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Thursday, April 01, 2010

Should graduate students be able to unionize?

In light of Obama's recent recess appointments to the NLRB, the question has special urgency here at NYU, because the new Obama-controlled NLRB will almost certainly reverse its 2004 decision holding that Brown University's graduate students are not statutory employees within the meaning of federal labor law and, therefore, not covered by the Wagner Act. The 2004 decision was rooted in the idea that "graduate student assistants, including those at Brown, are primarily students and have a primarily educational, not economic, relationship with their university." (Brown University, 342 NLRB at 487). According to the NLRB, unionizing the teaching assistants would allegedly interfere with this mentoring relationship by imposing uniformity of rules and conflict over peripheral economic matters where personal relationships and mutual interest in education ought to prevail.

NYU took quick advantage of the Brown University decision to disband its grad student union. So I have two reasons to mourn the impending reversal of Brown University: My employer will be burdened by the switch, and, as Joe Slater has observed, I have not generally been a big union fan on this blog. But, after the jump, I'll try to surprise Joe by suggesting some reasons for why at least some sorts of teaching assistants ought to be covered by the Wagner Act. Simply put, the threat of unionization might be a salutary way to force universities to treat TAs as future colleagues and not as cheap labor fooled into think that they will actually get an academic job by empty "mentoring" talk.

The problem with that "mentoring" rhetoric is that it is often just rhetoric: In an effort to avoid their teaching responsibilities, faculty at larger research universities admit many more grad students than the market can place in academic positions. The faculty then fulfills its duty of educating undergrads by teaching gigantic (300+) intro lecture courses while leaving the weekly section meetings and grading of papers to the TAs. The TAs are paid a pittance to perform these services on the theory that their labor combined with their prof's recommendation will eventually land them a permanent teaching position. The theory, however, is often a thin fiction: The positions simply do not exist -- and the faculty know it.

What if grad students could organize under the Wagner Act? Would they do so? I would guess that the answer to this question depends on whether the rhetoric of mentoring becomes a reality. If faculty reduced the number of grad students to a number that could plausibly obtain full-time academic positions after a reasonable (say, six-year) period of apprenticeship, then those grad students might not be tempted by the blandishments of being a unionized cog with a secure but dull berth in the educational-industrial complex: An ambitious young scholar collaborating with a leader in some academic field will likely not relish having their and their mentor's discretion to fashion their own hours, teaching style, and course materials hedged by the provisions of a collective bargaining agreement. By contrast, unionization will look more attractive to grad students who are treated as cheap labor with no real chances of getting a full-time academic job, retained to perform the disagreeable task of grading blue books and answering undergrad questions about the exam under the guise of being "mentored" by some distant authority figure who barely remembers their name and does not comment on their drafts.

Of course, reducing the number of grad students means that profs will have to teach and grade much more frequently. They will have to treat their grad students as their personal responsibility, enlisting them to help design the course, providing them with frequent feedback on draft dissertation chapters, securing them speaking opportunities at conferences, and generally fighting to get them an academic job. As a law prawf who does his own grading -- 180-odd exams this term alone! -- I do not think that upping the teaching load is too much to ask of my colleagues across the street. But let the faculty decide: Do they really want to mentor their charges by treating them like junior colleagues? Or do they want coolie labor to save them the trouble of teaching?

The Wagner Act might be the perfect way to force faculties at research universities to be honest about how they really regard the grad students whom they say are their future colleagues. The best "union-busting" tactic is to treat those grad students as students -- taking them seriously as future educators rather than as labor-saving devices. Professors' own sense of duty has not, at least in my view, sufficiently induced profs to take this obligation of collegiality with their grad students seriously: Maybe a few visits from the organizers of the UAW, Teamster's, or some other union will do the trick. If not, then at least those TAs will get decent hours and benefits.

Posted by Rick Hills on April 1, 2010 at 11:26 AM in Current Affairs | Permalink


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I infer you mean that as a compliment to U-Mich., and as a graduate of Michigan Law (think of the fun had we overlapped there), that sentiment is fine with me. Your definition, though, would put a good chunk of the public sector into your private sector. But that's a bigger question.

Relevant here, are all big state universities effectively in your private sector? MSU? If some public universities wouldn't fit your definition of being essentially private, would you expect grad student unions to behave differently there?

Lastly, from what I know about grad student union organizing, it's not so much that the grad students think a union will change anything about the horrible job market for, say, humanaties PhDs. It's more that they want things like health insurance and limits on hours of work.

Posted by: Joseph Slater | Apr 2, 2010 10:26:57 AM

A public sector that is competitive isn't really part of the public sector, for my purposes: University of Michigan is, for all practical purposes, a private university.

Posted by: Rick Hills | Apr 1, 2010 11:17:20 PM

Two quick points and then I must attend to the even more important matter of preparing for my rotisserie baseball draft.

First, I'm going to stand by my statement that I and most labor law folks think the Bush II Board went further than the Clinton Board in reversing significant precedents, Battista's view of his own work to the contrary notwithstanding. You can't just count cases. One also needs to look at how long a precedent has been in place, how important the issue issue is, and how significant a departure from prior cases the new rule is. From Dana Corp. to Register-Guard to Toering to, well, a bunch of other cases that would be easy to list, I think most labor folks would agree that the Bush Board did more to change labor law than the Clinton Board. I mean, the Clinton Board gave organzing rights to grad students and gave unorganized workers Weingarten rights. Not exactly worker control over the means of production.

I agree this may have something to do with increased polarization of political parties. But I also think the faction of the Republican party that just fundamentally doesn't buy the purpose of the NLRA had more influence in the Bush II Board than any equivalently radical folks on the other side did on the Clinton Board.

Second, your observations about TA unions you've seen are interesting, but are you sure "public sector unions are a different story," in this context? My point has been that it's my guess that if grad students are allowed to organize at private schools, they will do pretty much the same things and have the same effect as at public schools.

Posted by: Joseph Slater | Apr 1, 2010 11:13:10 PM

Actually, there are some folks who would contest your characterization of the Bush-appointed and Clinton-appointed NLRBs' track record in overruling precedents: The statistics compiled by G. Roger King and NLRB chair Robert Battista suggest that the Clinton Board issued 60 decisions that overruled precedents between March 1994 and December 2001, while the Bush (II) Board issues only 21 decisions overruling precedent between December 2002 through December 2007. (See Tanja Thompson, "As the Pendulum Swings: The Role of Precedent in National Labor Relations Board Decisions, November 2009 ABA Presentation). Of course, I have not done any such count, and there could be some muddiness in what counts as an overruling of a precedent. Moreover, Battista is Bush's NLRB chair and, therefore, not an impartial source. But unless you have a firmer number, I am inclined to think that both the Clintonistas and the Bushies had similar track records: Each advanced the interests of their particular interests by overruling precedents that stood in their way while accusing the other side of being unfaithful to precedent.

Your perception that there has been greater churning of precedents latelymight just be the result of a general increase in ideological tension since the mid-1980s, as each political party became more polarized. (Barbara Sinclair has a nice study of this trend in her book Party Wars: Polarization and the Politics of National Policy Making).

I taught at Michigan for twelve years when my wife was on the history faculty there and attended Yale Law when my wife was a grad student in the history department. My anecdotal evidence of the grad student unions at both universities, based on conversations with colleagues during various strikes and protests as well as observation of GESO reps at Yale, has led me to adopt the following entirely tentative and casual views, all easily subject to change upon presentation of more reliable data: The unions at both universities generally

(a) engaged the attention of the grad students least likely to succeed in landing a tenure-track job, as the Stakhovnites with great writing records and fond mentors did fine without any union;

(b) provided valuable services for their members in forcing the profs to treat the mediocre grad students more decently on a wide variety of issues ranging from sexual harassment to simple neglect in failing to provide feedback; and

(c) were stupendously, stubbornly, almost impressively unrealistic about the economic realities of their situation -- namely, that there simply are not tenure-track jobs available for the great mass of their members. (GESO, the Yale union, continues this tradition of utter economic naivete, as evidenced by their opposition to Dean Jon Butler's 2-4 program).

It is, for instance, economically nonsensical to argue against the "casualization" of the academic labor force -- i.e., supplanting of full-time tenure-track positions with adjuncts, visitors, and other forms of much cheaper labor -- unless one has some theory that undergrads, taxpayers, or someone else will pay the ridiculously high cost of tenure-track salaries and benefits. Given the extraordinary inflation in the cost of higher education, the notion that the tenure-track workforce will be radically expanded is a pipe dream that could only be believed by a grad student union organizer.

In these respects, I do not think that the grad student unions are different from most unions in competitive labor markets: They do a lot of noble things for a lot of badly treated people, albeit with a lot of unnecessarily silly "barricade rhetoric," but they do not seem to have any perception that a glut of labor makes their bigger demands untenable.

Public-sector unions are a different story, of course. But let's not go there! I've got to post my TAs' lecture notes now, or I'll have law student strike on my hands.

Posted by: Rick Hills | Apr 1, 2010 10:39:09 PM

Fair enough, although I think at least most labor law folks believe that NLRB case law has fluctuated more wildly in the last decade or so than in previous decades. Whatever you think about decisions of the G.W. Bush NLRB on the merits, I would argue it's objectively fair to say that it was significantly more aggressive in overturning significant, longstanding precedents than any previous Board. Which is not to say the Clinton Board didn't have a couple of decisions in that category as well, the NYU grad student case being one. But it's gotten worse.

Anyway, on the practical effects of grad students organizing, I still think the thing to do is to look at what has happened at public universities with unionized grad students. I can't say I'm aware of any especially pernicious effects.

Posted by: Joseph Slater | Apr 1, 2010 9:53:44 PM

Yes, Joe, I agree that the NLRB has a fairly insubstantial doctrine of stare decisis: The Obama-controlled NLRB will reverse the Bush-controlled NLRB's Brown University decision, which reversed the Clinton-controlled NLRB's NYU decision, which, in turn, reversed the Nixon-controlled board's Adelphi University decision (195 NLRB 639 (1972)). I just finished teaching Chenery and State Farm decision today: When my students asked me whether agencies were bound by any doctrine of stare decisis, I used the NLRB as the paradigm of an agency that respects its precedents mostly by observing the minimum formalities required by State Farm -- that is, expressly acknowledging that they are overruling the precedent and offering an argument for why the earlier decision was wrongly decided. So I certainly did not mean to hint that the Obama-controlled NLRB was doing anything atypical or legally suspect by overruling Brown University: To the contrary, following Rehnquist's concurrence and dissent in State Farm,I tend to approve of such politically motivated change. What are Presidential elections for, anyway?

Posted by: Rick Hills | Apr 1, 2010 9:35:36 PM

I am honored to be called out by name in this thread. I only regret that I'm going out of town for the weekend, so I won't be able to have an extended colloquy on this issue. And that's especially sad since Rick is taking a relatively nuanced approach here.

But two quick points so I don't disappoint Rick:

(1) Style. You could have gotten me to post even without mentioning my name by the use of the term "Obama controlled NLRB." Because I would inevitably have noted in the Brown U. case, it was the "Bush-controlled" NLRB that reversed a prior precedent -- involving, as I'm sure you know, NYU -- decided by the "Clinton-controlled NLRB," that had allowed grad students to organize.

(2) Substance. Instead of simply theorizing about what might happen if grad students could organize, we could look to the fairly extensive experience of public universities in the U.S. with grad student unions: U-Wisconsin, U-Michigan, Michigan State, etc., etc. While we both agree that the public sector context can make a significant difference for the purposes of labor law and policy in some ways, it's hard for me to see how giving grad students the right to organize at NYU creates a very different problem than, say, giving grad students the right to organize at U-Mich. So those interested in the issue should check out the experiences at the public universities.

And for the record, while the UAW has been involved in these cases, it's more likely to be the AFT or NEA organizing these folks than the Teamsters.

Posted by: Joseph Slater | Apr 1, 2010 7:56:03 PM

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