Over the past year, American political discourse has been dominated by topics of universal salience: a presidential election, the transition between chief executives, and a Supreme Court appointment. With such weighty matters available to fill our hours of national conversation, seemingly smaller developments have been frequently denied the attention they deserve. The National Labor Relations Board’s (NLRB) decision in The Trustees of Columbia University is one such matter.
In August of 2016, the NLRB found in Columbia University that graduate students at private universities were eligible to join unions. In a 3–1 decision, Board Chairman Mark Gaston Pearce, Kent Hirozawa, and Lauren McFerran all held that such students were “employees” within the meaning of the National Labor Relations Act (NLRA), and were thus entitled to bargain collectively over their wages and working conditions. The ruling has set off organizing drives across the nation, including at Columbia, Harvard, Yale, Duke, Cornell, and the University of Chicago, some of which remain in progress today (public schools do not fall under the jurisdiction of the NLRB, and so are not affected by this decision). However, amidst this frenzy of activity, few have explicitly considered two crucial questions: first, will the NLRB’s ruling in Columbia University last? And second, if the ruling is destined to be overturned, should unionization drives proceed anyway?
The answer to the former question has little to do with the soundness of the decision. Indeed, the 22-page majority opinion is itself carefully reasoned and well-supported by empirical data. To briefly summarize the decision’slogic: graduate students perform work that would make them employees under common-law standards; the NLRA does not specifically exclude graduate students from unionizing; and the NLRB believes that allowing for unionization would promote the NLRA’s goal of encouraging collective bargaining and protecting employee freedom. Collectively, these considerations gave the Obama-era NLRB ample justification for its decision. For non-labor law experts, however, the important detail to keep in mind is that,
[graduate students]frequently take on a role akin to that of faculty, the traditional purveyors of a university’s instructional output… [T]he delegation of the task of instructing undergraduates, one of a university’s most important revenue-producing activities, certainly suggests that the student assistants’ relationship to the University has a salient economic character.
Put simply, graduate students at private universities act like employees, and there is no convincing reason why the NLRB should not treat them as such.
The reason the NLRB’s ruling in Columbia University will likely be reversed has to do with the Board’s willingness to overturn its own precedents. To understand this possibility, it’s helpful to have some background.
The NLRB is a five-member body tasked with construing the NLRA. Its members are appointed by the president to staggered 5-year terms, with the term of one member expiring each year. Traditionally, three of the five NLRB members, including the Chairperson, belong to the president’s party, while the remaining two members belong to the opposition party. As a consequence of the Board’s design, the party in control of the Board changes frequently. Unsurprisingly, this means that the dominant views of the Board oscillate every few years, accounting for one of the two major causes of rapid shifts in Board law.
The second cause has to do with the mission of the Board, which is partly to set labor policy nationally. Since the Board is considered to have some policymaking authority, its members are less constrained than judges are in seeking what they believe to be the “right” outcomes. Thus, even though the Board acts as a quasi-judicial body, its members sometimes act more like lawmakers than like jurists.
Together, these conditions leave the Board less than fully committed to its previous rulings. Oftentimes when the party in control of the White House switches, the NLRB relitigates old disputes. During the last years of the Obama administration, the Board’s Democratic majority overruled a number of holdings by Republican-dominated Boards, including the Reagan-era Board’s interpretation of what constitutes a “joint employer” and the Bush Board’s refusal to protect employees using their company email systems for organizing purposes. In fact, the Board’s decision in Columbia University reserved the Bush Board’s 2004 ruling in Brown University, which itself overturned the Clinton Board’s 2000 opinion in New York University.
With the Trump administration now in office and two seats currently unfilled on the Board, there is little reason to believe that the Trump-era NLRB will hold to the precedent set in Columbia University. The Board already has one Republican member, Philip Miscimarra, who voted against the majority in that case, and the individuals President Trump appoints to the Board’s empty seats will undoubtedly feel the same way. Indeed, the three men on the administration’s shortlist for the positions — Marvin Kaplan, William Emanuel, and Douglas Seaton — all have documented anti-labor leanings. It is difficult to imagine that a Board containing two of those men and Member Miscimarra would leave the controversial Columbia University decision alone.
The only positive news for graduate student organizers is that a reversal may take some time. Former NLRB Chairwoman Wilma Liebman believes that 2018 is the earliest Columbia University could be overruled, and the process could take longer if the Trump administration drags its feet on filling the Board’s vacancies. Major cases (such as a potential Columbia University reversal) can also take years to resolve, with both parties engaging in extensive and time-consuming procedural maneuvers. While the Trump administration might hope to overturn Columbia University by 2018, 2019 or even 2020 are more realistic targets.
With these considerations in mind, should graduate students continue to move towards unionization? Should they engage in what will likely be a drawn-out and expensive legal battle to secure the benefits of a right that might soon be revoked?
There are several factors such students should keep in mind when making such a decision. First, they should forthrightly acknowledge that many current graduate students are unlikely to gain much from the process of unionization. The top private universities have indicated that they will vigorously fight graduate student unionization, and engage in extensive litigation campaigns to avoid recognizing and bargaining with student unions. The process of achieving recognition at any particular school will likely take up to a year (depending on the complexity of the litigation), and even once the school is compelled to accept the union, it can construct all sorts of legal excuses to avoid bargaining with it. Any realistic estimate would find that process of unionizing and negotiating a collective bargaining agreement would take 2–3 years. Graduate students generally only take about six years to finish their degrees, meaning that only those in their early graduate years today stand to see improved wages and working conditions through a union.
Second, this extended timeline for unionization means that Columbia University might be overturned before most graduate student unions are able to negotiate their first collective bargaining agreements. There is a real possibility that the benefits of unionization might not merely be long-delayed, but actually denied. Is a protracted and expensive legal battle worth waging when success might be chimerical?
For graduate students, there is also the further danger that universities will choose to retaliate against individuals who are involved with unionization drives. Private employers often react with hostility to unionization efforts among their employees, and will invent excuses to punish or dismiss those at the head of union campaigns. Such activity is illegal — however, the NLRB is only empowered to impose remedial, rather than punitive, remedies for violations of the law. It can order wrongfully terminated employees to be reinstated with backpay, but it cannot fine or otherwise sanction employers for their unfair labor practices. This impotence is a significant flaw within the NRLA, and one that Congress should have corrected years ago. Nevertheless, so long as it exists, private employers will continue to violate the law with astonishing frequency. One would hope that university administrators would be sufficiently enlightened to avoid sanctioning students who exercise their First Amendment right to free association, but the past behavior of private employers suggests that hope may be in vain.
On the other hand, it is not easy to dismiss the potential benefits of graduate student unionization. Graduate students at small, resource-poor universities are often insufficiently compensated for their work, which is all-consuming. Only a handful will manage to obtain long-term jobs in academia. Moreover, graduate students are not all 20-somethings capable of living on rice and beans; many are older adults with families and children to support, for whom an extra few thousand dollars would go a long way. And while the burdens of teaching may be relatively light at the top graduate schools, there are surely universities where graduate students are overworked as low-cost replacements for faculty. In fact, graduate student unionization could spur faculty growth at some schools by increasing the costs of teaching alternatives. Other proponents cite graduate students unions as a way to fight the corporatization of universities. By giving students a seat at the table, union advocates believe that they can check the drive towards profit maximization at certain schools. These factors all suggest that unionization may be worthwhile for graduate students at some universities.
Collectively, these considerations suggest that there is no universally correct answer to the question of whether graduate students should attempt to unionize in the face of the likely reversal of Columbia University. At some universities, the quality of life of graduate students might be sufficiently poor to warrant taking the risks associated with unionization. Similarly, some graduate students might form unions for the altruistic purpose of aiding those will follow them in the future, and to improve the quality of their schools’ graduate programs. Unions formed with such goals may also be worth fighting for.
However, the obstacles mentioned above suggest that unionization should not be undertaken cavalierly, and certainly not simply for the sake of itself. Attempts at graduate student unionization will undoubtedly produce expensive failure in some cases, and in all cases if the Trump-era NLRB overturns Columbia University. It is also worth remembering that a union might not be necessary if graduate students are already satisfied with their compensation. Ironically, the graduate students at Columbia are probably less in need of a union than students at less well-known universities.
Likewise, graduate students at Yale, who are currently engaged in a hunger strike to force the university to negotiate with their union, have relatively little to gain from their protest. Yale graduate students face far fewer challenges than students at other universities: they are far better positioned to land lucrative positions (in and outside of academia) than are their colleagues at other schools, and PhD students are generally offered as much as $35,000-$40,000 per year plus tuition (including payment for summer research). While that might not seem like much, it is approximately equal to what is offered to students at peer institutions Stanford and Harvard, and the cost of living in New Haven is far less than it is in the Bay Area or Boston. In short, Yale students cannot seriously expect to gain much in the way of salary by striking at this time. Meanwhile, as noted in the Columbia University decision itself, graduate student teaching requirements generally total no more than 15–20 hours a week, with the rest of a student’s time devoted to classwork and research. A meaningful reduction in work is simply not possible when graduate students already have limited hours as is.
Perhaps more importantly, a hunger strike seems to be an inappropriate, tone-deaf tactic given the situation. Hunger strikes are historically associated with grave injustices and serious oppression. They conjure images of Alice Paul, Mahatma Gandhi, and Cesar Chavez, long-suffering individuals advocating on behalf of marginalized groups. When privileged Ivy-Leaguers co-opt the strategy in pursuit of marginal improvements in their working conditions, they exhibit a lack of social awareness and invite mockery from the political right. Ultimately, they delegitimize essential unionization drives elsewhere. While the devotion of the Yale students to their cause is admirable, students at similar institutions should, for now, avoid following their example.
Brett Parker, a senior studying political science, is the managing editor of Stanford Politics.