Some Thoughts on the Unionization
of Graduate Assistants

By Alan Sokal, Professor of Physics, November 3, 2005

1) What is at issue?

It is important that we have clear in our mind exactly what is
(and is not) at issue in this dispute -- indeed, what has been
consistently at issue ever since the grad students started to
organize over 10 years ago. The issue is not whether unionization of
grad students is good for the grad students, or good for the university.
The sole issue is whether the graduate assistants (GAs) should be
allowed to bargain collectively with the University concerning
their wages, benefits and working conditions in case a majority
of them vote, in a secret ballot, for such collective representation.

The University Administration adamantly opposes such collective
representation irrespective of whether 51% or 67% or 99% of the
grad students desire it. This has been their consistent position
ever since the students' organizing drive began in the mid-1990s.
In the late 1990s they spent several million dollars of the
University's money (the precise figure has never been made public)
on anti-union lawyers in a failed effort to prevent a representation
election. They relented on their no-union position only during the
brief period (2001-2005) when federal law forced them to.

2) The legal questions.

Before 1935, employers in the United States were not required
to bargain collectively with their workers even if those workers
unanimously desired collective representation. Workers desiring
union representation were therefore obliged to resort to strikes,
boycotts and other similar tactics merely to obtain recognition
of their unions.

The National Labor Relations Act (NLRA) of 1935 changed this --
making labor relations both fairer and more efficient --
by instituting a procedure through which government-supervised
representation elections could be held. If a majority of workers
in a bargaining unit voted for union representation, the employer
would then be required to bargain in good faith with the union
over wages, hours, and terms and conditions of employment.

Are TAs covered by the NLRA? Obviously TAs are _both_ students
(they study) and workers (they perform jobs and are paid for it).
The complex legal question hinges on whether TAs are "statutory
employees" within the meaning of the National Labor Relations Act.
The traditional view was that they are not. In October 2000,
the National Labor Relations Board (NLRB) held unanimously
that NYU's TAs are statutory employees. This decision
(http://www.nlrb.gov/nlrb/shared_files/decisions/332/332-111.pdf)
was based on detailed fact-finding about the situation at NYU,
together with recent precedents holding (among other things)
that medical residents and interns do qualify as statutory employees.
Subsequently, however, President Bush appointed several new anti-union
members to the NLRB, and in a July 2004 decision concerning Brown
University (http://www.nlrb.gov/nlrb/shared_files/decisions/342/342-42.pdf),
the NLRB decided by a vote of 3-2 to reverse the NYU decision.

This leaves us in the following situation: NYU is no longer legally
obliged to negotiate with the graduate students' democratically
elected representative. Nor is it legally prevented from doing so.
The law is now simply silent about the matter. The question therefore
has to be decided on moral and practical grounds.

I argue that it is right for the University to respect the
democratically expressed decision of its graduate students on
whether or not they want collective representation, even if the
University is not legally obliged to do so. I also argue that
bargaining in good faith with the graduate students helps to ensure
a serene and productive academic climate at NYU.

But the University higher-ups, in their infinite wisdom, have decided
to refuse any further collective bargaining with the grad students.
In so doing, they have pushed the students up against the wall,
placing them in the situation of pre-1935 workers. The students
now have two choices: either unconditional surrender, or a strike
to obtain recognition of their union. So we should not be surprised
if they vote for a strike. Nor should we hold it against them if
they do so. As I will argue in detail, it is the University
Administration which, through its intransigent and insulting
behavior, has provoked this strike -- a strike in which innocent
undergraduates, and not the administrators themselves, will be
the principal victims. In my opinion this policy is morally wrong
(towards both grad students and undergraduates) as well as being
practically irresponsible (it will leave a legacy of ill-will
between faculty and grad students, between grad students and
undergraduates, and, last but not least, between faculty and faculty).
Although the striking TAs will be the immediate cause of the
undergraduates' suffering, an analysis of the history of this issue
shows (as I will again argue in detail) that the University Administration
is the deeper cause; and it is therefore the University Administration,
and not the graduate students, who should be held responsible for
the strike's highly negative consequences.

The Administration could end this dispute tomorrow if they were
to do the morally right thing: announce that they will permit
a representation election, under neutral supervision, and that
they will abide by its results -- i.e. that they will bargain
in good faith with a grad student union if (and only if) that is
what a majority of the GAs want.

Alas, I fear that the University higher-ups will not adopt this
position except under strong pressure.

3) Some red herrings.

We can save a lot of time by recognizing that certain questions
are NOT relevant to our current debates.

One question that is NOT relevant (for us as faculty, that is)
is whether unionization is in the best interests of grad students.
It is an accepted principle of a democratic society that adults
are permitted to determine their own interests. (There are at least
two reasons for this: people are ordinarily better-informed about
their own situation than outsiders are; and people are more likely
to have their own interests fully at heart than outsiders are.)
Everyone is free to try to persuade others about what their own
interests are; but no one is allowed to substitute his or her view
of other people's interests for those people's own view.

For these reasons, I as a faculty member do not purport to suggest
to grad students whether or not they should support unionization --
much less whether or not they should strike. I simply support
grad students' right to decide these issues for themselves.

The only valid argument in support of the Administration's
anti-union position would be that, through collective bargaining,
the grad students would infringe unfairly on the interests of
_other_ segments of the university community -- so unfairly, in fact,
that the latter's interests would override the grad students'
democratic rights.

4) The Administration's arguments (I): The grievance procedure.

The NYU Administration has, in fact, attempted to justify its
position on grounds of this type, by claiming that the GA union
has abused the grievance process under the recently expired contract
to interfere in matters that are academic rather than economic.
Unfortunately, the Administration's communications on this matter
are thick with assertion and extraordinarily thin on evidence.
Until they provide such evidence -- so that the rest of us can
evaluate it for ourselves -- their assertions cannot be accorded
any logical weight. (From jury duty I remember the judge's admonition
that the lawyers' opening and closing arguments do not count as evidence.)

In only two cases has the NYU Administration provided such evidence.
One involves a grievance concerning NYU's use of Columbia grad students
(among others) as TAs in NYU courses. As I understand it from
discussions with union supporters and from my reading of the
arbitrator's decision (http://www.nyu.edu/provost/ga/arbitration.pdf),
two issues were under dispute: Should NYU be allowed to hire
Columbia grad students as TAs, in place of NYU grad students?
Should NYU be allowed to pay them for their NYU work at the lower
Columbia rate rather than at the rate specified in the NYU contract?
The University contended that the answer should be "yes" to both
questions; the Union contended that the answer should be "no"
to both questions.

I personally disagree with both sides: it seems to me that
a fair resolution would be "yes" to the first question
and "no" to the second. NYU should have the right to choose
who will teach its courses; but NYU should not be allowed to
undercut the collective-bargaining agreement with its grad students
by importing non-union workers and paying them a lower wage.

As it turns out, the arbitrator denied both parts of the union's
grievance on legal grounds:

As an arbitrator, my role is a limited one. It is to interpret
the parties' Agreement as written.

The contract between NYU and GSOC-UAW
(http://www.nyu.edu/provost/ga/loc2110.pdf)
defined the bargaining unit as consisting of

all teaching assistants, graduate assistants, research assistants
[with some exceptions enumerated later] ... who are classified
under codes 101, 130, 131 (referred to collectively as graduate
assistants) employed by New York University.

The arbitrator interpreted this provision to mean that people who do
teaching-assistant work but are not NYU grad students are _not_ covered
by the contract, and that NYU is therefore free to pay them lower wages.
I personally am not sure whether this is the correct interpretation
of the cited contract clause; but neither am I prepared to criticize
the arbitrator's decision as manifestly erroneous.

Whatever one may think of the arbitrator's decision, this story does not
support the Administration's horror stories of union interference
in matters that are academic rather than economic. Clearly, _both_
academic and economic issues were at issue here; and if the NYU
Administration had shown a bit more flexibility and good will on the
economic issue (i.e. agreeing to pay NYU wages to the Columbia grad
students teaching at NYU), the problem could almost certainly have been
resolved amicably, without the need for arbitration.

In the second case (http://www.nyu.edu/provost/ga/weiss_decision.pdf),
three students from the Law School were hired to teach recitations
of a Politics Department (CAS) course, but were paid at the adjunct
rate of $3,500 rather than the contractual TA rate of $8,500.
The arbitrator denied the grievance because

There was no showing that the existing members of the bargaining
unit were somehow diminished by the appointment of the three
adjuncts to teach the additional recitation sections ...
Had there been an availability of teaching assistants who were
deprived of earnings or negotiated benefits, the result herein
would have been different.

Once again, one may agree or disagree with the arbitrator's decision,
but it is clear that the issue was purely economic -- the union did
not object to the use of law students as TAs, but only to paying them
less than other TAs. [In my opinion, all these problems could be
avoided in future contracts by clarifying what percentage of a
TA's stipend is a "fellowship" and what percentage is "salary"
in compensation for hours worked. Clearly it is some of both.]

Whatever one's view of the merits of these two cases -- which in
my opinion are complex, with neither side clearly in the right --
the Administration's characterization of these grievances as
purely "academic matters" and "not about economics"
(quotes from Provost McLaughlin's letter to the faculty, November 3, 2005)
is a gross oversimplification.

The union's website gives its own view of the grievance procedure
(http://www.2110uaw.org/gsoc/faculty_information.htm#thecontractual)
and concludes by saying that

Many of these grievances could have easily been resolved.
But often the administration has not even been willing to meet
with the Union about them. Instead, we have been forced to request
the intervention of an outside neutral arbitrator -- an expensive
and time-consuming process for both parties. NYU's other unions
tell us that they have had similar experiences with the administration.

It should be remembered that dozens of American universities
have had grad student unions for decades; there is thus a wealth
of experience with collective bargaining for GAs. To my knowledge
there is no serious evidence that the grievance procedure has
interfered with academic decision-making. (Indeed, if such evidence
existed, the NYU Administration would surely have cited it.)
True, these are public rather than private universities; but this
simply reflects a legal quirk (public universities are governed by
state rather than federal labor law) rather than any intrinsic
difference in the universities' academic mission or organization.

Indeed, numerous public universities and some private colleges
have _faculty_ unions, which if anything would impact _more_ on
academic matters (what is taught and by whom) than grad student unions.
But once again, there is no serious evidence that the grievance
procedure associated with collective bargaining has interfered with
academic freedom. Quite the contrary, the grievance procedure
has often helped to _uphold_ academic freedom, by protecting faculty
(especially untenured faculty) against arbitrary retaliation by
administrators.

5) The Administration's arguments (II): The "agency shop".

The NYU Administration asserts, in its message to NYU students
(http://www.nyu.edu/provost/ga/communications-102005.html),
that it was "unwilling to have graduate students lose their
financial aid packages if they chose not to join the union".
This assertion -- besides being excessively melodramatic --
seriously misrepresents both the Administration's and the
Union's position on this matter.

Three types of labor agreement are available in American labor law:
the "union shop", the "open shop", and the "agency shop".
In a union shop, workers belonging to the bargaining unit are required
(after a certain period of time) to join the union and pay union dues
as a condition of employment. In an open shop, both union membership
and payment of dues are voluntary. In an agency shop, workers are free
to join or not join the union as they wish, but must pay either union dues
or an equivalent "agency fee" (the theory being that all workers in the
bargaining unit benefit from the union's negotiations on their behalf,
as well as from services provided by the union, and therefore should not
be allowed to "freeload").

The union shop is common in New York labor agreements. The open shop
is common in Southern states where the union shop is forbidden by
state law. The agency shop is (in my modest opinion) a reasonable
compromise in situations where a union shop might be considered
too intrusive. Indeed, the recently expired contract between NYU
and the grad student union (http://www.nyu.edu/provost/ga/loc2110.pdf)
provided for an agency shop, as do the union contracts covering
other NYU employees (adjunct faculty, clerical and technical workers).
The agency fee for GAs was $50 per semester.

The NYU Administration would have us believe that the Union was
demanding a union shop, while NYU was bravely resisting this demand
on behalf of grad students' freedom of choice. This is a complete
reversal of the truth. In reality, the union was seeking only
the renewal of its existing agency-shop agreement -- an agreement
that NYU signed without fuss in 2002 -- while the NYU Administration
was insisting on an open shop. This is laid out in black-and-white
in the NYU Administration's "final offer" to the Union
(http://www.nyu.edu/provost/ga/proposal.pdf).

6) The University's "generous" final offer of August 2, 2005.

President Sexton and Provost McLaughlin contend, in their propaganda
missive to the University community, that NYU "went as far as possible
to achieve a compromise where there could be a GA union without
sacrificing important academic principles". Is this true?

Fortunately, the text of the University's offer is available on the web
(http://www.nyu.edu/provost/ga/proposal.pdf),
along with the Union's request for clarification of certain issues
(http://www.nyu.edu/provost/ga/uawletter080405.pdf)
and the University's response breaking off negotiations
(http://www.nyu.edu/provost/ga/lettertouaw080505.pdf).
This documentary history can be compared with the version
offered by Sexton and McLaughlin
(http://www.nyu.edu/provost/ga/communications-102005.html)
and that offered by the Union
("NYU offers sham contract, then refuses to negotiate",
http://www.2110uaw.org/gsoc/GSOC_update_August_9_05.htm),
so that each of us can judge for ourselves the facts of the matter
(it doesn't take much time, as each letter is only 2-3 pages in length).
You will find that the Union's version is accurate in each detail,
while Sexton-McLaughlin's is vague, self-serving and grossly misleading.

As the Union points out:

Instead of making a proposal as a first step toward negotiating
a contract in good faith, NYU gave us an ultimatum: take it or
leave it. The University issued this proposal with a strict
48-hour deadline, making it impossible to submit the proposal to
a vote by GSOC members, which must happen before the union can
agree to anything on our members' behalf. NYU also refused any
contact at all with the graduate student bargaining committee.
Apparently NYU expects our union to operate the same way as
President Sexton's office has: by issuing unilateral, top-down
decisions first, and asking for "notice and comment" later.
When we responded with questions regarding their proposal and
asked NYU to meet with the GSOC bargaining committee, University
administrators issued a "final decision": their refusal to
negotiate with our union.

One particularly offensive aspect of the proposed contract was the
procedure for resolving grievances:

NYU demanded that we accept a grievance procedure without
neutral third party arbitration. Instead, the Provost would
decide all grievances not resolved at the departmental and
school levels. The only recourse for graduate assistants would
be to go to court to prove that the Provost had made an
"arbitrary and capricious" decision. The court would not
consider whether the contract itself was violated.

Imagine that you are about to buy a used car, and the dealer
offers a contract for your signature. This contract of course
guarantees that the car is in good working condition. But it also
provides that any complaints by the customer "will be fully and
finally decided" by the president of the used-car company
or his/her designee. [The phrase in quotation marks is a
direct quote from NYU's offer to the Union.] If the customer
is still dissatisfied, he or she can sue in state court,
but "the standard of review of [the company president's] decision
shall be whether the decision was arbitrary and capricious".
[Once again a direct quote from NYU's letter to the Union.]
The court's decision would not be based on whether the car is
in fact in good working condition as guaranteed by the contract.

Would you agree to sign such a blatantly unfair contract?

As the Union quite rightly responded,

A key component to every contract -- whether civil, commercial,
labor relations or otherwise -- is a fair and neutral dispute
resolution procedure. ... Indeed, the very existence of such
a procedure acts as a deterrent to arbitrary and unreasonable
conduct on the part of both parties. We can imagine your reaction
if we were to propose a union officer serve as the final step of
the grievance procedure. Yet, you are proposing that the
University decides in every case whether the University has
violated the agreement. Such a notion is simply inconsistent
with the concept of having a meaningful contract.

Despite this, the Union did not reject the University's offer
out of hand. They asked for clarification on certain points,
and concluded that

Although we were offended by the tone of your letter and its
"take it or leave it" ultimatum, we believe it is not in our
mutual best interest to react to the tenor of the offer.
The fact is that we remain committed to reaching a satisfactory
resolution of all the issues that divide us. Again, as we have
proposed a number of times, the only way to reach a resolution
is to meet and bargain over these issues. We are prepared to
do so at any time before the expiration of the Agreement
[August 31, 2005].

The University responded the next day (August 5) by breaking off
all negotiations.

Sexton and McLaughlin's letter to the University community
avoids mentioning these aspects of the proposed contract,
but insists that "We went as far as possible to achieve a compromise
where there could be a GA union without sacrificing important
academic principles" and claims falsely that "the UAW rejected
our offer unequivocally".

7) Should faculty agree to substitute for striking TAs?

The University Administration has put faculty in a bind.
On the one hand it has, by its intransigent and insulting actions
towards the grad students (such as those I have just discussed),
provoked a strike in which undergraduates will be the principal victims.
At the same time, it is appealing to the faculty's sense of dedication
to undergraduate teaching by urging that we must at all costs
protect our undergraduates from the negative effects of any strike,
by "sharing the burden" of teaching the labs and recitations
abandoned by striking TAs.

Should we agree to the Administration's request? One cannot help but
be reminded of the old Yiddish story in which a man murders his parents
and then, when brought before the judge, pleads for mercy on the grounds
that he is an orphan. (Leo Rosten uses this tale to define the word
"chutzpah".)

Whether we like it or not (and I certainly don't), we are now enmeshed
in a labor dispute between the NYU Administration and the Graduate Student
Union, with the faculty caught in the middle. Whatever we do will have
effects on this labor dispute, helping one side and hurting the other.
Our actions cannot help but be informed by our evaluation of the
rights and wrongs of this dispute.

Let us be clear: In any strike situation, the MOST ANTI-UNION ACT
anyone can take is to substitute his or her own labor for that of
the strikers. It amounts in effect to acting as a strikebreaker:
using one's labor to directly undermine the impact of the strike.
(This is true irrespective of whether the replacement worker is hired
from outside or already works for the employer in a different capacity.)
If the faculty were to teach the recitations and labs of striking TAs,
this would remove all incentive for the Administration to negotiate
with the graduate students. It would doom the strike to failure.

For those faculty who agree completely with the NYU Administration's
position of implacable opposition to grad student unionization,
substituting for striking TAs would therefore be a logical step.
(However, even anti-union faculty might want to reflect on the
long-term animosity between faculty and grad students that such a
radical step would engender.)

But for faculty who support the grad students' right to decide by vote
on whether or not they wish to bargain collectively -- or who even have
the slightest sympathy for this position, or the slightest doubt about
the wisdom of the Administration's intransigence -- agreeing to take over
strikers' classes would be the worst possible betrayal.

8) Turning the screws on the grad students.

Having pushed grad students to the verge of a strike, the University
Administration is now using its monopoly of mass communication to send
intimidatory e-mails to the grad students: hinting darkly that
there will be "consequences" for absence from class, but declining
to specify what those consequences might be. This policy of vague
threats -- which Dean Foley revealed at the FAS meeting two weeks ago,
and which caused a tumult among the miniscule audience present --
is utterly reprehensible and unethical. Its obvious goal is to induce
fear in the graduate students: fear of dire consequences that even
go beyond those that the Administration is prepared to inflict.
For Physics grad students, 90% of whom are foreign and whose visas
are at the mercy of the University, this is no trifling matter.

Here are a few examples of the Administration's policy of vague but
unmistakably threatening language:

GSAS Dean Stimpson has written to grad students asserting that

Our obligation is to meet our classes. ... Graduate assistants
or faculty, we are teachers, morally accountable for being with
our students in their classrooms and laboratories. A vote for our
accountability as teachers must trump a strike vote and a strike.
If we are irresponsible, we are liable to be called to account.

Note the deliberate vagueness of "called to account", as well as
the passive voice (as if it were God who will reprimand us,
rather than NYU administrators).

Courant and Stern grad students have received identical letters from
their Deans (written by whom?) stating that

[T]hose who impede our students' efforts to pursue their education
by disrupting classes -- which has very real consequences for
students -- should anticipate that there are likely to be appropriate
consequences.

Once again, we see here the Administration's strategy of threatening
"appropriate consequences" without saying what those consequences will be.
But we also have here something that is even more dangerous:
deliberate ambiguity in the use of the phrase "disrupting classes".
Ordinarily that phrase would mean blocking entrance to a room,
shouting down or threatening a professor, etc. -- tactics that
would be severely punished by most universities, and quite rightly so.
But here the Deans are hinting -- without coming out and saying it --
that the mere failure to teach a scheduled class might be considered
as "disrupting classes" and punished accordingly. (Of course,
it is exceedingly unlikely that the Deans would pursue this type
of punishment, which would be universally seen as unfair;
but students might understandably not want to take their chances.)

It is worth mentioning that, precisely because the TAs are no longer
legally considered to be "employees" protected by the National Labor
Relations Act, the NYU administrators are now legally free to use
certain intimidatory tactics that would ordinarily be forbidden.
We have already seen the type of intimidation that they are using
before the strike has even begun. In the event of a prolonged and
potentially bitter strike -- like the ones that have repeatedly
torn Yale apart -- one can only expect the Administration to turn the
screws on the grad students even tighter.

9) A positive step we can take.

All of us, irrespective of whether or not we are sympathetic to the
grad students' desire to decide democratically on the question of
union representation, are united in our goal of maintaining a serene
and positive academic climate in our Department. This means that
we must strive to maintain good relations between faculty and
grad students, and between faculty and faculty, even if we disagree
about the unionization issue. Unfortunately, the NYU Administration's
intimidatory tactics work to undermine that goal.

For this reason, I would like to propose the following resolution
to be considered at the November 1 Faculty meeting:

We the Physics faculty have a variety of opinions about the merits
of unionization for graduate assistants. But we are united in
our desire to maintain an open and collegial atmosphere in our
Department -- before, during and after this labor dispute --
based on respect for differing opinions among faculty, students
and staff. In particular, we affirm that graduate students should be
free to express and follow their beliefs regarding unionization --
be it for or against -- without any fear of reprisals.

Participating in union activities -- including striking --
is a good-faith decision that each individual makes according to
his or her own conscience. We therefore pledge that we will not
try to intimidate students who choose to participate in a strike
or other union activity, and we call on the NYU Administration
to do the same. We further pledge that no student, staff member
or faculty member will be penalized for respecting or not respecting
a picket line as his or her conscience dictates.

More specifically, we pledge that students will not be penalized
with regard to visas, academic standing, grades, credits,
academic funding, letters of recommendation, future teaching
opportunities, eligibility for academic awards, or in any way
other than the withholding of a reasonable fraction of their
stipend for hours not worked.

More subtle forms of intimidation -- such as offering friendly
advice to students about the impact of union involvement on their
professional careers -- should also be avoided. In our opinion,
neutrality on these issues, and respect for students' own decisions
in this matter, is a stance we morally owe to our students.

I would presume that even anti-union faculty members have no intention
of retaliating against our students in the enumerated ways, and so would
have no objection to this proposal.