There seems to be an administration-wide dictate coming from the White House to ensure as many individuals as possible are considered employees under federal labor law. The reason for this is obvious: the more individuals deemed “employees,” the more potential dues paying union members there are.
Just yesterday, the National Labor Relations Board (NLRB) overturned precedent set in its previous Brown University decision and determined that graduate assistants (and a whole host of other student positions, see footnote 1 of the decision for full list) are employees covered by the National Labor Relations Act (NLRA). The case involves graduate assistants at Columbia University and United Automobile Workers union.
Dissenting Board member Philip A. Miscimarra cited one of his predecessors, summing up the thinking of the majority opinion that allows graduate assistants and other related students to form a union:
the Board resembles the “foolish repairman with one tool—a hammer—to whom every problem looks like a nail; we have one tool—collective bargaining—and thus every petitioning individual looks like someone’s ‘employee.’”
This is a decision that is less about whether there is way to construe the NLRA so that graduate assistants are labeled as “employees,” but whether extending collective bargaining to students (who perform work-related activity, but also receive academic credit for the same activity) is appropriate and beneficial to the graduate assistants.
Despite that, it is debatable whether graduate assistants and others should be covered by the NLRA, which is meant to cover economic relationships dealing with industrial life. As noted in Brown, graduate assistants are not employees because they “are primarily students and have a primarily educational, not economic, relationship with their university.”
Also explained in Brown, a great deal of graduate students must teach in order to receive their degree. It could be argued that it is impossible to consider serving as a graduate assistant, which is required to achieve a degree, as employment because it is “inextricably linked” to an educational pursuit.
Besides the debate over whether it is appropriate to tag graduate assistants as an employee, the majority at the Board took the potential pitfalls of its decision far too lightly.
The one-size-fits all component of collective bargaining does not comport well with the individual needs of each graduate assistants and their ability to exercise their preferred academic choices.
Moreover, the economic weapons that come along with collective bargaining may harm more grad assistants than forming a union would do good.
As stated, some students must fulfill a certain amount of teaching assistant duties to fulfill degree requirements. A strike may interfere with that requirement and the student may not be eligible to receive their degree. Meaning they would have sunk a great deal of funds—private university tuition cost over $30,000 on average annually—and have nothing to show for it or, at least, have to spend additional semesters to fulfill the requirement.
A strike could also interfere with financial assistance. Many times serving as a graduate assistant coincides with a tuition waiver or other assistance. If a student stops performing their duties as an assistant, the university could demand tuition payment.
So one possible consequence of extending NLRA coverage to graduate assistants is long term financial strife and possibly not acquiring a degree, which is the primary purpose of seeking higher education.
Another unintended consequence could be a less harmonious and civil campus. As I’ve noted in previous posts, the NLRB has struck down a number of employee handbooks that require employees to treat fellow employees, supervisors and customers with respect. This has led to a number of instances where employers could not discipline employees that cursed out supervisors, hurled racist slurs or wear vulgar gear in the workplace.
Dissenting member Miscimarra aptly summarizes the possible repercussions of the decision:
It will wreak havoc to have economic weapons wielded by or against participants during this expensive procedure [higher education], especially since the weapons include strikes and lockouts—which can stop the procedure in its tracks—and the permanent replacement of the participants themselves!
However, the decision raises systemic problems with how the NLRB operates. As I discuss in the Competitive Enterprise Institute’s Agenda for Congress:
Members appointed to the National Labor Relations Board (NLRB), nearly exclusively, come from the organized labor or management-side law firm ranks. As a result, board policy swings like a pendulum. The Board’s case precedent flip-flops in favor of organized labor or management, depending on whether Democrats or Republicans hold the Executive Office. The NLRB’s biased and ever-changing regulatory landscape makes compliance with the National Labor Relations Act (NLRA) arduous for employees, employers, and unions.
This is the case with whether or not graduate assistants may unionize. For the bulk of the history of the NLRA, graduate assistants could not organize. Then in 2000, under President Clinton, the NLRB allowed them to form unions. In 2004, under President Bush, Brown reversed that decision and now in 2016 the Board has reversed itself again.
Today, U.S. labor policy is determined by the whims of union or employer-side lawyers who comprise the NLRB. Congress must look to address this in the near future in order to bring stability and certainty to labor relations.