By Anastasia Christman, National Employment Law Project
Last fall, the National Labor Relations Board (NLRB or “the Board”) published a notice that sounds a lot like a logic test from school: it intended to make a new rule that students on private college or university campuses “who perform any services for compensation” would not be considered employees, simply because they are simultaneously students. It almost feels like a trick question. These students are people, doing work on behalf of and at the direction of the school, for money, and yet they would not be considered employees, nor have the legal right enjoyed by employees to choose to form a union.
The proposed rule is based on faulty logic, and the NLRB should be given a failing grade for suggesting it. Pull out your red grading pen and urge the Board to abandon this effort to hurt student employees before the public comment period ends on February 28th.
For decades, with limited exception, the Board itself has issued decisions that affirm the right of student workers to organize. In 1990, 2000, and again in 2016, the NLRB found that graduate student teaching and research assistants were clearly employees. Even on the single occasion in 2004 when it temporarily reversed course, dissenting members called the decision, “woefully out of touch with contemporary academic reality.”
The reality is that for decades, university administrations have increasingly outsourced the most basic duties of the institution to a precarious workforce comprised of contract professors and graduate students. Graduate student workers are typically given the day-to-day schedule of course content to cover, they grade stacks of student papers and exams (often with a short turn-around), and they receive paltry payment for it.
According to data produced by the American Association of University Professors in 2016, over 20 percent of all instructional positions in U.S. universities and colleges were held by graduate employees. At research institutions, this number approached 30 percent. And it is growing. A 2017 report by the Government Accountability Office found that between 1995 and 2011, the number of positions held by full-time tenure-track faculty grew by roughly 10 percent, but the number of graduate teaching assistant positions grew by 63.8 percent. This ever-larger contingent workforce certainly saves on labor costs for the university. The Economic Policy Institute analyzed federal data and found that while the average Professor earned $115,392 in 2015-2016, graduate teaching assistants were paid just $35,810, while nearly three-quarters of graduate students carry enormous educational debt burdens, with an average total in loans of more than $70,000.
Of course, one of the best ways for workers to engage with their employers and win fairer wages is to exercise their legal right to form a union. And here is where the real agenda of the NLRB and those who are advocating for this rule change lies. Highly-paid officials in bloated administrative offices at private universities wring their hands as they claim that unions would be bad for educational outcomes, this despite the fact that approximately 35,000 graduate-student teaching and research assistants are already in unions, and more than two dozen public universities have managed to work with their unionized graduate students to deliver quality instruction. Research has found that, “[t]here is not a single case” of a graduate student union demanding to bargain over grading standards, recommendation letters, admission criteria, or any other academic judgement.
The NLRB also frets that collective bargaining would ruin the mentor-mentee relationship between faculty and students, even though bargaining does not take place with the individual professors, but rather the university administration. In fact, a 2013 study of graduate student workers at both unionized and nonunionized campuses found that union recognition led to stronger working relationships with full faculty, higher quality professional development for graduate student workers, and greater academic freedom that can contribute to a vibrant exchange of ideas.
When graduate students themselves talk about why they need a union, they cite bread-and-butter issues. Students who sought to unionize at Harvard University in 2017 reported 14 percent increases in their health care costs. The same year, eight graduate students at Yale went on a hunger strike to call attention to the university’s refusal to meet with them to discuss issues including the need for decent health care benefits. In 2018 graduate students at Columbia University found it necessary to walk out of classrooms and labs after their employer refused to bargain with them 18 months after they voted by a large majority to form a union.
We have decades’ worth of evidence demonstrating that graduate student workers organized into unions can bargain with university administration without interfering with the operations of the institution. In fact, disruptions to classes occur most frequently when university administrations fight workers’ right to organize. Thus, if the NLRB is seeking to curtail labor strife, they should be recommitting to the right of these workers to organize and to enforce the protections afforded by Section 7 of the National Labor Relations Act.
By denying that the graduate students staffing the classrooms and labs in our institutions of higher learning are employees, some campus administrators are no better than sweatshop operators in exploiting powerless workers and the NLRB should be seeking to better protect these workers, not using fallacious logic to define their rights away.
It is critical that the Board hear from you that all people who are students and “who perform any services for compensation” at our nation’s institutions of higher learning be properly considered employees, and that they have all the rights that go with that. Submit comments on the proposed rule before the February 28th deadline, and urge the NLRB to live up to its statutory mandate to protect workers’ right to organize by recognizing that graduate student workers are, indeed, employees.