Legal Commentary

In light of Obama's recent recess appointments to the NLRB, the question has special urgency here at NYU, because the new Obama-controlled NLRB will almost certainly reverse its 2004 decision holding that Brown University's graduate students are not statutory employees within the meaning of federal labor law and, therefore, not covered by the Wagner Act. The 2004 decision was rooted in the idea that "graduate student assistants, including those at Brown, are primarily students and have a primarily educational, not economic, relationship with their university." (Brown University, 342 NLRB at 487). According to the NLRB, unionizing the teaching assistants would allegedly interfere with this mentoring relationship by imposing uniformity of rules and conflict over peripheral economic matters where personal relationships and mutual interest in education ought to prevail.

NYU took quick advantage of the Brown University decision to disband its grad student union. So I have two reasons to mourn the impending reversal of Brown University: My employer will be burdened by the switch, and, as Joe Slater has observed, I have not generally been a big union fan on this blog. But, after the jump, I'll try to surprise Joe by suggesting some reasons for why at least some sorts of teaching assistants ought to be covered by the Wagner Act. Simply put, the threat of unionization might be a salutary way to force universities to treat TAs as future colleagues and not as cheap labor fooled into think that they will actually get an academic job by empty "mentoring" talk.

The problem with that "mentoring" rhetoric is that it is often just rhetoric: In an effort to avoid their teaching responsibilities, faculty at larger research universities admit many more grad students than the market can place in academic positions. The faculty then fulfills its duty of educating undergrads by teaching gigantic (300+) intro lecture courses while leaving the weekly section meetings and grading of papers to the TAs. The TAs are paid a pittance to perform these services on the theory that their labor combined with their prof's recommendation will eventually land them a permanent teaching position. The theory, however, is often a thin fiction: The positions simply do not exist -- and the faculty know it.

What if grad students could organize under the Wagner Act? Would they do so? I would guess that the answer to this question depends on whether the rhetoric of mentoring becomes a reality. If faculty reduced the number of grad students to a number that could plausibly obtain full-time academic positions after a reasonable (say, six-year) period of apprenticeship, then those grad students might not be tempted by the blandishments of being a unionized cog with a secure but dull berth in the educational-industrial complex: An ambitious young scholar collaborating with a leader in some academic field will likely not relish having their and their mentor's discretion to fashion their own hours, teaching style, and course materials hedged by the provisions of a collective bargaining agreement. By contrast, unionization will look more attractive to grad students who are treated as cheap labor with no real chances of getting a full-time academic job, retained to perform the disagreeable task of grading blue books and answering undergrad questions about the exam under the guise of being "mentored" by some distant authority figure who barely remembers their name and does not comment on their drafts.

Of course, reducing the number of grad students means that profs will have to teach and grade much more frequently. They will have to treat their grad students as their personal responsibility, enlisting them to help design the course, providing them with frequent feedback on draft dissertation chapters, securing them speaking opportunities at conferences, and generally fighting to get them an academic job. As a law prawf who does his own grading -- 180-odd exams this term alone! -- I do not think that upping the teaching load is too much to ask of my colleagues across the street. But let the faculty decide: Do they really want to mentor their charges by treating them like junior colleagues? Or do they want coolie labor to save them the trouble of teaching?

The Wagner Act might be the perfect way to force faculties at research universities to be honest about how they really regard the grad students whom they say are their future colleagues. The best "union-busting" tactic is to treat those grad students as students -- taking them seriously as future educators rather than as labor-saving devices. Professors' own sense of duty has not, at least in my view, sufficiently induced profs to take this obligation of collegiality with their grad students seriously: Maybe a few visits from the organizers of the UAW, Teamster's, or some other union will do the trick. If not, then at least those TAs will get decent hours and benefits.