Blogs > Cliopatria > From the Federal Front

Jul 16, 2004 11:31 am

From the Federal Front

Two decisions, one negative, one positive, from the government yesterday. At Kansas State, on which I wrote previously, a federal judge has revoked a previous order and allowed the university to go ahead with the reassignment of the journalism adviser, Ron Johnson, to its student newspaper. The judge, Julie A. Robinson, held that Johnson’s attorneys had not demonstrated that the reassignment violated Johnson’s First Amendment rights. The strangest comment came from the university’s attorney, who maintained, “There is no evidence that any administrator at the university ever acted, directly or indirectly, to control the content of the Collegian.” Considerable evidence exists to the contrary.

On a positive front, the NLRB correctly reversed its 2000 decision regarding the right of graduate students at private universities to unionize. Noting that the primary task of graduate students is educational and not economic, and therefore not subject to the jurisdiction of the NLRB, the Board expressed its “fundamental belief that the imposition of collective bargaining on graduate students would improperly intrude into the educational process." In this respect, it concluded, “There is a significant risk, even a strong likelihood, that the collective-bargaining process will be detrimental to the educational process." (For a more comprehensive coverage of the issue, try today’s Chronicle piece by Scott Smallwood, subscription required.)

Lauren Nauta, a graduate teaching assistant in history who has led the fight for unionization at Penn, contended that"this ruling shows the partisan nature of the N.L.R.B.,” since “basically this comes down to Bush's Republican appointees overturning the NYU precedent.” Of course, the same could have been said for the three Clinton appointees who, in 2000, overturned 30 years of precedent and held that graduate students did have the right to organize. Both the 2000 decision and this one, of course, had partisan motivations; this one, at least, has the benefit of adhering to the basic principles of labor law and producing a policy outcome that will work to the good of higher education overall.

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Robert KC Johnson - 7/17/2004

In meeting instances such as these, however, it seems to me that graduate student unionization does little to help the problem and creates the added problem of unionizing matters that should remain academic. (I recall an earlier discussion at Cliopatria where it was mentioned that the grad student union at Michigan demanded the imposition of a "learning-to-teach" component in the curriculum.)

The unionization movement, essentially, demands higher pay but still wants grad students to occupy TF positions. If universities truly approach these positions from an economic rather than an educational perspective, and therefore pay more for people to run discussion sections or teach survey courses, why shouldn't they also expand the market? A higher pay scale might make a lot of these positions attractive to, say, experienced high school teachers, or even people from outside academics entirely. I'd certainly say that a 20-year HS teacher is more qualified to teach an entry-level survey than a grad student who has never taught before. Yet the unionization movement wants the relationship to be economic on only one end--they still want guaranteed jobs for grad students, so that they can get the experience necessary to learn how to teach. That's not a defensible position.

Jonathan Rees - 7/17/2004

PS And sorry K.C.

Jonathan Rees - 7/17/2004

Thanks, now it makes sense to me. However, I still have to believe that this has got to make a lot of public graduate student unions very nervous.


Derek Charles Catsam - 7/17/2004

KC --
The problem with your last sentence is that if these universities are exploiting grad students in the way that I have outlined, then irrespective of adherence to labor laws they are NOT doing the right thing. There is a lot of oercion that goes on in history departments, I'm afraid, and few are more vulnerable than grad students.

Robert KC Johnson - 7/17/2004

I would agree entirely that it's not in the self-interest of any good department to underfund its graduate students: such an approach works poorly for both sides. Columbia's History Department, for instance, recognized the problem around five years ago, and cut back on the number of grad students that it admitted, so that it could fully fund all of them for a 4-year period.

Is that the preferable approach? I think so, largely because it also, implicitly, recognizes how poor the academic job market is. It does, however, curtail the number of people who can enter grad school.

In an ideal world, I'd favor dramatically increased funding for grad students, just as I'd favor dramatically increased pay scales for professors. I don't see, however, where the money will come from.

At the same time, with regard to the unionization of grad students issue, I think that for universities, doing what fits into the letter of labor laws and doing what's right is one and the same thing.

Dennis R. Nolan - 7/17/2004

JR, I'm sure you're right in saying that your knowledge of labor history is greater than your knowledge of labor law. The National Labor Relations Act specifically excludes government employers and employees. That leaves public sector labor relations up to the individual states. Most states have adopted public sector bargaining laws and some of those have been interpreted to cover TAs students at public institutions.

The essential problem with the NLRA issue is that the law covers a specific class of people, "employees," and it's not always certain whether a given group fits that category. TAs and the like obviously have both student and worker aspects. For many years the Board regarded the former as dominant and believed that treating them as workers could interfere with the educational process. The Clinton Board reversed that presumption and the Bush Board simply reinstated it. It's a close question, and thus it's no surprise that the Board's position shifts as its composition changes. That's what's supposed to happen with regulatory agencies.

So long as a given agency decision is a reasonable interpretation of the controlling statute, the courts will enforce the it. Eventually a consensus will develop and the "losers" on an issue accept the consensus position. It happens that way all the time in labor law (and other regulatory) matters. Needless to say, we're still a long way from reaching a consensus on this particular question.

Jonathan Rees - 7/17/2004

I'll grant Harvard, Stanford and Princeton. Where does that leave everybody else?


Derek Charles Catsam - 7/17/2004

It seems to me that we need to establish a few things. I am of both sides on this issue, at least as it has been posed here. Sometimes we can hide the actual and important questions in the minutia of legal ephemera without taking into account the situation on the ground. All contentious issues do not have to go to court, believe it or not. In an ideal world, schools would not have to win in court to do the right thing.
I do believe that if teaching is part of graduate training, (and I think that most "pedagogical training" that exists when students are not actually in the room is nonsense -- I am not a big believer that one can simply be taught how to teach. In fact, I think most education programs beyond the elementary school level are giant heaping programs of what my grandfather used to call "shit for the birds.") then it ought not to count under labor laws, simply because PhD sudents ought to be thinking in terms of teaching.
But, and this is a big, giant, enormous, deal-breaking, "but", there are a lot of graduate programs out there for which teaching is not simply part of the process, but which instead is an exploitative form of labor. And it is a form of labor that departments consciously use to favor students, to threaten students, and to cajole students into thinking that what is part of the process is in their self interest. And so students take $2000 a term (if they are lucky) teaching jobs because they have not finished their dissertations, and yet as they teach more (and often new) classes, they don't make the progress on their dissertations that they should. And in turn those same departments ask questions about the progress of the dissertations they are impeding by demanding more teaching (or, more subtly, by making it obvious that more teaching is the only source of more funding).
Courts make lots of decisions. But at the end of the day, ought we not to be asking more from the very programs that purport to be producing the next generation of professors but who instead seem to be a lot more interested in making sure the survey is filled than whether or not their grad students are ready to hit the job market? What courts decide to be legal and what is actually right seem to me to be two different, and frankly at times contradictory, things. That history departments don't choose to base things on what is right but rather on what is expedient strikes me as being precisely the problem. I could give a rat's ass whether the letter of the labor laws recognizes this problem.

Robert KC Johnson - 7/17/2004

I actually do think back to my time as a grad student at Harvard, when there was talk of attempting to unionize the grad students, an early version of what happened at Yale a few years later. I strongly opposed it at the time (the organizers were unable to get enough support to bring it to a vote), because I believed then, as I believe now, that grad students are fundamentally that--students--and unionizing them would intrude on the academic relationship between grad students and their advisors, generally in ways that introduced an anti-meritocratic element into an environment in which merit should reign supreme.

That the only people who can afford a non-unionized grad school environment are the very rich is, simply, untrue. As far as I know, the best package of grad student assistance and benefits comes at (non-unionized) Harvard, with such assistance offered because Harvard understands that this approach represents the best way to attract top-rank students. Stanford and Princeton have followed similar approaches.

On the distinction between public and private universities, I agree that substantively, in terms of mission or function, there is no difference. In terms of labor law, however, there obviously is: in one case, the state or city is the employer; in the other, a private entity is the employer. Simply because some states have (incorrectly, in my opinion) allowed for grad student unionization through state legislation doesn't mean that the NLRB has an obligation to interpret federal law to do so.

Jonathan Rees - 7/16/2004


You got me to read the decision. I don't know if you were relying on news reports, but you can read it too by going here and downloading it in .pdf format:

The issue is whether graduate assistants can be included in a bargaining unit. You are right on the case law. They weren't included in the early cases, but there were no specific all graduate student unions filing complaints back then. The NYU case was a change in precedent, but I don't think it was as major as you suggest.

Your public/non-public employer distinction is simply wrong. As the dissent says, "There is nothing fundamentally different between collective bargaining in public sector and private sector universities." State law can supplement federal labor law, but it can't contradict it (otherwise you'd have a major federalism problem). The majority mentions laws that allow for grad students to bargain with state universities, but that does not require public universities to do so.

According to the logic of this decision, no graduate students are now covered by NLRA no matter what university they work for. The majority uses academic freedom to justify their decision. Of course, they mean the academic freedom of university administrators, not students. This rationale would logically apply to any institution, public or private. If the NLRB hasn't stripped protections for grad students in public universities yet, it's only a matter of time.

I know we differ on this issue, but think back to your early days in this profession. Do graduate students deserve a living wage? Do graduate students deserve health care? I got these things because my institution, the University of Wisconsin at Madison, was the home of the oldest graduate student union in the country. Now every existing grad student union will have to fight just to make it to the bargaining table. Look for more strikes in the future, and plummeting morale in places like Madison where the administration is already resisting.

Without union protection, the only people who will be able to afford graduate school will be the very rich. And as the dissent in this case points out, academic reality has changed in the last 30 years. Graduate students need this kind of help now more than ever. That's why trade unionism has been growing on campuses all over the country in recent years. The NLRB has just decided that grad school will be getting a lot worse before it gets better.

On the last point, I don't have the numbers handy, but public employees everywhere in the United States are organized at a much higher rate than private ones. I'm sure that includes Wyoming and Mississippi.


Robert KC Johnson - 7/16/2004

The precedents are as follows:

Adelphi University 195 NLRB 639 (1972)
Syracuse University 204 NLRB (1973)
Leland Stanford Junior University 214 NLRB 621 (1974)
Cedars-Sinai Medical Center 223 NLRB 251 (1976)
St. Clare's Hospital&Health Center 229 NLRB 1000 (1977)
NLRB v. Yeshiva University 444 U.S. 672 (1980)

(I took editorial liberty in saying 30 years of precedent when I should have said 29.)

In public universities, because the state (or city) is the employer, the issue of unionization comes under relevant state labor law. Of course, graduate students could appeal to the NLRB and say that the state or city was not upholding the law, but that's a completely different sort of case than the question of whether private universities must allow grad students to organize.

On the issue of state-vs-federal pro-union attitudes, I don't think it's possible to generalize. I'm sure that New York or California are friendlier to organized labor than is the national government currently. But I'd also guess that, say, Mississippi and Wyoming are less friendly to organized labor than is the national government.

Jonathan Rees - 7/16/2004


I'll admit that my labor history is a lot better than my knowledge of contemporary labor law, but your explanation here makes no sense. If public universities weren't covered by the jurisdiction of the NLRB, they wouldn't be covered by the National Labor Relations Act which means that graduate student unions there probably wouldn't exist in the first place. Besides, no graduate students organized at private universities until the 1990s, so how can there be 30 years of precedent on this issue?

My guess is that public universities, like state governments in general, tend to respect labor laws more than private employers do. They are also circumscribed by political considerations more than private employers.

Jonathan Rees

PS If I'm wrong, I'd like to hear about the specific precedents and exactly who was bringing the cases.

Robert KC Johnson - 7/16/2004

The precedent consisted of NLRB decisions stating that graduate students at private universities didn't have the right to organize. Public universities are covered by state, not federal, law, and therefore don't fall under the jurisdiction of the NLRB.

David Lion Salmanson - 7/16/2004

Graduate Student Unions have been around at public universities for about that long.