The National Labor Relations Board ruled this month that teaching and research assistants are not employees and are therefore not covered by federal labor law. What does the ruling mean for graduate students and the labor movement?

A transcript of the chat follows.

Scott Smallwood (Moderator):
Welcome to Colloquy Live, The Chronicle's live chat forum. I'm Scott Smallwood and I cover faculty and graduate-student labor issues here. This month, the National Labor Relations Board ruled that graduate-students are not employees, overturning the board's own decision in 2000 that allowed a TA union at New York University. Our guest today is William B. Gould IV, a Stanford Law School professor who served as chairman of the NLRB during the Clinton administration.

Scott Smallwood (Moderator):
We'll start today with some of the advance questions we've received. If you have a question for Mr. Gould, send it in. If you'd like to make a comment, send it in and we'll try to get posted quickly.

Question from Allen Rawitch, University of Kansas:
How narrow is this ruling? For example does it extend to publich universities as well? Does it affect the status of existing TA bargaining units?

William B. Gould IV:
It does not extend to public universities because pubic employers are beyond the jurisdiction of the National Labor Relations Act and therefore the National Labor Relations Board. Therefore there will be no impact on the law and practice in Kansas in the public universities. In other respects, the decision is quite broad because three of the five members of the board have accepted the view that collective bargaining and university education are inconsistent with one another. And thus graduate teaching assistants are not employees, within the meaning of the act - which applies to private sector employers, including universities.

One final point about public universities is that, as the dissent in Brown University noted, collective bargaining in higher education, including graduate teaching assistants, is well established and all indications are that the experience in the state university system does not present problems which would make collective bargaining inappropriate or unworkable.

Comment from Jenell Scherbel, Adjunct Faculty, Austin Community College:
I remember when TAs and RAs had extremely low wages and no possibility for health care programs, although many graduate students are not young and/or have young families. Unions helped these TAs achieve quite necessary changes in their wage levels and benefits. Even with these changes, their ability to survive at these lowest levels of income for work produced is constantly compromised.

If the monthly stipends are not wages for teaching classes (at extremely low levels of pay compared to full-time faculty), then is that work considered to be? Usually, TAs and RAs teach courses that might be taught by full-time faculty, although at the beginning levels of a discipline. They are not usually "apprenticed" to a faculty member as an assistant, but given classes and all the responsibilities that go with teaching them. If so, could the departments not then award students "fellowships" or "teaching grants" rather than a "TA work assignment" which might leave them freer to study if they could perhaps teach only one section while attending graduate school full-time, rather than teaching half-time or, in some cases, even more?
This also seems to be a further "cheapening" of academic labor, such that it could even drive down academic salaries as one consequence. I wonder if that is a result everyone wants? Or, maybe, in the future, we will simply recruit all our TAs and RAs from other countries at the lowest possible rate.

Question from Jeff Hornstein, organizer, Univ of Pennsylvania:
My understanding is that the NLRB in DC has remanded the appeals in the remaining private-sector grad employee cases (Tufts, Columbia, Penn) to their respective regional directors for review. Do the regional directors have any discretion in terms of how they apply the Brown decision? The facts at Penn, for example, are different than the facts at Brown -- at Penn, unlike Brown, teaching has only become a "degree requirement" in the wake of the union drive, and we've still to hear of a case of someone not receiving his or her Ph.D. because they failed to serve as a TA. So, can our lawyers argue for a review of the petition? Thanks.

William B. Gould IV:
I don't believe so. The board noted that in a majority of the departments teaching assistantships are requirements for the degree. I don't see anything in the opinion which would limit this to situations where the teaching assistantship is a requirement.

The Brown decision is a very broad one and proceeds upon the assumption that graduate students are involved in the education enterprise of which teaching assistantships are only one part. So, there is no indication in the opinion that it is a limited one and I would expect the regional directors to dismiss all petitions.

Question from Lynn Harris, private practice attorney:
What implications, if any, does this ruling carry for part-time or adjunct professors?

William B. Gould IV:
Well, the logic of this decision applies in some respects to adjuncts because like graduate teaching assistants, they have become surrogates for full-time professors, in order to cut costs. And the board's pronouncement about the inconsistency between the academic world and collective bargaining would have equal applicability. But on the other hand, it seems to me that all academics who are not students are still governed by the Supreme Court's pronouncements in the Yeshiva decision. And in Yeshiva, it is to be recalled, the fundamental inquiry is whether university professors are involved in the management of the enterprise. If they are, they are excluded as managerial employees. Therefore it would seem to me that Yeshiva would allow collective bargaining for adjuncts and part-timers because rarely if at all are they involved in the management of the university. And, again, they are not involved as students or in student-type activities. Therefore, my judgment is that the reasoning of Brown University does not apply to them.

Question from Curious Grad, State University, Western US:
If Brown v Brown grads found GTAs and GRAs not to be employees, does that mean the university or proffesors can use grad's activism in the union vote proccess as a legitimate reason to withhold future GTA/GRA work?

William B. Gould IV:
Yes - unless there is something in the contractual relationship, most usually the university handbook, which establishes some form of limitation on the right to dismiss, discipline, or alter terms of the employment relationship. An additional proviso is that some state courts have found dismissals of employees to be wrongful as a matter of state law, where such dismissals are inconsistent with public policy. Sometimes dismissals involving union activity could be deemed to be inconsistent with public policy, giving state courts the authority to issue damage awards, but generally not reinstatement. Courts might have jurisdiction where individuals are not covered by federal law, though this is an issue that will be resolved in future litigation. Since graduate teaching assistants are not employees, in private universities, they cannot avail themselves of the protection of the National Labor Relations Act against retaliation or discrimination based upon union membership or the lack thereof.

Question from David, Columbia University:
I'm a big supporter of our union here at Columbia -- we've done a lot already to raise wages and healthcare and to get the university to be more responsive to our international students, who have suffered greatly after passage of the Patriot Act. It's very troubling to think that 3 Republicans, in conjunction with our university president, can squash the rights of thousands. Even without the NLRB, can Columbia's administration still recognize our union?

William B. Gould IV:
Yes. The law permits recognition for employees and employers who are not covered by the National Labor Relations Act. All that the Brown University decision does is to refuse to extend the protections of the act - election procedures, remedies for anti-union discrimination, and the like - to graduate teaching assistants. Universities and unions which represent graduate teaching assistants may voluntarily enter into collective bargaining relationships. Under Brown University, they are not required to do so.

Comment from Beth, Columbia University:
In the decision, the Republican majority went to great lengths to point out that prior to NYU, there had been 25 years of precedent denying graduate employees the right to form unions on the grounds that they were primarily students. But the cases they cite are more than 25 years old and were argued to be out of date when they were issued. It's also unclear, at best, whether those few case the current Board cites are even relevant to the question of graduate employees status -- such as "Sheltered Workshops of San Diego" in which the issue under discussion was whether the training of mentally challenged adults constituted an employer-employee relationship.

Question from Brent Walters, Darian Ct.:
It takes years to get cases heard by the current NLRB, and when complaints are finally issued, workers still loose out because penalties for employer misconduct are so light that it is more cost-effective for companies -- like private universities -- to break the law rather than to follow it. Now, the Bush NLRB is waging an all-out assault on workers' rights, with the Brown decision just one example of this. What is the point of even approaching the NLRB if they how such employer bias?

William B. Gould IV:
The only point in approaching the NLRB in any administration is that it might provide more assistance than parties can obtain on their own with their own resources. For a number of years now, unions have attempted to obtain recognition in more instances than in the past through card checks, where employers are willing to agree to them, and corporate campaigns, which are designed to induce employers to recognize unions or agree to special procedures on the basis of something other than an NLRB election.

The problem is that in many and probably most instances, this is not a good alternative to the law itself because of the imbalance in the power possessed by most unions in their relationship with most employers, i.e. unless they have special leverage independent of the law, they need the law. The optimal avenue lies in a new NLRB in another administration in 2005 and, more fundamentally, wide-ranging changes in the National Labor Relations Act itself. During my chairmanship, the NLRB instituted new administrative procedures, which were designed to expedite the administrative process and devised innovative remedies consistent with Supreme Court precedent. As a result of these changes, in the 90s, the NLRB brought the backlog of cases down to the lowest level that it has ever been at since records were kept. But much more is required.

Eleven years ago, I wrote a book, Agenda For Reform: The Future of the Employment Relationship, advocating widespread reforms, including new remedies and administrative procedures. But Congress, whether controlled by the Democrats or the Republicans, has never seen fit to adopt these ideas. And indeed, partially because of this book, 38 Republicans (out of 43 voting) opposed my confirmation when I was nominated by President Clinton to be chairman of the National Labor Relations Board. Thus the intensity of opposition to reform is substantial - and this will remain true even in a Kerry administration with a Democratic Congress. But obviously, the chances for reform are greater under such circumstances.

Question from Andrew Mytelka, Chronicle of Higher Education:
Much has been made of the NLRB's party-line vote in this case. The Republican appointees sided with the universities, and the Democrats sided with the graduate students. But just a few years ago, when Clinton appointees formed a majority of the board, it produced a diametrically opposed ruling in the NYU case. Given that the NLRB acts as a quasi court, with precedents and rulings that have nationwide application, how does such overt partisanship affect its ability to serve as an even-handed provider of equal justice under the law? Can the NLRB ever be anything but an instrument of the party in power?

William B. Gould IV:
I think that the NLRB can and should be something other than an instrument of the party in power. The limited five-year terms of NLRB members exist because Congress has never been able to answer many fundamental policy issues through the law and have left it vague and open-ended, susceptible to different interpretations. The fact that life tenure (such as that enjoyed by the federal judges) does not apply to NLRB members represents Congress's acknowledgement that the president over time can change the direction of the board through appointment.

All presidents have done this, but the problem of politics has become more considerable in today's polarized atmosphere. Dominant elements in the Republican Party are against the basic purposes of the law, i.e. to promote employee free choice and the process of collective bargaining itself. Thus, during my chairmanship the Congress attacked the board and the act through denying appropriations, refusing to confirm new presidential appointees, and through an attempt to intimidate the NLRB by instructing it how to decide cases. Indeed, frequently in the 90s, the Congress instructed the board NOT to decide cases, stating that recess appointees by President Clinton unconfirmed by the Senate should not decide cases (though the third vote in the Brown University majority was cast by such a recess appointee).

Exacerbating this problem is the fact that increasingly appointments, whether by Democrats or Republicans are made from a core of Washington insiders, frequently coming from congressional staffs and other organizations based in Washington itself. The ideal of independence - and the NLRB is intended to be one of the alphabet agencies created by FDR which is quasi-judicial as well as independent - was supposed to be promoted by bringing in appointees from all over the United States with differing geographical and other experiences. Thus, such independent people, like Cincinnatus would come to Washington and put their shoulder to the wheel and then return to the countryside of their origin.

This is no longer the case and the appointment of Washington insiders means that those appointees have no home to return to, other than Washington itself. And they are more vulnerable to intimidation by a hostile Congress as a result. Thus during my term as Chairman, the effects of some of our reforms were dissipated in the last year or so of my tenure because board members were afraid to decide cases, fearful for the consequences of their decision. They were fearful because they had no home to return to, other than Washington itself. For such insiders, there is no acceptable or desirable alternative reappointment. Thus, I believe - and I have set forth my ideas in a book called Labored Relations: Law, Politics, and the NLRB -- A Memoir - that the terms of NLRB members should be extended and no reappointment should be allowed. In this way, we will attract the very best and independent people from all sectors of the United States, who are not afraid to act and to act promptly.

This is particularly important in the employment relationship, where justice delayed is justice denied. Even if we obtain the reforms which I advocated 11 years ago, they will be undercut if we do not appoint the very best people who cannot and will not think of whether they will be reappointed and who, like Cincinnatus, will return to the countryside after their work is done in Washington. In this way we can further the independence of the NLRB and promote a respect for law which is essential to all democratic societies.

Scott Smallwood (Moderator):
That's all the time we have for today's chat. Thanks for all your questions. And thanks, Mr. Gould, for being our guest today. A transcript of the chat will be posted shortly.

Copyright © 2004 by The Chronicle of Higher Education