Tuesday, in a long-awaited decision, Columbia University, the Obama National Labor Relations Board continued its unrelenting efforts to expand the scope of permissible union organizing activities. In a 3 to 1 decision, the Board declared that graduate students who teach or do research for their universities have a right to organize and collectively bargain over the terms and conditions of their “employment.”
Never mind that graduate students are admitted to, not hired by, the university and that their teaching and research activities are an integral component of their academic development. And never mind that granting graduate students collective bargaining rights will interfere with the university’s educational decisions. Decisions over who, what and where to teach or do research – long perogatives of the institution and often based on individualized considerations and concerns such as the ability of the graduate student – are now terms and conditions of employment that must be bargained over.
The National Labor Relations Act was passed in 1935 in response to the demands of the Great Depression and the labor strife, sometimes violent, that threatened to idle entire industries which was precipitated by substandard working conditions in the newly industrialized U.S. The Act gave workers the right to organize and to bargain collectively with their employers over their wages, benefits and the working conditions.
Since the Act was passed, Boards controlled by Democrats and Republicans have consistently interpreted the Act in the context in which it was intended to apply. A worker was not an “employee” with a right to organize unless his relationship with his employer was primarily industrial or economic. Thus, the Act did not apply to the disabled in short-term rehabilitation work programs because the relationship of the disabled with the program was primarily rehabilitative. And, except for four years as a result of a Clinton Board decision in New York University, the Act did not apply to graduate students because the students’ relationship to their university was primarily educational.
That, of course, was before Big Labor contributed tens of millions of dollars to the Democrat Party and demanded it appoint Board members who would change the law to suit the needs of organized labor.
In a form of play for pay, union-side lawyers, if they hope to work when they are off the Board, are doing just that. They disingenuously rely on broad policies such as “to encourage the practice and procedure of collective bargaining” to ignore the intent of Congress and the specific provisions of the statute they are charged with administering. They cleverly use high-sounding phrases such as “the changing realities of the modern workplace” to justify changes in long-standing Board law with the sole purpose of favoring unions. Some of their decisions, such as their recent expansion of what it means to be a joint employer, threaten the continued viability of the entire franchise industry.
The sad truth of the matter is that they do not care and cases such as that and Columbia University will continue to be issued unless control of the Board shifts to members who honor decades-old precedent and favor a balanced interpretation of the nation’s chief labor law.