On Aug. 23, the National Labor Relations Board ruled that private university graduate and undergraduate teaching assistants, as well as graduate research assistants, are employees within the meaning of the National Labor Relations Act. The decision is both sensible and compatible with the act itself.
Yet, the contentiousness that may flow in the ruling’s wake highlights the need for other long overdue reform objectives, i.e., a need to diminish labor law politicization that has been relentlessly enhanced during these last three decades.
Clearly, the teaching and research assistants possess the basic indications of what it means to be an employee. But the decision will receive extra scrutiny because it reversed a 2004 NLRB ruling by President George W. Bush’s appointees that teaching and research assistants were not employees because they are “primarily students” and that collective bargaining inevitably impinged upon traditional academic freedoms. However, as the new board ruling noted, there has never been any empirical evidence to support this proposition.
All this does not mean that the board’s ruling will be problem-free. For starters, a petition filed by Yale graduate students attempts to establish 10 different departmental units for bargaining, a prospect that may horrify universities concerned with bureaucratic tidiness. And the decision should mean that the question of whether student athletes are employees under the law — the issue that was posed but not resolved by the board a year ago in the Northwestern University case — should be a relatively easy one.
If collective bargaining is compatible with individuals who are supervised by academics because interference with academic freedom is not in evidence, surely athletes who are not supervised by academics are even more easily defined as employees.
But as Justice Holmes famously said some time ago, “a page of history is worth a volume of logic.” The board ducked the student athlete issue a year ago because it did not want to incur the wrath of Congress and the slash of appropriations that might ensue.
The board’s proffered rationale for dismissing the football players’ petition — that many of the collective bargaining issues could not be resolved at the university level rather than at the NCAA or conference composed of private and public universities — didn’t pass the smell test. The board has continually taken jurisdiction where the issues are beyond the immediate control of the parties at the bargaining table — for instance, the assertion of jurisdiction over government contractors.
But as the dissent in the case of Columbia University notes, the Supreme Court has not been particularly hospitable to collective bargaining in higher education. Yale will argue that a large number of bargaining units and unions frequently produce bad labor relations in industries like newspapers and construction. Clashes between aggressive union members and the sanctimonious-sounding position of revenue-generating universities who pretend to be above the fray are bound to produce conflict.
A board composed of President Obama appointees was called upon to reverse two major rulings of the NLRB, one of which itself reversed a 2000 ruling of the board appointed under the Clinton administration in a New York University case holding that the same students are employees. It highlights the political environment that surrounds the agency.
The NYU decision of my board languished until two years subsequent to my departure in 1998, so concerned was that era’s appointees with the gathering clouds of labor law politicization. Only when the board saw the galley proofs of my 2000 book criticizing this and other long unexplained delays that were rooted in politics did it finally issue the NYU decision, which was particularly visible on the Republican radar screen and one which the Bush appointees quickly condemned and reversed as an anomaly.
Thus, the issues decided in Columbia University case will be bound up with the 2016 elections. A good start would be to bar the reappointment of incumbents so as to better immunize them from the retributive political process. This and other measures could produce an environment that promotes rulings like Columbia University but also one where proponents of the rule of law can move toward the depoliticization of the law and the NLRB and a consequent environment which better serves the public.
William B. Gould IV is a prolific scholar of labor and discrimination law. He has been an influential voice on worker-management relations for more than forty years and served as Chairman of the National Labor Relations Board (1994-98) and Chairman of the California Agricultural Labor Relations Board (2014-___).
This op-ed was originally published by the St. Louis Post-Dispatch on September 7, 2016.