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Graduate Students as Protected “Employees”
Last week, the National Labor Relations Board held that the graduate students of Columbia University who work as teaching assistants, including any research assistants “engaged in research funded by external grants,” are statutory employees protected under the National Labor Relations Act, and thus entitled to join an elected union of their own choosing. The three-member Democratic majority held in Trustees of Columbia University v. Graduate Workers of Columbia-GWC that graduate students were employees under Section 2(3) of the NLRA. This section provides, most unhelpfully, “the term ‘employee’ shall include any employee,” with exceptions irrelevant to the issue at hand.
The Board’s decision was notable in part because a long list of research universities, led by Yale University, had filed a strong amicus curiae brief, warning against the undesirable consequences that could follow if the Board overruled its 2004 decision involving Brown University that came out the other way because “the services being rendered are predominantly academic rather than economic in nature.” These include coursework, individual research, and teaching under the close supervision of their professors, as part of an integrated program leading to an advanced degree.
The universities’ position was strongly resisted in an amicus curiae brief submitted on behalf of the American Association of University Professors making several claims and factual assertions: (1) that the change in status was no big deal; (2) that NYU had entered into a voluntary agreement with a branch of the UAW that was working well; and (3) that over 35,000 graduate students in public universities were organized outside the reach of the NLRA. The rejoinder to this assertion was twofold. The universities noted that the NYU agreement has had its ups and downs, and that public universities are very different institutions than private ones. They also urged that it was dangerous to upset an established tradition by fiat, when not a single one of these universities has ever dealt with a single unionized graduate student. At present, no one has any strong evidence either way.
There is a rich irony that the great research universities, so politically liberal, would resist graduate unions in their own backyard when they would never question the desirability of the NLRA in business contexts. Indeed, the greatest difficulty for the universities is that they have to explain why they need an exemption from a general rule in the first place.
In my mind, they should not have to face that difficulty, for there is ample reason to doubt that the NLRA should apply to any business whatsoever. An elaborate, often bitter, election procedure allows the union that captures a majority of member votes to become the exclusive bargaining agent of all employees, dissenters including. The law then requires that the two sides bargain in good faith to reach a collective agreement. The collective bargaining procedures are cumbersome and costly. They often generate suspicion and distrust and require high levels of formality to make them work. Once in place, they are often disruptive of sensible business relationships. If those negotiations break down, unions may strike, and employers may lock out workers. The adverse effects on third parties, who are deprived of key services, are chalked up as simple “incidental” losses that the law necessarily ignores. This is a high price to pay to give unions a legal monopoly against the unionized firm.
It is also critical not to forget the uncertainty that comes from unionization. On the one side, firms develop consistent anti-union strategies long before any union arrives. Once unions get in place, it is very difficult to predict how relations will develop. Unions typically have to choose between two opposite strategies, in part in response to the strategies that resisted their recognition. Some unions prefer to reach quick deals with employers that give them a large share of the pie without disrupting the firm’s relationships with its customer base. But other unions, probably a minority, prefer to take a high risk and high return strategy, in which they back strong demands on wages and conditions by their willingness to strike. It is virtually impossible to predict which strategy will dominate in any case, which means that unionization injects a wild card that adds a layer of uncertainty that nonunionized firms don’t face.
Given the high stakes of unionization, it is deeply problematic that the NLRA gives so little guidance as to which groups are covered. In Columbia, the NLRB majority applied “the common law” definition of employee, which includes the graduate students to whom the university pays a wage for the performance of particular tasks under its direction. But the common law never had to face the question of sorting out dual relationships between instruction and employment, about which the NLRA says nothing. And private parties in a common law regime could always modify and tailor their business relationship in whatever way they saw fit in order to advance their mutual benefit.
It is therefore telling that the elite research universities, who know their own businesses, oppose the change. Hence, it is proper to ask the question of whether the imposition of a union arrangement for employment will impair the educational mission of the university. The answer is yes. Yale University President Peter Salovey observed that “I have long been concerned that this relationship would become less productive and rewarding under a formal collective bargaining regime, in which professors would be ‘supervisors’ of their graduate student ‘employees.’”
Of course, the question is ultimately empirical and, on that issue, the Board’s majority took the position of the American Association of University Professors that the great universities could take these problems in stride, just like NYU has done. Not only is the question an empirical one, but generalizations are difficult to make because collective bargaining agreements go off in so many different directions. The majority of the NLRB was not overly concerned with these issues because of the success of unionization at NYU and public universities. It is surely the case, therefore, that unionization does not spell the immediate death of the university. But the NLRB’s ruling raises the further question of whether the deal will hold firm in the long run, given that unanticipated events could lead to work stoppages, loss of morale, or bad publicity that could damage relationships with donors or students.
On this score, it is instructive to look at how the collective bargaining agreement works at NYU. (Note that the law school, where I teach, is not covered by the agreement.) The contract is well drafted and it does not include all the graduate students that are covered in the NLRB decision. In particular, it does not cover the Medical or Business school, and, most importantly, it does not cover “research assistants at Polytechnic Institute, [and] research assistants in the Biology, Chemistry, Neural Science, Physics, Mathematics, Computer Science and Psychology departments.” It then sets out a salary scale for the covered graduate students that started at $26,200 in 2015 with modest increments over the next four years. In addition, the agreement specifies an elaborate grievance procedure that allows individual union members to challenge within limits their course requirements.
So where can things go wrong? Here the greatest peril does not come from the implementation of the agreement by NYU and the UAW. Instead, it comes from the Fair Labor Standards Act, which regulates the standard for wages and hours of all employees. The Department of Labor issued a general ruling that any worker who earns less than $913 per week or $47,476 annually for a full-year worker—roughly double its previous level—is eligible for overtime compensation on an hourly basis. This rule applies to all employees whether or not they are unionized, and it is not waivable by the workers who are protected.
The FLSA’s definition of an employee is no better than that in the NLRA: “the term ‘employee’ means any individual employed by an employer.” There is no reason to think that the Department of Labor will shrink from using the same definition that was adopted by the NLRB, instead of taking its cue from the NYU collective bargaining agreement that exempted research assistants from its scope. After all, the common law test could still be applied even if the costs of its administration skyrocket in the new context.
The news is very grim. As applied to the university context, the FLSA forces both the union and the university to abandon their simple salary scale for unionized workers, in favor of a verifiable procedure to separate their teaching from their student hours, which could prove difficult, especially when overtime pay is at issue. None of this bookkeeping and monitoring is necessary under the sensible salary arrangement in the NYU contract. In addition, the NLRB rule applies to all research assistants, so in all likelihood they too will be covered by the FLSA rule. But, once again, no one quite knows how to separate out the time that a research assistant spends on his or her own work and on that of the employer. Nor are government and private grants sufficiently flexible to provide the needed overtime support if it turns out that these students spent far more than 40 hours per week in their laboratories, just like their professors.
All too often, employment decrees are handed down on high by regulators who look only at their own bailiwick but then ignore the consequences of their handiwork. The FLSA rule is scheduled to go into effect on December 1, 2016. At this point, every university and research laboratory in the land has to scramble to make sense of the new rules and figure out where to get the additional funds to pay the extra salaries and institute compliance systems to ward off the inevitable lawsuits that this massive uncertainty invites. And the Department of Labor, of course, does not address the serious operational difficulties created by its regulations.
There is an old adage that applies here: it takes enormous work to build up institutions with genuine academic excellence and distinction, but it takes only a few boneheaded rulings to send them crashing down. The Department of Labor should postpone and modify its new regulations. If it does not, Congress should do something to protect our great research institutions.
© 2016 by the Board of Trustees of Leland Stanford Junior University
Published in Education, Law
Ah NIMBY….
I know that at the University of Chicago there was also a movement there to create some sort of Graduate Student Union, their biggest stumbling block being the Science Graduates who had very little interest in joining because we got paid to do our research since our departments actually had grant money. Frankly I just can’t understand how you can even hope to unionize people who for the most part don’t even get paid as W-2 workers. I don’t think I got a W-2 from the University until maybe my last year there, when I was no longer paid by some sort of grant. I get the frustrations of the Humanities Graduate Students, but really there is no way to square this employee student circle. I certainly know that as a graduate research assistant (my technical job title) I felt very much like an employee, and certainly by the end of doing my Developmental Biology PhD I wasn’t going to classes, or TAing anything. I was in a lab just running experiments, the only thing to distinguish me from a Lab Tech or a Post Doc was that I had to answer to my Thesis Committee every 6 months or so. Yet, there was no labor contract, and the only thing keeping me “employed” was that my PI or the department was paying my tuition. What kind of job do you pay your employer to have?
I hope Congress insists on a thorough and vigorous upholding of this decision. In the best case the NLRB and the university system collapses. I could settle for either one.
Since graduate students are used as lower cost, more disposable adjuncts and lab techs I have no issues with them at least getting a better paycheck for their work.
Graduate students are the essential grist for the mill of the education business scam. Professors need to pretend to teach grad students, and universities need to cut costs and not hire any actual professors.
It is only too perfect that labor regulations would spoil the scam.
It’s a back door into unionizing university semi-pro sports teams.
The obvious answer for graduate students is to stop issuing assistantships. That money then can be redirected to actual teaching and research.
Eric Hines
I don’t understand what was happening at the Univ. of Chicago. Unless you were on a fellowship you should have been getting a W-2 if you were paid as a Graduate Research Assistant.
My university has a graduate student union that covers all students, but it basically screwed the graduate students in the sciences and engineering. What ended up happening is that the union negotiated flat increase to all GTA’s and GRA’s to cover the cost of health insurance. However, in most of the science departments they previously covered the student health insurance fee along with the tuition. When this happened the departments stopped doing that. The problem is that because of Obamacare the increase was insufficient to cover the student health insurance, so all the students in the sciences ended up getting an effective pay cut.
Oh, gosh, no. I’d love for the NLRB to collapse, but not our universities as much trouble as the inflated prices are. Not only are our undergraduate colleges the envy of the world, our graduate schools—which this covers—are just fantastic, at least in the sciences where I work.
This decision is going to cause a real mess in scientific research, where grad students do a lot of the low-level but necessary work that we professors don’t have time for. Professors need to be keeping their eyes on the big picture and how to interpret the results (which takes a lot of experience and insight), while grad students are down in the weeds, working on the technical details.
The time you spend working on your dissertation research is, ideally, devoted to nothing else but research. You’ve got time to go into levels of detail you’re unlikely ever to again. I know that I spent much, much more than 40 hours per week by the time I was finishing my dissertation, but I wasn’t being paid by the hour, and it was up to me to get the work done. If short-sighted grad students unionize, and the overtime rule applies, we’d never have the money to make it work.
Did you pay income and FICA/Medicare taxes on your compensation [tuition]?
Because it kind of sounds like now you’d have to.
I don’t understand what you mean. Are you talking about teaching assistantships or research assistantships?
Keep in mind that it is not generally true that T.A.s actually “teach” courses, though they might in places. At the University of Pittsburgh, where I did my Ph.D., we were required to be a T.A. for our first two years. This paid for our tuition and a stipend to live on (taking an outside job would be very difficult as a grad student), with up to 20 hours/week of work. We didn’t lecture, but we assisted the students with homework and reviewing the material in what we called recitation sections, outside the regular class, and we graded homework and tests. This still gave us some light teaching experience, which was crucial in getting a job later, because it is often your only teaching experience before your first professorship.
After starting our dissertation research, we were usually (hopefully) picked up on our professors’ research grant as a research assistant, which wasn’t an hourly job, and since we were usually done with coursework by that point, we could devote all of our time to it.
If T.A. positions were eliminated, so would the stipend and tuition waiver, and grad school would be out of reach for nearly all of us.
I’m not sure I’m reading you right, but it sounds like you think that graduate TA’s are used as adjuncts to teach graduate classes. Is that what you meant? That’s never been the case that I’ve seen. TA’s have only been used with undergraduate classes in my experience. Furthermore, in the schools I’ve been a student or a professor, the TA’s have not lectured. They weren’t at all like cheap adjunct professors.
I don’t like those places that do use TA’s to lecture; it’s bad for the undergrad students. But I’ve never been at such a place.
Finally, as much of a problem as high tuition is for undergrads and their loans, that is not true in graduate schools, at least in the sciences. Our TA and Research Assistantships come with free tuition. There’s not “scam” to it—the grad student gets a free ride as a result, plus a stipend to live on.
Yes. If they’re not employees, they can’t unionize.
Eric Hines
@timh
I think you came through too early to see the problems I saw.
When I went through every 100 and 200 level course was taught, completely, by a graduate student. Some token oversight, but in practice this amounted to “please send me your exams so I can not look at them and approve them anyway.”
I taught 2, sometimes as many as 4, courses per semester myself while doing coursework, and each TA graded for a mega-course taught by an actual professor as well.
TA positions are essential parts of an academic’s formation, and their elimination is a bad thing. What I am remarking on is their patent abuse in recent years, combined with very bad job outlooks for PhD level work.
TA’s were being used as just cheap lecturers, full stop, in my experience. Now I don’t think this isn’t the way it should be, but that’s my experience. And going from what I’m hearing from friends still in the “business,” it’s only getting worse.
What discipline were you in?
So to clarify, for most of my PhD I was on a grant of some sort, it kept changing. While on grants I didn’t pay Social Security and Medicaid/Medicare taxes because technically I wasn’t an employee. I wasn’t even paid monthly but rather quarterly. Perhaps I did not have a technical job title, I can’t really say. Functionally nothing about my work changed when I started getting paid monthly with a W2. I did some extra work as a grader when I was on grants, which did count as W2 income. I guess my point is the payment system and its clarification makes little sense either way. It seemed Byzantine enough that you could shake out of it whatever technical title you needed. All I cared about was having money for food and rent.
In the humanities, though I’ve heard similar situations in the STEMs from some college friends.
I’m really concerned about the unionization of students [at private colleges] really distorting the relationship between teachers and students. It sounds like it could quickly becomes a nightmare. While it is true that you are beginning your professional career as a grad student, especially a PhD one, the money making activities really shouldn’t be the major driver. The goal should be graduating, publishing, and developing your reputation.
The end result, intended or not, is likely to make graduate students even more expensive and less competitive, and thus weaken higher education in the US, especially in the sciences.
I’m speaking about my specific STEM field, so YMMV. Nearly all our grad students are funded by extramural grants. We work hard for these very competitive awards. The funding covers their own research, their tuition and coursework time. They’re not in someone else’s lab doing someone else’s work — they’re doing their own research, and getting paid for it. Very few grad students appreciate that. Additionally, as only the truly rare grad student “hits the ground running”, there’s a significant up-front expense, one not paid by them.
The perception that these grad students are indentured servants, underpaid and exploited, is wrong, at least in my field. In the present climate, owing to funding competition and pressure for success, it’s almost an act of altruism to fund a grad student when a more productive postdoc would be a much better investment of precious time and money. As a consequence, postdocs are supplanting grad students in our peer programs at a rather alarming rate.
I choose to work with grad students because I enjoy mentoring them, and think this is what academic departments should be doing. But TPTB are trying to make this altruism into an act of insanity.
Yikes! What school was this? I don’t know that it’s better or worse now than it has been in the past. I was in college 1990-94 and grad school 1994-2001. I had heard of stories of big universities where the courses were often taught by TA’s, but at the places I’ve been, I’ve never seen this. I’ve been at or around Rhodes College, the University of Pittsburgh, Johns Hopkins, Shawnee State University, and Marshall University. Nothing like this at those, in my experience.
What field are you in, Cyrano?
Your point in this paragraph is a good one. I think it took me two years of grant-funded research as a grad student before I really got the hang of what I was doing and started to make real progress. A post-doc in my area of astronomy could have cut out those first two years and gotten much more done, as well as have been more productive from that point on. Furthermore, while a post-doc gets paid pretty well in astronomy (I think we were about $43,000/year or so as a National Academy of Sciences-funded position at NASA/Goddard right out of grad school, but that included a high-cost-of-living bonus for being near D.C.), think of how much the grad student is getting paid in tuition out of that grant. The post-doc probably isn’t that much more expensive in total.
I support this 100%. It is about time the Lefty strongholds had to eat their own dog vomit. Any loss to profitability needs to come out of the faculty budget / payroll. Maybe a few professors losing their positions because of union demands will explain the real world realities upon them.
Grad students as a target for a massive, entangled problem should say everything that is wrong with this. If that doesn’t, the easy transition from Yale Research and NYU representing the national situation is absurd.
Another reason Democrats will continue to trounce GOP lies in attacking education. It eliminates an important demographic long lost by GOP–Youth. One way the “establishment” has fooled us is in attacking Science by using the backdoor of Liberal Arts and Humanities. It’s an almost invulnerable tactic because it preys on traditions and makes good people think other good people are evil. But if pedagogy is ruining the country, I wonder what the top Majors are?
Today is Hobbesian Trap day.
Big state schools are the offenders indeed. It was explained to me once that funding for graduate students was different in the eyes of the state legislature. So while the university couldn’t get funding for half a dozen adjuncts, or even a few tenure tracks, they could get funding for 2 dozen more grad student fellowships. So the departments figured out they could get more grad students, and meet the teacher shortage.
Private universities don’t engage in the behavior because there’s no incentive to do so since their budgetary guidelines aren’t dumb. There might be some ABDs teaching some entry level courses, but this is expected and normal, and even ideal for experience. But what I saw, and did, was teach classes the first year with no training or supervision.
Had I not been in the navy before college I’m certain I’d not have been able to manage it at all.
@Jordan —
Yes, and I taught an introductory, non-major undergrad astronomy class as a “Teaching Fellow” in my last year of grad school. I think it went pretty well, and it was terrific experience before getting a professorship.
Really shocked about your experience as a first year grad student. That’s the kind of thing I heard rumors of but always wondered if any place really did that.
Wah. Sorry, but I have no sympathy. I’ve seen unions wreck businesses. If your assertion was given any credence, why wouldn’t it be proper for manufacturers to ask if the imposition of a union would impair their business mission?
The combination of the National Labor Relations Act and the Administrative Procedures Act is pure poison to American private enterprise. That it is now poison to statists’ biggest boosters in academia is just sauce for the gander, thank you.
I am delighted by this news!
Liberals often act as if the rules should not apply to them. If we want them to understand just how destructive regulation is, then they need to be regulated the same as normal folks.
I see the situation as purely analogous to the minimum wage. Either let people seek mutual agreement on the terms of their relationship (without any oversight), or use the coercive power of the state to regulate minimum requirements, and end up reducing employment and work for people who would otherwise be willing to work for less.
Higher education will suffer? Boo-hoo. It is broken anyway. Any fix to such an enormous bureaucracy necessitates these kinds of systemic shocks.