In March 2000, NYU grad students won an historic decision from the National Labor Relations board that found that they had a right to form a union as graduate employees under the National Labor Relations Act. In July 2004, a newly constituted National Labor Relations Board with a majority of Bush Administration appointees reversed the NYU decision in a case involving Brown University teaching assistants. As the GSOC website notes, the decision, unlike the earlier unanimous bipartisan NYU decision, was split with the Republican majority voting to reverse and the Democratic appointees dissenting. Though nothing in the 2004 NLRB decision compelled NYU to withdraw recognition of the union, it has done so; and on November 9 NYU grad students went on strike in protest. In a response to grad student strikers that is unprecedented in its extremity and more generally undermines the foundations of workers' right to strike, NYU President John Sexton has threatened that any TAs who do not return to work by Dec. 5 will be deprived of an entire semester's stipend and those who return to a strike in the next semester will lose an entire year's funding.
Those interested in assessing administration arguments for not recognizing the union should check out this post (by Jason Stanley, guest-blogging on the Leiter Reports) and its associated comments thread. Stanley links to a Democracy Now! interview with NYU grad student Michael Palm (head of the GSOC) and NYU professor of philosophy Paul Boghossian (representing the administration); in the comment thread fellow NYU philosophy prof David Velleman attempts to provide back-up for the administration position. So far as I can tell neither Boghossian nor Velleman make any case against recognising the union. (UPDATE: the comments thread continues, with Boghossian clarifying his Democracy Now! comments, NYU philosophy professor Ned Block weighing in, etc. But so far as I can see, the clarified/additional comments can be seen as variations on the two lines of NYU admin defense below, and can be responded to similarly. In particular, (a) there is no effective case to be made that graduate students are not employees, and (b) any specific difficulties with the process of negotiations with GSOC should be dealt with via further negotiation, not by punitive measures of the sort proposed by Sexton.)
There appear to be two main lines of defense of the NYU admin position.
The first is that students aren't employees, as per the letter sent by NYU admin to students and faculty members announcing the decision not to continue recognizing the union (“We believe that it is of the utmost importance to respect the principle that students are students and not employees”), or at least aren't primarily employees, as per Boghossian: "Well, the basic -- the basic thought behind refusing to continue recognizing graduate student union is that we don't believe that students are employees, and we think that the only people who are really entitled to be represented by a collective bargaining unit and a labor union are people who are primarily employees".
In fact, as NLRB board member (since 1997) Wilma Liebman notes in her dissenting opinion on the Brown decision,
Graduate student assistants do meet the statutory definition of an employee. Section 2(3) of the Act simply says that "the term 'employee' shall include any employee." As you can see, the Act's definition is circular. But the Supreme Court has made clear that when a federal statute defines "employee" this way, the definition must be understood by looking to the common law. The judge-made common law has developed a test for deciding whether a worker is an employee (or instead falls into some other category, like a volunteer or an independent contractor). In its Town & Country Electric decision, the Supreme Court held that the common-law definition of employee applies under the National Labor Relations Act.
The common-law definition, in turn, says that a person is an employee if he works for another in return for financial or other compensation. Many graduate student assistants, including the graduate students in the Brown case, meet this definition. They perform work, such as teaching classes, doing research, or providing services in university offices. And they receive compensation, such as stipends, health benefits, and tuition remission for performing that work. Because the Act incorporates the common-law definition of employee, graduate students are protected by the Act if they meet that definition, even if they are also students.
However, Bush-appointed NLRB members who endorsed overturning the 2000 NLRB decision argued that grad students should be denying employee status on grounds that such students have a primarily "educational", as opposed to "economic" relation with the university:
In their view, the graduate student assistants at Brown were "primarily students" and they had "a primarily educational, not economic, relationship with their university." As a result, the majority said, the graduate students were not employees under the Act. (Liebman)
One recognizes here the first line of defense of NYU admin. One also wonders what it is to stand in a "primarily educational" vs. a "primarily economic" relation to an institution (for that matter, one wonders about the legal credentials of that distinction, nowhere mentioned in the NLRA or in its common law elucidation). As filled in (see especially certain of Velleman's remarks), the idea seems to be something like: at least at private instititions, any teaching and grading that graduate students do is simply part of graduate education, whereby they gain the needed valuable experience that will prepare them for their future positions as university professors.
I cast a jaundiced eye on the suggestion that NYU or any other private institution deploys grad students in teaching only or even primarily for the good of their education. But in any case whatever role teaching and grading activities might be playing in grad student education, it is undeniable that such activities are also playing the role associated with employment:
[. . .] I also think that the majority's position is wrong purely as a matter of policy. It reflects an outdated view of how universities work. The majority saw a sharp separation between the academic world and the economic world. As Member Walsh and I pointed out in our dissent, that separation does not really exist. To quote the scholar Jacques Barzun, "a big corporation has replaced the once self-centered company of scholars." Universities are workplaces for many people, including many graduate students. Those students have the same problems and concerns that other workers do. They may have families to support. They are concerned about their wages, their health-care benefits, their workloads -- about all the things that labor unions negotiate with employers. (Liebman)
These benefits, wages, and workload concerns indicate that graduate students stand in serious economic relation to the university. They are employees in every way that matters for purposes of assessing whether they have the right to negotiate with the university. The fact that they additionally stand in some educational relation does not abnegate the economic relation and its associated economic concerns, nor the need to ensure that graduate students have the rights to organize and negotiate with the university as regards these economic concerns.
The right of graduate students to organize and negotiate with universities, as the purveyors of their wages, benefits, etc., is particularly crucial at present, given that the last decades have seen universities become increasingly structured along lines of various capitalist business models. These models bring with them various institutional and ideological imperatives designed to keep graduate student labor (and hence, BTW, faculty labor) cheap. It is these imperatives, rather than any principled difference between the economic and academic spheres, that serves as the obvious motivation for busting graduate student unions:
[O]ver the last few decades, studies show, American universities have become more and more dependent on the work of graduate students. At many universities, graduate student teaching assistants have replaced tenure-track faculty members. The Brown dissent cited statistics showing that by December 2000, nearly one quarter of college instructors were graduate teaching assistants. To be blunt, graduate students are cheaper -- and, of course, they will stay cheaper if they cannot unionize. (Liebman)
The second line of NYU administration defense (or, as Velleman seems to suggest below, a different way of making out the first line of defense) is that grad student unionization institutionalizes a relationship that shouldn't be institutionalized. As Boghossian says: "Our basic impulse is not to want to lock into place a relationship to our graduate students, whom we treat as developing colleagues, that considers them to be laborers, and we don't want to institutionalize that relationship".
A difficulty with Boghossian's presentation here was pointed out by Manuel Cabrera in the comment thread on Jason's post:
Assume that it's true that unionization will alter the relationship between the TAs and those who employ them. Assume that the relationship changes in the following way: tension increases between TAs and their employers. The thing is: the TAs aren't employed by the professors in their departments, but by the university. Their professors are fellow employees, not their employers. The TAs aren't appealing to their advisors and mentors to unionize, they're appealing to the entity that employs both groups: the university. The mentor-mentee relationship between professors and students that is, indeed, so important to graduate education need not shift fundamentally even if the employer-employee relationship does, for they are two different relationships between two different pairs of groups.
Someone might try to claim that university admin is really working for the faculty; once upon a time or in some ideal scenario, this might be true, but at present and actually, this isn't plausible, especially given that universities are increasingly being run on a top-down business model.
Still, actually, the administration defense against "institutionalization" seems better provided by the sort of considerations that Velleman mentions in one of his comments on the thread:
Graduate programs must be able to limit the number of terms in which its students are eligible to teach, so that older students do not prolong their studies indefinitely, and so that teaching opportunities can be allocated to new graduate students. Graduate programs must also be able to allocate teaching eligibility on the grounds of a graduate student's progress in his or her studies.
The NYU union lodged grievances that sought to interfere with academic decisions of this kind -- seeking, for example, to force a program to allocate teaching to graduate students who had exhausted their years of eligibility. Ask yourself how long a graduate program would survive if forced to allocate teaching assignments to graduate students on the basis of *seniority* -- a concept that comes naturally to the UAW. A program would soon be filled with perpetual ABD's, taking up the space that ought to be allocated to new students.
and in a later comment, Velleman says:
The dispute over whether graduate assistants are "employees" is not about whether they are performing services for compensation. Of course they are [...] The question is whether their relations with the university are best regulated by categories and procedures that are appropriate to relations between labor and management in, say, the auto industry. I have already given clear illustration of this question in my previous comment, showing how the concept of seniority can be disruptive to academic decisionmaking.
When a graduate student is not given a teaching assignment for the coming semester -- say, because of failing to make adequate progress toward his or her degree -- is that best conceived as a "layoff"? Is the student's return to the classroom best regulated by the sort of rules governing the return of laid-off auto workers to the assembly line? Should the student's appeal of the decision be referred to a labor mediator? The answers to these questions are clearly and unambiguously no. That's the sense in which graduate student instructors are not "employees".
These are the questions that arise about the graduate students' relations with their departments.
But the fact that there are questions about how to allocate teaching assignments, what role seniority should play, what to do in cases where a student isn't making adequate progress along the educational dimension, and myriad other concerns, doesn't constitute an argument against unionization and negotiation. On the contrary, such questions and concerns motivate unionization and negotiation. Unionization is a response to the evident fact that there are problems and concerns reconciling the needs of "management" and "worker"; and this is no less true when the management and worker also happen to be playing the faculty/student role. For that matter, answers to such questions are at present typically codified contractually in the letters of offer and supporting materials issued to prospective grad students every March; Velleman's remarks fail to spell out in detail a scenario through which these contracts would be thrown out and replaced with the contracts of an assembly line worker. Moreover, grad students are unionized at state schools throughout the US (and also here in Canada), so there are plenty of case studies that show that the unfortunate state of affairs Velleman envisages can be avoided.
If Boghossian and Velleman can't provide any good reasons for NYU admin's stance, I imagine no one can.
Moreover, we should resist the shocking punitive measures that NYU President Sexton has said will be taken against the strikers:
[. . .] President Sexton has [. . .] threatened that any TAs who do not return to work by Dec. 5 will be deprived of an entire semester's stipend and those who dare to return to a strike in the next semester will lose an entire year's funding.
Such an action would be unprecedented. Graduate student employees have struck at many other universities, including those in the Ivy League and those just as anti-union as the NYU administration, but nowhere have such draconian reprisals ever been taken. Moreover, to date American workers retain a right to strike. While employers may well withhold wages during a strike, punishing strikers for a semester or a year afterward is illegal. The basic disagreement between the students and President Sexton is whether they are workers or not, and his point of view must be reckoned with, but surely the action of teaching assistants who believe that they are workers ought not to be dealt with in such a punitive manner.
We should all get behind the NYU grad students and the NYU Faculty Democracy (including many whole NYU departments, including History and English, who have unanimously protested Sexton's punitive policy).
Two things you can do:
1. Sign the petition, already signed by over 1500 faculty members, protesting NYU admin's decision to de-recognise the union and inflict punitive measures on strikers.
2. Send an email to Sexton at firstname.lastname@example.org; send a copy to NYU trustee chair Martin Lipton at email@example.com and to either:
Linda Gordon, History, Linda.Gordon@nyu.edu
Andrew Ross, American Studies, Andrew.Ross@nyu.edu
Alan Sokal, Physics, firstname.lastname@example.org
Judith Stacey, Sociology, Judith.Stacey@nyu.edu