Dissent in the Brown case (from nlrb.gov)

Brown University and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW AFL–CIO, Petitioner. Case 1–RC–21368 July 13, 2004

Members Liebman and Walsh, dissenting.

Collective bargaining by graduate student employees is increasingly a fact of American university life.1  Graduate student unions have been recognized at campuses from coast to coast, from the State University of New York to the University of California.  Overruling a recent, unanimous precedent, the majority now declares that graduate student employees at private universities are not employees protected by the National Labor Relations Act and have no right to form unions. The majority’s reasons, at bottom, amount to the claim that graduate-student collective bargaining is simply incompatible with the nature and mission of the university.  This revelation will surely come as a surprise on many campuses—not least at New York University, a first-rate institution where graduate students now work under a collective-bargaining agreement reached in the wake of the decision that is overruled here.2

Today’s decision is woefully out of touch with contemporary academic reality.  Based on an image of the university that was already outdated when the decisions the majority looks back to, Leland Stanford3 and St. Clare’s Hospital,4 were issued in the 1970’s, it shows a troubling lack of interest in empirical evidence.  Even worse, perhaps, is the majority’s approach to applying the Act.  It disregards the plain language of the statute—which defines “employees” so broadly that graduate students who perform services for, and under the control of, their universities are easily covered—to make a policy decision that rightly belongs to Congress.  The reasons offered by the majority for its decision do not stand up to scrutiny.  But even if they did, it would not be for the Board to act upon them.  The result of the Board’s ruling is harsh.  Not only can universities avoid dealing with graduate student unions, they are also free to retaliate against graduate students who act together to address their working conditions.

i.

We would adhere to the Board’s decision in NYU and thus affirm the Regional Director’s decision in this case. 

In NYU, applying principles that had recently been articulated in Boston Medical Center,5 the Board held that the graduate assistants involved there were employees within the meaning of Section 2(3) of the Act, because they performed services under the control and direction of the university, for which they were compensated by the university.  The Board found “no basis to deny collective-bargaining rights to statutory employees merely because they are employed by an educational institution in which they are enrolled as students.”  332 NLRB at 1205.  It was undisputed, the Board observed, that “graduate assistants are not within any category of workers that is excluded from the definition of ‘employee’ in Section 2(3).”  Id. at 1206. 

In turn, the Board rejected policy grounds as a basis for effectively creating a new exclusion.  Rejecting claims that graduate assistants lacked a traditional economic relationship with the university, the Board pointed out that the relationship in fact paralleled that between faculty and university, which was amenable to collective bargaining.  332 NLRB at 1207–1208.  The university’s assertion that extending collective-bargaining rights to graduate students would infringe on academic freedom was also rejected.  Such concerns, the Board explained, were speculative.  Citing 30 years of experience with bargaining units of faculty members, and the flexibility of collective bargaining as an institution, the Board concluded that the “parties can ‘confront any issues of academic freedom as they would any other issue in collective bargaining.’”  Id., quoting Boston Medical Center, supra, 330 NLRB at 164.

Here, the Regional Director correctly applied the Board’s decision in NYU.  She concluded that the teaching assistants (TAs), research assistants (RAs), and proctors were statutory employees, because they performed services under the direction and control of Brown, and were compensated for those services by the university.  With respect to the TAs, the Regional Director rejected, on both factual and legal grounds, Brown’s attempt to distinguish NYU on the basis that teaching was a degree requirement at Brown.  Finally, she found that the TAs, RAs, and proctors were not, as Brown contended, merely temporary employees who could not be included in a bargaining unit.  Accordingly, she directed a representation election, so that Brown’s graduate students could choose for themselves whether or not to be represented by a union. 

We agree with the Regional Director’s decision in each of these respects.

ii.

Insisting that it is simply restoring traditional precedent, the majority now overrules NYU and reverses the Regional Director’s decision.  It concludes that because graduate assistants “are primarily students and have a primarily educational, not economic, relationship with their university,” they are not covered by the National Labor Relations Act and the Board cannot exercise jurisdiction over them.  According to the majority, “[p]rinciples developed for use in the industrial setting cannot be ‘imposed blindly on the academic world.’”6 

There are two chief flaws in the majority’s admonition.  First, the majority fails to come to grips with the statutory principles that must govern this case.  Second, it errs in seeing the academic world as somehow removed from the economic realm that labor law addresses—as if there was no room in the ivory tower for a sweatshop.7  Before addressing those flaws, we question the majority’s account of Board precedent in this area.

A.

Seeking to avoid the consequences of overruling such a recent precedent, the majority contends that Leland Stanford, not NYU, correctly resolves the issue presented here.  The majority argues, moreover, that Leland Stanford itself was consistent with a decision that came before it, Adelphi University.8  In fact, until today, the Board has never held that graduate teaching assistants (in contrast to certain research assistants and medical house staff) are not employees under the Act and therefore should not be allowed to form bargaining units of their own—or, indeed, enjoy any of the Act’s protections.

In Adelphi University, decided in 1972, the Board excluded graduate assistants from a bargaining unit of faculty members because they did not share a community of interest with the faculty, not because they were not statutory employees.  195 NLRB at 640.  The Board pointed out, among other things, that “graduate assistants are guided, instructed, and corrected in the performance of their assistantship duties by the regular faculty members to whom they are assigned.”  Id.  Nothing in the Board’s decision suggests that the graduate assistants could not have formed a bargaining unit of their own.

The Leland Stanford Board, as the majority acknowledges, “went further” in 1974.  It concluded that because the research assistants (RAs) there were “primarily students” (citing Adelphi University), they were “not employees within the meaning of  . . . the Act.”  214 NLRB at 623.  How the conclusion followed from the premise was not explained.  The rationale of Leland Stanford, moreover, turned on the particular nature of the research assistants’ work.  The Board observed that:

[T]he relationship of the RA’s and Stanford is not grounded on the performance of a given task where both the task and the time of its performance is designated and controlled by the employer.  Rather it is a situation of students within certain academic guidelines having chosen particular projects on which to spend the time necessary, as determined by the project’s needs.

Id. at 623. This narrow rationale is not inconsistent with NYU, where the Board actually applied Leland Stanford to exclude certain graduate assistants from the bargaining unit.  332 NLRB at 1209 fn. 10.

Finally, the majority cites Cedars-Sinai Medical Center, 223 NLRB 251 (1976), and St.Clare’s Hospital, supra, which involved medical interns, residents, and clinical fellows.  The medical housestaff decisions, issued over the sharp dissents of then-Chairman Fanning, were correctly overruled in Boston Medical Center, supra, which the majority leaves in place. 

Notably, in St. Clare’s Hospital, the Board made clear that while “housestaff are not ‘employees,’” the Board was not “renouncing entirely [its] jurisdiction over such individuals,” but rather was simply holding that they did not have “bargaining privileges” under the Act.  229 NLRB at 1003 (footnote omitted).  The majority here does not seem to make this distinction—which would give graduate assistants at least some protections under the Act—and thus itself seems to depart from the precedent it invokes.

In sum, while the NYU Board did not write on a clean slate, it hardly abandoned a long line of carefully reasoned, uncontroversial decisions.  And, as we will explain, much has changed in the academic world since the 1970’s.

B.

The principle applied in NYU—and the one that should be followed here—is that the Board must give effect to the plain meaning of Section 2(3) of the Act and its broad definition of “employee,” which “reflects the common law agency doctrine of the conventional master-servant relationship.”  NYU, 332 NLRB at 1205, citing NLRB v. Town & Country Electric, 516 U.S. 85, 93–95 (1995).  See also Seattle Opera v. NLRB, 292 F.3d 757, 761–762 (D.C. Cir. 2002), enfg. 331 NLRB 1072 (2000) (opera’s auxiliary choristers are statutory employees, applying common-law test).  Section 2(3) provides in relevant part that the “term ‘employee’ shall include any employee . . . .”  29 U.S.C. §152(3) (emphasis added).  Congress specifically envisioned that professional employees—defined in Section 2(12) in terms that easily encompass graduate assistants—would be covered by the Act.

We do not understand the majority to hold that the graduate assistants in this case are not common-law employees, a position that only Member Schaumber reaches toward.9  Here, the Board’s “departure from the common law of agency” with respect to employee status is unreasonable.  Compare Town & Country Electric, supra, 516 U.S. at 94 (upholding Board’s interpretation of term “employee” as “consistent with the common law”).  See also Seattle Opera, 292 F.3d at 765 fn. 11 (Board’s hypothetical “neglect of the common law definition could have rendered its decision arbitrary and capricious”). 

Nothing in Section 2(3) excludes statutory employees from the Act’s protections, on the basis that the employment relationship is not their “primary” relationship with their employer.  In this respect, the majority’s approach bears a striking resemblance to the Board’s original “economic realities” test for employee status, which Congress expressly rejected when it passed the Taft-Hartley Amendments in 1947.  That test was based on economic and policy considerations, rather than on common-law principles, but it did not survive.10

Absent compelling indications of Congressional intent, the Board simply is not free to create an exclusion from the Act’s coverage for a category of workers who meet the literal statutory definition of employees.  As the NYU Board observed, there is no such exclusion for “students.”  332 NLRB at 1206.  Cf. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891–892 (1984) (observing that the “breadth of [the Act’s] definition is striking” and noting lack of express exemption for undocumented aliens).  Here, the majority cites nothing in the text or structure of the Act, nothing in the Act’s legislative history, and no other Federal statute that bears directly on the issues presented.  It goes without saying that the Board’s own  policymaking is bounded by the limits Congress has set. 

The Supreme Court’s decision in Yeshiva, supra, is instructive on this point.  There, the Court considered whether university faculty members at one institution were managerial employees and so excluded from coverage.  It observed that it could not

decide this case by weighing the probable benefits and burdens of faculty collective bargaining.  That, after all, is a matter for Congress, not this Court.

444 U.S. at 690 fn. 29 (citation omitted).  Other Federal courts have made similar observations in analogous cases, choosing to follow the plain language of the Act, rather than “attempting to ‘second guess’ Congress on a political and philosophical issue.”  Cincinnati Assn. for the Blind v. NLRB, 672 F.2d 567, 571 (6th Cir. 1982), cert. denied 459 U.S. 835 (1982) (refusing to find exception to Sec. 2(3) of Act for disabled workers employed in sheltered workshops).11  In a recent case where the Act’s language was far less clear, our colleagues themselves have insisted that the statutory text alone dictated the outcome—indeed, they were content to “examine a particular statutory provision [Section 8(g) of the Act] in isolation” (to quote their words here).12  The approach taken in this case stands in sharp contrast.

The majority never addresses the language of Section 2(3), which the Supreme Court has described as “broad.”  Town & Country Electric, 516 U.S. at 90 (citing dictionary definition of “employee” as including any “person who works for another in return for financial or other compensation”).  Instead, it proceeds directly to consult “Congressional policies for guidance in determining the outer limits of statutory employee status.”  The majority cites the exclusion for managerial employees, which is not based on the Act’s text.  But in that example, as the Supreme Court explained, the “legislative history strongly suggests that there . . . were . . . employees . . . regarded as so clearly outside the Act that no specific exclusionary provision was thought necessary.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 283 (1974).  Graduate assistants simply do not fall into that category.

The Board’s decision in WBAI Pacifica Foundation, 328 NLRB 1273 (1999), quoted by the majority, does not support its position here.  That case involved the unpaid staff of a noncommercial radio station, who did not receive compensation or benefits of any kind, and whose work hours were “a matter within their discretion and desire.”  Id. at 1273.  The Board found “no economic aspect to their relationship with the Employer, either actual or anticipated.”  Id. at 1275 (emphasis added).  “Unpaid staff,” the Board observed, “do not depend upon the Employer, even in part, for their livelihood or for the improvement of their economic standards.”  Id. at 1276.  Rather, the Board explained, unpaid staff “work[ed] out of an interest in seeing the station continue to exist and thrive, out of concern for the content of the programs they produce, and for the personal enrichment of doing a service to the community and receiving recognition from the community.”  Id. at 1275.

The relationship between Brown and its graduate assistants is clearly different in nature.  Teaching assistants, the Regional Director found, “perform services under the direction and control of Brown”—they teach undergraduates, just as faculty members do13—and “are compensated for these services by Brown,” by way of a stipend, health fee, and tuition remission.  As for research assistants in the social sciences and humanities (who were included in the bargaining unit), the Regional Director observed that they “have expectations placed upon them other than their academic achievement, in exchange for compensation.”14  The proctors, finally, are “performing services that are not integrated with an academic program,” such as working in university offices and museums.  Notably, the Regional Director found that Brown withholds income taxes from the stipends of teaching assistants, research assistants, and proctors and requires them to prove their eligibility for employment under Federal immigration laws.

The majority is mistaken, then, when it insists that the graduate assistants here do not receive “consideration for work,” but merely financial aid.  While it is true, as the majority observes, that “all the petitioned-for individuals are students and must first be enrolled at Brown to be awarded a TA, RA, or proctorship,” that fact does not foreclose a meaningful economic relationship (as well as an educational relationship) between Brown and the graduate assistants.  The Act requires merely the existence of such an economic relationship, not that it be the only or the primary relationship between a statutory employee and a statutory employer.15

C.

Even assuming that the Board were free to decide this case essentially on policy grounds, the majority’s approach, minimizing the economic relationship between graduate assistants and their universities, is unsound.  It rests on fundamental misunderstandings of contemporary higher education, which reflect our colleagues’ unwillingness to take a close look at the academic world.  Today, the academy is also a workplace for many graduate students, and disputes over work-related issues are common.  As a result, the policies of the Act—increasing the bargaining power of employees, encouraging collective bargaining, and protecting freedom of association—apply in the university context, too.  Not only is the majority mistaken in giving virtually no weight to the common-law employment status of graduate assistants, it also errs in failing to see that the larger aims of Federal labor law are served by finding statutory coverage here. Indeed, the majority’s policy concerns are not derived from the Act at all, but instead reflect an abstract view about what is best for American higher education—a subject far removed from the Board’s expertise.

American higher education was being transformed even as the Board’s “traditional” approach to graduate-student unionization developed.  Nearly a decade before the Board decided St. Clare’s Hospital, distinguished scholar and Columbia University administrator Jacques Barzun described changes that were tearing “apart the fabric of the former, single-minded” American university.  He warned that “a big corporation has replaced the once self-centered company of scholars.”16  In deciding to exercise jurisdiction over private, nonprofit universities more than 30 years ago (and reversing longstanding precedent in doing so), the Board recognized this development.17

After the 1980’s, financial resources from governments became more difficult for universities to obtain.18  “[A]s financial support for colleges and universities lag behind escalating costs, campus administrators increasingly turn to ill-paid, overworked part- or full-time adjunct lecturers and graduate students to meet instructional needs.”19  By December 2000, 23.3 percent of college instructors were graduate teaching assistants.20

The reason for the widespread shift from tenured faculty to graduate teaching assistants and adjunct instructors is simple: cost savings.  Graduate student teachers earn a fraction of the earnings of faculty members.21

Two perceptive scholars have recently described the context in which union organizing among graduate students has developed.  Their description is worth quoting at length:

The post World War II expansion of universities is a well-documented phenomenon.  Enrollments, resources, and activities increased and diversified.  Universities were transformed into mega-complexes.  But by the late 1980s and throughout the 1990s, the realization spread that expansion was not limitless.  In response to heightened accountability demands, universities adopted management strategies that entailed belt-tightening and restructuring of the academic workplace . . . . [M]any universities replaced full-time tenure-track faculty lines with non-tenure-line and part-time appointments.

. . . .

Expansion of doctoral degree production has continued nonetheless . . . .  The discrepancy between ideals and realities prompt graduate students to consider unionization a viable solution to their concerns and an avenue to redress their sense of powerlessness.

. . . .

Among the primary reasons for graduate student unionization is the lengthened time required to complete a degree, coupled with an increased reluctance on the part of students to live in what they perceive as academic ghettos.  Many older graduate students desire to start families, need health care coverage and job security, and perceive the faculty with whom they work to be living in comparative luxury….  [D]ata show that the unionization of these individuals is driven fundamentally by economic realities.

Daniel J. Julius & Patricia J. Gumport, Graduate Student Unionization: Catalysts and Consequences, 26 Review of Higher Educ. No. 2, 187 at 191, 196 (2002) (emphasis added; citations omitted). 

Describing the same process, another scholar observes that the “increased dependence on graduate assistantships has created a group of workers who demand more economic benefits and workplace rights.”22  The question, then, is whether the collective efforts of these workers will be protected by Federal labor law and channeled into the processes the law creates.  Given the likelihood that graduate students will continue to pursue their economic interests through union organizing—even those who live the life of the mind must eat—there are powerful reasons to apply the Act and so encourage collective bargaining to avoid labor disputes, as Congress envisioned.23  The prospect of continued labor unrest on campus, with or without Federal regulation, is precisely what prompted the Board to assert jurisdiction over private nonprofit universities in the first place, three decades ago.24

The majority ignores the developments that led to the rise of graduate student organizing or their implications for the issue decided today.  Instead, it treats the Board’s 1974 decision in Leland Stanford, together with the1977 decision in St. Clare’s Hospital, as the last word.  Like other regulatory agencies, however, the Board is “neither required nor supposed to regulate the present and the future within the inflexible limits of yesterday,” but rather must “adapt [its] rules and practices to the Nation’s needs in a volatile changing economy.”  American Trucking Associations v. Atchison Topeka & Santa Fe Railway Co., 387 U.S. 397, 416 (1967).25  The majority’s failure to do so in this case is arbitrary.

iii.

At the core of the majority’s argument are the twin notions that (1) issues related to the terms and conditions of graduate student employment are “not readily adaptable to the collective-bargaining process,” St. Clare’s Hospital, 229 NLRB at 1002; and (2) imposing collective bargaining will harm “academic freedom” (as the majority defines it) and the quality of higher education.  Neither notion is supported by empirical evidence of any kind.  In fact, the evidence refutes them.

How can it be said that the terms and conditions of graduate-student employment are not adaptable to collective bargaining when collective bargaining over these precise issues is being conducted successfully in universities across the nation?  New York University, ironically, is a case in point, but it is hardly alone.  The recently-reached collective–bargaining agreement there addresses such matters as stipends, pay periods, discipline and discharge, job posting, a grievance-and-arbitration procedure, and health insurance.  It also contains a “management and academic rights” clause, which provides that:

Decisions regarding who is taught, what is taught, how it is taught and who does the teaching involve academic judgment and shall be made at the sole discretion of the University.

Collective–Bargaining Agreement between New York University and International Union, UAW, AFL–CIO and Local 2110, Technical Office and Professional Workers, UAW (Sept. 1, 2001–Aug. 31, 2005), Art. XXII.26  The NYU agreement neatly illustrates the correctness of the NYU Board’s view that the institution of collective bargaining is flexible enough to succeed in this context, as it has in so many others, from manufacturing to entertainment, health care to professional sports.

The NYU agreement cannot be dismissed as an anomaly.  The amicus briefs to the Board submitted by the American Federation of Labor-Congress of Industrial Organizations (AFL–CIO) and the American Association of University Professors (AAUP) inform us of many other, established collective–bargaining relationships between graduate student unions and universities.27  To be sure, most involve public universities, but there is nothing fundamentally different between collective bargaining in public-sector and private-sector universities.28  The majority concedes that the subjects of graduate student collective bargaining “give the appearance of being terms and conditions of employment.”  Obviously, they are terms and conditions of employment, as found in a particular setting.

There remains the majority’s claim that collective bargaining can only harm “academic freedom” and educational quality.  Putting aside the issue of the Board’s authority to serve as an expert guardian of these interests, the question is one of evidence.  Here, too, the majority’s claims are not simply unsupported, but are actually contradicted.  The majority emphasizes that collective bargaining is “predicated on the collective or group treatment of represented individuals,” while the “educational process” involves personal relationships between individual students and faculty members. The issue, if one is presented at all by this difference, is whether the two processes can coexist.  Clearly, they can.  The evidence is not just the ongoing collective-bargaining relationships between universities and graduate students already mentioned.  It also includes studies ignored by the majority, which show that collective bargaining has not harmed mentoring relationships between faculty members and graduate students.29  These conclusions are not surprising.  Collective bargaining is typically conducted by representatives of the university and graduate students’ unions, not individual mentors and their students.  

After a careful review, scholars Daniel Julius and Patricia Gumport, for example, concluded not only that “fears that [collective bargaining] will undermine mentoring relationships . . . appear to be foundationless,” but also that data “suggest that the clarification of roles and employment policies can enhance mentoring relationships.”30  Scholar Gordon Hewitt reached a similar conclusion based on an analysis of the attitudes of almost 300 faculty members at five university campuses with at least 4-year histories of graduate-student collective bargaining.  Summarizing the results of his survey, Hewitt observes that:

It is clear . . . that faculty do not have a negative attitude toward graduate student collective bargaining.  It is important to reiterate that the results show faculty feel graduate assistants are employees of the university, support the right of graduate students to bargain collectively, and believe collective bargaining is appropriate for graduate students.  It is even more important to restate that, based on their experiences, collective bargaining does not inhibit their ability to advise, instruct, or mentor their graduate students.

Hewitt, supra, 29 Journal of Collective Negotiations in the Public Sector at 164 (emphasis added).  Amicus AAUP echoes these views in its brief to the Board.  These findings should give the majority some pause, as should the obvious fact that whether or not the rights of graduate student employees are to be recognized under the Act, economic concerns have already intruded on academic relationships.

Finally, the majority invokes “academic freedom” as a basis for denying graduate student employees any rights under the Act.  This rationale adds insult to injury.  To begin, the majority defines “academic freedom” so broadly that it is necessarily incompatible with any constraint on the managerial prerogatives of university administrators.  But academic freedom properly focuses on efforts to regulate the “content of the speech engaged in by the university or those affiliated with it.”  University of Pennsylvania v. EEOC, 493 U.S. 182, 197 (1990). On the majority’s view, private universities should not be subject to the Act at all.  But, of course, they are—just as are newsgathering organizations, whose analogous claims of First Amendment immunity from the Act were rejected by the Supreme Court long ago.31 

The NYU Board correctly explained that, the threat to academic freedom in this context—properly understood in terms of free speech in the university setting—was pure conjecture.  332 NLRB at 1208 fn. 9.  We hasten to add that graduate students themselves have a stake in academic freedom, which they presumably will be reluctant to endanger in collective bargaining.  As demonstrated in the amicus brief of the AAUP (a historical champion of academic freedom), collective bargaining and academic freedom are not incompatible; indeed, academic freedom for instructors can be strengthened through collective bargaining.32

iv.

“[W]e declare the federal law to be that graduate student assistants are not employees within the meaning of Section 2(3) of the Act,” says the majority.  But the majority has overstepped its authority, overlooked the economic realities of the academic world, and overruled NYU without ever coming to terms with the rationale for that decision.  The result leaves graduate students outside the Act’s protection and without recourse to its mechanisms for resolving labor disputes.  The developments that brought graduate students to the Board will not go away, but they will have to be addressed elsewhere, if the majority’s decision stands.  That result does American universities no favors.  We dissent.