2004 NLRB DECISION / WHAT DOES THIS MEAN? / IS FORMING A UNION ILLEGAL? / CAN THE UNIVERSITY RECOGNIZE US? / OUTSIDE OF THE NLRB / CONTRACT NEGOTIATIONS / RIGHT TO FREE SPEECH / INTERNATIONAL STUDENTS / REASON FOR DECISION / DISSENTING OPINION / TEXT OF DECISION / CAN WE APPEAL? / AFFECT ON PUBLIC UNIVERSITIES /OTHER UNPROTECTED WOREKRS

One key question in the unionization-debate at universities has been whether graduate teachers and researchers should be considered employees, since unions negotiate contracts between employers and employees. Many states have explicitly ruled on graduate teachers’ and researchers’ employee status, many haven’t. The federal government has recently reversed its own ruling from 2000.

A graduate teacher from the union at the University of Pennsylvania, GET-UP, testified before the Senate Appropriations Subcommittee on Labor, Health and Human Services and Education on Sept. 23, 2004 to raise concerns about the NLRB's most recent ruling on our employee status. Read her testimony.

The questions and answers found below have been drafted since the National Labor Relations Board (NLRB) made its most recent ruling on this question in a case at Brown University.

What is “the decision”?

In a 3-2 decision, Brown University, 342 NLRB No. 42 (July 13, 2004) [summary | HTML | .pdf], the National Labor Relations Board (NLRB) stripped graduate teachers and researchers of their employee status at private universities by declaring that “graduate student assistants are primarily students and not statutory employees.” This ruling overturned a 2000 NLRB decision (the New York University case) [summary | HTML | .pdf] according graduate teachers and researchers employee status.

What does this mean?

It means that we cannot file for a NLRB election or rely on federal labor law for protection during our organizing drive. Protections under the NLRB include the right to file unfair labor practice charges and certain protections while striking.

Does this mean that unionizing graduate teachers and researchers is illegal?

NO! Unionization at private universities is still legal. The right to associate freely is protected under the First Amendment of the Constitution. The NLRB ruling does not prohibit graduate teachers and researchers from freely forming unions.

Can we still win recognition from Yale?

YES. Any employer, including Yale University, may voluntarily decide to negotiate with a union of graduate teachers and researchers, no matter how the NLRB classifies them. In fact, GESO has asked President Levin, before and after the New York University decision, to negotiate a way to determine if graduate teachers and researchers want to bargain collectively. This offer still stands.

Have graduate teachers ever successfully unionized when the law said they were not employees?

YES. This is how the first graduate teacher union was formed in the public sector in 1968 at the University of Wisconsin—Madison. In fact, graduate teachers were not formally recognized as employees by the state until 1985, after the University and the Union had negotiated five contracts. When the Massachusetts Labor Relations Commission ruled that graduate teachers and researchers at the University of Massachusetts-Amherst were not employees, graduates organized the Graduate Employees Organization and demanded that the university voluntarily recognize the union. They won and, several years later, the state labor board ultimately recognized graduate employees’ right to organize.

How would a contract work if the NLRB does not recognize us as employees?

It would work in the same way contracts work between individuals and organizations in other areas of law. The contract would be enforceable using contract law or using processes agreed upon in the contract.

Does this mean that the administration and faculty can discipline a student for talking about or being a member of the union?

While graduate teachers and researchers no longer enjoy the protections of the NLRA with regard to union activities, the First Amendment and Yale’s policy on free expression guarantee our right to speak freely.

Yale’s policy on free expression (the “Woodward Report”) clearly states: “…the paramount obligation of the university is to protect [the] right to free expression. This obligation can and should be enforced by appropriate formal sanctions.”

In addition, many national academic organizations have passed resolutions upholding the right of graduate teachers and researchers to organize in an atmosphere free from coercion and intimidation. These organizations include, the American Association of University Professors (AAUP), the American Studies Association (ASA), and the Modern Language Association (MLA). Clearly consensus is mounting in the academy that the unionization of graduate students is a normal part of academic life. GESO is continuing to reach out to academic associations to guarantee the rights of all graduate teachers and researchers to join unions without fear of intimidation or coercion.

At a conference in September 2003 sponsored by GESO, labor experts – including former NLRB chair Fred Feinstein – and academics from across the country convened in New Haven to form the Academic Labor Panel (ALP). They listened to testimony by graduate teachers and researchers and faculty about Yale’s stance on unionization, and its chilling effect on academic freedom on campus, in part because of the uncertain and sluggish nature of the NLRB. In the statement that they issued thereafter, the ALP wrote: “Yale has committed itself to the free expression and exchange of ideas, including the full range of opinions about whether and how its own graduate student teaching assistants are to have a collective voice within the University… A hallmark of a free and open university is that such disagreements are amenable to discussion, where possible, to compromise and resolution within the community. We believe it is both eminently sensible and also consistent with Yale’s most basic commitments to find a mutually acceptable forum for reaching some understanding about the serious and sincerely held concerns of members of the Yale community about what they experience as a genuine threat to their freedom of belief and expression.” [ALP statement]

Does the change in our employee status put international students who are members of the union at risk?

NO. The right to associate is protected under the First Amendment. International students are free to join and participate in any organization without fear of reprisal. Also, the change in employee status in no way affects international student visas.

What was the reason for the decision?

After graduate teachers and researchers at Brown, Tufts, Columbia, and UPenn petitioned for and held NLRB-sponsored elections, the administrations of all of these schools filed appeals with the NLRB contesting the employee status of graduate assistants. This led to the impounding of the ballots cast by graduate students at all these schools. The new decision is the result of Brown University’s appeal, but presumably similar decisions will be made in all of the cases.

The NLRB’s decision to strip graduate teachers and researchers the right to organize shows the politically contingent nature of the NLRB. Under the Clinton-appointed NLRB we were employees, under the Bush Board we are not. This latest partisan ruling is consistent with the Bush administration’s anti-labor policies. The White House has lobbied Congress to eliminate overtime pay, and denied the 170,000 workers in the Office of Homeland Security, as well as airport screeners, the right to decide whether they want union representation. The three Republican-appointed members who wrote this decision are attempting to use political power to stem the wave of organizing throughout the United States.

Was there a dissenting opinion? What did the dissenting opinion say?

YES. The two Democratic members of the Board both voted against the decision, citing a disregard for empirical evidence in the majority’s opinion.

The two dissenting members wrote: “…the majority has…overlooked the economic realities of the academic world …The developments that brought graduate students to the Board will not go away, but they will have to be addressed elsewhere, if the majority’s decision stands.”

Where can I find the decision?

http://www.2110uaw.org/gseu/NLRB%20Brown%20Decision.pdf

Is the Board’s new decision final? Can it be appealed?

It is for now. But under a new presidency, different appointees to the board could take up the decision and reverse it again.

Also, as graduate teachers and researchers continue to organize at private universities across the country, we can win voluntary recognition without the protection of the NLRB. The more this happens, the more likely it is the law will change permanently in our favor.

Does the ruling apply only to private university organizing drives or also to public university drives?

Only to private universities. State law governs unions at public universities.

Do other kinds of workers organize unions without the protection of the NLRB?

32 million workers in the United States have no legal right to form unions under federal or state laws, including independent contractors and agricultural workers.

Many unions have organized outside the jurisdiction of state and federal labor law. Most famously, the United Farm Workers (UFW) has successfully organized farm workers for decades. In New York State all private employees that are not covered under federal law have the right to organize with card-count neutrality.