1 Descriptions of the history of GESO and Yale are based on the author’s personal observations as a Yale teaching assistant, and as a member and organizer of GESO.
2 In this note, the term “teaching assistants” will refer generally to those graduate students enrolled in a college or university who perform a range of academic services for the university. These services may include grading, conducting tutorials, supervising laboratory work, teaching sections of lecture courses, or teaching their own independent courses. See e.g., N.Y. Univ., 332 N.L.R.B. No. 111, (Oct. 31, 2000), 165 L.R.R.M. 1241, 1241 available at 2000 N.L.R.B. LEXIS 748, 1; Yale Univ., 330 N.L.R.B. No. 28, (Nov. 29, 1999), 162 L.R.R.M. 1393, 1393 available at 1999 WL 1076116 1, 12–13. The official treatment of these teaching assistantships varies from university to university; for example, serving as a TA may or may not be linked to a financial aid package. See id. Likewise, some or all of these services may or may not be required. See id. Although the factual contexts of these positions may differ, as the Board in New York University recognized, the crucial factor of the inquiry into the employee status of teaching assistants is whether the students perform services for an employer for which they are compensated. See 2000 N.L.R.B. LEXIS 748 at 10, 65–66.
3 See Yale Univ., 1999 WL 1076116 at 1. Although citations to the NLRA correspond to the Act as amended, throughout this Note I will refer to sections of the NLRA by their popular names, derived from the National Labor Relations Act of 1935. See 29 U.S.C. § 141 (1994).
4 See Yale Univ., 1999 WL 1076116 at 1.
5 See id.
6 See id. at 28.
7 See id. at 6.
8 The GESO grade strike received significant national press coverage. See, e.g., Alice Dembner, Despite Threat, Yale Won’t Settle Labor Case, Boston Globe, Nov. 20, 1996, at B7; Union Drive Erupts at Yale, Boston Globe, Jan. 10, 1996, at 17; Michael Matza, Grad Students Striking Out, Houston Chron., Jan. 21, 1996, at 11; Gerald Renner, Demonstrators Take to The Street, Hartford Courant, Jan. 11, 1996, at A3; Gerald Renner, Union Movement Tests Yale University, Hartford Courant, Apr. 27, 1997, at C1; Gerald Renner, Yale Graduate Students File Complaint with Labor Board, Hartford Courant, Jan. 12, 1996, at A12; Rene Sanchez, Graduate Teaching Assistants Press Their Call for Equity in Academia, Wash. Post, Feb. 4, 1996, at A03; Editorial, Strike at Yale, Wash. Post, Jan. 22, 1996, at A18.
9 See Boston Med. Ctr. Corp., 330 N.L.R.B. No. 30, 1 (Nov. 26, 1999), available at 1999 WL 1076118 1, discussed infra at notes 76–103 and accompanying text.
10 See id.; Bernhard Wolfgang Rohrbacher, Notes and Comments, After Boston Medical Center: Why Teaching Assistants Should Have the Right to Bargain Collectively, 33 Loy. L.A. L. Rev. 1849, 1849 (2000).
11 See N.Y. Univ., 2000 N.L.R.B. LEXIS 748, 1; Representation Elections: NLRB Regional Director Orders Election on Representation of NYU Graduate Workers, 66 Daily Labor Report (DLR), Apr. 5, 2000, AA-1; NLRB Regional Director’s Decision in New York University and United Auto Workers, 66 DLR, Apr. 5, 2000, E-22.
12 See Rachel Einschlag, NYU Recognizes Grad Student Union, Cornell [Univ.] Daily Sun, Mar. 13, 2001; Matthew Matera, NYU to Bargain with Grad Union, Yale Daily News, Mar. 2, 2001.
13 Yale President Richard Levin, reacting to the decision of NYU to recognize and bargain with its TA union, restated that he “believe[d] that most students at Yale . . . will decide that unionization is not in their best interest.” Matera, supra note 12.
14 Using its authority under the commerce clause of the U.S. Constitution, Art. I, Section 9, Congress passed the NLRA in 1935 to promote industrial peace and stability. See U.S. CONST. art. I, § 9, cl. 2; NLRA, 29 U.S.C. § 141(b) (1994). The purpose of the legislation, as amended in 1947 by the Labor Management Relations Act, is announced in 29 U.S.C. § 141(b) (1994):
[T]o promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce, to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare, and to protect the rights of the public in connection with disputes affecting commerce.
Id.
15 See Douglas Sorrelle Streitz & Jennifer Allyson Hunkler, Teaching or Learning: Are Teaching Assistants Students or Employees?, 24 J.C. & U.L., No. 2, 349, 352–56 (1997).
16 29 U.S.C. § 157 (1994).
17 Id. at § 152.
18 Id.
19 See id. Until 1970, the Board had held that private colleges and universities were exempt from the strictures of the Act because the activities of these employers were not commercial in nature and therefore operated outside the jurisdiction of the Board. See Columbia Univ., 97 N.L.R.B. 424, 427 (1951). In 1970, however, the Board changed direction by determining that the impact of private universities on interstate commerce was, in fact, huge. See Cornell Univ., 183 N.L.R.B. 329, 331–33 (1970). Because there is no argument in the instant cases that either Yale or NYU should fall outside the jurisdictional limits of the NLRA, the control of the NLRB over private universities and colleges is not an issue in this essay.
20 See 29 U.S.C. § 157; St. Clare’s Hosp. and Health Ctr., 229 N.L.R.B. 1000, 1001 (1977); Cedars-Sinai Med. Ctr., 223 N.L.R.B. 251, 253 (1976); Leland Stanford Junior Univ., 214 N.L.R.B. 621, 623 (1974); Cornell Univ., 202 N.L.R.B. 290, 292 (1973); Adelphi Univ., 195 N.L.R.B. 639, 640 (1972).
21 See 29 U.S.C. § 157; St. Clare’s, 229 N.L.R.B. at 1001; Cedars-Sinai, 223 N.L.R.B. at 253.
22 29 U.S.C. § 152(5) (1994).
23 See id.
24 Id. at § 159 (a).
25 The charges arising from the Yale grade strike allege violations of § 8(a)(1) and (3); first, in Yale’s refusal to recognize the teaching assistants as employees covered by the Act and, second, by firing, threatening to expel, and subjecting to increased supervision teaching assistants who participated in the strike. Yale Univ., N.L.R.B. No. 28, (Nov. 29, 1998), 162 L.R.R.N. 1393, 1393 available at 1999 WL 1076116 1, 1.
26 29 U.S.C. § 158 (a)(1) (1994).
27 Id. at § 158 (a)(3).
28 Id. at § 158 (a)(5).
29 For discussions of the legacy of the AAUP and academic freedom, see Julius Getman, In the Company of Scholars: The Struggle for the Soul of Higher Education (1992); Regulating the Intellectuals: Perspectives on Academic Freedom in the 1980s (Craig Kaplan & Ellen Schrecker eds., Prager Special Studies, 1983) [hereinafter REGULATING THE INTELLECTUALS].
30 See Ellen Schecker, Academic Freedom: The Historical View, in Regulating the Intellectuals, supra note 29, at 26.
31 Arthur O. Lovejoy, American Association of University Professors, Declaration of Principles (1915), reprinted in Getman, supra note 29, at 74–75. Lovejoy states:
[I]f the universities are to render any such service toward the right solution of social problems in the future, it is essential that the scholars who carry on the work of universities shall not be in a position of dependence upon the favor of any social class or group, that the disinterestedness and impartiality of their inquiries and their conclusions shall be so far as humanly possibly beyond the reach of suspicions.
Id.
32 See Ellen Schrecker, Academic Freedom: The Historical View, in Regulating the Intellectuals, supra note 29, at 28.
33 See Regulating the Intellectuals, supra note 29, at 15.
34 See Getman, supra note 29, at 109–13; Regulating the Intellectuals, supra note 29, at 15; Frances Fox Piven, Academic Freedom and Political Dissent, in Regulating the Intellectuals, supra note 29, at 17–21.
35 See Getman, supra note 29, at 109–13; Regulating the Intellectuals, supra note 29, at 15; Frances Fox Piven, Academic Freedom and Political Dissent, in Regulating the Intellectuals, supra note 29, at 17–21.
36 See Getman, supra note 29, at 101–03.
37 AAUP Department of Organizing and Services, CBC Bylaws (Rev. 1996), at http:// www.aaup.org/Cbbylaws.htm (last visited Apr. 12, 2001).
38 AAUP, Statement on Collective Bargaining, at http://www.aaup.org/cbpage.htm (last visited Apr. 12, 2001). The AAUP currently claims more than 70 AAUP chapters serving as faculty collective bargaining representatives.
39 See id. The AAUP website notes that a brief period of faculty bargaining occurred between 1970, when the NLRB asserted jurisdiction over private universities in Cornell University, and the Supreme Court’s decision in NLRB v. Yeshiva University in 1980. See 444 U.S. 672 (1980). Nevertheless, the website states that some private sector AAUP Collective Bargaining chapters have been able to maintain the benefits and protections of collective bargaining. See id.
40 AAUP, Statement on Collective Bargaining, at http://www.aaup.org/rbcb.htm (last visited Apr. 12, 2001).
41 See id.
42 Id.
43 Id.
44 Id.
45 AAUP, Statement on Academic Government for Institutions Engaged in Collective Bargaining, at http://www.aaup.org/rbcbgov.htm (last visited Apr. 12, 2001).
46 AAUP, Welcome Letter to Graduate Students from General Secretary Mary Burgan, at http://www.aaup.org/Gradhome.htm (last visited Apr. 12, 2001).
47 Id., quoting AAUP, Statement of Principles of Academic Freedom and Tenure (1940), at http://www.aaup.org/Gradhome.htm (last visited Apr. 12, 2001) (emphasis added). Emily K. Abel argues that the profound change in the economics of the university has, in fact, meant that academic freedom is almost entirely absent for the “fastest growing segment of the academic workforce:” graduate students and adjunct faculty. See Emily K. Abel, The Employment Crisis in the Academy, in Regulating the Intellectuals, supra note 29, at 124–26.
48 NEA, National Education Association FAQ, at http://www.nea.org/aboutnea/faq.html (last visited Apr. 12, 2001).
49 NEA, NEA and Academe Through the Years: The Higher Education Roots of NEA, 1857–Present, at http://www.nea.org/he/roots.html (last visited Apr. 12, 2001).
50 Id.
51 Id. In 1928, the NEA adopted a resolution on the Freedom of the Teacher. See id. Later, the NEA adopted resolutions condemning loyalty oaths, book burnings, ideological purges, and censorship of instructional materials and opinions. See id. The NEA was also active in lobbying against legislation denying salary to “any employee in the District of Columbia who ‘taught or advocated Communism.’” See id.
52 NEA, NEA Policy Statements: Academic and Intellectual Freedom and Tenure in Higher Education, at http://www.nea.org/he/policy1.html#top (last visited Apr. 12, 2001).
53 Id.
54 Id.
55 Id.
56 See N.Y. Univ., 332 N.L.R.B. No. 111 (Oct. 31, 2000), 165 L.R.R.M. 1241, 1241, available at 2000 N.L.R.B. LEXIS 748 1, 4–18. The current debate over TA unionization discussed in this Note concerns exclusively the rights of TAs at private, as opposed to public, universities. Teaching assistants at public universities and colleges are considered public employees and thus exempt from the terms of the NLRA. 29 U.S.C. § 152(2) (1994) reads: “The term ‘employer’ . . . shall not include . . . any State or political subdivision thereof.” 29 U.S.C. § 152(2) (1994). Nevertheless, as public employees, these TAs are commonly afforded the rights of collective bargaining and representation by state statute. As a result of state statutes modeled upon the NLRA, several states, including California, New York, Michigan, Wisconsin, Iowa, and Kansas, have extended the rights of collective bargaining to public-sector and state government employees. See, e.g., Labor-Mediation-Public Employment-Fair Employment Practices, MICH. COMP. LAWS ANN. §§ 17.454(1)–(2) (West 1995); New York State Labor Relations Act, N.Y. LAB. LAW. §§ 700–717 (1988). See N.L.R.B. v. Comm. of Interns and Residents, 426 F. Supp. 438, 452–54 (S.D.N.Y. 1977) (holding that student-employees of public hospital are “employees” under state labor law); see also Streitz & Hunkler, supra note 15, at 352 (citing Michigan, New Jersey, New York, and Wisconsin statutes); Rohrbacher, supra note 10, at 1852 (citing California’s Higher Education Employer-Employee Relations Act (HEERA), CAL. GOV’T CODE §§ 3560–3595 (West 1999 & Supp. 2000)). Although state labor statutes are largely modeled on the NLRA, Streitz and Hunkler argue that, in evaluating unionization efforts, state public employee relations Boards have not applied the NLRB’s “primarily students” analysis to teaching assistants. See Rohrbacher, supra note 10, at 1881–82; Streitz & Hunkler, supra note 15, at 364.
57 See, e.g., Cornell Univ., 202 N.L.R.B. No. 41 291, 291–92 (1973). This Note is concerned with the status of students employed by the university in which they are enrolled, rather than by private employers. See Martin H. Malin, Student Employees and Collective Bargaining, 69 Ky. L.J. 1, 1 (1980–81).
58 See 202 N.L.R.B. at 292. See also Coll. of Pharm. Sci., 197 N.L.R.B. 959, 960 (1972) (holding student employees should be excluded because employment by the university was dependent upon their enrollment as students and upon their “satisfactory academic progress”); Adelphi Univ., 195 N.L.R.B. 639, 640 (1972)(holding graduate assistants did not share a sufficient community of interest with regular faculty to warrant inclusion in a faculty bargaining unit, largely because their employment depended on continued enrollment as students).
59 See Cornell Univ., 202 N.L.R.B. at 292.
60 See id. (citing such factors as different hiring procedures, different rates of pay and different terms of employment for student/non-student employees to demonstrate absence of community of interest); Georgetown Univ., 200 N.L.R.B. 215, 216 (1972) (refusing to allow student employee bargaining unit including non-student part-time employees, citing lack of community of interest).
61 See S.F. Art Inst., 226 N.L.R.B. 1251, 1251 (1976) (holding that students employed part-time as janitors were concerned “primarily” with their studies and were not therefore employees within the meaning of the NLRA); Streitz & Hunkler, supra note 15, at 368.
62 See S.F. Art Inst., 226 N.L.R.B. at 1252; Leland Stanford Junior Univ., 214 N.L.R.B. 621, 622 (1974).
63 See Barnard Coll., 204 N.L.R.B. 1134, 1134–35 (1973).
64 See id.
65 See Streitz & Hunkler, supra note 15, at 369.
66 See 223 N.L.R.B. 251, 251 (1976).
67 See id. at 253–54.
68 Id. at 253.
69 See id. at 253 (Fanning, Member, dissenting).
70 See id. at 253–54 (Fanning, Member, dissenting).
71 See 229 N.L.R.B. 1000, 1000–02 (1977).
72 See id. at 1002–03.
73 Id. at 1003.
74 See id.
75 See id. at 1002–03. Streitz and Hunkler contend that the Board’s reasoning, its policy argument, and its categorization scheme in the St. Clare’s decision was an attempt to respond to Member Fanning’s critique in the earlier Cedars-Sinai decision. See Streitz & Hunkler, supra note 15, at 369–70. Malin notes that the St. Clare’s decision effectively reversed the Board’s holding in Cedars-Sinai that student status would not necessarily be inconsistent with that of employee. See Malin, supra note 57, at 22 n.104.
76 Boston Med. Ctr., 330 N.L.R.B. 1, 1 (Nov. 26, 1999), available at 1999 WL 1076118 1.
77 See id.
78 Id. at 13.
79 Id.
80 Id.
81 See Boston Med. Ctr., 330 N.L.R.B. at 13.
82 Id. at 14.
83 See id. at 13.
84 Id.
85 See id.
86 Boston Med. Ctr., 330 N.L.R.B. at 14.
87 See id. As factors demonstrating their employee status, the Board also noted that house staff receive other fringe benefits including worker’s compensation benefits, paid vacations, sick leave, parental and bereavement leaves, as well as health, dental, life, and malpractice insurance. See id.
88 See id. at 15. The Board noted that the mere fact that the employees are also learning new skills does not negate their being employees. See id. Indeed, the Board remarked that such life-long learning is inherent to a professional career. See id. Additionally, the Board compared the house staff to “apprentices,” noting that it “has never been doubted that apprentices are statutory employees.” Id.
89 See id. at 19.
90 See id.
91 See Boston Med. Ctr., 330 N.L.R.B. at 20–22.
92 See id.
93 Id. at 20.
94 Id. at 14.
95 See id.
96 See Boston Med. Ctr., 330 N.L.R.B. at 19–21.
97 See id.
98 See id. at 19–21.
99 Id.
100 Id.
101 Boston Med. Ctr., 330 N.L.R.B. at 20 (citing Regents of the Univ. of Mich. v. ERC, 204 N.W.2d 218, 224 (Mich. 1973)) (holding salary is bargainable issue because a matter of “terms and conditions of employment,” whereas not working in the pathology department because work is “distasteful” is within educational realm).
102 Id. at 19–21 (quoting Regents of Univ. of Cal. v. PERB, 715 P.2d 590, 604 (Cal. 1986)).
103 See id. The Board concluded:
We cannot subscribe to dissenting Member Braem’s forecast of doom to medical education as a consequence of our decision today. We simply cannot say, either as a matter of law or as a matter of policy, that permitting medical interns, residents and fellows to be considered as employees entitled to the benefits of the Act would make them any less loyal to their employer or to their patients. Nor can we assume that the unions that represent them will make demands upon them or extract concessions form [sic] their employers that will interfere with the educational mission of the institutions they serve, or prevent them from obtaining the education necessary to complete their professional training. If there is anything we have learned in the long history of this Act, it is that unionism and collective bargaining are dynamic institutions capable of adjusting to new and changing work contexts and demands in every sector of our evolving economy. . . . To assume otherwise is not only needlessly pessimistic, but gives little credit to the intelligence and ingenuity of the parties.
Id.
104 332 N.L.R.B. No. 111 (Oct. 31, 2000), 165 L.R.R.M. 1241, 1241, available at 2000 N.L.R.B. LEXIS 748, 1. On April 3, 2000, Regional Director Silverman had applied the Board’s new “service test” as articulated in the Board’s Boston Medical Center decision to a representation petition filed by TAs at NYU. See id. Regional Director Silverman determined that most of the TAs are employees under the Act and are entitled to a Board-sponsored union certification election. See id.
105 See id.
106 Id. at 4.
107 See id. at 6–7.
108 Id. at 8–9.
109 See N.Y. Univ., 2000 N.L.R.B. LEXIS at 8-9.
110 See id. at 10.
111 See id. at 11–12.
112 See id. at 13.
113 See id. at 13, (citing Goodwill of Tidewater, 304 N.L.R.B. 767, 768 (1991)).
114 N.Y. Univ., 2000 N.L.R.B. LEXIS 748 at 14.
115 See id. at 15.
116 See id. at 15–19.
117 Id. at 15–16 (quoting Boston Med. Ctr., 330 N.L.R.B. at 13).
118 See id. at 15–16.
119 See New York Univ., 2000 N.L.R.B. LEXIS at 17.
120 Id. at 18. See Wentworth Institute v. N.L.R.B., 515 F.2d 550, 556 (1st Cir. 1975) (rejecting employer’s contention that recognition of faculty collective bargaining unit would result in the erosion of academic and meritocratic values).
121 See N.Y. Univ., 2000 N.L.R.B. LEXIS at 17–18.
122 See Boston Med. Ctr., 330 N.L.R.B. at 20.
123 See Yale Univ., 1999 WL 1076116.
124 See id. at 4–6.
125 See id. at 6.
126 Personal conversation with GESO staff organizer Rachel Sulkes, Mar. 24, 2001.
127 See supra text accompanying note 74.
128 See supra text accompanying note 82.
129 See supra text accompanying notes 58–67.
130 See supra text accompanying notes 60–63.
131 See supra text accompanying note 58.
132 See supra text accompanying note 58.
133 See supra text accompanying notes 81–82.
134 See supra text accompanying notes 81–82.
135 See supra text accompanying notes 81–82.
136 See supra text accompanying notes 81–82.
137 See supra text accompanying notes 86–88.
138 See supra text accompanying notes 86–88.
139 See supra text accompanying notes 86–88.
140 See supra text accompanying notes 89, 90, 93–95, 98–100, 101–102.
141 See supra text accompanying notes 89, 90, 93–95, 98–100, 101–102.
142 See supra text accompanying notes 89, 90, 93–95, 98–100, 101–102.
143 See supra text accompanying notes 77–83, 85, 92.
144 See Malin, supra note 57, at 26 (emphasis added).
145 See id.
146 See id.
147 See id.
148 See supra text accompanying note 89.
149 See supra text accompanying notes 90–102.
150 See id.
151 See supra text accompanying note 102.
152 See Malin supra note 57, at 29 n.139.
153 See supra text accompanying note 38.
154 Personal communication with GESO staff organizer Rachel Sulkes, Mar. 24, 2001.