Graduate students at Harvard have launched an effort to unionize, and while a 2004 ruling by the National Labor Relations Board may stand in their way, labor experts predict that a future reconsideration of that decision could pave an easier path toward unionization.
In 2004, under the George W. Bush administration, the NLRB sided with Brown University, which argued that its graduate students, who also served as teaching assistants, were primarily students rather than primarily employees, and therefore Brown was not required to recognize their union.
That decision suggests that Harvard’s own graduate students will face an uphill battle to form a recognized union, but today’s NLRB—which experts consider to be more liberal—may reconsider the decision in the coming years. The board may decide to call teaching assistants employees, some experts interviewed argued, breaking the dichotomy between the two categories.
As a private university, Harvard falls under the jurisdiction of the NLRB, rather than state labor laws, which dictate the unionization process for state university employees. Harvard graduate students’ unionization efforts depend in part on the NLRB, according to experts.
“The Obama board will have to fundamentally distinguish or reverse [the 2004 Brown ruling] in order for the unionization process to be successful,” said William B. Gould IV, a Stanford law professor emeritus and a former chairman of the NLRB under the Clinton administration.
If recognized, forming a union could enable graduate students to collectively bargain with the University, potentially creating a more centralized complaint system and providing a stronger negotiating position, Harvard graduate student organizers argue.
The NLRB was formed in 1935 and is composed of five members who serve five-year terms. They are appointed by the president and confirmed by the Senate, creating a partisan dynamic largely determined by the sitting president, according to experts interviewed.
With its current composition, the NLRB is likely to reconsider the Brown decision, argued Risa L. Lieberwitz, a professor of labor and employment law at Cornell.
“It’s a good moment to reconsider this question and to come out with a decision that says that TAs and RAs are doing the work of the university in a way that should lead to a conclusion that they’re employees,” Lieberwitz said, referencing the makeup of the NLRB as well as recent university trends in hiring more non-tenure track professors and graduate students to bear a greater proportion of teaching responsibilities.
While graduate student unionization faced an uphill battle under the Bush administration, some experts argue that the NLRB under Obama is more likely to categorize graduate students as university employees.
“In its liberal mode, the board has said yes and in the conservative mode has said no,” said Michael Gold, an associate professor of labor relations, law, and history at Cornell, referencing the NLRB’s previous rulings on whether or not graduate students should be considered employees. “In its current situation, it would likely say yes.”
The NLRB’s New York regional office was scheduled to review Columbia graduate students’ request for union recognition at the end of March.
At Harvard, graduate students who unionize could directly demand that the University recognize them, no matter the NLRB’s position on their employment status, according to David Rosenfeld, a lecturer at the University of California Berkeley School of Law and a labor law expert. But if left unrecognized and unprotected by the NLRB, students could be fired for labor strikes, he said.
“That would take a lot of courage,” Rosenfeld said.
—Staff writer Tyler S. B. Olkowski can be reached at firstname.lastname@example.org. Follow him on Twitter @OlkowskiTyler.
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