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Unions
Can Now Organize Graduate Student
Assistants At Private Colleges And Universities
By John D. Canoni Bio
email
Nixon Peabody LLP
On October 31, 2000, the National Labor Relations Board reversed over a quarter-century of contrary precedents and held that graduate students employed by private colleges and universities are “employees” under the National Labor Relations Act, New York University, 332 NLRB No. 111. Earlier NLRB rulings, principally Adelphi University, 195 NLRB 639 (1972) and Leland Stanford Junior University, 214 NLRB 621 (1974), placed graduate student teaching assistants outside NLRA protection because they were primarily students. Unions already represent graduate students at 27 public colleges and universities. They are expected to mount a massive campaign to organize the estimated 100,000 graduate students in private institutions that, thanks to the NLRB’s policy reversal, can now gain recognition rights and other NLRA rights (including, of course, the right to strike).
This is the second successive decision by the current NLRB granting unions access to private-sector employee groups that previously were off-limits to union organizers. In Boston Medical Center, 330 NLRB No. 30 (November 26, 1999) the Board similarly reversed decades of contrary rulings to grant unions access to the estimated 90,000 medical interns and residents at private health care institutions. Interns and residents at many public hospitals had joined unions over the years just as graduate student assistants at public colleges and universities had.
If anything, the rush to organize private sector graduate student assistants should be more intense and immediate. Graduate student assistants throughout the University of California system were declared to be state employees subject to organization in December 1998. Within months of that ruling opening the door to union organization, 9,400 graduate students at eight UC campuses, including UC-Berkeley, voted to join unions. The union involved in both cases (UC and NYU) is the United Auto Workers which, despite its blue-collar background, is the union most actively engaged in organizing graduate students throughout the U.S.
The UAW’s election petition at NYU, despite contrary precedents, was upheld by the Board’s Regional Director for Region 2 (Manhattan) (Case No. 2-RC-22082, April 3, 2000) and approximately 1,500 NYU graduate student assistants voted on April 25-27, 2000. The ballots were impounded pending this Board decision. If, as expected, UAW wins, there is no direct judicial review. However, NYU can refuse to bargain and gain judicial review when that refusal is challenged by the UAW in a separate proceeding.
The NYU case presents a better vehicle for ultimate judicial review because there is a detailed record (the hearing lasted 42 days) and, most important, a committed employer. Boston Medical Center was an opponent in name only and did little to resist the union victory in that case. However, while Boston Medical was a divided 3-to-2 decision, NYU was unanimous (3-to-0). Republican Board Member Brame left the Board in August 2000. The other Boston Medical dissenter (Peter Hurtgen) concurred in the pro-union result in NYU. Hurtgen’s earlier dissent was solely on policy grounds since he conceded interns and residents were “employees” under the Act . In NYU, he did not contend that similar policy reasons supported the continued exclusion of graduate student assistants from the Act.
Member Hurtgen’s NYU concurrence distinguishes Boston Medical on only one ground; namely, that the extensive patient care duties of the interns and residents were “a necessary and fundamental part of their medical education.” Graduate student assistant teaching duties, by contrast, are neither a degree requirement nor a part of their required academic curriculum. Moreover, graduate students who teach have usually completed their academic courses and then, in addition to their teaching duties, are completing their own Ph.D. dissertations. Member Hurtgen apparently believes graduate student teaching assistants were never properly classified as “primarily students.” He would continue to argue that the Board was wrong on policy grounds to re-classify interns and residents as no longer “primarily students” but that gives private colleges and universities little solace.
NYU tried unsuccessfully to distance itself from Boston Medical. Interns and residents work full-time, not part-time (up to 20 hours a week) as graduate student assistants do. Moreover, approximately 80 percent of house staff time is spent on direct patient care whereas only 15 percent of a graduate student’s time is spent assisting faculty. The Board quickly rejected this distinction, noting the 80 percent “work” percentage cited by the Boston Medical majority was simply “descriptive and not prescriptive.” Part-time faculty, for example, are usually included in university bargaining units, e.g., University of San Francisco, 265 NLRB 1221 (1982).
NYU’s second argument was that graduate student assistants are not really “paid.” Although they receive stipends ranging from $6,500 to $20,000 per year and free tuition (itself a $20,000 value), NYU argued this was merely financial aid to allow them to finish their degree programs. Without this aid, the graduate students might have to drop out of school. Also, their “employment” is totally dependent upon their continued matriculation as NYU does not use graduate student assistants who are not also full-time graduate students. This last factor was considered persuasive when a unanimous 1972 Board held that Adelphi University’s 125 graduate assistants were “primarily students.” Those assistants, unlike the NYU student assistants, also received health insurance coverage. They were similarly expected to work up to 20 hours a week. Adelphi paid them between $1,200 and $2,900 per year nearly 30 years ago. Adelphi wanted to include its graduate assistants in the bargaining unit in 1972 so one common factor is that both employers (Adelphi and NYU) lost.
NYU’s “financial aid and not pay” argument was similarly rejected by the unanimous Board. Graduate student assistants receive no academic credit for their work and, in many cases, have completed all of their course work and are only working on their Ph.D dissertations while they teach. They are also paid by NYU checks, through NYU’s payroll system (as opposed to the different NYU office handling fellowship payments), have payroll taxes withheld and must complete W-4 and I-9 forms. They have job descriptions, a special NYU-provided handbook, mandatory two day training by NYU, are supervised by NYU faculty and use supplies furnished by NYU. Also, they can be fired by NYU in the sense that their teaching assignments can be revoked if they are poor teachers even though they would still continue as graduate students. Only 1,700 of NYU’s 17,500 graduate students serve as teaching assistants.
Many graduate students function like part-time faculty. Regional Director Silverman noted that the work done by graduate assistants would have to be done by instructors (who are statutory employees) if graduate assistants were not available. Graduate assistants teach many undergraduate courses (59 percent according to NYU, 82 percent according to UAW), are required to commit to a minimum of 20 hours a week, grade papers, tutor students and must maintain office hours so undergraduates can consult them. The Board determined they perform “work” under NYU’s control in return for payment, which is the classic definition of an “employee.” Even granting NYU’s point that the students receive financial aid and are neither paid nor compensated, the Board determined their teaching duties are “in exchange for consideration.” NYU’s reliance on Goodwill of Tidewater, 304 NLRB 767 (1991), was also rejected. While the disabled workers excluded from the Act’s coverage in that case received pay, the basic relationship was “primarily rehabilitative” and not “guided to a great extent by business considerations.”
NYU’s final argument was that the graduate assistants were teaching in furtherance of their degrees. The house staff in Boston Medical had already obtained their degrees. The Board concluded this distinguishing factor did not make the graduate assistants more like students because their teaching assignments were not a degree requirement and were not part of their curriculum.
NYU is more threatening to employers than Boston Medical. The house staff were included in the same all-doctor bargaining unit as the attending physicians. That larger and more disparate unit (attendings make more than $200,000 compared to approximately $40,000 for house staff) should be more difficult to organize. Graduate assistants, by comparison, can constitute their own separate bargaining unit and share common ground when addressing low stipends, increasing work loads and the absence of benefits, including representation in the administration, that many part-time faculty enjoy. The alacrity with which public sector graduate students have joined unions once the organization option was made available to them suggests troubled times are ahead for private colleges and universities.
NYU is an important decision for another reason. Private colleges and universities have become increasingly dependent upon graduate assistants. They provide a low-pay alternative to part-time faculty. They are numerous. From 1958 to 1994, the number of Ph.D degrees awarded in the United States increased from 9,000 to 40,000. At the same time, tenured faculty have become more focused on research, publications and obtaining grants rather than teaching. Graduate assistants, by everybody’s definition, do most of the undergraduate teaching at large universities aside from large-class lectures given by the tenured faculty. Many private colleges and universities, particularly those with large graduate programs (half of NYU’s students are graduate students), are extremely dependent on their graduate assistants and would not welcome significant pay and benefit increases.
One immediate action point is to identify, classify and train supervisors and managers. If graduate assistants are statutory employees, they must be supervised by some faculty members and/or administration officials. Regional Director Silverman concluded the NYU graduate assistants were supervised by unnamed “NYU representatives.” Supervisors are excluded from private sector bargaining units although they can be included in public sector bargaining units. It is time to examine job descriptions, job titles and job duties to be in a position to argue for supervisory status when that issue arises. Previously, this was not a concern. Once supervisors are properly identified and classified, they must be trained in their new responsibilities. This is particularly important under the NLRA which considers supervisors, even low-level supervisors, to be management representatives capable of binding the employer by their actions and comments. The same supervisory classification and training became necessary when interns and residents similarly “graduated” from students to statutory employees in November 1999.
The Board’s decision will dramatically change the existing relationship between faculty and graduate assistants. They are no longer just teaching colleagues. Professors can now be supervisors responsible for the hiring, evaluation and firing of the graduate assistants on their teaching team. Colleges and universities should examine all policies and procedures governing graduate assistants with the new perspective of this Board decision in mind. Employment audits are strongly recommended. Communication channels to the graduate assistants should be established and improved where the NLRA permits. Finally, schools must now plan for unpleasant contingencies including strikes and picketing by graduate assistants and/or refusals to cross other employees’ picket lines. Statutory coverage bestows statutory rights on the new “employee” and corresponding statutory obligations on their employer.
The precise contours of a graduate assistant bargaining unit are not totally clear. The NYU decision puts into question the eligibility of (1) student assistants working under outside grants and (2) graders and tutors. In Leland Stanford, supra, the Board held that the 83 physics department research assistants were primarily students and were not statutory employees. NYU follows Leland Stanford by its holding that the graduate assistants in the university’s science and similar departments who are funded by external grants must be excluded from the general bargaining unit because they “do not perform a service for [NYU]” (fn.10) UAW’s petition excluded these particular assistants. NYU argued unsuccessfully for their inclusion since they help the university fulfill its requirements under the external grants. Former Regional Director Silverman (incidentally, a NYU Law graduate) found external grant assistants do not make an hours commitment and do research primarily on their own dissertation project. Therefore, he found they do not perform tasks “for” NYU and the monies they receive are “more akin to a scholarship.”
In Leland Stanford, now confirmed as governing authority on external grants, the assistants were paid through the university payroll, received only student benefits instead of university employee benefits and their research was not a required part of their course of instruction. They even received a “limited amount” of money from the university’s endowment although they “mostly” received external grants. Their stipends, according to the 1974 Board, “permit them to pursue their advanced degrees” and were based neither on their individual skill nor on the nature of the research they performed. When graduate students teach, they are doing the same “work” as faculty. When they do individual research, they are augmenting their own educational experience and they, not the university, control their own hours and methods.
UAW lost its bid to represent NYU’s graders and tutors when the Regional Director excluded them from the unit. Neither UAW nor NYU appealed that ruling. Graders and tutors work fewer hours (8 to 10 per week) and experience substantial turnover. The Regional Director found their employment was “sporadic and irregular” since they were assigned either for one week during exams or for a semester and were rarely hired for a following semester. They were therefore “temporary” employees with no substantial expectation of continued employment.
Why, you may ask, aren’t the other graduate assistants also temporary employees? After all, they are employed only while they are students and, like the interns and residents, will probably leave the university after graduation to work for a different employer. The key here is the normal duration of their assignments. The average Boston Medical Center residency program was 3 to 5 years. The “vast majority” of the NYU graduate assistants are Ph.D. degree candidates in five-year programs, two years for course work and three years for teaching and doctoral dissertation work. The remaining NYU graduate assistants are Masters degree candidates where the “average” program (and teaching duties) ran for three years.
If teaching assignments were performed during programs that did not last three to five years and, like the graders and tutors, were single course or single semester assignments without a reasonable expectancy of re-employment for the following semester or school year, the temporary employee exclusion should control. Institutions may want to review the duration of their graduate teaching assignments and, especially, their renewal or re-assignment rules. Heavy turnover, as among the NYU graders and tutors, may be a possible labor relations answer, although one would certainly expect unions to challenge sudden policy changes that convert all graduate assistants into temporary employees.
Why didn’t UAW appeal the exclusion of the graders and tutors? The union likely didn’t have much support among that high-turnover group. Additionally, UAW wanted to represent only the graduate students who were graders and tutors and not the undergraduate students who performed the identical tasks. This was a weak distinction. Also, in September 1999, NYU eliminated the separate job classification for graders and tutors leaving only graduate assistants when the April 2000 election was held.
Certain possibilities are suggested by the Board’s decision. We have mentioned the important duration, supervisory training and employment audit issues. Should graduate assistants be compensated through the fellowship office rather that the school’s payroll? Should they receive academic credit for their teaching assistant work? Should that work be made a requirement of their degree or a part of their curriculum? Those changes would move the graduate assistants back towards their former “primarily students” classification where, arguably, their relationship to the school is predominately academic rather than economic. Finally, should colleges and universities outsource their graduate assistants? Using graduate assistants supplied by an independent outside agency which furnishes its own on-site supervision might change the conclusion that the graduate assistants are under the school’s “direction and control.”
Graduate students are quick to join causes. They now have one of their own, the opportunity for the first time to require private colleges and universities to grant them union representation. Schools face real challenges. Administrators, department heads and professors need additional training on permissible (and impermissible) responses to union activity. Schools are vulnerable because they depend on the ready availability of the graduate assistant labor pool. Schools will now be confronted with union demands that stipends be increased substantially, that maximum hours be imposed (so more graduate assistants can be hired) and that benefits be introduced. Higher education is in for a real roller coaster ride.
© 2000 Nixon Peabody LLP
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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