYU and Polytechnic Institute should be considered employees because they perform work under the university's direction and are paid for it.
The briefs submitted to the NLRB also disagree over the question of whether the unionization of resident physicians at medical colleges, which is allowed under a 1999 NLRB decision involving the Boston Medical Center, represents a precedent that supports giving graduate students the right to collectively bargain.
The Committee of Interns and Residents, a national organization of unionized resident physicians affiliated with the Service Employees International Union, argues in a brief submitted to the board that predictions such unionization would hurt medical education have been proven wrong. It argues that, contrary to assertions that unions would wedge themselves between resident physicians and those training them, "unionization has led to greater collaboration between residents and their employer-hospitals in ways that have improved training and patient care."
The brief filed by the American Council on Education and other associations argues, however, that the Boston Medical Center precedent does not buttress the union's case. It said the NLRB has previously refused to apply the Boston Medical Center precedent to disputes involving the unionization of graduate students, because the medical residents covered by the Boston ruling had already earned their degrees and did not have the same educational relationship with their institution that graduate students have.