The National Labor Relations Board’s ruling might have a big impact on the ongoing debate over whether student athletes, like their teaching assistant counterparts, qualify as employees of private universities.
By Jared Keller
A member of the Northwestern Wildcats reacts after a loss to the Ohio State Buckeyes in 2013. (Photo: Jonathan Daniel/Getty Images)
Despite some anecdotal evidence to the contrary, graduate students are indeed productive, valuable members of American universities.
That’s according to a landmark 3–1 ruling by the National Labor Relations Board officially designating student assistants at private universities as employees subject to the protections and privileges of the National Labor Relations Act. The decision, which involved efforts by graduate and undergraduate teaching assistants at Columbia University to unionize, overturned a previous 2004 verdict that slapped down collective bargaining efforts at Brown University, deriding the Brown precedent as “deprived an entire category of workers of the protections of the Act without a convincing justification.”
“The [NLRB] has the statutory authority to treat student assistants as statutory employees, where they perform work, at the direction of the university, for which they are compensated,” the new decision reads. “Statutory coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the [National Labor Relations] Act does not reach.”
The ruling in Columbia University signals a victory for student workers in the long struggle that began in 2000, when the NLRB initially recognized New York University graduate teaching assistants as eligible workers. The 2004 Brown University ruling that reversed the NLRB’s initial decision led to a protracted strike among graduate students. While a regional NLRB official affirmed the 2004 decision in a response to a new petition brought by NYU students, the NLRB had been re-considering the 2004 precedent ever since. Tuesday’s ruling marks the end of the five-year saga. In the case of Columbia, the university seemed to know a victory was coming: According to Insider Higher Education, the administration gave graduate workers a major pay increase in July.
“Football players are even more like employees, because their daily lives are very tightly regulated by football programs.”
Philip Miscimarra, the NLRB member who voted against the majority in Columbia, issued a scathing dissent arguing that the Board had effectively ignored the impact of collective bargaining on the already-astronomical costs of higher education for students. “What hangs in the balance has immense importance, and it does not come cheap for the great majority of undergraduate and graduate students and their families,” he wrote, arguing that Columbia doesn’t involve the “industrial life” that Congress originally intended the NLRA to address. “The Board has no expertise regarding these issues, and Congress did not adopt our statute to advance the best interests of college and university students.”
Joseph Slater, a professor and expert on labor law at the University of Toledo, disputes this claim. After all, there are currently 33 officially recognized graduate student unions in the United States, and none of them have resulted in a stratospheric tuition increase to their home universities.
“We have not seen graduate students in the public sectors be paid what anybody would consider extraordinary salaries,” says Slater, himself a graduate of a Ph.D. program at Georgetown University. “I don’t think the result of the this [NLRB decision] is going to be a huge sea change in how these people are paid. It might often be more of an hours issue, or a question of what types of classes they can be assigned to teach in.”
“When things happen in private sector labor law that have already been in place in the public sectors, people don’t pay attention to what those types of changes actually mean, especially in a case like this where there’s really that much difference between big universities and how they treat their teaching assistants in either sector,” he added.
The ruling by the NLRB may also have a substantial impact on the ongoing debate over whether student athletes, like their teaching assistant counterparts, qualify as employees of private universities. Almost exactly one year ago, the NLRB declined to assert its jurisdiction in the Northwestern University football team’s efforts to form the nation’s first-ever student athlete union as part of an ongoing dispute with the university. As in Columbia, a regional NLRB official had previously ruled that Northwestern football players are employees under federal law, but the Board punted on a final decision on yet another area of employment outside “industrial life.”
This raises an interesting question: How is it that graduate students are university employees, but athletes who work (and earn) hard for their alma mater are not?
“Football players, one could argue, are even more like employees, because their daily lives are very tightly regulated by football programs,” Slater says. “Hours dedicated to training and practice, restrictions on social media use, restrictions on what classes they can take, even the amount of cash they rake in — they look arguably more like employees than a teaching assistant does.”
This disconnect exposes the real obstacle to athletes gaining protected “employee” status. The core of the reason the NLRB defected on the employee question stems from the overlapping jurisdictions of how U.S. football leagues are organized. The Big Ten Conference that the Wildcats belong to includes both public and private universities that are subject to vastly different state labor laws, and while the National Football League may have avoided this problem with a league-wide union, Slater guesses that the NLRB likely found the challenge of reconciling a patchwork of labor laws too complicated. Instead, they opted to simply reject the petition in the interest of “stability in labor relations.”
To be clear: Tuesday’s decision in Columbia, while significant, does not set an Earth-shattering precedent for graduate teaching assistants, let alone athletes. But for the latter, it’s at least a symbolic affirmation that students who “perform work at the direction of the university” are, in fact, employees (outside of a few exceptions in the NLRA), as the decision puts it. Perhaps it’s time for graduate students and athletes, two unlikely worker allies within the closed ecosystem of the university world, to unite.