Recent news about graduate student unions withdrawing their representation petitions to the National Labor Relations Board (NLRB) is a sign of more trouble for already-failing unions. The Harvard Crimson reports that “Graduate student unions at Boston College, Yale, University of Chicago, and University of Pennsylvania have withdrawn petitions” to represent students before the National Labor Relations Board (NLRB). Instead, the unions, which include the American Federation of Teachers (AFT), United Auto Workers (UAW), Unite Here, and SEIU, said “they’d rather continue to seek voluntary union recognition from their institutions—an unlikely prospect.” Underlying the dispute are the long-term decline of labor unions, the convoluted yet partisan nature of American labor law, and an Orwellian union organizing practice.
So, how did the unions get here in the first place, trying to unionize students rather than workers? Union membership has been in a steady decline for decades:
The Bureau of Labor Statistics said just 10.7% of American workers were members of labor unions in 2016, down from 11.1% the previous year, and down from 20.1% in 1983, the first year the bureau collected union statistics.
With union membership in traditional industries declining, Big Labor is continuously looking for new pockets of employees to organize and from which to collect dues revenues. Enter graduate students, who are usually compensated for teaching assistantships and lab work as part of their studies.
But there’s a small problem. It’s not clear whether or not graduate students are legally employees subject to the 1935 law that governs union-management relations, the National Labor Relations Act. In 2016, the National Labor Relations Board (NLRB), the “powerful, nominally independent, quasi-judicial body” which governs the application of the Act, ruled that graduate students were legally employees. Previously, in 2004, the NLRB had ruled that they were not. This battle stems from their jumbled relationship between education and employment because “the work they do is often a component of their education.”
The years of the contradictory decisions about whether or not students are employees aren’t coincidental. The NLRB is organized on partisan lines, with three of the five board members (one of whom one serves as Chair) and a chief prosecutor (called the General Counsel) being members of the President’s party. At the start of the year, President Trump nominated John F. Ring, a partner at the D.C. firm Morgan, Lewis & Bockius, to fill a vacant Republican seat on the NLRB. If confirmed, Ring would restore a 3-2 Republican majority that could reverse Obama-era precedents—including the 2016 ruling on graduate student unionization.
Graduate students losing their “employee” status would mean that unions would not be able to unionize them and bargain collectively with the universities. So, the unions are employing their traditional workaround: The misnamed “voluntary recognition” or “neutrality agreement,” by which the employer agrees to negotiate with the union without neutral federal adjudication or a secret-ballot vote. Unions can petition for a secret-ballot election by turning in signed cards from at least 30% of employees interested in forming a union. However, “if the union collects signed cards from a majority of these employees, then the union can ask the employer to bypass the election and simply recognize it as the employees’ representative.”
The graduate student unions’ use of “card check” shouldn’t come as a surprise. Bypassing the secret ballot election by means of the card-check system means that the intentions of employees aren’t always honestly communicated. Card-checking can result in workers impulsively signing, feeling coerced, or being unaware of what they are signing. Unions prefer to use the card-check system because forming a union is easier than under a secret ballot election. In the graduate student unions’ case, it has the added nefarious benefit of sidelining the NLRB, which might find the unions’ efforts to be forbidden under the National Labor Relations Act.
In an effort to stop their declining membership numbers and to increase dues collections, unions are trying to hang onto the slippery foothold of graduate students’ grievances. Those hopes could come crashing down upon a future NLRB confirmation.