Graduate Students Take a Stand

The spirit of the old labor movement seems to be showing some signs of life on university campuses of all places. There have been some rumors that graduate students at Yale, University of Pennsylvania, and Columbia University are planning a strike. Here's the interesting part: according to the NLRB, graduate students do not have collective bargaining rights. Last summer, the Board overturned the precedent established in New York Univ., 332 NLRB 1205 (2000), and held that graduate students, who spend a good deal of their time teaching classes, grading papers, and performing other duties that used to be left to tenured professors, are not statutory employees under the NLRA. See Brown University, 342 NLRB No. 42 (2004). This ruling stripped graduate students of their right to form unions despite the fact that their relationship to their schools has become less and less academic and increasingly economic. As the dissent in Brown explained (citations omitted):

[The majority's] decision is woefully out of touch with contemporary academic reality . . .. 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 . . . .

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 . . ..

"[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." By December 2000, 23.3 percent of college instructors were graduate teaching assistants . . ..

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 . . ..

Apparently, the graduate students at Yale, Penn, and Columbia have taken this dissent to heart.

NHL Season Cancelled

While professional hockey has fallen off the radar screen in recent months, a glimmer of hope surfaced in the last couple of days that a mini-season could be salvaged. Indeed, NHL and NHLPA officials were in talks within the last 48 hours and each side offered compromises on major sticking points. The NHL's lockout was designed to call the players' bluff. It did not work and many players went to Europe where there is arguably greater appreciation for the game. We are sorry the season has ended on this note, both as fans and labor lawyers who believe in the process of collective bargaining. That process was not well served in this case and will probably be the subject of great debate. The NHL asked for this showdown and it got one. At least there is still college hockey which is a much better game anyway, even if it is a challenge to find televised coverage for those of us who don't live in New England or the upper Midwest. See the Washington Post news story.

Happy 70th, Wagner Act!

At 70 years old this year, the National Labor Relations Act (informally known as the Wagner Act), as amended by some subsequent legislation, is still the law of the land concerning labor relations. In an era when the percentage of represented workers approaches single digits, what are we to think of the grand dame of the New Deal? Is the Act still relevant to 21st Century globalization and the new economic reality? Call me nostalgic, but I still say yes. One need look no further than Section 1, in which Congress formally stated the Act’s “purpose and policy”. It declared, in order to alleviate “industrial strife which interferes with the normal flow of commerce”, orderly and peaceful procedures for resolution of disputes between employers and employees would be provided. After the bitter, unregulated labor strife -- including serious violence -- of the first several years of the Great Depression, we officially accepted and endorsed collective bargaining as the national labor policy. The Act did the trick, resulting not coincidentally in decades of labor peace. Seventy years later, relatively few American workers collectively bargain. Plenty has been said and written about why this is so.

My thesis for this blog is simple. We should not lose sight of the important historical policy reasons underlying the Act. No one wishes to return to an era of strife and violence. In practice, for seventy years, secret-ballot elections of labor representatives, collective bargaining, and policing unfair labor practices has been an overwhelming success in maintaining labor peace. It is no less relevant today. My sense is that the vast majority of Americans still believe in the basic policies upon which the Act was based. It is unfortunate, then that the fringe elements have succeeded in swinging the debate toward a discussion about protecting workers from unions and, ultimately, dismantling the current system to return to 1934. With history as our guide, I submit that nobody in their right mind can want that. Domestic peace and prosperity owe a continuing debt of gratitude to the Act. Happy 70th!

Update on Noble Health Goals vs. Off-Duty Conduct debate

Here's yet another article in the NY Times discussing the tension between employers' interest in a healthy work force vs. the individual rights of workers to smoke away from the workplace. (See our previous posting on the issue).

Hotel Workers Campaign

A recent action alert from UNITE HERE! states:

Hotel workers in fourteen hotels in San Francisco are involved in a protracted contract fight. Workers are fighting to maintain decent healthcare coverage and address workload and immigration and hiring issues. These workers have called for a boycott of their hotels. These hotels only care about their income and we need to send the message that we will not help them hurt working women and men in San Francisco.

Not surprisingly, disputes over health care costs have been at the core of many recent labor disputes. This campaign is a perfect example. If you want to show your support or learn more, check out Union Voice and UNITE HERE!

Running scared?

Employer reaction to union organizing efforts can be predictable as is the case with the country's largest private sector employer. That Wal-Mart might shutter a Canadian store rather than go to binding arbitration is not a surprise. What is more surprising is the argument made by some that employees would be better off without unions. Doesn't a successful union organizing drive prove that theory wrong? For a brief news story about the planned Canadian closure, see The New York Times.

When Noble Public Health Goals and Off-Duty (Mis)Conduct Collide

In this news article, the debate is nicely framed: How does an employer balance its legitimate interests in maintaining a healthy workforce with individual employee rights to be left alone at home? This may well become a trend and it will be interesting to see how employees represented by unions fair in labor arbitration.

Thanks to Nathan Newman for mentioning our us and several other new labor blogs.

In other news: The new Peer & Gan website is up and running.

'Tis the Season of Salary Arbitration

The Sports page provides more labor law material than any other these days. For an interesting look at the complex yet ultimitely simple world of Major League Baseball salary arbitration see Alan Schwarz's recent article in the New York Times. The Minnesota Twins' Assistant GM's suggestion that arbitrators might not be able to "understand" all the fancy stats was a low blow. Baseball arbitrators get fired not because they don't get it; they get fired because one side inevitably loses. It is the risk both sides take when going to arbitration.