[Senate Hearing 108-719]
[From the U.S. Government Publishing Office]
S. Hrg. 108-719
NATIONAL LABOR RELATIONS BOARD ISSUES
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HEARING
before a
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
SPECIAL HEARING
SEPTEMBER 23, 2004--WASHINGTON, DC
__________
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COMMITTEE ON APPROPRIATIONS
TED STEVENS, Alaska, Chairman
THAD COCHRAN, Mississippi ROBERT C. BYRD, West Virginia
ARLEN SPECTER, Pennsylvania DANIEL K. INOUYE, Hawaii
PETE V. DOMENICI, New Mexico ERNEST F. HOLLINGS, South Carolina
CHRISTOPHER S. BOND, Missouri PATRICK J. LEAHY, Vermont
MITCH McCONNELL, Kentucky TOM HARKIN, Iowa
CONRAD BURNS, Montana BARBARA A. MIKULSKI, Maryland
RICHARD C. SHELBY, Alabama HARRY REID, Nevada
JUDD GREGG, New Hampshire HERB KOHL, Wisconsin
ROBERT F. BENNETT, Utah PATTY MURRAY, Washington
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
LARRY CRAIG, Idaho DIANNE FEINSTEIN, California
KAY BAILEY HUTCHISON, Texas RICHARD J. DURBIN, Illinois
MIKE DeWINE, Ohio TIM JOHNSON, South Dakota
SAM BROWNBACK, Kansas MARY L. LANDRIEU, Louisiana
James W. Morhard, Staff Director
Lisa Sutherland, Deputy Staff Director
Terrence E. Sauvain, Minority Staff Director
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Subcommittee on Departments of Labor, Health and Human Services, and
Education, and Related Agencies
ARLEN SPECTER, Pennsylvania, Chairman
THAD COCHRAN, Mississippi TOM HARKIN, Iowa
JUDD GREGG, New Hampshire ERNEST F. HOLLINGS, South Carolina
LARRY CRAIG, Idaho DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas HARRY REID, Nevada
TED STEVENS, Alaska HERB KOHL, Wisconsin
MIKE DeWINE, Ohio PATTY MURRAY, Washington
RICHARD C. SHELBY, Alabama MARY L. LANDRIEU, Louisiana
ROBERT C. BYRD, West Virginia (Ex
officio)
Professional Staff
Bettilou Taylor
Jim Sourwine
Mark Laisch
Sudip Shrikant Parikh
Candice Rogers
Ellen Murray (Minority)
Erik Fatemi (Minority)
Adrienne Hallett (Minority)
Administrative Support
Carole Geagley
C O N T E N T S
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Page
Opening statement of Senator Arlen Specter....................... 1
Statement of Hon. Robert J. Battista, Chairman, National Labor
Relations Board................................................ 1
Prepared statement........................................... 3
Brown University and International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
UAW AFL-CIO, Petitioner. Case 1-RC-21368................... 5
Statement of Hon. Wilma B. Liebman, Member, National Labor
Relations Board................................................ 25
Prepared statement........................................... 27
Statement of Christina Collins, graduate student and Ph.D.
candidate, University of Pennsylvania, and political director,
Graduate Employees Together-University of Pennsylvania......... 34
Prepared statement........................................... 36
Statement of John Langel, Esq., Ballard Spahr Andrews &
Ingersoll, representing the University of Pennsylvania......... 38
Prepared statement........................................... 40
Statement of Arthur Rosenfeld, General Counsel, National Labor
Relations Board................................................ 48
Prepared statement........................................... 50
Statement of Nancy Schiffer, associate general counsel, AFL-CIO.. 53
Prepared statement........................................... 55
Statement of William L. Messenger, staff attorney, National Right
to Work Legal Defense Foundation............................... 59
Prepared statement........................................... 60
NATIONAL LABOR RELATIONS BOARD ISSUES
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THURSDAY, SEPTEMBER 23, 2004
U.S. Senate,
Subcommittee on Labor, Health and Human
Services, and Education, and Related Agencies,
Committee on Appropriations,
Washington, DC.
The subcommittee met at 9:32 a.m., in room SD-192, Dirksen
Senate Office Building, Hon. Arlen Specter (chairman)
presiding.
Present: Senators Specter and Shelby.
opening statement of senator arlen specter
Senator Specter. Good morning, ladies and gentlemen. The
Appropriations Subcommittee on Labor, Health and Human
Services, and Education will now proceed.
We have hearings this morning on issues relating to the
National Labor Relations Board on the question of the status of
university students, as to whether they constitute or qualify
as employees under the Federal labor laws; and a question on
the NLRB decertification policy as to unions following
voluntary recognition agreements.
We have quite a number of witnesses and after these
proceedings were scheduled the Prime Minister of Iraq was
invited to address a joint session of Congress. That is
something that I would like to attend, at least in part. So we
would ask you to observe to the extent possible the tradition
of the subcommittee on 5-minute opening statements, which will
leave us the maximum amount of time for questions and answers.
STATEMENT OF HON. ROBERT J. BATTISTA, CHAIRMAN,
NATIONAL LABOR RELATIONS BOARD
Senator Specter. Our first witness is the Honorable Robert
Battista, Chairman of the NLRB, appointed by President Bush for
a 5-year term in 2002. Prior to this position he practiced
employment and labor law with the Detroit law firm of Butzel
Long. He has an undergraduate degree from Notre Dame and a law
degree from the University of Michigan Law School.
Thank you for joining us, Mr. Chairman, and the floor is
yours.
Mr. Battista. Thank you, Chairman Specter and members of
the subcommittee. I am Robert Battista, the Chairman of the
NLRB, and I am pleased to appear before the subcommittee today
as it considers National Labor Relations Board issues.
At the outset, I wish to note that the NLRB is charged with
enforcing the law as it exists and to do so in a firm and
evenhanded manner. Accordingly, the Board carefully avoids any
actions that could compromise its neutrality or otherwise cast
doubt on its ability to act impartially as a quasi-judicial
body.
Historically, members of the Board have refrained from
policy debates regarding various issues, including proposed
legislation. As to Board decisions that have issued, it is a
longstanding tradition that the Board speaks through those
decisions. Indeed, our reasoning in the Brown University case
is set out in detail in the majority opinion and I would
respectfully request that it be placed in the record.
As to pending matters, members of the Board should avoid
commenting upon or discussing such matters. Neither should we
apply the holdings of a decision we have reached to fact
situations which could come before us. This tradition is
consistent with and informed by the ABA Model Code of Judicial
Conduct Canon 3, which specifically addresses prohibited ex
parte communications and improper public commentary by judicial
type officers.
It is in this context and with these constraints, then,
that I turn to the question of whether graduate students are
employees under the National Labor Relations Act. The issue is
not a new one for the NLRB. The question was first addressed
over 30 years ago in Adelphi University, where the Board held
that graduate student assistants were primarily students and
therefore should be excluded from a bargaining unit of regular
faculty employees.
Two years later, the Board considered the issue again in
Leland Stanford, Jr., University. The Board specifically held
that graduate student assistants are not employees within the
meaning of section 2(3) of the Act. In both cases, the Board
considered the nature of the relationship of the graduate
student assistants to the university. The Board found that the
relationship to be primarily that of student and teaching
institution rather than that of employee and employer.
The Board adhered to the Leland Stanford principle for over
25 years and that principle was never successfully challenged
in court or in Congress. Notwithstanding this long history, the
Board in 2000 changed this well-established principle in NYU.
In that case the Board decided that graduate student assistants
met the test of master-servant relationship with the university
and accordingly found them to be statutory employees, with the
right to organize into a union and to bargain with their
employer.
In Brown University in 2004, the Board decided to return to
the previously well-established precedent that graduate student
assistants are not statutory employees. Two members of the
Board dissented. I respect their well-considered views, albeit
I disagree with them. In doing so, the Board considered the
nature of the relationship between the graduate student
assistants and the university, finding the relationship to be
primarily academic rather than economic. The Board concluded
that graduate student assistants are not employees within the
meaning of the Act.
In finding a primary academic relationship, the Board noted
the following factors: The individuals in question were
students; they served as teaching assistant, research
assistant, or proctors; and the receipt of a stipend and
tuition remission depended upon continued enrollment as
students; a student's stipend and tuition remission remained
unchanged during times that the student did not serve as a
teaching assistant, research assistant, or proctor; that Brown
treated funds for teaching assistants, research assistants, and
proctors as financial aid; the principal time commitment of the
student is focused on obtaining a degree; and that teaching and
research are core elements of the Ph.D. degree which are
fulfilled by serving as teaching assistant, research assistant,
or proctor.
In reaching the conclusion that graduate students are not
employees under the Act, the Board was guided in part by the
admonition of the Supreme Court in NLRB v. Yeshiva University
that: ``The principles developed for use in an industrial
setting cannot be imposed blindly on the academic world.'' The
Board also was guided by the fundamental rule of statutory
construction: A particular statutory provision must be
considered in context with a view of the overall statutory
scheme. Where the statute is explicit, the Board must follow
the statute as it reads. However, where the statute is
ambiguous, questions of statutory construction must be examined
in the context of the overall purposes of the Act. The Supreme
Court has found in NLRB v. Bell Aerospace Company that the
question of employee status falls in the latter category.
PREPARED STATEMENT
In summary, in determining whether employees such as
graduate assistants are employees within the meaning of the
Act, the Board looks to the nature of the relationship between
the individuals and the purported employer. If that
relationship is fundamentally economic, the Board typically
finds these individuals to be employees within the meaning of
the Act. However, if the relationship is fundamentally non-
economic, such as graduate student assistants who have a
primarily educational or academic relationship with the
university, employee status ordinarily will not be found.
Thank you for the opportunity to address the committee on
this subject and I will entertain any questions that you have.
[The statement follows:]
Prepared Statement of Hon. Robert J. Battista
Chairman Specter and Distinguished Members of the Subcommittee: I
am pleased to appear before the Subcommittee today as it considers
National Labor Relations Board issues. I am Chairman of the National
Labor Relations Board, and also appearing with me today is Board Member
Wilma Liebman. We have been invited to participate in today's hearing
with respect to the question of whether graduate student assistants are
``employees'' within the meaning of the National Labor Relations Act
(the Act).
At the outset, I wish to note that it is a long-standing tradition
at the NLRB that members of the Board do not comment on the merits of
pending or possible legislative proposals. As you know, the NLRB is
charged with enforcing the law as it exists, and to do so firmly and
evenhandedly. Accordingly, the Board carefully avoids any actions that
could compromise its neutrality or otherwise cast doubt on its ability
to act impartially as a quasi-judicial body. Historically, members of
the Board have refrained from policy debates regarding pending or
proposed legislation because such conduct may conflict with our
obligation of neutral enforcement of extant law as passed by Congress.
As to Board decisions that have issued, it is a long-standing
tradition that the Board speaks through those decisions. That is, the
decisions speak for themselves. As to pending matters, members of the
Board should avoid commenting upon or discussing such matters. This
tradition is consistent with, and informed by the ABA Model Code of
Judicial Conduct, Canon 3 of which specifically addresses prohibited
ex-parte communications and improper public commentary by judicial-type
officers.
It is in this context that I now turn to the subject of this
portion of the hearing, the question of whether graduate student
assistants are employees under the Act.
The issue is not a new one for to the NLRB. The question was first
addressed over thirty years ago in Adelphi University, 195 NLRB 639
(1972). The Board held that graduate student assistants are primarily
students and therefore should be excluded from a bargaining unit of
regular faculty employees. Two years later, the Board considered the
issue again in Leland Stanford, 214 NLRB 621 (1974). The Board
specifically held that graduate student assistants are not employees
within the meaning of Section 2(3) of the Act. In both cases, the Board
considered the nature of the relationship of the graduate student
assistants to the university. The Board found that relationship to be
primarily that of student and teaching institution, rather than that of
employee and employer. In reaching this conclusion regarding the
research assistants in Leland Stanford, the Board noted the following
factors:
1. the research assistants were graduate students enrolled in the
Stanford physics department as Ph.D. candidates;
2. they were required to perform research to obtain their degree;
3. they received academic credit for their research work; and
4. while they received a stipend from Stanford, the amount was not
dependent on the nature or intrinsic value of the services performed or
the function of the recipient. Rather, the amount was determined by the
goal of providing financial aid to the graduate students.
The Board adhered to the Leland Stanford principle for over 25
years, and that principle was never successfully challenged in court or
in Congress. Notwithstanding this long history, the Board in 2000
changed this well-established principle. See New York University, 332
NLRB 1205 (2000). In that case, the Board decided that graduate student
assistants meet the test of a master-servant relationship with the
university, and that they are statutory employees with the right to
organize into a union and to bargain with their employer.
In Brown University, 342 NLRB No. 42 (2004), the Board decided to
return to the previously well-established precedent that graduate
student assistants are not statutory employees.\1\ In doing so, the
Board considered the nature of the relationship between the graduate
student assistants and the university. Finding that relationship to be
primarily academic, rather than economic, the Board concluded that
graduate student assistants are not employees within the meaning of the
Act. In finding a primarily academic relationship, the Board noted the
following factors:
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\1\ Two Members of the Board dissented. I respect their well-
considered views, albeit I disagree with them.
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1. the individuals in question are, in fact, students;
2. serving as a teaching assistant, research assistant, or proctor,
and the receipt of a stipend and tuition remission, depends upon
continued enrollment as a student;
3. a student's stipend and tuition remission remains unchanged
during times the student does not serve as a teaching assistant,
research assistant, or proctor;
4. Brown treats funds for teaching assistants, research assistants,
and proctors as financial aid;
5. the principle time commitment of the student is focused on
obtaining a degree; and
6. teaching and research are core elements of the Ph.D. degree,
which are fulfilled by serving as a teaching assistant, research
assistant, or proctor.
In reaching the conclusion that graduate student assistants are not
employees under the Act, the Board was guided in part by the admonition
of the Supreme Court in NLRB v. Yeshiva University, 444 U.S. 672, 680-
681 (1980), that principles developed for use in the industrial setting
cannot be ``imposed blindly on the academic world.'' The Board was also
guided by a fundamental rule of statutory construction, i.e., a
particular statutory provision must be considered in context and with a
view of the overall statutory scheme. To be sure, where the statute is
explicit, the Board must follow the statute as it reads. However, where
the statute is ambiguous, questions of statutory construction must be
examined in the context of the overall purpose of the Act. The Supreme
Court has held that the issue of employee status falls in the latter
category. See NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). In
Brown, we followed that principle and the 25 years of history.
In summary, in determining whether individuals such as graduate
student assistants are employees within the meaning of the Act, the
Board looks to the fundamental nature of the relationship between those
individuals and their purported employer. If that relationship is
fundamentally economic, the Board typically finds those individuals to
be employees within the meaning of the Act. However, if that
relationship is fundamentally non-economic--such as graduate student
assistants who have a primarily educational or academic relationship
with their university--employee status ordinarily will not be found.
Thank you again for the opportunity to address this Subcommittee.
______
[NOTICE.--This opinion is subject to formal revision before publication
in the bound volumes of NLRB decisions. Readers are requested to notify
the Executive Secretary, National Labor Relations Board, Washington,
D.C. 20570, of any typographical or other formal errors so that
corrections can be included in the bound volumes.]
Brown University and International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW AFL-CIO, Petitioner.
Case 1-RC-21368
(July 13, 2004)
DECISION ON REVIEW AND ORDER
(By Chairman Battista and Members Liebman, Schaumber, Walsh, and
Meisburg)
On November 16, 2001, the Regional Director for Region 1 issued a
Decision and Direction of Election in which she applied New York
University, 332 NLRB 1205 (2000) (NYU), to find that teaching
assistants, research assistants, and proctors are employees within the
meaning of Section 2(3) of the Act and constitute an appropriate unit
for collective bargaining. Thereafter, in accordance with Section
102.67 of the Board's Rules and Regulations, Brown University (Brown)
filed a timely request for review, urging the Board, inter alia, to
reconsider NYU. The Petitioner filed an opposition. On March 22, 2002,
the Board granted the request for review. Brown and the Petitioner
filed briefs on review. Amicus curiae briefs also were filed.\1\
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\1\ Amicus curiae briefs were filed by the following: Joint brief
of the American Council on Education and the National Association of
Independent Colleges and Universities; American Association of
University Professors; American Federation of Labor-Congress of
Industrial Organizations; Committee of Interns and Residents; Joint
brief of Harvard University, Massachusetts Institute of Technology,
Stanford University, George Washington University, Tufts University,
University of Pennsylvania, University of Southern California,
Washington University in St. Louis, and Yale University; National Right
to Work Legal Defense Foundation; and Trustees of Boston University.
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The case presents the issue of whether graduate student assistants
who are admitted into, not hired by, a university, and for whom
supervised teaching or research is an integral component of their
academic development, must be treated as employees for purposes of
collective bargaining under Section 2(3) of the Act. The Board in NYU
concluded that graduate student assistants are employees under Section
2(3) of the Act and therefore are to be extended the right to engage in
collective bargaining. That decision reversed more than 25 years of
Board precedent.\2\ That precedent was never successfully challenged in
court or in Congress. In our decision today, we return to the Board's
pre-NYU precedent that graduate student assistants are not statutory
employees.
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\2\ See, e.g., Leland Stanford Junior University, 214 NLRB 621
(1974).
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Until NYU, the Board's principle was that graduate student
assistants are primarily students and not statutory employees. See
Leland Stanford, supra. The Board concluded that graduate student
assistants, who perform services at a university in connection with
their studies, have a predominately academic, rather than economic,
relationship with their school. Accordingly, the Board held that they
were not employees within the intendment of the Act.
This longstanding approach towards graduate student assistants
changed abruptly with NYU. The Board decided that graduate student
assistants meet the test establishing a conventional master-servant
relationship with a university,\3\ and that they are statutory
employees who necessarily have ``statutory rights to organize and
bargain with their employer.'' 332 NLRB at 1209.\4\
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\3\ ``This relationship exists when a servant performs services for
another, under the other's control or right of control, and in return
for payment.'' NYU, 332 NLRB at 1206, relying on NLRB v. Town & Country
Electric, 516 U.S. 85, 90-91, 93-95 (1995).
\4\ NYU was preceded by Boston Medical Center, 330 NLRB 152 (1999),
a case involving the employee status of medical school graduates
serving as interns, residents, and house staff at a teaching hospital.
The Board in Boston Medical Center overruled St. Clare's Hospital &
Health Center, 229 NLRB 1000 (1977), and Cedars-Sinai Medical Center,
223 NLRB 251 (1976). Applying the master-servant test, the Board found
that these medical professionals were statutory employees and
constituted an appropriate unit for collective bargaining. In our
decision today, we express no opinion regarding the Board's decision in
Boston Medical Center.
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After carefully considering the record herein, and the briefs of
the parties and amici, and for the reasons detailed in this decision,
we reconsider NYU and conclude that the 25-year precedent was correct,
and that NYU was wrongly decided and should be overruled.\5\
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\5\ Brown's request for oral argument is denied as the record and
the briefs adequately present the issues and positions of the parties
and amici.
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I. THE PETITION AND THE REGIONAL DIRECTOR'S FINDINGS
The Petitioner sought to represent a unit of approximately 450
graduate students employed as teaching assistants (TAs),\6\ research
assistants (RAs) in certain social sciences and humanities
departments,\7\ and proctors. The Petitioner, relying on NYU, supra,
contended to the Regional Director that the petitioned-for TAs, RAs,
and proctors are employees within the proctors are employees within the
meaning of Section 2(3) and that they constitute an appropriate unit
for collective bargaining.
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\6\ Included among the TAs are senior TAs, assistants, supplemental
TAs, and teaching fellows. The union also seeks to represent the few
medical students who are seeking a Ph.D. and serving as a TA.
\7\ The Petitioner did not seek to represent other RAs, who are
largely in the life and physical sciences departments of the
university. In its Brief on Review, however, the Petitioner for the
first time takes the position that all RAs should be included in the
unit. The Petitioner did not file a request for review of the Regional
Director's finding, discussed infra, that the RAs in life and physical
sciences should be excluded from the unit.
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Brown contended to the Regional Director that the petitioned-for
individuals are not statutory employees because this case is factually
distinguishable from NYU. Brown asserted that, unlike NYU, where only a
few departments required students to serve as a TA or RA to receive a
degree, most university departments at Brown require a student to serve
as a TA or RA to obtain a degree. Brown contended that these degree
requirements demonstrate that the petitioned-for students have only an
educational relationship and not an employment relationship with Brown.
Brown also argued that the TA, RA, and proctor awards constitute
financial aid to students, emphasizing that students receive the same
stipend, regardless of whether they ``work'' for those funds as a TA,
RA, or proctor, or whether they receive funding for a fellowship, which
does not require any work. Finally, Brown argued that even assuming the
petitioned-for individuals are statutory employees, they are temporary
employees who do not have sufficient interest in their ongoing
employment to entitle them to collectively bargain.\8\
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\8\ Further, Brown argued that there is no basis for treating
groups of RAs differently for the purposes of collective bargaining.
Thus, although Brown argues that none of the RAs are employees, it
asserts that all RAs should be treated the same; either all are
employees or all are not employees.
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The Regional Director, applying NYU, rejected Brown's arguments.
She also concluded that the petitioned-for unit was appropriate, and
she directed an election.
The election was conducted on December 6, 2001, and the ballots
were impounded pending the disposition of this request for review.
II. FACTS AND CONTENTIONS OF THE PARTIES
A. Overview of Brown and the Graduate Assistants
Brown is a private university located in Providence, Rhode Island.
It was founded in 1764 and is one of the oldest colleges in the United
States.\9\ The mission of Brown is to serve as a university in which
the graduate and undergraduate schools operate as a single integrated
facility. Brown has over 50 academic departments, approximately 37 of
which offer graduate degrees.\10\ Brown employs approximately 550
regular faculty members, and has an unspecified number of short-term
faculty appointments. Although student enrollment levels vary, over
1,300 are graduate students, 5,600 are undergraduate students, and 300
are medical students in various degree programs. Most graduate students
seek Ph.D. degrees, with an estimated 1,132 seeking doctorates and 178
seeking master's degrees as of May 1, 2001.
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\9\ The University was originally named Rhode Island College. In
1804, the school was renamed Brown University to honor local merchant,
Nicholas Brown.
\10\ At least 32 departments bestow doctorates, while 5 award
masters degrees only.
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Each semester many of these graduate students are awarded a
teaching assistantship, research assistantship, or proctorship, and
others receive a fellowship. At the time of the hearing, approximately
375 of these graduate students were TAs, 220 served as RAs, 60 were
proctors,\11\ and an additional number received fellowships.\12\
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\11\ These figures are for a moment in time. During a given period,
a much higher number will have served in one of these positions at some
point during that period. Thus, as noted infra, the students in 21 of
approximately 32 departments require teaching as a condition of getting
a Ph.D. degree.
\12\ Approximately 50 graduate students receive a dean's
fellowship, and a university fellowship is offered to 60 candidates.
Each department also has fellowships. The Employer asserts in its
posthearing brief that there are at least 300 fellowships, although the
record is not entirely clear as to the precise number overall.
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Although varying somewhat among the departments, a teaching
assistant generally is assigned to lead a small section of a large
lecture course taught by a professor. Although functions of research
assistants vary within departments, these graduate students, as the
title implies, generally conduct research under a research grant
received by a faculty member. Proctors perform a variety of duties for
university departments or administrative offices. Their duties depend
on the individual needs of the particular department or the university
administrative office in which they work and, thus, include a wide
variety of tasks. Unlike TAs and RAs, proctors generally do not perform
teaching or research functions. Fellowships do not require any
classroom or departmental assignments; those who receive dissertation
fellowships are required to be working on their dissertation.
B. Educational Relationship Between Brown and the Graduate Student
Assistants
Brown's charter describes the school's mission as ``educating and
preparing students to discharge the office of life with usefulness and
reputation.'' To educate and prepare its students, Brown uses the
university/college model, which ``furnishes the advantages of both a
small teaching college and a large research university,'' according to
Brown's Bulletin of the University for the years 2001-2003. The
Bulletin describes the Ph.D. degree as ``primarily a research degree''
and emphasizes that ``[t]eaching is also an important part of most
graduate programs.'' The testimony of nearly 20 department heads, and
the contents of numerous departmental brochures and other Brown
brochures, all point to graduate programs steeped in the education of
graduate students through research and teaching.
In their pursuit of a Ph.D. degree, graduate students must complete
coursework, be admitted to degree candidacy (usually following a
qualifying examination), and complete a dissertation, all of which are
subject to the oversight of faculty and the degree requirements of the
department involved. In addition, most Ph.D. candidates must teach in
order to obtain their degree. Although these TAs (as well as RAs and
proctors) receive money from the Employer, that is also true of fellows
who do not perform any services. Thus, the services are not related to
the money received.
The faculty of each department is responsible for awarding TAs,
RAs, or proctorships to its students. To receive an award, the
individual usually must be enrolled as a student in that department.
TAs generally lead small groups of students enrolled in a large
lecture class conducted by a faculty member in the graduate student's
department. The duties and responsibilities vary with the department
involved. In the sciences, TAs typically demonstrate experiments and
the proper use of equipment, and answer questions. In the humanities
and social sciences, TAs lead discussions of what was discussed in the
lecture by the professor.\13\ All the TAs' duties are under the
oversight of a faculty member from the graduate department involved.
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\13\ A few TAs in some departments do not lead sections or labs,
but teach a course, although under the supervision of a faculty member.
In addition, teaching fellows, who constitute less than 10 percent of
all TAs, teach courses independently. The vast majority of TAs,
however, typically lead sections or labs that are subsections of a
large lecture.
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During semesters when these students do not act as TAs, RAs, or
proctors, they enroll in courses and work on dissertations. Even during
those semesters when they are acting in one of these capacities, they
nonetheless participate in taking courses and writing dissertations.
The content of the courses that the TAs teach, and the class size,
time, length, and location are determined by the faculty members,
departmental needs, and Brown's administration. Although undergraduate
enrollment patterns play a role in the assignment of many TAs, faculty
often attempt to accommodate the specific educational needs of graduate
students whenever possible. In addition, TAs usually lead sections
within their general academic area of interest. In the end, decisions
over who, what, where, and when to assist faculty members as a TA
generally are made by the faculty member and the respective department
involved, in conjunction with the administration. These are precisely
the individuals or bodies that control the academic life of the TA.
Research assistantships are typically generated from external
grants from outside Brown, i.e., Federal agencies, foundations, and
corporate sponsors. A faculty member, referred to as the ``principal
investigator,'' typically applies for the grant from the Government or
private source, and funds are included for one or more RAs. The general
process is for students to work with or ``affiliate with'' a faculty
member, who then applies for funds and awards the student the RA. The
students supported by the grant will work on one of the topics
described in the grant. The faculty member who serves as a principal
investigator most typically also serves as the advisor for that
student's dissertation. Although technically the principal investigator
on the grant, the faculty member's role is more akin to teacher,
mentor, or advisor of students. Although the RAs in the social sciences
and humanities perform research that is more tangential to their
dissertation, the students still perform research functions in
conjunction with the faculty member who is the principal investigator.
Proctors perform a variety of duties for university departments or
administrative offices. The Regional Director cited a representative
list of these duties, which include working in Brown's museums or
libraries, editing journals or revising brochures, working in the
office of the dean, advising undergraduate students, and working in
various university offices. Although a few perform research and at
least one teaches a class in the Hispanic studies department, they
generally do not perform research or teaching assistant duties.
C. Financial Support for Graduate Students
The vast majority of incoming and continuing graduate students
receive financial support. In the preceding academic year, 85 percent
of continuing students and 75 percent of incoming students received
some financial support from Brown. Brown gives assurances to some
students that additional support will be available in the future. Thus,
at the discretion of each department and based on the availability of
funds, some incoming students are told in their award letters that if
they ``maintain satisfactory progress toward the Ph.D., you will
continue to receive some form of financial aid in your second through
fourth years of graduate study at Brown, most probably as a teaching
assistant or research assistant.'' Brown's ultimate goal is to support
all graduate students for up to 5 years, typically with a fellowship in
the first and fifth years, and TA or RA positions in the intervening
years. As noted above, the financial support is not dependent on
whether the student performs services as a TA, RA, or proctor.
Brown considers academic merit and financial need when offering
various forms of support, although support is not necessarily issued to
those with the greatest financial need.\14\ This support may include a
fellowship, TA, RA, or proctorship, which may include a stipend for
living expenses, payment of university health fee for oncampus health
services, and tuition ``remission'' (payment of tuition). Priority is
given to continuing students when awarding financial support.
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\14\ The University requires all students to submit a Free
Application for Federal Student Aid (FAFSA). Because proctorships
usually are paid with Federal work-study funds, those students must
financially qualify for this support. The University also provides
Federal loans, such as the Federal Direct Student Loan Program.
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The amount of funding for a fellowship, TA, RA, and proctorship
generally is the same. The basic stipend for a fellowship, TA, RA, or
proctorship is $12,800, although some fellowships, RAs, and TAs are
slightly more.\15\ Tuition remission and health fee payments generally
are the same for TAs, RAs, proctors, and fellows, although the amount
of tuition remission depends on the number of courses taken by a
student.\16\
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\15\ Students receiving the dean and dissertation fellowships
receive $14,500, while university fellowships receive $13,300. Some
departments, particularly in the sciences, offer RA stipends from
$13,200 to $14,250. Some departments, mostly in sciences and social
sciences, use senior TAs who receive $13,300, while teaching fellows
receive from $14,300 to $14,800. Our colleagues say that the graduate
assistantships are ``modest,'' citing the $12,800 stipend paid by Brown
as an example. However, Brown may also provide these individuals with
tuition remission worth $26,000 per year, and in addition pays the
University's health fee on their behalf.
\16\ As indicated above, TAs, RAs, and proctors participate in
taking courses and are permitted to take a maximum of three courses
during the semester that they serve. Fellows, however, are permitted to
take a maximum of five courses with four courses being most typical.
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Brown treats funds for TA, RAs, proctors, and fellowships as
financial aid and represents them as such in universitywide or
departmental brochures. Graduate student assistants receive a portion
of their stipend award twice a month, and the amount of stipend
received is the same regardless of the number of hours spent performing
services. The awards do not include any benefits, such as vacation and
sick leave, retirement, or health insurance.
D. Contentions of the Parties
1. Brown
In its Brief on Review, Brown argues that New York University, 332
NLRB 1205 (2000), was wrongly decided, contending that it reversed 25
years of precedent ``without paying adequate attention to the Board's
role in making sensible policy decisions that effectuate the purposes
of the Act.'' Brown contends that the Board ``did not adequately
consider that the relationship between a research university and its
graduate students is not fundamentally an economic one but an
educational one.'' Further, Brown contends that the support to students
is part of a financial aid program that pays graduate students the same
amount, regardless of work, and regardless of the value of those
services if purchased on the open market (i.e., hiring a fully-vetted
Ph.D.). Brown also emphasizes that ``[c]ommon sense dictates that
students who teach and perform research as part of their academic
curriculum cannot properly be considered employees without entangling
the . . . Act into the intricacies of graduate education.'' Brown also
incorporates arguments made in its request for review that, at a
minimum, NYU, supra, is distinguishable from this case because of the
extent that teaching and research are required for a graduate degree,
and because the graduate assistants are temporary employees.
2. Petitioner
The Petitioner argues that the Regional Director correctly followed
the Board's decision in NYU, and that NYU must be upheld. The
Petitioner contends that the petitioned-for employees clearly meet the
statutory definition of ``employee'' because they meet the common law
test. The Petitioner disputes Brown's contention that TA and RA
stipends, like fellowship stipends, are ``financial aid.'' The
Petitioner argues that Brown's contention that TAs or RAs lose their
status as employees because the TAs and RAs are academically required
to work is based on the false notion that there is no way to
distinguish between a graduate student's academic requirements and the
``work appointments'' of the TAs or RAs. Further, even assuming that
these individuals usually are satisfying an academic requirement, this
is not determinative of employee status.
With regard to the RAs in the life and physical sciences that the
Regional Director excluded, the Petitioner now asserts that these
individuals should be included in the unit because they provide a
service to Brown and are compensated for such service in a manner
consistent with a finding that they are employees within the meaning of
the Act.
Finally, the Petitioner contends that the petitioned-for
individuals are not temporary employees.
III. DISCUSSION AND ANALYSIS
A. Pre-NYU Board Decisions
In Adelphi University, 195 NLRB 639 (1972), the Board held that
graduate student assistants are primarily students and should be
excluded from a unit of regular faculty. In Leland Stanford, 214 NLRB
621 (1974), the Board went further. It held that graduate student
assistants ``are not employees within the meaning of Section 2(3) of
the Act.'' The common thread in both opinions is that these individuals
are students, not employees. The Board found that the research
assistants were not statutory employees because, like the graduate
students in Adelphi, supra, they were ``primarily students.'' In
support of this conclusion, the Board cited to the following: (1) the
research assistants were graduate students enrolled in the Stanford
physics department as Ph.D. candidates; (2) they were required to
perform research to obtain their degree; (3) they received academic
credit for their research work; and (4) while they received a stipend
from Stanford, the amount was not dependent on the nature or intrinsic
value of the services performed or the skill or function of the
recipient, but instead was determined by the goal of providing the
graduate students with financial support. For over 25 years, the Board
adhered to the Leland Stanford principle.
In each of these Board decisions, the Board's view of graduate
students enrolled at a college or university remained essentially the
same. In Adelphi University, supra, the graduate student assistants
were graduate students working towards their advanced academic degrees,
and the Board noted that ``their employment depends entirely on their
status as such.'' 195 NLRB at 640. Further, the Board emphasized that
graduate student assistants ``are guided, instructed, assisted, and
corrected in the performance of their assistantship duties by the
regular faculty members to whom they are assigned.'' Id. The Board
concluded that graduate student assistants were primarily students and
contrasted them with research associates in C. W. Post Center of Long
Island University, 189 NLRB 904 (1971), because the research associates
``[were] not simultaneously a student but already had . . . [a]
doctoral degree and, under the Center's statutes, [were] eligible for
tenure.'' 195 NLRB at 640 fn. 8. As noted above, the rationale was
similar in Leland Stanford, supra, in which the Board likewise
contrasted the research assistants there to research associates, again
emphasizing that research associates are not simultaneously students
and concluding that ``these research assistants are like the graduate
teaching and research assistants who we found were primarily students
in Adelphi University.'' 214 NLRB at 623.
In St. Clare's Hospital, 229 NLRB 1000 (1977), and Cedars-Sinai
Medical Center, 223 NLRB 251 (1976), the Board reaffirmed its treatment
of students ``who perform services at their educational institutions
which are directly related to their educational program'' and stated
that the Board ``has universally excluded students from units which
include nonstudent employees, and in addition has denied them the right
to be represented separately.'' St. Clare's Hospital, 229 NLRB at 1002.
The Board emphasized the rationale that they are ``serving primarily as
students and not primarily as employees . . . [and] the mutual
interests of the students and the educa tional institution in the
services being rendered are predominately academic rather than economic
in nature.'' Id. Although the Board later overruled St. Clare's
Hospital and Cedars-Sinai in Boston Medical Center, 330 NLRB 152
(1999), and asserted jurisdiction over the individuals there, those
individuals were interns, residents, and fellows who had already
completed and received their academic degrees. The Board in Boston
Medical did not address the status of graduate assistants who have not
received their academic degrees. In the instant case, the graduate
assistants are seeking their academic degrees and, thus, are clearly
students. We need not decide whether Boston Medical (where the opposite
is true) was correctly decided.
B. Return to the Pre-NYU Status of Graduate Student Assistants
The Supreme Court has recognized that principles developed for use
in the industrial setting cannot be ``imposed blindly on the academic
world.'' NLRB v. Yeshiva University, 444 U.S. 672, 680-681 (1980),
citing Syracuse University, 204 NLRB 641, 643 (1973). While graduate
programs may differ somewhat in their details, the concerns raised in
NYU, supra, and here forcefully illustrate the problem of attempting to
force the studentuniversity relationship into the traditional
employeremployee framework. After carefully analyzing these issues, we
have come to the conclusion that the Board's 25-year pre-NYU principle
of regarding graduate students as nonemployees was sound and well
reasoned. It is clear to us that graduate student assistants, including
those at Brown, are primarily students and have a primarily
educational, not economic, relationship with their university.
Accordingly, we overrule NYU and return to the pre-NYU Board precedent.
Leland Stanford, supra, was wholly consistent with the overall
purpose and aim of the Act. In Section 1 of the Act, Congress found
that the strikes, industrial strife and unrest that preceded the Act
were caused by the ``inequality of bargaining power between employees
who do not possess full freedom of association or actual liberty of
contract, and employers who are organized in the corporate or other
forms of ownership. . . .'' \17\ To remove the burden on interstate
commerce caused by this industrial unrest, Congress extended to and
protected the right of employees, if they so choose, to organize and
bargain collectively with their employer, encouraging the ``friendly
adjustment of industrial disputes arising out of differences as to
wages, hours or other conditions. . . .'' Id.\18\ The Act was premised
on the view that there is a fundamental conflict between the interests
of the employers and employees engaged in collective-bargaining under
its auspices and that `` `[t]he parties . . . proceed from contrary and
to an extent antagonistic viewpoints and concepts of self-interest'
''[:] \19\
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\17\ Sec. 1, 29 U.S.C. 151.
\18\ 1 Leg. Hist. 318 (NLRA 1935). See also American Ship Building
Co. v. NLRB, 380 U.S. 300, 316 (1965) (a purpose of the Act is ``to
redress the perceived imbalance of economic power between labor and
management.''); 1 Leg. His. 15 (NLRA 1935) (remarks of Sen. Wagner, 78
Cong.Rec. 3443 (Mar. 1, 1934).
\19\ NLRB v. Insurance Agents, 361 U.S. 477, 488 (1960).
[T]he damage caused to the nation's commerce by the
inequality of bargaining power between employees and employers
was one of the central problems addressed by the Act. A central
policy of the Act is that the protection of the right of
employees to organize and bargain collectively restores
equality of bargaining power between employers and employees
and safeguards commerce from the harm caused by labor disputes.
The vision of a fundamentally economic relationship between
employers and employees is inescapable.\20\
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\20\ WBAI Pacifica Foundation, 328 NLRB 1273, 1275 (1999) (emphasis
added).
The Board and the courts have looked to these Congressional
policies for guidance in determining the outer limits of statutory
employee status. Thus, the Supreme Court held, in NLRB v. Bell
Aerospace Co.,\21\ that managerial employees, while not excluded from
the definition of an employee in Section 2(3), nevertheless are not
statutory employees. As the Court explained:
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\21\ 416 U.S. 267 (1974).
[T]he Wagner Act was designed to protect ``laborers'' and
``workers,'' not vice-presidents and others clearly within the
managerial hierarchy. Extension of the Act to cover true
``managerial employees'' would indeed be revolutionary, for it
would eviscerate the traditional distinction between labor and
management. If Congress intended a result so drastic, it is not
unreasonable to expect that it would have said so
expressly.\22\
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\22\ Id. at 284.
This interpretation of Section 2(3) followed the fundamental rule that
``a reviewing court should not confine itself to examining a particular
statutory provision in isolation.'' \23\ We follow that principle here.
We look to the underlying fundamental premise of the Act, viz. the Act
is designed to cover economic relationships. The Board's longstanding
rule that it will not assert jurisdiction over relationships that are
``primarily educational `` is consistent with these principles.
---------------------------------------------------------------------------
\23\ FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-
133 (2000) (``The meaning--or ambiguity--of certain words or phrases
may only become evident when placed in context. It is a fundamental
canon of statutory construction that the words of a statute must be
read in their context and with a view to their place in the overall
statutory scheme. A court must therefore interpret the statute as a
symmetrical and coherent regulatory scheme.'') (Citations and internal
quotations omitted.) See also Sutherland, Statutory Construction (5th
ed. 1994) 46.05: ``A statute is passed as a whole and not in parts or
sections and is animated by one general purpose and intent.
Consequently, each part or section should be construed in connection
with every other part or section so as to produce a harmonious whole.
Thus, it is not proper to confine interpretation to the one section to
be construed.''
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We emphasize the simple, undisputed fact that all the petitioned-
for individuals are students and must first be enrolled at Brown to be
awarded a TA, RA, or proctorship. Even students who have finished their
coursework and are writing their dissertation must be enrolled to
receive these awards. Further, students serving as graduate student
assistants spend only a limited number of hours performing their
duties, and it is beyond dispute that their principal time commitment
at Brown is focused on obtaining a degree and, thus, being a student.
Also, as shown below, their service as a graduate student assistant is
part and parcel of the core elements of the Ph.D. degree. Because they
are first and foremost students, and their status as a graduate student
assistant is contingent on their continued enrollment as students, we
find that that they are primarily students.
We also emphasize that the money received by the TAs, RAs, and
proctors is the same as that received by fellows. Thus, the money is
not ``consideration for work.'' It is financial aid to a student.
The evidence demonstrates that the relationship between Brown's
graduate student assistants and Brown is primarily educational. As
indicated, the first prerequisite to becoming a graduate student
assistant is being a student. Being a student, of course, is synonymous
with learning, education, and academic pursuits. At Brown, most
graduate students are pursuing a Ph.D. which, as described by the
Brown's University Bulletin, is primarily a research degree with
teaching being an important component of most graduate programs. The
educational core of the degree, research, and teaching, reflects the
essence of what Brown offers to students: ``the advantage of a small
teaching college and large research university.'' At least 21 of the 32
departments that offer Ph.D. degrees require teaching as a condition of
getting that degree. Sixty-nine percent of all graduate students are
enrolled in these departments. Thus, for a substantial majority of
graduate students, teaching is so integral to their education that they
will not get the degree until they satisfy that requirement.\24\
Graduate student assistant positions are, therefore, directly related
to the core elements of the Ph.D. degree and the educational reasons
that students attend Brown. The relationship between being a graduate
student assistant and the pursuit of the Ph.D. is inextricably linked,
and thus, that relationship is clearly educational.
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\24\ This fact is relevant to our analysis, but it is not
necessarily critical. That is, if the fact were to the contrary, we
would not necessarily find employee status. Indeed, the fact was contra
in NYU and employee status was found, but we have overruled that case.
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We recognize that a given graduate student may be a teacher,
researcher, or proctor for only a portion of his or her tenure as a
student. However, as described above, that task is an integral part of
being a graduate student, and cannot be divorced from the other
functions of being a graduate student.
Because the role of teaching assistant and research assistant is
integral to the education of the graduate student, Brown's faculty
oversees graduate student assistants in their role as a research or
teaching assistant. Although the duties and responsibilities of
graduate student assistants vary among departments and faculty, most
perform under the direction and control of faculty members from their
particular department. TAs generally do not teach independently, and
even teaching fellows who have some greater responsibilities follow
faculty-established courses. RAs performing research do so under grants
applied for by faculty members, who often serve as the RA's
dissertation adviser. In addition, these faculty members are often the
same faculty that teach or advise the graduate assistant student in
their coursework or dissertation preparation.
Besides the purely academic dimension to this relationship is the
financial support provided to graduate student assistants because they
are students. Attendance at Brown is quite expensive. Brown recognizes
the need for financial support to meet the costs of a graduate
education. This assistance, however, is provided only to students and
only for the period during which they are enrolled as students.
Further, the vast majority of students receive funding. Thus, in the
last academic year, 85 percent of continuing students and 75 percent of
incoming students received assistance from Brown. In addition, as noted
above, the amounts received by graduate student assistants generally
are the same or similar to the amounts received by students who receive
funds for a fellowship, which do not require any assistance in teaching
and research. Moreover, a significant segment of the funds received by
both graduate student assistants and fellows is for full tuition.
Further, the funds for students largely come from Brown's financial aid
budget rather than its instructional budget.
Thus, in light of the status of graduate student assistants as
students, the role of graduate student assistantships in graduate
education, the graduate student assistants' relationship with the
faculty, and the financial support they receive to attend Brown, we
conclude that the overall relationship between the graduate student
assistants and Brown is primarily an educational one, rather than an
economic one.
Over 25 years ago, the Board in St. Clare's Hospital, supra,
clearly and cogently explained the rationale for declining to extend
collective-bargaining rights to students who perform services at their
educational institutions, that are directly related to their
educational program, i.e.,
The rationale . . . is a relatively simple and
straightforward one. Since the individuals are rendering
services which are directly related to--and indeed constitute
an integral part of--their educational program, they are
serving primarily as students and not primarily as employees.
In our view this is a very fundamental distinction for it means
that the mutual interests of the students and the educational
institution in the services being rendered are predominantly
academic rather than economic in nature. Such interests are
completely foreign to the normal employment relationship and,
in our judgment, are not readily adaptable to the
collectivebargaining process. It is for this reason that the
Board has determined that the national labor policy does not
require--and in fact precludes--the extension of collective-
bargaining rights and obligations to situations such as the one
now before us.
229 NLRB at 1002 (footnote omitted).
The Board explained, ``[i]t is important to recognize that the
student-teacher relationship is not at all analogous to the employer-
employee relationship.'' Thus, the student-teacher relationship is
based on the ``mutual interest in the advancement of the student's
education,'' while the employer-employee relationship is ``largely
predicated on the often conflicting interests'' over economic issues.
Because the collective-bargaining process is fundamentally an economic
process, the Board concluded that subjecting educational decisions to
such a process would be of ``dubious value'' because educational
concerns are largely irrelevant to wages, hours, and working
conditions. In short, the Board determined that collective bargaining
is not particularly well suited to educational decisionmaking and that
any change in emphasis from quality education to economic concerns will
``prove detrimental to both labor and educational policies.''
The Board noted that ``the educational process--particularly at the
graduate and professional levels--is an intensely personal one.'' The
Board emphasized that the process is personal, not only for the
students, but also for faculty, who must educate students with a wide
variety of backgrounds and abilities. In contrast to these individual
relationships, collective bargaining is predicated on the collective or
group treatment of represented individuals. The Board observed that in
many respects, collective treatment is ``the very antithesis of
personal individualized education.''
The Board also emphasized that collective bargaining is designed to
promote equality of bargaining power, ``another concept that is largely
foreign to higher education.'' The Board noted that while teachers and
students have a mutual interest in the advancement of the student's
education, in an employment relationship such mutuality of goals
``rarely exists.''
Finally, the Board concluded that collective bargaining would
unduly infringe upon traditional academic freedoms. The list of
freedoms detailed in St. Clare's Hospital, 229 NLRB at 1003, includes
not only the right to speak freely in the classroom, but many
``fundamental matters'' involving traditional academic decisions,
including course length and content, standards for advancement and
graduation, administration of exams, and many other administrative and
educational concerns. The Board opined that once academic freedoms
become bargainable, ``Board involvement in matters of strictly academic
concern is only a petition or an unfair labor practice charge away.''
\25\
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\25\ In citing St. Clare's, we do not necessarily register our
agreement with all aspects of that case. That is, we do not hold that
residents and interns are not employees for purposes of collective
bargaining. Nor do we hold that the Act ``precludes'' residents and
interns from employee status under Sec. 2(3). We simply say that, for
many of the same policy considerations that underlie St. Clare's, we
have chosen not to treat graduate assistants as employees for purposes
of collective bargaining.
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The concerns expressed by the Board in St. Clare's Hospital 25
years ago are just as relevant today at Brown. Imposing collective
bargaining would have a deleterious impact on overall educational
decisions by the Brown faculty and administration. These decisions
would include broad academic issues involving class size, time, length,
and location, as well as issues over graduate assistants' duties,
hours, and stipends. In addition, collective bargaining would intrude
upon decisions over who, what, and where to teach or research--the
principal prerogatives of an educational institution like Brown.
Although these issues give the appearance of being terms and conditions
of employment, all involve educational concerns and decisions, which
are based on different, and often individualized considerations.\26\
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\26\ Academic freedom includes the right of a university ``to
determine for itself on academic grounds who may teach, what may be
taught, how it shall be taught, and who may be admitted to study.''
Sweezy v. State of New Hampshire, 354 U.S. 234, 263 (1957)
(Frankfurter, J, concurring). As our dissenting colleagues note, the
Supreme Court found that these freedoms were not infringed by the
EEOC's efforts to subpoena tenure-related documents in University of
Pennsylvania v. EEOC, 493 U.S. 182 (1990). In reaching this conclusion,
the Court stressed that the application of Title VII to tenure
decisions would not usurp the university's authority to determine
employment criteria for professors except by precluding the use of
those proscribed by Title VII. The imposition of collective bargaining
on the relationship between a university and its graduate student
assistants, in contrast, would limit the university's freedom to
determine a wider range of matters. Because graduate student assistants
are students, those limitations intrude on core academic freedoms in a
manner simply not present in cases involving faculty employees.
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Based on all of the above-statutory and policy considerations, we
concluded that the graduate student assistants are not employees within
the meaning of Section 2(3) of the Act. Accordingly, we decline to
extend collective bargaining rights to them, and we dismiss the
petition.\27\
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\27\ Member Schaumber agrees with his colleagues that graduate
student assistants are not statutory employees for the reasons stated
above. He finds further support for this conclusion in the fact that
graduate student assistants fit poorly within the common law definition
of ``employee, `` which the Supreme Court has held is relevant to the
question of whether an individual is an ``employee'' under the Act,
although not controlling. NLRB v. Town & Country Electric, 516 U.S. 85,
94 (1995) (contrasting interpretation of term ``employee'' under other
Federal laws, applying common law standards, with the ``'considerable
deference''' given to the Board's construction of that term when
administering the Act). Under the common law, an employee is a person
who performs services for another under a contract of hire, subject to
the other's control or right of control, and in return for payment. Id.
Here, graduate student assistants are not ``hired'' to serve as
graduate teaching or research assistants. They are admitted to a
graduate program that includes a requirement for service as a graduate
student assistant. The teaching and research are not performed ``for''
the university, as such, but rather as an integral part of the
student's educational course of study. The financial arrangements for
graduate student stipends further confirm the fundamentally educational
nature of service as a TA or RA, as the stipends are based upon
status--enrollment in a graduate program. They do not depend on the
nature or value of the services provided, and, thus, are not a quid pro
quo for services rendered. In disagreeing with this analysis, Member
Schaumber believes that his dissenting colleagues focus too narrowly on
the mechanics of the work performed by graduate student assistants
without considering it in context with the controlling academic
relationship of which it is an integral part. This parallels the
dissent's application of the definition for ``employee'' set forth in
Sec. 2(3) of the Act. Member Schaumber believes that the dissenters
read the definition in isolation while the breadth of the term's
application--its intended contours--can only be determined accurately
by reading the definition in the context of the Act, see, e.g., Sec. 1
in which it appears.
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Our dissenting colleagues question our analysis of pre-NYU
precedent. More specifically, they assert that the holding of Leland
Stanford, 214 NLRB 621 (1974), is confined to research assistants and
that research assistants are unlike graduate teaching assistants. The
language of the Board in that case is directly contrary to this
assertion. The Board said:
In sum, we believe these research assistants are like the
graduate teaching and research assistants who we found were
primarily students in Adelphi University, 195 NLRB 639, 640
(1972). We find, therefore, that the research assistants in the
physics department are primarily students, and we conclude they
are not employees within the meaning of Section 2(2) of the
Act.
214 NLRB at 623 (emphasis added). Our colleagues' assertions,
therefore, turn a blind eye to the Board's longstanding policy,
discussed above, of declining to extend collectivebargaining rights to
graduate students and holding that graduate students are not employees
under Section 2(3) of the Act. See Adelphi University, supra; Leland
Stanford University, supra; and St. Clare's, supra.\28\
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\28\ Our colleagues say that, under St. Clare's, house staff were
not employees for bargaining purposes but they could be employees for
other statutory purposes. Our colleagues complain that, in the instant
case, we are holding that graduate student assistants are not employees
for any statutory purposes. In our view, that result flows from our
interpretation of Sec. 2(3). Of course, St. Clare's is not now the law,
and we decline to consider its holding here.
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The broad applicability of this policy to graduate student
assistants is clear from St. Clare's, in which the Board carefully
delineated several categories of Board cases involving students,
including those students who perform services at an educational
institution where those services are directly related to the
university's educational programs. Discussing this category of cases,
and citing Leland Stanford and Adelphi University, the Board stated,
``[i]n such cases, the Board has universally excluded students from
units which include nonstudent employees, and in addition has denied
them the right to be represented separately.'' Id. at 1002.\29\ Until
NYU, this had been the Board's unbroken policy towards the issue of
collective-bargaining rights for graduate students. Although the Board
may not have been presented the precise facts of NYU in earlier cases,
the dissent chooses either to ignore or simply to disregard what had
been Board law regarding this category of students for over 25 years.
This Board law is also consistent with nearly one-half century of Board
decisions holding that the disabled who are in primarily rehabilitative
rather than an economic or industrial work relationships are not
statutory employees and that it would not effectuate the policies of
the Act to subject the rehabilitative program into which they have been
admitted to collective bargain ing.\30\
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\29\ Although the dissent cites language from Cedars-Sinai, supra,
to the effect that the Board has included students in some bargaining
units and in a few instances, authorized elections in units composed
solely of students, the Board clarified this general assertion in St.
Clare's by making clear that this does not include the category of
students who perform services at their university related to their
educational programs.
\30\ Sheltered Workshops of San Diego, 126 NLRB 961(1960), Goodwill
of Tidewater, 304 NLRB 767 (1991); and Goodwill of Denver, 304 NLRB 764
(1991).
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Our colleagues argue that graduate student assistants are employees
at common law. Even assuming arguendo that this is so, it does not
follow that they are employees within the meaning of the Act. The issue
of employee status under the Act turns on whether Congress intended to
cover the individual in question. The issue is not to be decided purely
on the basis of older common-law concepts. For example, a managerial
employee may perform services for, and be under the control of, an
employer. Indeed, the Supreme Court used the term ``managerial
employee'' in Bell Aerospace Co., 416 U.S. 267 (1974). And yet, the
Court held that these persons were not statutory employees.
Similarly, our colleagues say that we never address the language of
Section 2(3). In fact, we do. The difference is that our colleagues
stop their analysis with the recitation of the statutory words ``the
term ``employee'' shall include any employee.'' We go further than this
tautology. We examine the underlying purposes of the Act.
Our colleagues rely on NLRB v. Town & Country Electric, 516 U.S. 85
(1995), and Sure-Tan v. NLRB, 467 U.S. 883 (1984), to support their
contention that the absence of an express exclusion in Section 2(3) for
graduate student assistants mandates a finding that the assistants are
statutory employees. As the foregoing discussion makes clear, that is
simply not so. Further, neither of these cases supports the dissent's
position. In both Town & Country and Sure-Tan, the individuals found to
be employees worked in fundamentally economic relationships. Moreover,
and consistent with our approach, the Court in both cases examined the
underlying purposes of the Act in determining whether paid union
organizers and illegal aliens, respectively, were statutory employees.
Town & Country, supra, 516 U.S. at 91; Sure-Tan, supra, 467 U.S. at
891-892. We have examined and rely upon those same statutory purposes
in determining that Brown's graduate student assistants are not
employees within the meaning of the Act.
Contrary to the dissent, our decision today is also consistent with
the Board's recent decision in Alexandria Clinic, 339 NLRB No. 162
(2003), which considered whether a union satisfied Section 8(g)'s 10-
day strike notice requirement when it issued a 10-day notice, but
deliberately delayed the start of the strike for 4 hours after the time
specified in the notice. Section 8(g) contains detailed requirements
for strike notices at healthcare facilities, and the Board properly
relied on those explicit statutory provisions in concluding that the
notice in Alexandria Clinic, supra, was deficient. Section 2(3), by
contrast, contains no detailed provisions for determining statutory
employee status. That issue, therefore, must be examined in the context
of the Act's overall purpose.
The dissent's further contention that we ``fail to come to grips''
with the statutory principles of Section 2(3) is nothing more than a
disagreement with our interpretation and application of the statute. In
reality, the NYU decision on which our colleagues rely was contrary to
historic Board precedent. It was also contrary to Supreme Court and
Circuit Court precedent, in that it read Section 2(3) out of the
context in which it appears. We are unprepared to do so. As discussed
above, the absence of ``students'' from the enumerated exclusions of
Section 2(3) is not the end of the statutory inquiry. Rather, although
Section 2(3) contains explicit exceptions for groups that must be
excluded from the statutory definition of ``employee,'' other groups
also have been held to be excluded.
Moreover, even if graduate student assistants are statutory
employees, a proposition with which we disagree, it simply does not
effectuate the national labor policy to accord them collective
bargaining rights, because they are primarily students. In this regard,
the Board has the discretion to determine whether it would effectuate
national labor policy to extend collective bargaining rights to such a
category of employees. Indeed, the Board has previously exercised that
discretion with respect to medical residents and interns. See St.
Clare's Hospital, supra. Thus, assuming arguendo that the petitioned-
for individuals are employees under Section 2(3), the Board is not
compelled to include them in a bargaining unit if the Board determines
it would not effectuate the purposes and policies of the Act to do so.
We also reject the dissent's contention that our policy is unsound
because we ``minimize the economic relationship between graduate
student assistants and their universities.'' Contrary to the dissent,
the ``academic reality'' for graduate student assistants has not
changed, in relevant respects, since our decisions over 25 years ago.
See, e.g., the description of graduate assistants in Adelphi
University, 195 NLRB at 640. As the Board explained in St. Clare's, the
conclusion that these graduate student assistants are primarily
students ``connotes nothing more than the simple fact that when an
individual is providing services at the educational institution itself
as part and parcel of his or her educational development the individ
ual's interest in rendering such services is more academic than
economic.'' 229 NLRB at 1003. That is the essence of the relationship
between a university and graduate student assistants, and why we
decline to accord collective bargaining rights to them.
Although the dissent theorizes how the changing financial and
corporate structure of universities may have given rise to graduate
student organizing, these theories do not contradict the following
facts demonstrating that the relationship between Brown and its
graduate student assistants is primarily academic: (1) the petitioned-
for individuals are students; (2) working as a TA, RA, or proctor, and
receipt of a stipend and tuition remission, depends on continued
enrollment as a student; (3) the principal time commitment at Brown is
focused on obtaining a degree, and, thus, being a student; and (4)
serving as a TA, RA, or proctor, is part and parcel of the core
elements of the Ph.D. degree, which are teaching and research. Although
the structure of universities, like other institutions, may have
changed, these facts illustrate that the basic relationship between
graduate students and their university has not.
The dissent gives a few examples of collective-bargaining
agreements in which there is assertedly no intrusion into the
educational process. However, inasmuch as graduate student assistants
are not statutory employees that is the end of the inquiry.
Nevertheless, we will respond to our dissenting colleagues. Even if
some unions have chosen not to intrude into academic prerogatives, that
does not mean that other unions would be similarly abstemious. The
certification sought by the Petitioner here has no limitations. As
discussed above, the broad power to bargain over all Section 8(d)
subjects would, in the case of graduate student assistants, carry with
it the power to intrude into areas that are at the heart of the
educational process. In contrast to the broad power to bargain under
Section 8(d) of the Act, all states have the authority to limit
bargaining subjects for public academic employees, and at least some
have exercised that authority.\31\
---------------------------------------------------------------------------
\31\ See, e.g., Cal. Gov't Code Sec. 3562(q) (West 2004)
(excluding, from collective bargaining, admission requirements for
students, conditions for awarding degrees, and content and supervision
of courses, curricula, and research programs), applied in Regents of
the University of California, 23 PERC P 30025 (1998); see also Central
State University v. American Assn. of University Professors, 526 U.S.
124 (1999) (per curiam) (Ohio statute exempting university professors'
instructional workload standards from collective bargaining does not
violate equal protection); University Education Association v. Regents
of the University of Minnesota, 353 N.W. 2d 534 (Minn. 1984) (criteria
to determine promotion and tenure, review of faculty evaluations, and
academic calendar, are matters of inherent management policy, which are
not negotiable under labor relations statute); and Regents of the
University of Michigan v. Michigan Employment Relations Commission, 389
Mich. 96, 204 N.W. 2d 218 (1973) (scope of bargaining limited if
subject matter falls clearly within the educational sphere).
---------------------------------------------------------------------------
The dissent also faults us for acting in the absence of ``empirical
evidence,'' and for allegedly engaging in policymaking reserved to
Congress. Once again, inasmuch as graduate student assistants are not
statutory employees, that is the end of our inquiry. It is our
dissenting colleagues who are intruding on the domain of the Congress.
In addition, as to the former point, 25 years of untroubled experience
under pre-NYU standards seem to us a far more sound empirical basis for
action than that offered by the studies our colleagues cite. And, as to
the latter point, we note that Congress voiced no disapproval of the
Board's 25-year rule that graduate students are not employees. See
American Totalisator, 243 NLRB 314 (1979), affd. 708 F.2d 46 (2d. Cir.
1983), cert. denied 464 U.S. 914 (1983) (``Congress is well aware of
the Board's historic stance of declining to assert jurisdiction over
horseracing and dogracing, . . . [a]bsent an indication from Congress
that the Board's refusal to assert jurisdiction is contrary to
congressional mandate, we are not persuaded that we should exercise our
discretion to reverse our prior holdings on this issue.'').
Finally, our colleagues suggest that we have concluded that ``there
[is] no room in the ivory tower for a sweatshop.'' Although the phrase
is a catchy one, it does nothing to further the analysis of this case.
Our decision does not turn on whether our nation's universities are
ivory towers or sweatshops (although we do not believe that either has
been shown). Rather, our decision turns on our fundamental belief that
the imposition of collective bargaining on graduate students would
improperly intrude into the educational process and would be
inconsistent with the purposes and policies of the Act.
For the reasons we have outlined in this opinion, there is a
significant risk, and indeed a strong likelihood, that the collective-
bargaining process will be detrimental to the educational process.
Although the dissent dismisses our concerns about collective bargaining
and academic freedom at private universities as pure speculation, their
confidence in the process in turn relies on speculation about the risks
of imposing collective bargaining on the student-university
relationship. We decline to take these risks with our nation's
excellent private educational system. Although under a variety of state
laws, some states permit collective bargaining at public universities,
we choose to interpret and apply a single federal law differently to
the large numbers of private universities under our jurisdiction.
Consistent with long standing Board precedent, and for the reasons set
forth in this decision, we declare the federal law to be that graduate
student assistants are not employees within the meaning of Section 2(3)
of the Act.
ORDER
The Regional Director's Decision and Direction of Election is
reversed, and the petition is dismissed.
Dated, Washington, D.C., July 13, 2004
________________
Robert J. Battista, Chairman
________________
Peter C. Schaumber, Member
________________
Ronal Meisbrug, Member
National Labor Relations Board
(SEAL)
(Members Liebman and Walsh, dissenting)
Collective bargaining by graduate student employees is increasingly
a fact of American university life.\1\ Graduate student unions have
been recognized at campuses from coast to coast, from the State
University of New York to the University of California. Overruling a
recent, unanimous precedent, the majority now declares that graduate
student employees at private universities are not employees protected
by the National Labor Relations Act and have no right to form unions.
The majority's reasons, at bottom, amount to the claim that graduate-
student collective bargaining is simply incompatible with the nature
and mission of the university. This revelation will surely come as a
surprise on many campuses--not least at New York University, a first-
rate institution where graduate students now work under a collective-
bargaining agreement reached in the wake of the decision that is
overruled here.\2\
---------------------------------------------------------------------------
\1\ See Neal H. Hutchens & Melissa B. Hutchens, Catching the Union
Bug: Graduate Student Employees and Unionization, 39 Gonzaga L. Rev.
105, 106-107 (2004) (surveying history and status of graduate student
unions); Daniel J. Julius & Patricia J. Gumport, Graduate Student
Unionization: Catalysts and Consequences, 26 Review of Higher Education
187, 191-196 (2002) (same); Grant M. Hayden, ``The University Works
Because We Do'': Collective Bargaining Rights for Graduate Assistants,
69 Fordham L. Rev. 1233, 1236-1243 (2001) (same); Douglas Sorrelle
Streitz & Jennifer Allyson Hunkler, Teaching or Learning: Are Teaching
Assistants Students or Employees, 24 Journal of College & University
Law 349, 358-370 (1997) (same). By one recent count, 23 American
universities have recognized graduate student unions or faculty unions
including graduate students, beginning in 1969 with the University of
Wisconsin-Madison. See Coalition of Graduate Employee Unions,
Frequently Asked Questions about Graduate Employee Unions at http://
www.cgeu.org/FAQ basics.html.
\2\ New York University, 332 NLRB 1205 (2000) (NYU).
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Today's decision is woefully out of touch with contemporary
academic reality. Based on an image of the university that was already
outdated when the decisions the majority looks back to, Leland Stanford
\3\ and St. Clare's Hospital,\4\ were issued in the 1970's, it shows a
troubling lack of interest in empirical evidence. Even worse, perhaps,
is the majority's approach to applying the Act. It disregards the plain
language of the statute--which defines ``employees'' so broadly that
graduate students who perform services for, and under the control of,
their universities are easily covered--to make a policy decision that
rightly belongs to Congress. The reasons offered by the majority for
its decision do not stand up to scrutiny. But even if they did, it
would not be for the Board to act upon them. The result of the Board's
ruling is harsh. Not only can universities avoid dealing with graduate
student unions, they are also free to retaliate against graduate
students who act together to address their working conditions.
---------------------------------------------------------------------------
\3\ Leland Stanford Junior University, 214 NLRB 621 (1974).
\4\ St. Clare's Hospital & Health Center, 229 NLRB 1000 (1977).
---------------------------------------------------------------------------
I.
We would adhere to the Board's decision in NYU and thus affirm the
Regional Director's decision in this case.
In NYU, applying principles that had recently been articulated in
Boston Medical Center,\5\ the Board held that the graduate assistants
involved there were employees within the meaning of Section 2(3) of the
Act, because they performed services under the control and direction of
the university, for which they were compensated by the university. The
Board found ``no basis to deny collective-bargaining rights to
statutory employees merely because they are employed by an educational
institution in which they are enrolled as students.'' 332 NLRB at 1205.
It was undisputed, the Board observed, that ``graduate assistants are
not within any category of workers that is excluded from the definition
of `employee' in Section 2(3).'' Id. at 1206.
---------------------------------------------------------------------------
\5\ Boston Medical Center, 330 NLRB 152 (1999). That decision
concerned hospital interns, residents, and fellows (house staff)
involved in medical training as well as in patient care. In upholding
their right to engage in collective bargaining, despite their status as
students, the Board overruled St. Clare's Hospital, supra. The Board's
decision today explicitly notes that it ``express[es] no opinion
regarding'' Boston Medical Center. We believe that Boston Medical
Center was correctly decided.
---------------------------------------------------------------------------
In turn, the Board rejected policy grounds as a basis for
effectively creating a new exclusion. Rejecting claims that graduate
assistants lacked a traditional economic relationship with the
university, the Board pointed out that the relationship in fact
paralleled that between faculty and university, which was amenable to
collective bargaining. 332 NLRB at 1207-1208. The university's
assertion that extending collective-bargaining rights to graduate
students would infringe on academic freedom was also rejected. Such
concerns, the Board explained, were speculative. Citing 30 years of
experience with bargaining units of faculty members, and the
flexibility of collective bargaining as an institution, the Board
concluded that the ``parties can `confront any issues of academic
freedom as they would any other issue in collective bargaining.' ''
Id., quoting Boston Medical Center, supra, 330 NLRB at 164.
Here, the Regional Director correctly applied the Board's decision
in NYU. She concluded that the teaching assistants (TAs), research
assistants (RAs), and proctors were statutory employees, because they
performed services under the direction and control of Brown, and were
compensated for those services by the university. With respect to the
TAs, the Regional Director rejected, on both factual and legal grounds,
Brown's attempt to distinguish NYU on the basis that teaching was a
degree requirement at Brown. Finally, she found that the TAs, RAs, and
proctors were not, as Brown contended, merely temporary employees who
could not be included in a bargaining unit. Accordingly, she directed a
representation election, so that Brown's graduate students could choose
for themselves whether or not to be represented by a union.
We agree with the Regional Director's decision in each of these
respects.
II.
Insisting that it is simply restoring traditional precedent, the
majority now overrules NYU and reverses the Regional Director's
decision. It concludes that because graduate assistants ``are primarily
students and have a primarily educational, not economic, relationship
with their university,'' they are not covered by the National Labor
Relations Act and the Board cannot exercise jurisdiction over them.
According to the majority, ``[p]rinciples developed for use in the
industrial setting cannot be `imposed blindly on the academic world.'
'' \6\
---------------------------------------------------------------------------
\6\ The majority quotes from the Supreme Court's decision in NLRB
v. Yeshiva University, 444 U.S. 672, 680-681 (1980), in which the Court
held that, given their role in university governance, the faculty
members involved there were managerial employees, not covered by the
Act. The Court made clear, however, that not all faculty members at
every university would fall into the same category. 444 U.S. at 690 fn.
31. Following Yeshiva, the Board has continued to find facultymember
bargaining units appropriate. See, e.g., Bradford College, 261 NLRB 565
(1982).
---------------------------------------------------------------------------
There are two chief flaws in the majority's admonition. First, the
majority fails to come to grips with the statutory principles that must
govern this case. Second, it errs in seeing the academic world as
somehow removed from the economic realm that labor law addresses--as if
there was no room in the ivory tower for a sweatshop.\7\ Before
addressing those flaws, we question the majority's account of Board
precedent in this area.
---------------------------------------------------------------------------
\7\ Graduate assistantships are modest, even at top schools. The
Regional Director found that at Brown the ``basic stipend for a
fellowship, teaching assistantship, research assistantship, or
proctorship is $12,800 for the 2001-2002 academic year.'' According to
a 2003 report, the ``average amount received by full-time, full-year
graduate and first professional students with assistantships was
$9,800.'' Susan P. Choi & Sonya Geis, ``Student Financing of Graduate
and First-Professional Education, 1999-2000,'' National Center for
Education Statistics, Institute of Education Sciences, U.S. Dept. of
Education 22 (2003). It stands to reason that graduate student wages
are low because, to quote Sec. 1 of the Act, the ``inequality of
bargaining power'' between schools and graduate employees has the
effect of ``depressing wage rates.'' 29 U.S.C. 151.
---------------------------------------------------------------------------
A.
Seeking to avoid the consequences of overruling such a recent
precedent, the majority contends that Leland Stanford, not NYU,
correctly resolves the issue presented here. The majority argues,
moreover, that Leland Stanford itself was consistent with a decision
that came before it, Adelphi University.\8\ In fact, until today, the
Board has never held that graduate teaching assistants (in contrast to
certain research assistants and medical house staff) are not employees
under the Act and therefore should not be allowed to form bargaining
units of their own--or, indeed, enjoy any of the Act's protections.
---------------------------------------------------------------------------
\8\ Adelphi University, 195 NLRB 639 (1972).
---------------------------------------------------------------------------
In Adelphi University, decided in 1972, the Board excluded graduate
assistants from a bargaining unit of faculty members because they did
not share a community of interest with the faculty, not because they
were not statutory employees. 195 NLRB at 640. The Board pointed out,
among other things, that ``graduate assistants are guided, instructed,
and corrected in the performance of their assistantship duties by the
regular faculty members to whom they are assigned.'' Id. Nothing in the
Board's decision suggests that the graduate assistants could not have
formed a bargaining unit of their own.
The Leland Stanford Board, as the majority acknowledges, ``went
further'' in 1974. It concluded that because the research assistants
(RAs) there were ``primarily students'' (citing Adelphi University),
they were ``not employees within the meaning of . . . the Act.'' 214
NLRB at 623. How the conclusion followed from the premise was not
explained. The rationale of Leland Stanford, moreover, turned on the
particular nature of the research assistants' work. The Board observed
that:
[T]he relationship of the RA's and Stanford is not grounded on
the performance of a given task where both the task and the
time of its performance is designated and controlled by the
employer. Rather it is a situation of students within certain
academic guidelines having chosen particular projects on which
to spend the time necessary, as determined by the project's
needs.
Id. at 623. This narrow rationale is not inconsistent with NYU, where
the Board actually applied Leland Stanford to exclude certain graduate
assistants from the bargaining unit. 332 NLRB at 1209 fn. 10.
Finally, the majority cites Cedars-Sinai Medical Center, 223 NLRB
251 (1976), and St. Clare's Hospital, supra, which involved medical
interns, residents, and clinical fellows. The medical housestaff
decisions, issued over the sharp dissents of then-Chairman Fanning,
were correctly overruled in Boston Medical Center, supra, which the
majority leaves in place.
Notably, in St. Clare's Hospital, the Board made clear that while
``housestaff are not `employees,' '' the Board was not ``renouncing
entirely [its] jurisdiction over such individuals,'' but rather was
simply holding that they did not have ``bargaining privileges'' under
the Act. 229 NLRB at 1003 (footnote omitted). The majority here does
not seem to make this distinction--which would give graduate assistants
at least some protections under the Act--and thus itself seems to
depart from the precedent it invokes.
In sum, while the NYU Board did not write on a clean slate, it
hardly abandoned a long line of carefully reasoned, uncontroversial
decisions. And, as we will explain, much has changed in the academic
world since the 1970's.
B.
The principle applied in NYU--and the one that should be followed
here--is that the Board must give effect to the plain meaning of
Section 2(3) of the Act and its broad definition of ``employee,'' which
``reflects the common law agency doctrine of the conventional
masterservant relationship.'' NYU, 332 NLRB at 1205, citing NLRB v.
Town & Country Electric, 516 U.S. 85, 93-95 (1995). See also Seattle
Opera v. NLRB, 292 F.3d 757, 761-762 (D.C. Cir. 2002), enfg. 331 NLRB
1072 (2000) (opera's auxiliary choristers are statutory employees,
applying common-law test). Section 2(3) provides in relevant part that
the ``term `employee' shall include any employee . . . .'' 29 U.S.C.
152(3) (emphasis added). Congress specifically envisioned that
professional employees--defined in Section 2(12) in terms that easily
encompass graduate assistants--would be covered by the Act.
We do not understand the majority to hold that the graduate
assistants in this case are not common-law employees, a position that
only Member Schaumber reaches toward.\9\ Here, the Board's ``departure
from the common law of agency'' with respect to employee status is
unreasonable. Compare Town & Country Electric, supra, 516 U.S. at 94
(upholding Board's interpretation of term ``employee'' as ``consistent
with the common law''). See also Seattle Opera, 292 F.3d at 765 fn. 11
(Board's hypothetical ``neglect of the common law definition could have
rendered its decision arbitrary and capricious'').
---------------------------------------------------------------------------
\9\ Member Schaumber asserts that ``graduate student assistants fit
poorly within the common law definition of `employee.' '' He maintains
that graduate assistants are ``not `hired' to serve'' in that capacity,
that their work is ``not performed `for' the university, as such,'' and
that their stipends ``are not a quid pro quo for services rendered.''
We disagree in each respect, as a factual matter. As the Regional
Director found, graduate assistants carry out the work of the
university, not their own projects, and they are compensated for it.
There can be no doubt, of course, that Brown had the right to control
the performance of the graduate assistants' work for the university, a
key test for employee status at common law. See Restatement (Second) of
Agency 2(2) (1958) (``A servant is an agent employed by a master to
perform service in his affairs whose physical conduct in the
performance of the service is controlled or is subject to the right to
control by the master''). Graduate students are clearly neither
volunteers nor independent contractors.
---------------------------------------------------------------------------
Nothing in Section 2(3) excludes statutory employees from the Act's
protections, on the basis that the employment relationship is not their
``primary'' relationship with their employer. In this respect, the
majority's approach bears a striking resemblance to the Board's
original ``economic realities'' test for employee status, which
Congress expressly rejected when it passed the Taft-Hartley Amendments
in 1947. That test was based on economic and policy considerations,
rather than on common-law principles, but it did not survive.\10\
---------------------------------------------------------------------------
\10\ See NLRB v. United Insurance Co., 390 U.S. 254, 256 (1968)
(discussing Congressional overruling of NLRB v. Hearst Publications,
Inc., 322 U.S. 111 (1944)). As we will explain, we believe that the
economic realities here do support finding statutory coverage in any
case.
---------------------------------------------------------------------------
Absent compelling indications of Congressional intent, the Board
simply is not free to create an exclusion from the Act's coverage for a
category of workers who meet the literal statutory definition of
employees. As the NYU Board observed, there is no such exclusion for
``students.'' 332 NLRB at 1206. Cf. Sure-Tan, Inc. v. NLRB, 467 U.S.
883, 891-892 (1984) (observing that the ``breadth of [the Act's]
definition is striking'' and noting lack of express exemption for
undocumented aliens). Here, the majority cites nothing in the text or
structure of the Act, nothing in the Act's legislative history, and no
other Federal statute that bears directly on the issues presented. It
goes without saying that the Board's own policymaking is bounded by the
limits Congress has set.
The Supreme Court's decision in Yeshiva, supra, is instructive on
this point. There, the Court considered whether university faculty
members at one institution were managerial employees and so excluded
from coverage. It observed that it could not decide this case by
weighing the probable benefits and burdens of faculty collective
bargaining. That, after all, is a matter for Congress, not this Court.
444 U.S. at 690 fn. 29 (citation omitted). Other Federal courts have
made similar observations in analogous cases, choosing to follow the
plain language of the Act, rather than ``attempting to `second guess'
Congress on a political and philosophical issue.'' Cincinnati Assn. for
the Blind v. NLRB, 672 F.2d 567, 571 (6th Cir. 1982), cert. denied 459
U.S. 835 (1982) (refusing to find exception to Section 2(3) of Act for
disabled workers employed in sheltered workshops).\11\ In a recent case
where the Act's language was far less clear, our colleagues themselves
have insisted that the statutory text alone dictated the outcome--
indeed, they were content to ``examine a particular statutory provision
[Section 8(g) of the Act] in isolation'' (to quote their words
here).\12\ The approach taken in this case stands in sharp contrast.
---------------------------------------------------------------------------
\11\ See also NLRB v. Lighthouse for the Blind of Houston, 696 F.2d
399, 404 fn. 21 (5th Cir. 1983) (rejecting argument that Board lacked
jurisdiction over sheltered workshop and disabled workers employed
there). We believe that the Board's approach in this area--the Board
chooses to exercise jurisdiction only where the relationship between
disabled workers and their employer is ``typically industrial,'' as
opposed to ``primarily rehabilitative''--is ripe for reconsideration,
particularly in light of the evolution of Federal policy toward
disabled workers. See NYU, 332 NLRB at 1207 (discussing disabled-worker
cases). The issue is now pending before the Board in Brevard
Achievement Center, Inc., No. 12-RC-8515 (review granted Aug. 23,
2000).
\12\ Alexandria Clinic, 339 NLRB No. 162, slip op. at 3 fn. 8
(2003).
---------------------------------------------------------------------------
The majority never addresses the language of Section 2(3), which
the Supreme Court has described as ``broad.'' Town & Country Electric,
516 U.S. at 90 (citing dictionary definition of ``employee'' as
including any ``person who works for another in return for financial or
other compensation''). Instead, it proceeds directly to consult
``Congressional policies for guidance in determining the outer limits
of statutory employee status.'' The majority cites the exclusion for
managerial employees, which is not based on the Act's text. But in that
example, as the Supreme Court
explained, the ``legislative history strongly suggests that there . . .
were . . . employees . . . regarded as so clearly outside the Act that
no specific exclusionary provision was thought necessary.'' NLRB v.
Bell Aerospace Co., 416 U.S. 267, 283 (1974). Graduate assistants
simply do not fall into that category.
The Board's decision in WBAI Pacifica Foundation, 328 NLRB 1273
(1999), quoted by the majority, does not support its position here.
That case involved the unpaid staff of a noncommercial radio station,
who did not receive compensation or benefits of any kind, and whose
work hours were ``a matter within their discretion and desire.'' Id. at
1273. The Board found ``no economic aspect to their relationship with
the Employer, either actual or anticipated.'' Id. at 1275 (emphasis
added). ``Unpaid staff,'' the Board observed, ``do not depend upon the
Employer, even in part, for their livelihood or for the improvement of
their economic standards.'' Id. at 1276. Rather, the Board explained,
unpaid staff ``work[ed] out of an interest in seeing the station
continue to exist and thrive, out of concern for the content of the
programs they produce, and for the personal enrichment of doing a
service to the community and receiving recognition from the
community.'' Id. at 1275.
The relationship between Brown and its graduate assistants is
clearly different in nature. Teaching assistants, the Regional Director
found, ``perform services under the direction and control of Brown''--
they teach undergraduates, just as faculty members do \13\--and ``are
compensated for these services by Brown,'' by way of a stipend, health
fee, and tuition remission. As for research assistants in the social
sciences and humanities (who were included in the bargaining unit), the
Regional Director observed that they ``have expectations placed upon
them other than their academic achievement, in exchange for
compensation.'' \14\ The proctors, finally, are ``performing services
that are not integrated with an academic program,'' such as working in
university offices and museums. Notably, the Regional Director found
that Brown withholds income taxes from the stipends of teaching
assistants, research assistants, and proctors and requires them to
prove their eligibility for employment under Federal immigration laws.
---------------------------------------------------------------------------
\13\ The Regional Director found that the number of teaching
assistantships, and the assignment of assistants to particular courses,
is tied to undergraduate enrollment. She also found that Brown had
``failed to demonstrate that most teaching assistantships at Brown are
undertaken in order to fulfill a degree requirement.''
\14\ The Regional Director found ``insufficient evidence . . . upon
which to conclude that as a general rule the RAs in the social sciences
and humanities departments perform research as part of their studies in
order to complete their dissertations,'' in contrast to RA's in the
physical sciences, who were not included in the unit.
---------------------------------------------------------------------------
The majority is mistaken, then, when it insists that the graduate
assistants here do not receive ``consideration for work,'' but merely
financial aid. While it is true, as the majority observes, that ``all
the petitioned-for individuals are students and must first be enrolled
at Brown to be awarded a TA, RA, or proctorship,'' that fact does not
foreclose a meaningful economic relationship (as well as an educational
relationship) between Brown and the graduate assistants. The Act
requires merely the existence of such an economic relationship, not
that it be the only or the primary relationship between a statutory
employee and a statutory employer.\15\
---------------------------------------------------------------------------
\15\ See, e.g., Seattle Opera, 292 F.3d at 762 (``[T]he person
asserting employee status [under the Act] does have such status if (1)
he works for a statutory employer in return for financial or other
compensation . . . and (2) the statutory employer has the power or
right to control and direct the person in the material details of how
such work is to be performed'').
---------------------------------------------------------------------------
C.
Even assuming that the Board were free to decide this case
essentially on policy grounds, the majority's approach, minimizing the
economic relationship between graduate assistants and their
universities, is unsound. It rests on fundamental misunderstandings of
contemporary higher education, which reflect our colleagues'
unwillingness to take a close look at the academic world. Today, the
academy is also a workplace for many graduate students, and disputes
over work-related issues are common. As a result, the policies of the
Act--increasing the bargaining power of employees, encouraging
collective bargaining, and protecting freedom of association--apply in
the university context, too. Not only is the majority mistaken in
giving virtually no weight to the common-law employment status of
graduate assistants, it also errs in failing to see that the larger
aims of federal labor law are served by finding statutory coverage
here. Indeed, the majority's policy concerns are not derived from the
Act at all, but instead reflect an abstract view about what is best for
American higher education--a subject far removed from the Board's
expertise.
American higher education was being transformed even as the Board's
``traditional'' approach to graduatestudent unionization developed.
Nearly a decade before the Board decided St. Clare's Hospital,
distinguished scholar and Columbia University administrator Jacques
Barzun described changes that were tearing ``apart the fabric of the
former, single-minded'' American university. He warned that ``a big
corporation has replaced the once self-centered company of scholars.''
\16\ In deciding to exercise jurisdiction over private, non-profit
universities more than 30 years ago (and reversing longstanding
precedent in doing so), the Board recognized this devel opment.\17\
---------------------------------------------------------------------------
\16\ Jacques Barzun, The American University: How It Runs, Where It
Is Going 3 (1968).
\17\ See Cornell University, 183 NLRB 329, 331-333 (1970),
overruling Trustees of Columbia University, 97 NLRB 424 (1951).
---------------------------------------------------------------------------
After the 1980's, financial resources from governments became more
difficult for universities to obtain.\18\ ``[A]s financial support for
colleges and universities lag behind escalating costs, campus
administrators increasingly turn to ill-paid, overworked part- or full-
time adjunct lecturers and graduate students to meet instructional
needs.'' \19\ By December 2000, 23.3 percent of college instructors
were graduate teaching assistants.\20\
---------------------------------------------------------------------------
\18\ See, e.g., Clark Kerr, Troubled Times for American Higher
Education: The 1990s and Beyond 3 (1994).
\19\ Committee on Professional Employment, Modern Language
Association, Final Report 3 (1997) at http://www.mla.org/resources/
documents/rep_employment/profemployment1 (examining higher education's
pedagogical and professional crisis and proposing ways to increase the
effectiveness of higher education).
\20\ Reliance on Part-Time Faculty Members and How They Are
Treated, Selected Disciplines, Chron. Higher Educ., Dec. 1, 2000,
available at http://chronicle.com/prm/weekley/v47/i14/14a01301.htm. See
also Hutchens & Hutchens, supra, Catching the Union Bug, 39 Gonzaga L.
Rev. at 126 (``In an effort to contain costs, colleges and universities
have increasingly relied on graduate students and nontenure-track
instructors''). Illustrating this trend, the New York Times recently
reported that graduate students ``teach more than half of the core
courses that all Columbia [University] students must take.'' Karen W.
Arenson, Pushing for Union, Columbia Grad Students Are Set to Strike,
New York Times, p. A-11 (April 17, 2004).
---------------------------------------------------------------------------
The reason for the widespread shift from tenured faculty to
graduate teaching assistants and adjunct instructors is simple: cost
savings. Graduate student teachers earn a fraction of the earnings of
faculty members.\21\
---------------------------------------------------------------------------
\21\ Ana Marie Cox, More Professors Said to Be Off Tenure Track,
for Graduate Assistants, Chron. Higher Educ. (July 6, 2001) available
at http://chronicle.com/prm/weekly/v47/i43/43a01201.htm. See also
Stipends for Graduate Assistants, 2001, Chron. Higher Educ., Sept. 28,
2002, available at http://chronicle.com/stats/stipends/.
---------------------------------------------------------------------------
Two perceptive scholars have recently described the context in
which union organizing among graduate students has developed. Their
description is worth quoting at length:
The post World War II expansion of universities is a well-
documented phenomenon. Enrollments, resources, and activities
increased and diversified. Universities were transformed into
mega-complexes. But by the late 1980s and throughout the 1990s,
the realization spread that expansion was not limitless. In
response to heightened accountability demands, universities
adopted management strategies that entailed belttightening and
restructuring of the academic workplace . . . . [M]any
universities replaced full-time tenure-track faculty lines with
non-tenure-line and part-time appointments.
* * * * * * *
Expansion of doctoral degree production has continued
nonetheless. . . . The discrepancy between ideals and realities
prompt graduate students to consider unionization a viable
solution to their concerns and an avenue to redress their sense
of powerlessness.
* * * * * * *
Among the primary reasons for graduate student unionization
is the lengthened time required to complete a degree, coupled
with an increased reluctance on the part of students to live in
what they perceive as academic ghettos. Many older graduate
students desire to start families, need health care coverage
and job security, and perceive the faculty with whom they work
to be living in comparative luxury. . . . [D]ata show that the
unionization of these individuals is driven fundamentally by
economic realities.
Daniel J. Julius & Patricia J. Gumport, Graduate Student Unionization:
Catalysts and Consequences, 26 Review of Higher Educ. No. 2, 187 at
191, 196 (2002) (emphasis added; citations omitted).
Describing the same process, another scholar observes that the
``increased dependence on graduate assistantships has created a group
of workers who demand more economic benefits and workplace rights.''
\22\ The question, then, is whether the collective efforts of these
workers will be protected by federal labor law and channeled into the
processes the law creates. Given the likelihood that graduate students
will continue to pursue their economic interests through union
organizing--even those who live the life of the mind must eat--there
are powerful reasons to apply the Act and so encourage collective
bargaining to avoid labor disputes, as Congress envisioned.\23\ The
prospect of continued labor unrest on campus, with or without federal
regulation, is precisely what prompted the Board to assert jurisdiction
over private non-profit universities in the first place, three decades
ago.\24\
---------------------------------------------------------------------------
\22\ Gordon J. Hewitt, Graduate Student Employee Collective
Bargaining and the Educational Relationship between Faculty and
Graduate Students, 29 J. Collective Negotiations in the Public Sector
153, 154 (2000). See also Hutchens & Hutchens, supra, Catching the
Union Bug, 39 Gonzaga L. Rev. at 126 (``[T]he reality at many
institutions likely belies a picture of students carefully mentored by
faculty in their employment capacities, especially in the context of
teaching assistants.'').
\23\ See Sec. 1, 29 U.S.C. 151.
\24\ See Cornell University, supra, 183 NLRB at 333.
---------------------------------------------------------------------------
The majority ignores the developments that led to the rise of
graduate student organizing or their implications for the issue decided
today. Instead, it treats the Board's 1974 decision in Leland Stanford,
together with the 1977 decision in St. Clare's Hospital, as the last
word. Like other regulatory agencies, however, the Board is ``neither
required nor supposed to regulate the present and the future within the
inflexible limits of yesterday,'' but rather must ``adapt [its] rules
and practices to the Nation's needs in a volatile changing economy.''
American Trucking Associations v. Atchison Topeka & Santa Fe Railway
Co., 387 U.S. 397, 416 (1967).\25\ The majority's failure to do so in
this case is arbitrary.
---------------------------------------------------------------------------
25 The Board's recent failure to face contemporary economic
realities threatens to become a recurring theme of its decisions. See
MV Transportation, 337 NLRB 770, 776 (2002)(Member Liebman, dissenting)
(criticizing Board's reversal of successor-bar doctrine, despite large
increase in corporate mergers and acquisitions that destabilize
workplaces).
---------------------------------------------------------------------------
III.
At the core of the majority's argument are the twin notions that
(1) issues related to the terms and conditions of graduate student
employment are ``not readily adaptable to the collective-bargaining
process,'' St. Clare's Hospital, 229 NLRB at 1002; and (2) imposing
collective bargaining will harm ``academic freedom'' (as the majority
defines it) and the quality of higher education. Neither notion is
supported by empirical evidence of any kind. In fact, the evidence
refutes them.
How can it be said that the terms and conditions of graduate-
student employment are not adaptable to collective bargaining when
collective bargaining over these precise issues is being conducted
successfully in universities across the nation? New York University,
ironically, is a case in point, but it is hardly alone. The recently-
reached collective bargaining agreement there addresses such matters as
stipends, pay periods, discipline and discharge, job posting, a
grievance-andarbitration procedure, and health insurance. It also
contains a ``management and academic rights'' clause, which provides
that:
Decisions regarding who is taught, what is taught, how it is
taught and who does the teaching involve academic judgment and
shall be made at the sole discretion of the University.
Collective Bargaining Agreement between New York University and
International Union, UAW, AFL-CIO and Local 2110, Technical Office and
Professional Workers, UAW (Sept. 1, 2001-Aug. 31, 2005), Art. XXII.\26\
The NYU agreement neatly illustrates the correctness of the NYU Board's
view that the institution of collective bargaining is flexible enough
to succeed in this context, as it has in so many others, from
manufacturing to entertainment, health care to professional sports.
---------------------------------------------------------------------------
\26\ The collective-bargaining agreement is posted on the
University's Internet website at http://www.nyu.edu/hr/.
---------------------------------------------------------------------------
The NYU agreement cannot be dismissed as an anomaly. The amicus
briefs to the Board submitted by the American Federation of Labor-
Congress of Industrial Organizations (AFL-CIO) and the American
Association of University Professors (AAUP) inform us of many other,
established collective bargaining relationships between graduate
student unions and universities.\27\ To be sure, most involve public
universities, but there is nothing fundamentally different between
collective bargaining in public-sector and private-sector
universities.\28\ The majority concedes that the subjects of graduate
student collective bargaining ``give the appearance of being terms and
conditions of employment.'' Obviously, they are terms and conditions of
employment, as found in a particular setting.
---------------------------------------------------------------------------
\27\ The AFL-CIO, for example, cites bargaining relationships at
the University of California, the University of Florida, the University
of South Florida, the University of Iowa, the University of Kansas, the
University of Massachusetts, Michigan State University, the University
of Michigan, Rutgers, the City University of New York, New York
University, the State University of New York, the University of Oregon,
Temple University, the University of Wisconsin, and Wayne State
University. Brief of Amicus Curiae AFL-CIO in Support of Petitioner at
36 (May 20, 2002). See also Julius & Gumport, supra, Graduate Student
Unionization, 26 Review of Higher Education at 192-193 (Table 1: ``The
Status of Graduate Student Unions in U.S. Institutions'').
\28\ The majority points out that ``states have the authority to
limit bargaining subjects for public academic employees.'' But under
the Act, not every subject of interest to graduate assistants would be
a mandatory subject of bargaining. The Board presumably would be free
to take into account the nature of the academic enterprise in deciding
which subjects are mandatory and which merely permissive. See fn. 32,
infra (discussing statutory bargaining obligations).
---------------------------------------------------------------------------
There remains the majority's claim that collective bargaining can
only harm ``academic freedom'' and educational quality. Putting aside
the issue of the Board's authority to serve as an expert guardian of
these interests, the question is one of evidence. Here, too, the
majority's claims are not simply unsupported, but are actually
contradicted. The majority emphasizes that collective bargaining is
``predicated on the collective or group treatment of represented
individuals,'' while the ``educational process'' involves personal
relationships between individual students and faculty members. The
issue, if one is presented at all by this difference, is whether the
two processes can coexist. Clearly, they can. The evidence is not just
the ongoing collective-bargaining relationships between universities
and graduate students already mentioned. It also includes studies
ignored by the majority, which show that collective bargaining has not
harmed mentoring relationships between faculty members and graduate
students.\29\ These conclusions are not surprising. Collective
bargaining is typically conducted by representatives of the university
and graduate students' unions, not individual mentors and their
students.
---------------------------------------------------------------------------
\29\ See Julius & Gumport, supra, Graduate Student Unionization, 26
Review of Higher Education at 201-209; Hewitt, supra, Graduate Student
Employee Collective Bargaining and the Educational Relationship between
Faculty and Graduate Students, 29 Journal of Collective Negotiations in
the Public Sector at 159-164.
---------------------------------------------------------------------------
After a careful review, scholars Daniel Julius and Patricia
Gumport, for example, concluded not only that ``fears that [collective
bargaining] will undermine mentoring relationships . . . appear to be
foundationless,'' but also that data ``suggest that the clarification
of roles and employment policies can enhance mentoring relationships.''
\30\ Scholar Gordon Hewitt reached a similar con clusion based on an
analysis of the attitudes of almost 300 faculty members at five
university campuses with at least four-year histories of graduate-
student collective bargaining. Summarizing the results of his survey,
Hewitt observes that:
---------------------------------------------------------------------------
30 Julius & Gumport, supra, 26 Review of Higher Education at 201,
209.
It is clear . . . that faculty do not have a negative attitude
toward graduate student collective bargaining. It is important
to reiterate that the results show faculty feel graduate
assistants are employees of the university, support the right
of graduate students to bargain collectively, and believe
collective bargaining is appropriate for graduate students. It
is even more important to restate that, based on their
experiences, collective bargaining does not inhibit their
---------------------------------------------------------------------------
ability to advise, instruct, or mentor their graduate students.
Hewitt, supra, 29 Journal of Collective Negotiations in the Public
Sector at 164 (emphasis added). Amicus AAUP echoes these views in its
brief to the Board. These findings should give the majority some pause,
as should the obvious fact that whether or not the rights of graduate
student employees are to be recognized under the Act, economic concerns
have already intruded on academic relationships.
Finally, the majority invokes ``academic freedom'' as a basis for
denying graduate student employees any rights under the Act. This
rationale adds insult to injury. To begin, the majority defines
``academic freedom'' so broadly that it is necessarily incompatible
with any constraint on the managerial prerogatives of university
administrators. But academic freedom properly focuses on efforts to
regulate the ``content of the speech engaged in by the university or
those affiliated with it.'' University of Pennsylvania v. EEOC, 493
U.S. 182, 197 (1990). On the majority's view, private universities
should not be subject to the Act at all. But, of course, they are--just
as are newsgathering organizations, whose analogous claims of First
Amendment immunity from the Act were rejected by the Supreme Court long
ago.\31\
---------------------------------------------------------------------------
\31\ Associated Press v. NLRB, 301 U.S. 103, 130-133 (1937).
---------------------------------------------------------------------------
The NYU Board correctly explained that, the threat to academic
freedom in this context--properly understood in terms of free speech in
the university setting--was pure conjecture. 332 NLRB at 1208 fn. 9. We
hasten to add that graduate students themselves have a stake in
academic freedom, which they presumably will be reluctant to endanger
in collective bargaining. As demonstrated in the amicus brief of the
AAUP (a historical champion of academic freedom), collective bargaining
and academic freedom are not incompatible; indeed, academic freedom for
instructors can be strengthened through collective bargaining.\32\
---------------------------------------------------------------------------
\32\ The majority contends (1) that the ``imposition of collective
bargaining on the relationship between a university and its graduate
students . . .'' would limit the university's [academic] freedom to
determine a wide range of matters;'' and (2) that ``because graduate
student assistants are students, those limitations intrude on core
academic freedoms in a manner simply not present in cases involving
faculty employees.'' We disagree with both claims.
First, under Sec. 8(d) of the Act, collective bargaining would be
limited to ``wages, hours, and other terms and conditions of
employment'' for graduate student assistants. 29 U.S.C. 158(d). And
with respect to those mandatory subjects of bargaining, the ``Act does
not compel agreements between employers and employees,'' just the
``free opportunity for negotiation,'' as the NYU Board correctly
observed. 332 NLRB at 1208, quoting NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 45 (1937).
Second, the basis for the majority's distinction between
facultymember bargaining and graduate-assistant bargaining escapes us.
In our view, there is no harm to genuine academic freedom in either
case. But under the majority's view, faculty-member bargaining would
interfere with the prerogatives of university management at least as
much as graduate-student bargaining would. It is surely the subjects of
bargaining that matter, not the identity of the bargaining party. In
that respect, the similarities between graduate assistants and faculty
members (in contrast to clerical or maintenance staff members, for
example) is clear.
---------------------------------------------------------------------------
IV.
``[W]e declare the federal law to be that graduate student
assistants are not employees within the meaning of Section 2(3) of the
Act,'' says the majority. But the majority has overstepped its
authority, overlooked the economic realities of the academic world, and
overruled NYU without ever coming to terms with the rationale for that
decision. The result leaves graduate students outside the Act's
protection and without recourse to its mechanisms for resolving labor
disputes. The developments that brought graduate students to the Board
will not go away, but they will have to be addressed elsewhere, if the
majority's decision stands. That result does American universities no
favors. We dissent.
Dated, Washington, D.C. July 13, 2004
National Labor Relations Board
______________
Wilma B. Liebman, Member
______________
Dennis P. Walsh, Member
STATEMENT OF HON. WILMA B. LIEBMAN, MEMBER, NATIONAL
LABOR RELATIONS BOARD
Senator Specter. Thank you very much, Mr. Battista.
We now turn to a member of the NLRB, Ms. Wilma Liebman,
serving her second term, appointed by President Clinton and
confirmed for a term which expired in the year 2002,
subsequently reappointed by President Bush. Prior to her
appointment to the NLRB, she served in the Federal Mediation
and Conciliation Service, as counsel to the Bricklayers and
Allied Craftsman, and the International Brotherhood of
Teamsters. A Philadelphia native, she has a bachelor's from
Barnard and a law degree from George Washington University.
Thank you for joining us, Ms. Liebman, and we look forward
to your testimony.
Ms. Liebman. Mr. Chairman, thank you for the chance to
testify today about the Board's recent decision involving
university graduate student assistants, the Brown University
case. Along with my Board colleague Dennis Walsh, I dissented
from that decision, which overruled an earlier unanimous
decision in which I also participated involving New York
University.
Our dissent explains in detail why we thought that the
Brown graduate students met the definition of employee
reflected in the National Labor Relations Act. The Supreme
Court has told us that the definition is very broad and that we
must be guided by common law principles.
The question then is whether certain graduate students work
for their universities in return for some type of compensation.
With respect to the teaching assistants, research assistants,
and proctors at Brown, the answer is yes. They teach classes,
they do research, and perform services in university offices.
In return, they receive stipends, health benefits, and tuition
remission.
In the majority's view, the graduate student assistants
were primarily students and had a primarily educational, not
economic, relationship with their university. But this
standard, the dissent argued, is not based on the language of
the Act, on the legislative history, on the Supreme Court's
decisions, or on common law principles. Rather, it is based on
the majority's view that the academic world and the economic
world are sharply separated.
But this is an outdated view. To quote the scholar Jacques
Barzun, ``A big corporation has replaced the once self-centered
company of scholars.'' American universities are workplaces for
many people, including many graduate students. Indeed, studies
show that over the last few decades universities have become
more and more dependent on the work of graduate students. At
many schools, teaching assistants have replaced tenure track
faculty. Statistics show that by December 2000 nearly one-
quarter of college instructors were graduate teaching
assistants.
To be blunt, graduate students are cheaper. Yet these
students have the same problems and concerns that other workers
do: their wages, their health care benefits, their workloads--
all the things that labor unions negotiate with employers.
The majority said that the issues that concern graduate
student workers are not suitable for collective bargaining, but
graduate student unions and universities can bargain
successfully. They do so at public universities and they did so
at NYU following the Board's decision involving that school.
The majority also argued that collective bargaining is a
threat to educational quality and academic freedom. But it
cited no empirical evidence that the NYU decision had created
problems, and studies show that collective bargaining does not
interfere with the mentoring relationships between faculty
members and graduate students.
Academic freedom in turn does not mean giving university
administrators an unlimited managerial prerogative. As the
Supreme Court has explained, academic freedom is a form of free
speech. Collective bargaining does not interfere with free
speech in a university setting.
The result of the Board's decision, if it stands, is that
graduate student workers at private universities have no right
to organize labor unions or bargain collectively. In fact, they
can be punished for trying. Of course, this does not mean that
the issues which drive graduate students to organize will go
away. It simply means that labor disputes involving graduate
students will not be governed by the Federal statute that was
designed to stabilize labor relations.
PREPARED STATEMENT
Finally, viewing the Brown decision in a broader context,
the Board's recent trend has been not only to interpret the
statute's protections narrowly, but also to limit the coverage
of the Labor Act itself. Fewer workers now enjoy fewer rights.
As the statute's circle of protection diminishes, so too does
its relevance in the American workplace.
I thank you and would be happy to answer any questions.
[The statement follows:]
Prepared Statement of Wilma B. Liebman
Mr. Chairman and Members of the Subcommittee: My name is Wilma
Liebman, and I have been a member of the National Labor Relations Board
(NLRB) since 1997, when I was first appointed by President Clinton. I
was reappointed by President Bush in 2002. Before joining the Board, I
held senior positions at the Federal Mediation and Conciliation Service
(FMCS). I have also served as an attorney for two labor unions, the
Bricklayers and Allied Craftsmen and the International Brotherhood of
Teamsters. I began my legal career as a staff attorney for the NLRB.
With my colleague Dennis Walsh, I am now one of two Democratic members
on the five-member Board.
Thank you for the opportunity to testify today about the Board's
recent decision in the Brown University case.\1\ The issue in Brown was
whether certain graduate students--who also worked for the university
as teaching assistants, research assistants, and proctors--were
employees protected by the National Labor Relations Act. In my view,
they clearly were. But a three-member majority of the Board held they
were not and overruled an earlier decision to the contrary, New York
University (NYU), which issued in 2000.\2\ My colleagues cited no
empirical evidence that NYU had created problems.
---------------------------------------------------------------------------
\1\ Brown University, 342 NLRB No. 42 (July 13, 2004).
\2\ New York University, 332 NLRB 1205 (2000). The Brown decision
also leaves in question the employee status of hospital residents and
interns. NYU was based on the reasoning of the Board's decision in
Boston Medical Center, 330 NLRB 152 (1999), which held that residents
and interns were statutory employees. In Brown, the majority took no
position on whether Boston Medical Center was correctly decided. Member
Walsh and I believe that it was. The Board will likely confront this
issue soon.
---------------------------------------------------------------------------
I had been in the majority in the NYU case, but in Brown, I
dissented, along with Member Walsh. Our dissent explains our reasoning
in detail, and I would ask that it be made part of the hearing record.
With your permission, I will highlight the dissent's arguments.
The National Labor Relations Act is nearly 70 years old, but it
still plays a vital role in the American workplace, by allowing workers
to join together (if they choose) to improve their working conditions.
Although the Act was written at a time when manufacturing dominated our
economy, the statute has been applied successfully to a wide range of
industries, from health care to professional sports to the media.
The Brown case raises important issues about collective bargaining
in private-sector higher education. The Board's role in this debate is
to interpret and apply the Act. We are guided by the language of the
statute, by the legislative history, by the decisions of the Supreme
Court, and (within these limits) by our views of sound labor relations
policy. Questions of statutory coverage are fundamental, because they
determine which workers are protected by the Act--and which are not. As
I will explain, the Act defines covered employees very broadly, subject
to a few specific exclusions. Broad statutory coverage, consistent with
the intent of Congress, is critical to the effectiveness of the law.
Focusing on policy, the Board majority in Brown concluded that
collective bargaining by graduate student assistants is incompatible
with the nature and mission of universities. I strongly disagree. But
the majority's first mistake was in focusing too quickly on policy. As
Member Walsh and I argued in our dissent, the starting point should
have been the statute. By that, I mean asking how the National Labor
Relations Act defines employees and then deciding whether graduate
student assistants meet that definition, whether or not the answer
seems like good policy or bad policy.
Graduate student assistants do meet the statutory definition of an
employee. Section 2(3) of the Act simply says that ``the term
`employee' shall include any employee.'' As you can see, the Act's
definition is circular. But the Supreme Court has made clear that when
a federal statute defines ``employee'' this way, the definition must be
understood by looking to the common law. The judge-made common law has
developed a test for deciding whether a worker is an employee (or
instead falls into some other category, like a volunteer or an
independent contractor). In its Town & Country Electric decision,\3\
the Supreme Court held that the common-law definition of employee
applies under the National Labor Relations Act.
---------------------------------------------------------------------------
\3\ NLRB v. Town & Country Electric, 516 U.S. 85 (1995).
---------------------------------------------------------------------------
The common-law definition, in turn, says that a person is an
employee if he works for another in return for financial or other
compensation. Many graduate student assistants, including the graduate
students in the Brown case, meet this definition. They perform work,
such as teaching classes, doing research, or providing services in
university offices. And they receive compensation, such as stipends,
health benefits, and tuition remission for performing that work.
Because the Act incorporates the common-law definition of employee,
graduate students are protected by the Act if they meet that
definition, even if they are also students. That is the basic position
of the dissent in Brown.
My colleagues in the majority, of course, took a different
position. In their view, the graduate student assistants at Brown were
``primarily students'' and they had ``a primarily educational, not
economic, relationship with their university.'' As a result, the
majority said, the graduate students were not employees under the Act.
The short answer to the majority's argument is that there is no basis
for this test. It is not based on the language of the Act, or on the
Act's legislative history, or on the Supreme Court's decisions, or on
common-law principles.
What the majority's position is based on, it seems to me, is its
view of policy. For the reasons I have explained, I do not believe that
the Board is free to create an exclusion from statutory coverage, where
Congress did not.\4\ That exclusion means the graduate student
assistants have no rights at all under the National Labor Relations
Act. They have no right to form unions and no right to engage in
collective bargaining. In fact, they can be punished by universities
for even trying to take those steps. That is a very harsh result.
---------------------------------------------------------------------------
\4\ Very recently, the Board did essentially the same thing, by
excluding disabled workers in rehabilitative settings from the coverage
of the Act, even where they, too, met the common-law definition of
employees. Member Walsh and I also dissented in that case, Brevard
Achievment Center, 342 NLRB No. 101 (Sept. 10, 2004).
---------------------------------------------------------------------------
Let me turn now to the policy issues raised by the Brown case. As I
suggested before, I do believe that Congress intended the Board to help
make federal labor relations policy, based on the Board's expertise in
that area. In this case, however, the Board exceeded its policy-making
authority. But putting that issue aside, I also think that the
majority's position is wrong purely as a matter of policy. It reflects
an outdated view of how universities work.
The majority saw a sharp separation between the academic world and
the economic world. As Member Walsh and I pointed out in our dissent,
that separation does not really exist. To quote the scholar Jacques
Barzun, ``a big corporation has replaced the once self-centered company
of scholars.'' \5\ Universities are workplaces for many people,
including many graduate students. Those students have the same problems
and concerns that other workers do. They may have families to support.
They are concerned about their wages, their health-care benefits, their
workloads--about all the things that labor unions negotiate with
employers.
---------------------------------------------------------------------------
\5\ Jacques Barzun, The American University: How It Runs, Where It
Is Going 3 (1968).
---------------------------------------------------------------------------
Our colleagues at the Board, unfortunately, were blind to the
dramatic changes that have occurred in higher education. In their view,
everything is the same as it was thirty years ago. But over the last
few decades, studies show, American universities have become more and
more dependent on the work of graduate students. At many universities,
graduate student teaching assistants have replaced tenure-track faculty
members. The Brown dissent cited statistics showing that by December
2000, nearly one quarter of college instructors were graduate teaching
assistants. To be blunt, graduate students are cheaper--and, of course,
they will stay cheaper if they cannot unionize.
There is nothing new about collective bargaining in a university
setting. The Board first exercised jurisdiction over private
universities in 1970, in the Cornell University decision.\6\ University
professors, for example, are covered by the Act, except where their
role in university governance makes them ``managerial'' employees.
Finally, both faculty and graduate student unions are common at public
universities, which lie outside of the Board's jurisdiction.
---------------------------------------------------------------------------
\6\ Cornell University, 183 NLRB 329 (1970).
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The question, then, is why graduate students should not be
permitted to organize unions, if they wish. The Brown majority gave two
basic reasons: (1) that the work-related issues that concern graduate
students are not suitable for collective bargaining; and (2) that
collective bargaining would threaten academic freedom and the quality
of higher education. Neither reason strikes me as persuasive.
First, graduate student unions and universities can and do bargain
successfully over terms and conditions of employment. They certainly do
so at public universities. And, in the wake of Board's 2000 decision
involving New York University, they did so at NYU, where a four-year
collective bargaining agreement was reached in September 2001.
As for the supposed threat to academic freedom and educational
quality, it seems dubious, to say the least. The Brown majority
emphasized the importance of personal relationships between faculty
members and graduate students. The dissent, however, cited studies
showing that collective bargaining has not harmed mentoring
relationships. The majority pointed to no contrary evidence.
Nor does collective bargaining threaten academic freedom, properly
understood. Academic freedom does not mean the unlimited managerial
prerogative of university administrators. Rather, as the Supreme Court
has explained, academic freedom means freedom from attempts to regulate
the ``content of the speech engaged in by the university or those
affiliated with it.'' \7\ Collective bargaining is not a restriction on
free speech in the university setting. If university professors can
engage in collective bargaining without endangering academic freedom,
then surely graduate student assistants can, too. Notably, the
collective bargaining agreement at New York University contains a
``management and academic rights'' clause, making clear that the
University has sole discretion to decide ``who is taught, what is
taught, how it is taught and who does the teaching.''
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\7\ University of Pennsylvania v. EEOC, 493 U.S. 182, 197 (1990).
---------------------------------------------------------------------------
In our dissent, Member Walsh and I said that ``[c]ollective
bargaining by graduate student employees is increasingly a fact of
American university life.'' If it stands, the Board's decision in Brown
likely will cut that development short, at least at private
universities. That result is unfortunate. The issues that drive
graduate students to organize unions will not go away. For many
decades, the National Labor Relations Act has been an effective tool
for channeling labor disputes into peaceful collective bargaining.
Under Brown, the Act cannot serve the purpose that Congress intended.
The Brown decision, finally, should be understood in its larger
context. The Board's recent trend has been not only to interpret the
Act's protections narrowly, but also to limit the coverage of the Act
itself. Fewer workers now enjoy fewer rights. Graduate student
assistants and disabled workers in rehabilitation programs are the
latest examples. Growing numbers of contingent workers are also at
risk, if the Board classifies them as independent contractors (a
statutory exclusion). As the Act's circle of protection diminishes, so
does its relevance in the American workplace.
I would be happy to answer your questions.
REVERSAL OF PRECEDENT
Senator Specter. Thank you very much, Ms. Liebman.
It is an unusual situation to have a ruling by the NLRB in
the year 2000 which overturns 25 years of NLRB decisions that
graduate assistants are not employees and then to have only 4
years later a shift on that. What were the factors, Ms.
Liebman? You were a member of the Board which reversed 25 years
of experience. What were the factors that led you to that
change of legal interpretation?
Ms. Liebman. Well, first of all, the NYU decision followed
another decision involving Boston Medical Center, in which the
Board reversed older precedent and decided that interns and
residents were employees under the National Labor Relations
Board.
Senator Specter. How long before the year 2000 was that
decision?
Ms. Liebman. I think that was the year before, 1999.
Senator Specter. Okay, so you have a longstanding law. The
concerns which are present turn on legal interpretation and to
have a three to two decision along party lines in the year 2004
raises an obvious issue as to whether there is a political
consideration as opposed to a legal consideration. When you
have a decision in the year 2000 or 1999 overturning
longstanding precedents, the first question arises, which I put
to you, Ms. Liebman, and to you, Mr. Battista, will be the same
question as to reversal: But what factors led to a reversal
when you are dealing with a question of law, not a question of
policy or a question of anything to do with the political
arena, not public policy but law? We like to think there is
some objectivity and certainty as to the legal conclusions.
Ms. Liebman. Mr. Chairman, the Boston Medical decision in
1999 and the NYU decision which followed it were based on the
majority's view that the law, correctly interpreted, allowed
for the graduate student assistants or the interns and
residents to be treated as statutory employees because they met
the common law----
Senator Specter. Well, had anything changed when you
considered the Brown case from the decision before which had
held to the contrary?
Ms. Liebman. From the Brown decision?
Senator Specter. Well, had anything changed from the 1999
or 2000 decision which reversed longstanding law? Had anything
changed in the interim to warrant that kind of change in legal
interpretation?
Ms. Liebman. The composition of the Board changed.
Senator Specter. Well, that is not necessarily a very good
reason. If there had been an evolving factual situation or
underlying public policy considerations changing----
Ms. Liebman. Certainly from the perspective of the dissent
nothing had changed, and nothing was argued by the majority in
Brown to show that there was empirical evidence----
Senator Specter. I am not on Brown right now. I am on the
decision in the year 2000 and 1999.
Ms. Liebman. Well, things had changed in universities.
Certainly universities had become more and more dependent on
the use of teaching assistants for teaching classes, as I
indicated in the statement.
Senator Specter. But had the relationship between the
teaching assistants and the universities changed from the time
the assistants were determined not to be employees until--a
unanimous decision in the year 2000 reversed that policy.
Ms. Liebman. That is right. The earlier decision was really
based on a policy decision that they were primarily students
engaged in an educational relationship rather than an economic
relationship. So in essence the majority in 1999 and 2000
decided to part with that policy rationale and look strictly at
the language of the statute, which in our view demanded the
result that they be treated as statutory employees and common
law employees.
Senator Specter. Mr. Battista, what changed from the
decision in the year 2000 to the Brown decision except for a
change in the composition of the Board?
Mr. Battista. Senator, let me preface my remarks by saying
that I believe the law should have some predictability and that
practitioners and people who are governed by the law should
have a feel for what the law is and it really should not change
unless there are changed circumstances or we are as a Board
firmly convinced that the underlying decision that we are
looking at should be reversed, that it was wrongly decided.
When NYU was decided, it was decided by three members of
the Board: Chairman Truesdale, members Liebman and Hurtgen.
With regard to the other two Board seats--one position was
vacant and one member of the Board did not participate. So when
member Liebman says it is a unanimous decision, it was, but it
was not a decision of the full Board. That was a factor we
looked at.
Two, we thought----
Senator Specter. It was not a decision of the full Board?
How many members were there?
Mr. Battista. There were only three of the five. One
position was vacant and one member did not participate.
Senator Specter. But it was unanimous?
Mr. Battista. It was unanimous.
Senator Specter. That is as many votes as you had when you
overturned it?
Mr. Battista. That is correct.
As a majority, we looked at NYU and thought it was wrongly
decided. At least I can speak for myself: I thought it was
wrongly decided.
Senator Specter. Well, you thought it was wrongly decided.
What weight did you give to precedent, to stare decisis?
Mr. Battista. I gave a great deal of emphasis to the fact
that there had been 25 years of Board precedent that had stood
the test of time, both as far as the courts and the Congress
were concerned, and I thought that decision was correct. I
viewed our action as reestablishing a long established
precedent.
Senator Specter. Well, now you are talking about the
precedent up to the 2000 decision.
Mr. Battista. That is correct.
Senator Specter. My question to you was different than
that. My question to you was what weight did you give to the
precedent or stare decisis on the decision which you
overturned?
Mr. Battista. I gave little weight to it because, frankly,
it was a decision of rather short duration and, frankly, a
decision that I thought, personally speaking, was erroneous. I
gave a lot of weight to the 25 years that had been the previous
precedent and to the fact that the common law test for master-
servant cannot be decided in a vacuum. I think that the Supreme
Court had told us in Town and Country that when we interpret
terms like ``employee'' we are given great deference and we
have to do so in looking at the objectives of the Act. Quite
frankly, the objectives of the Act in my view were that the Act
governs primarily economic relationships and not primarily
academic relationships, and I personally viewed this as a
primarily academic relationship and not covered by the Act.
Senator Specter. Mr. Battista, when the University of
Pennsylvania students voted on February 26 and 27 of the year
2003 on this issue, their ballots were not counted because of
the consideration of the Brown University case. But why were
not at least the ballots counted so there would be a
determination as to what had occurred at the election, even if
the law was possibly to or likely to be changed?
Mr. Battista. Senator, we followed our standard procedure
when a request for review is filed--in other words, the
regional director came down with a decision in Pennsylvania
finding that, in accordance with NYU, the graduate student
assistants were employees. That was appealed by the University
of Pennsylvania. There was a request for review filed.
That request for review was granted by the Board. Once that
request for review was granted, the standard procedure for the
Board is to conduct the election and impound the ballots
pending action on the request for review, final action on the
request for review. That was held in abeyance until Brown was
decided and then the Pennsylvania case, along with a number of
other cases, were then remanded back to regional directors for
action in accordance with the Brown decision.
Senator Specter. Well, did you review the University of
Pennsylvania decision or did you just follow your change in
legal interpretation on the Brown case?
Mr. Battista. What we did is remanded it back for the
regional director to make a decision in accordance with Brown.
Senator Specter. Well, that was after, that was after the
Brown decision.
Mr. Battista. That is correct.
Senator Specter. The concern I have, Mr. Battista, is that
you have a year and a half delay, from February 2003 until July
2004, and you have the University of Pennsylvania election
occurring under existing law where the students are employees.
Why not follow the existing law? If you are going to reverse it
later, sufficient unto the day when you reverse it?
Mr. Battista. Well, because one of the two parties, in this
case the University of Pennsylvania, had filed a request for
review, and the normal Board procedure in all cases is to try
to expedite that request for review and action on it.
Senator Specter. Well, did you expedite it?
Mr. Battista. We attempted. We made a decision on it and we
granted the review, and I think that took place before my
appointment to the Board. Then that issue was held in abeyance
until the issue was decided----
Senator Specter. Well, is it customary when you grant
requests for a review to have it pending for a year and a half
before the review is made?
Mr. Battista. It is not unusual where you have got a very
significant case, and this obviously was a significant case.
These issues were significant issues.
We would like to dispose of the cases much more quickly
than a year and a half, but that is not always possible.
Senator Specter. Are you underfunded, Mr. Battista?
Mr. Battista. I think, Senator, that we can always use more
money, but the fact of the matter is I think that the
President's budget is just fine.
Senator Specter. I take that to be a no.
Mr. Battista. I think that that is correct. We could always
use more.
Senator Specter. Well, this subcommittee funds the NLRB.
There was an effort made to cut the funding by 30 percent back
in 1996 and this subcommittee took the lead in seeing to it
that that was not done and that there have been additions to
the funding.
But I am not happy to see a year and a half's delay. I
think there ought to be a much prompter decision, especially
when it is not the initial decision; it is a decision for
reconsideration. Even if you have another case pending, it
seems to me that there is no great harm in counting the ballots
where the failure to count the ballots has an overtone of
secrecy or suppression.
The concerns I have, I think about Justice Roberts'
decision in the case in the mid-30s on the Supreme Court where
there was a reversal and he made a famous statement about:
``This decision is like a railroad ticket, good for this day
only.'' Where there is a reversal on law and it comes down
along the lines of the appointees, it obviously raises
concerns.
I would urge you to try to work it out on the Board to find
a way, as Chief Justice Warren did in the segregation case,
where there are hotly contested issues and a lot of views. You
are not under that kind of scrutiny, to see if you cannot find
some way to accommodate and have decisions which at least do
not appear to be partisan.
Mr. Battista. Let me just respond if I could briefly to
that, Senator.
Senator Specter. Sure.
Mr. Battista. With respect to the various cases that come
before us, I do not decide them on a partisan basis. I decide
them on what I believe is a correct statement of the law. There
was a case earlier in my term, San Manuel Casino. That was a
case on whether or not the jurisdiction of the Board should
extend over to commercial Indian casinos on tribal lands. I
sided with member Liebman and member Walsh on that because I
believed that that was a correct decision. That was one
Republican and two Democrats.
Similarly, with Management Training I sided with member
Liebman to form a majority to sustain that principle. So that
happens frequently.
It is not unusual, though, when you get three or four major
cases--and we have only had about five or six, I think--that
sometimes voting will fall along party lines. But it is not a
partisan thing. It is really that that is the shared view of
the majority.
Senator Specter. Party lines but not partisan, okay.
Ms. Liebman, in light of your statement that the only thing
that changed was the composition of the Board, do you want to
disagree with Mr. Battista's last answer?
Ms. Liebman. No. I should say I do not believe that I said
the only thing that changed was the composition of the Board.
Certainly the only thing that changed between 2000 and 2004 was
the composition of the Board.
But between the earlier precedent and 1999-2000 obviously
the workplace has changed enormously, our economy has changed
enormously. While we have great respect for stare decisis, an
administrative agency is supposed to be attuned to changes in
the economy, changes in the workplace, and there will sometimes
be reversals of precedent based on changing conditions. I think
it is our obligation to respond to changing conditions.
Nonetheless, the NLRB is a political body and there are
likely to be changes of precedent, changes of view, as the
composition of the Board changes. That unfortunately may be the
political reality. Thank you.
Senator Specter. Well, okay. Those two answers suggest an
appropriate degree of collegiality on your Board.
Mr. Battista. There is, Senator, thank you.
Senator Specter. That is good to hear. We could use a
little more of it in the Senate.
Mr. Battista. Thank you.
STATEMENT OF CHRISTINA COLLINS, GRADUATE STUDENT AND
Ph.D. CANDIDATE, UNIVERSITY OF
PENNSYLVANIA, AND POLITICAL DIRECTOR,
GRADUATE EMPLOYEES TOGETHER-UNIVERSITY OF
PENNSYLVANIA
Senator Specter. Thank you very much.
We turn to our second panel: Mr. John Langel and Ms.
Christina Collins. Ms. Collins is a sixth year graduate student
at the University of Pennsylvania, working on a joint Ph.D. in
history and education and a certificate in urban studies. She
has been a research and teaching assistant at both the Graduate
School of Education and the History Department for 5 years, one
of the founding members of the Graduate Employees Together-
University of Pennsylvania, and currently serves as its
political director. Thank you for joining us, Ms. Collins, and
the floor is yours.
Ms. Collins. Thank you, Senator Specter, and good morning.
My name is Tina Collins. I am a sixth year doctoral candidate
at Penn. During my first 5 years at Penn, as you mentioned, I
was employed as a research and as a teaching assistant, working
in both the Graduate School of Education and the History
Department. I have taught both undergraduate and graduate
students at Penn.
I am also a member of GET-UP, the Graduate Employees
Together-University of Pennsylvania, which is a union
organizing campaign which seeks to represent about 1,000
teaching and research assistants at the university. We are
affiliated with the American Federation of Teachers.
I appreciate the opportunity to discuss the recent NLRB
decision with you today which overturned the rights of graduate
employees at private universities to bargain with their
employers. The NYU decision in 2000 led a group of us at Penn
to begin meeting about what could be done at our school and we
looked to 3 decades of collective bargaining by grad employees
at some of the most prestigious public universities in the
country as a model for what we might accomplish at Penn.
Grad teachers and researchers at the Universities of
Wisconsin, Michigan, California, and a number of other schools
have been recognized and gained the right to bargain contracts
with their administrations. These are premier research centers,
which have not suffered any ill effects as a result of grad
unionization.
Today, though, I want to talk about what grad assistants
do, which I believe will make it obvious that we are indeed
employees of our universities. My own first year of teaching in
the history department I think provides a good illustration of
these duties. I was assigned a class in Latin American history,
even though I had never taken a graduate course in that field.
I was not given training, office space, a phone line, or a
computer.
Each week I spent approximately 20 hours working for the
university. I met with the professor and another teaching
assistant before the course began and then for about an hour a
week to discuss the readings and the assignments. Like any
other university instructor, I also prepared lesson plans and
led my own weekly discussion sections.
Additionally, I held weekly office hours for students.
These were usually held in coffee shops or other public spaces
because most teaching assistants do not get offices. I was also
available to students by e-mail and by phone, including during
evenings and on weekends. Students routinely asked me for
academic advice and sent me drafts of papers to review. In
addition, I was responsible for grading my students' exams and
for calculating their final grades. In addition to these duties
as an instructor, I was also taking four graduate classes of my
own.
What I have just outlined is not unusual for teaching
assistants throughout Penn. And for performance of these
duties, most teaching and research assistants in the Graduate
School of Arts and Sciences currently receive an annual salary
of $15,750. However, many other graduate employees at the
university make less. Compensation is therefore a very
significant issue to our members, especially nontraditional
students who may have family responsibilities, as well as
international students, who are legally barred from seeking
other employment options.
According to a recent survey of our members, their average
annual rent is more than half of their stipends. A majority
also said that the funds that they receive are not sufficient
to cover their living expenses.
Health insurance is another major concern. While some
departments began paying health insurance premiums for graduate
employees soon after our union campaign began, many are still
expected to pay the premium out of their stipends. The premium
has increased every year that I have been at Penn, most
recently this year by 10 percent. One recent Ph.D. recipient
had to make the choice in his last year of study of whether to
add his wife or his infant son to the health insurance plan
because their family could not afford to do both. We should not
have to make this choice at an institution as wealthy as Penn.
These growing inequities in compensation and in benefits
have led us to seek a collective voice for dealing with the
university, which is the largest private sector employer in
Philadelphia. Our goal is simple: a contract with the
university that both serves the interests of our members and
improves the quality of education at Penn.
I believe the NLRB decision represents a significant
misinterpretation of the law. Graduate teaching and research
assistants in the private sector, like the more than 40,000
graduate employees who participate in collective bargaining at
public universities, are clearly employees who provide valuable
services. Without our work, institutions like Penn would need
to hire other employees to do our jobs.
We find the argument that we have no right to form a union
unacceptable in a democratic country. Our work is essential to
Penn and we are proud of the high quality research and
instruction we deliver, even under sometimes difficult
conditions.
PREPARED STATEMENT
I thank you for examining the impact of this decision on
graduate employees and I hope that you will consider
legislation that explicitly protects our basic right as
graduate employees to form unions at private colleges and
universities. Doing so will send a strong message that the work
of grad assistants is an essential part of higher education in
America.
I welcome any questions you may have about my testimony.
[The statement follows:]
Prepared Statement of Christina Collins
Good morning Chairman Specter, Ranking Member Harkin and members of
the subcommittee.
My name is Tina Collins, and I am a sixth-year doctoral candidate
pursuing a joint Ph.D. in history and education at the University of
Pennsylvania (Penn). During my first five years at Penn, I was employed
by the university as a research and teaching assistant, working in both
the Graduate School of Education and the History Department, and
teaching undergraduate and graduate students. I am also a member of
Graduate Employees Together-University of Pennsylvania (GET-UP/AFT), a
union organizing campaign seeking to represent nearly 1,000 graduate-
level teaching and research assistants employed at Penn. GET-UP is an
affiliate of the American Federation of Teachers (AFT).
I appreciate the opportunity to discuss the National Labor
Relations Board's (NLRB) July decision in Brown University, 342 NLRB
No. 42 (2004) (Brown). This overruled recent NLRB precedent and
stripped graduate employees at private universities of protection under
the National Labor Relations Act (NLRA). The board stated in Brown that
graduate teaching and research assistants are not ``employees'' under
the act, and therefore have no right to form a union and bargain
collectively. Previously, the board ruled in New York University, 332
NLRB No. 1205 (2000) (NYU) that graduate assistants in private
universities were employees and constitute an appropriate unit for
collective bargaining.
My fellow graduate assistants and I were encouraged by the earlier
NYU decision given the many similarities between our experiences and
the circumstances facing the employees at NYU. The decision led a group
of us to begin meeting to talk about what could be done about the many
issues affecting our ability to perform our duties as graduate
assistants at the university. We quickly confirmed that organizing
graduate employees at universities is not unique or radical. We looked
to the three decades of collective-bargaining experiences of graduate
employees at some of the most prestigious public universities in the
United States as a model for what we might accomplish. Graduate
teachers and researchers at the University of Wisconsin at Madison, the
University of Michigan, the University of California system, Michigan
State University and the University of Illinois at Urbana-Champaign
have fought for and won union recognition and the right to bargain
contracts with their respective administrations.
The Teaching Assistants' Association (TAA/AFT) has been negotiating
with the University of Wisconsin at Madison since 1969 over a wide
range of issues including compensation and benefits packages, grievance
procedures, and job training. The university has suffered no ill
effects as a result of graduate unionization. In fact, today the school
is nationally recognized as one of the country's premier research
institutions. Its own Web site points out that the university is known
for its ``world-class, cutting-edge research.''
Rather than offer my analysis on the legal complexities of this
recent Brown decision, I would instead like to talk about what graduate
assistants do as Penn employees and demonstrate the integral role we
play as part of our institutions' instructional workforce. I am
convinced these experiences would lead a reasonable person to recognize
our status as employees who have the right to form unions that
represent our interests in the workplace.
My own first year of teaching in the History Department provides a
few typical examples of the extensive and essential work graduate
employees provide at Penn. I was told I would be teaching a class in
Latin American history, even though I had never taken a graduate course
in that field, because two teaching assistants were needed and no one
else was available; the other teaching assistant was working on a
degree in European intellectual history. I was not given training,
office space, a phone line or a computer. Consequently, I, like any
other teacher at the university, had to prepare to teach my class,
developing my teaching strategies and establishing a schedule not only
for my students but also for myself. Each week, I spent approximately
20 hours working for the university. I met with the professor and the
other teaching assistant before the course began and then for about an
hour a week to discuss the readings for the class, the assignments and
to ensure that our grading criteria were consistent. I attended the
professor's lectures twice a week, taking notes and helping with the
audio/visual material she used in her presentations. I completed all
the readings for the class, as well as reviewing other background
materials and multi-media sources, including several films. I prepared
lesson plans for my two classes, which included about 30 students and
met once a week; during lessons I led discussion of the material,
answered students' questions and assisted them in refining arguments in
their written assignments.
I also held weekly office hours for students. Because teaching
assistants at Penn do not have offices, these meetings usually were
held in coffee shops or other public spaces. I was also available to
students by e-mail and phone, during the week and on evenings and
weekends (especially before big papers were due). I was expected to pay
all of my own expenses for Internet access at home because the
university had discontinued its off-campus access system the previous
year. Students asked me for advice on completing coursework and sent me
drafts of papers for comments on style and content, as well as turning
to me for more general support regarding adjustment to life at the
university. Over the course of the semester, I was responsible for
grading three essay papers from each student on a wide variety of
topics. I also was responsible for grading both a midterm exam and a
final exam, each of which included short-answer as well as essay
questions. I was also responsible for calculating and submitting
students' final grades at the end of the semester. In addition to my
duties for this class, I was completing my own academic work for four
graduate classes, giving presentations at several conferences around
the country and working on a journal article with two colleagues.
What I have just outlined is not unusual. In addition to teaching
their own classes, graduate employees at Penn lead small group
discussions and lab classes that complement the larger lecture classes
typically taught by faculty. This semester, 87 percent of the teaching
hours in large lecture classes in the History Department will be
conducted by graduate employees. In the English Department, where large
lecture classes are not the norm, graduate-level teachers will teach 40
percent of the introductory level seminars this semester. The tendency
to rely heavily on graduate assistants to work with students in smaller
groups, while also teaching their own classes, is increasing throughout
the School of Arts and Sciences.
Former Penn President Judith Rodin recognized the valuable work
performed by graduate assistants when she established the Penn Prize
for Excellence in Teaching by Graduate Students. The prize seeks to
recognize ``excellence in teaching by graduate students across the
university who, through their dedication to teaching have had a
profound impact on undergraduate education at Penn.'' Yet, for all of
these contributions and this high praise, most teaching and research
assistants in the Graduate School of Arts and Sciences this year will
receive a standard stipend of $15,750. In addition, hundreds of
graduate employees in schools such as Education, Social Work and Design
typically receive much less than $15,750. Even more troubling, more
experienced teaching assistants at Penn actually now receive less for
doing the same work as newer employees.
Compensation is a significant issue to our members, especially
those non-traditional students with family responsibilities or
international students with few other employment options. For the past
several months, GET-UP has been surveying graduate employees from
across Penn regarding their current quality of life and issues they
would like to see addressed in a future contract. What we have learned
from our colleagues is instructive. The average monthly rent for those
surveyed is $671, which amounts to an average of $8,052 per year. So,
the average cost of rent alone is more than half of the standard annual
stipend in the School of Arts and Sciences. Overall, 56 percent of
those surveyed said that the funds they receive from the university are
not sufficient to cover their day-to-day living expenses.
Health insurance is also a major concern for our members. Although
the departments that make up the School of Arts and Sciences began
paying health insurance premiums for their graduate employees soon
after our union campaign began, most graduate employees in the Schools
of Design, Social Work and Education are still expected to pay the
premium out of their stipends. The premium has increased every year
I've been at Penn. For 2004-05, the annual rate is $2,072, a 10 percent
increase from last year. For graduate employees with two dependents,
the premium cost jumps to $8,207--and has the potential to price
someone out of graduate school. One recent Ph.D. recipient had to make
the choice in his last year of study between adding his wife or their
infant son to the health insurance plan, because he could not afford to
pay for both. Ultimately, his wife went without healthcare until he
graduated and took a job in the private sector. This is a choice we
should not be confronted with at an institution as wealthy as Penn.
Even if graduate employees with children are able to pay these high
premiums, the only primary care provider fully covered under the plan
is the student health clinic, which does not have a pediatrician on
staff.
There are also high co-pays, deductibles and prescription costs
that often put care out of reach for graduate students, and can even
affect treatment. One of my colleagues recently met with a doctor who
suggested a test to better determine a course of action for his
ailment. However, my colleague couldn't afford the $100 out-of-pocket
expense. The doctor then just went ahead with a treatment, unsure of
whether it would be effective.
For many graduate employees--especially those of limited means or
those with families--growing inequities in compensation and benefits
packages may limit their ability to pursue graduate studies.
It was these types of examples that led us to eventually reach
agreement on the need to establish a formalized vehicle to represent
our interests and needs before the administration at Penn. Armed with
the new status afforded to us by the NYU decision, we decided to form
GET-UP in Fall of 2000. Our goal was simple: We sought the right to
bargain a contract with the university that would serve the interests
of our members and improve both working and learning conditions at
Penn. We affiliated with the AFT later that academic year, and have
been working ever since to gain recognition.
Throughout this period, we have faithfully followed the rules set
forth under the NLRA as interpreted by the NLRB. Unfortunately, Penn
failed to display that same level of commitment--In 2001, a substantial
majority of graduate employees signed authorization cards asking Penn
to recognize GET-UP as their union and begin bargaining; Penn refused
this request. After another year of waiting, our case was finally
heard; the regional labor relations board ruled in our favor and called
for an election to be held In February 2003. According to a survey
performed by the Daily Pennsylvanian, we won that election 62 percent
to 38 percent, despite an intense anti-union campaign by the
university. However, our votes were never counted because the
university continued to reject our right to unionize. Despite four
years of hard work by GET-UP members--who struggled to balance their
academic, employment and personal responsibilities with their efforts
to gain a voice at work--the NLRB overruled the previous NYU decision,
ruling that graduate teaching and research assistants are not employees
eligible to form unions under the NLRA. Our petition for recognition
was subsequently dismissed in August 2004.
I believe that the most recent NLRB decision represents a
significant misinterpretation of the NLRA. Graduate teaching and
research assistants in the private sector, like the more than 40,000
graduate employees who participate in collective bargaining at public
universities, are clearly employees providing valuable services at our
institutions in exchange for compensation. Without our work,
institutions like Penn would need to hire other employees to do fill
these jobs.
We continue to organize graduate employees on campus and to
highlight the necessity of advocating for our interests. However, our
challenge has been increased by the recent NLRB decision.
GET-UP and its members find the argument that graduate employees
have no right to or need for a union to be absolutely unfounded and
unacceptable in a democratic country. Our work is essential to the
university's mission, and we are proud of the high-quality research and
teaching that our members perform, even under the often difficult
conditions I've just described. We, and the other union organizing
campaigns affected by the Brown decision, are committed to using our
collective voice as employees to make our institutions better places in
which to work and to learn.
On behalf of my graduate colleagues at Penn, I thank you for taking
the time today to examine the impact of the recent NLRB decision on
graduate employees. I hope that you and your colleagues in Congress
will consider introducing and pushing legislation that explicitly
protects the basic right of these employees to form unions at private
colleges and universities under the protections of the NLRA. Doing so
will send a strong message that graduate assistants are an essential
part of undergraduate education programs not just at Penn but at other
private colleges and universities across the nation.
I welcome any questions that members of the committee may have in
regard to my testimony.
STATEMENT OF JOHN LANGEL, ESQ., BALLARD SPAHR ANDREWS &
INGERSOLL, REPRESENTING THE UNIVERSITY OF
PENNSYLVANIA
Senator Specter. Thank you very much, Ms. Collins.
We turn now to Mr. John Langel, litigation department,
Ballard Spahr, a prestigious law firm in Philadelphia. Before
joining the firm, Mr. Langel served as law clerk for Judge
Hewitt in the Federal court in Philadelphia. He is a member of
the Philadelphia Bar Association Labor and Employment
Committee, has a bachelor's from Marietta, and summa cum laude
from Temple University.
Thank you for joining us, Mr. Langel, and we look forward
to your testimony.
Mr. Langel. Thank you, Senator Specter. It is a pleasure to
be here today representing the University of Pennsylvania.
As you have heard, for nearly three decades the National
Labor Relations Board agreed with Penn's position that graduate
students are not employees because teaching and research are
integral parts of the education they receive. In 2000 the Board
suddenly changed course and found certain graduate teaching and
research assistants at NYU had the right to unionize.
Interestingly, they did not find that all graduate students had
the right to unionize. Then, this July in the Brown decision
the Board returned to its long-held recognition that graduate
students are just that, students, not employees.
I am here today to talk, not about the law of Brown, but
rather to talk about graduate education at Penn, with which I
became familiar representing Penn throughout the lengthy
proceedings before the Board. Let us first review the benefits
provided to Penn's graduate students. All graduate students at
Penn, not just the select graduate group that the union had
chosen to include in its petition, come to Penn with one goal
in mind: to earn advanced degrees while acquiring the skills
and expertise necessary for successful careers in their chosen
fields. Often that is academic in nature.
Penn administers its diverse graduate programs with
precisely that goal in mind. The programs deliver on that goal
through a combination of formal instruction and applied
learning. At the center of Penn's graduate educational programs
are opportunities for students to gain hands-on experience in
the most important functional areas of graduate level
education, teaching and research.
The union seeks to distort the educational nature of those
teaching and research experiences by contending that students
who teach and research while simultaneously receiving generous
financial aid that enables them to attend graduate school in
the first place are Penn employees.
Let us look at the financial aid. It is significant and it
bears no direct relationship to the services students perform
as graduate assistants. Penn's graduate students receive multi-
year funding packages, 4 to 5 years. They include: fully paid
tuition, fully paid tuition at the University of Pennsylvania,
and fees for each year of enrollment; a substantial stipend
each year to cover living expenses, between $15,000 and
$22,000; health insurance coverage.
The cost to Penn and the value to the students exceeds
$50,000 per student year. They are not cheaper labor. In fact,
if the university were looking for cheaper labor they would
find it in their adjunct professors, who are much less costly
on a semester by semester basis.
The funding provided to its graduate degree students is and
is intended to be educational financial aid at its core.
Indeed, upon acceptance Ph.D. students are guaranteed this
funding package for 4 or 5 years. Yet they serve as teaching or
research assistants for as little as two semesters, and
typically only during portions of 2 of those 4 or 5 years.
During the rest of their time as students, when they receive
the identical funding package, they devote their time
exclusively to their course work and the beginning stages of
their dissertations.
I will now turn to the academic focus of Penn's graduate
programs. The nature of the services are likewise driven by an
educational, not economic, engine. Students pursuing Ph.D.
degrees overwhelmingly seek careers in academia. As part of its
educational program and its mission to prepare the next
generation of university educators, Penn requires its graduate
students to conduct research and to teach. In fact, teaching
and research are so much a part of graduate education at Penn
that in many of its graduate programs serving as a teaching or
a research assistant is a degree requirement, no different than
taking certain courses. Like other aspects of their studies,
graduate students teach and research and are reviewed by their
instructors and their performance is made part of their
academic record.
There is a fundamental nexus between teaching and the
course work. So too that appears with their research. Indeed,
most of the students, if not all the students, do research in
the areas that wind up being their dissertations.
Clearly the services are pedagogical in nature. But beyond
that, treating students as employees threatens academic
freedom. Academic freedom is not just free speech. The erosion
in the establishment of collective bargaining here would do an
injustice to what the Supreme Court of the United States has
recognized.
Imposing collective bargaining on Penn's relationship with
its students would undermine Penn's ability to make each of
these decisions. Penn would be forced to bargain over broad
academic issues, including class size, time, length, location,
as well as the graduate student' duties.
If you look at the proposed unit that GET-UP seeks to
represent, you would see the anomaly that was created. They
excluded all of the hard science research assistants and
teaching assistants, saying that that which they did was
academic in nature. If you examine the record, a 7-week record
before the regional director in Philadelphia, you will see that
all of the services are academic in nature that all of the
graduate students provide.
PREPARED STATEMENT
One last item and that is: Under the Board's longstanding
precedent, unrelated to students or whether students are
employees, is the concept of temporary employees. Temporary
employees are those who are there for a finite and short
duration. The graduate students teach a semester, teach two
semesters. They are there for a short, finite duration with no
expectation of continued employment. Under the industrial model
which GET-UP seeks to impose on the university model, they all
are temporary employees.
Thank you for your time.
[The statement follows:]
Prepared Statement of John B. Langel
Senator Specter, Members of the Committee. It is a pleasure to be
here today to address this Subcommittee on an issue of such importance
to the preservation of academic freedom at our nation's great
universities, like the University of Pennsylvania, which I have the
honor to represent here today.
I am not here to present to you the legal history of these issues,
but a little background is necessary. For nearly three decades, the
National Labor Relations Board (the ``Board'') agreed with Penn's
position that students are not statutory employees because teaching and
research are integral parts of the education they receive. In October
2000, the Board departed from this precedent when it found certain
graduate teaching and research assistants at New York University had
the right to unionize. In doing so, the Board overruled such cases as
Adelphi University, 195 N.L.R.B. 639 (1972), and Leland Stanford Junior
University, 214 N.L.R.B. 621 (1974), where the Board underscored that
the financial support received by graduate students is not compensation
for services performed, but financial aid to help graduate students
pursue their education.
Then, in July 2004, the Board overruled NYU in the Brown University
decision and returned to its long-held recognition that graduate
students are just that, students, not employees. Brown University, 342
N.L.R.B. No. 42 (2004). Rather than talk about why the Brown decision
was the right decision, legally, I want to talk about graduate
education at Penn, with which I became familiar representing Penn
throughout the proceedings before the Board.
PENN'S GRADUATE STUDENT PROGRAMS
Penn is one of the country's premier research institutions.
Research is what the faculty do; research is what the faculty work with
the graduate students, and indeed increasingly the undergraduates, to
teach them to do. Faculty members, students, research professionals,
and lab technicians all collaborate to conduct this research, and all
contribute to the success of Penn's research mission.
Beyond their first year of enrollment, many graduate students
become increasingly involved in research activities. Students are
encouraged early on in their degree program to meet professors, learn
the professors' areas of expertise, and develop relationships with
professors whose interests match their own. It is through these
mentored relationships that graduate students learn the skills and
methodologies that will distinguish them as gifted scholars and
researchers.
At the same time, Penn does not operate solely as a center of
research, and does not permit its faculty to focus solely on their
individual research interests. Teaching is an equal component of Penn's
mission. Students come to Penn to learn, and the duty of teaching them
falls to the faculty. Accordingly, all faculty members are expected not
only to teach, but to teach at an exemplary level.
Teaching graduate students at Penn is an interactive process.
Students learn to teach under the guidance of faculty members. It is
expected that, by the time they earn their degrees, Penn graduate
students will have had first-hand experience in the major tasks
performed by Penn faculty: conducting significant collaborative or
independent research; writing grant proposals; authoring scholarly
publications about their research; and teaching and mentoring Penn's
other students. Penn expects its graduate students to perform all these
functions as graduate students to prepare them for their own careers,
as Penn recognizes that the vast majority of its graduate students go
on to academic careers of their own.
BENEFITS PROVIDED TO PENN'S GRADUATE STUDENTS
All graduate students at Penn--not just the select group that the
Union has chosen to include in its petition--come to Penn with one goal
in mind: to earn advanced degrees while acquiring the skills and
expertise necessary for successful careers in their chosen fields. Penn
administers its diverse graduate programs with precisely that goal in
mind. The programs deliver on that goal through a combination of formal
instruction and applied learning. And at the center of Penn's graduate
educational programs are opportunities for students to gain hands-on
experience in the most important functional areas of graduate-level
education--teaching and research.
The Union seeks to distort the educational nature of those teaching
and research experiences by contending that students who teach and
research, while simultaneously receiving generous financial aid that
enables them to attend graduate school in the first place, are Penn
employees.
Let's start with the financial aid. It is significant, and it bears
no direct relation to the services students perform as graduate
assistants. Penn's graduate students receive multi-year funding
packages that include:
--Fully-paid tuition and fees for each year of enrollment;
--A substantial stipend each year to cover living expenses;
--Health insurance coverage.
The cost to Penn and the value to the students exceeds $50,000 per
student per year.
The funding Penn provides to its graduate degree students is and is
intended to be educational financial aid at its core. Graduate
education at Penn is expensive. Tuition alone for a full-time graduate
student enrolled in classes is more than $20,000 per year. Penn
recognizes that Ph.D. students most often go on to academic careers in
positions that do not pay well in the early years. Those students,
therefore, will have limited resources with which to repay large
student loan debt.
At the same time, Penn believes it is important for students to
focus full-time on their studies while they are enrolled, in order to
receive the maximum educational benefit and to enable them to earn
their degrees as quickly as possible. Consequently, Penn offers full
funding to these students so that they may be adequately supported to
work full-time on their degrees without the distraction or time
commitment of employment.
The funding students receive is tied to remaining in good academic
standing and in making adequate progress towards their degree
requirements. It is not tied to performing a certain number of hours
each semester of teaching or research work.
Indeed, upon acceptance, Ph.D. students are guaranteed this funding
package for four or five years, yet they serve as teaching or research
assistants for as little as two semesters, and typically during only
portions of two of those four or five years. During the rest of their
time as students, when they receive the identical funding package, they
devote their time exclusively to their coursework and the beginning
stages of their dissertations.
Take, for example, a Ph.D. student in Humanities and Social
Sciences. To entice the student to come to Penn, that student is
offered a fellowship package, consisting of five years of guaranteed
support, including fully-paid tuition, a generous stipend each year and
health insurance. In the student's first year, she concentrates on her
own coursework and does not teach. In her second year, she continues to
take classes and begins to learn to teach. In her third year, she
continues to teach while she finishes her classes and begins to focus
on her dissertation. In years four and five, the student has no
teaching responsibilities and concentrates entirely on researching and
writing her dissertation. The student receives the same funding package
throughout all five years without regard to any service she performs.
THE ACADEMIC FOCUS OF PENN'S GRADUATE PROGRAMS
The nature of the services are driven by an educational, not
economic, engine. More importantly, the students' relationship with
Penn is an academic one. It is driven by Penn's mission--to train the
next generation of university faculty by preparing its graduate
students for successful academic and professional careers.
Students pursuing Ph.D. degrees overwhelmingly seek careers in
academia. Penn requires that students pursuing a Ph.D. complete 20
credit units of course work, a series of examinations, and a
dissertation. The dissertation is the culmination of sustained research
developed to answer an unexplored question within the student's field.
Its purpose is to demonstrate that the student has proven ability to
create new knowledge as a researcher after graduation. Most Ph.D.
students begin to perform some form of research early in their programs
and then progress to the point that their only activity is conducting
research in furtherance of their dissertations.
All Penn's graduate degree programs are structured so that students
learn from experienced faculty members how to conduct high level,
advanced research within their fields, and to use that knowledge to
contribute to the creation of new knowledge. Research assistantships
provide students with hands-on experience in the procedural and
practical aspects of research in their fields, all in furtherance of
their professional development. Students then take that experience and
incorporate it directly into their dissertations and research papers.
The academic positions Penn's Ph.D. students seek after graduation
nearly always require the graduates to teach as a major part of their
professional careers. To prepare those students properly for academic
careers, the majority of Penn's graduate degree programs require a
teaching component. The teaching activities in these programs train the
students in both the pedagogical and administrative aspects of
instruction at the university level. Moreover, even students who do not
receive funding (the so-called ``wages'' for the ``service''), still
must take on these teaching responsibilities in order to obtain their
degrees.
Penn requires its graduate students to conduct research and to
teach for the simple reason that teaching and research is what the vast
majority of them aspire to do. Teaching and research are so much a part
and parcel of students' graduate education at Penn that, in many of its
graduate programs, serving as a teaching or research assistant is a
degree requirement no different than taking certain courses. Indeed,
graduate students often receive course credit for their teaching and
research activities. Like other aspects of their studies, graduate
students' teaching and research activities are reviewed by the
students' instructor and made part of their academic record. And just
like other aspects of their degree programs, poor teaching or research
performance can jeopardize academic standing.
This fundamental nexus between the service a teaching assistant
performs and the students' own academic program is enhanced and
exemplified by the fact that, at Penn, graduate students teach only in
classes within their discipline and, most often, ones that relate to
their particular areas of specialization. So too in the research arena.
Graduate students serving as research assistants are matched with
faculty members whose research interests coincide with their own. In
fact, in the vast majority of cases, the research Ph.D. students
perform as research assistants is the very same research the students
conduct for their dissertations.
TREATING STUDENTS AS EMPLOYEES THREATENS ACADEMIC FREEDOM
As the Board in Brown recognized, extending collective bargaining
rights to graduate students risks transforming this fundamentally
academic endeavor, as it would seriously intrude upon and infringe
universities' basic academic freedoms. Academic freedom is not some
lofty or theoretical concept. It lies at the core of Penn's mission,
and lives and breathes throughout its graduate programs on a daily
basis.
``The United States Supreme Court recognizes that a university
enjoys four essential freedoms . . . to determine for itself on
academic grounds who may teach, what may be taught, how it shall be
taught and who may be admitted to study.''
Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957). Indeed, according to
the Supreme Court, ``[u]niversity faculties must have the widest range
of discretion in making judgment as to the academic performance of
students and their entitlement to promotion or graduation.'' Board of
Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 96 n.6 (1978).
In direct contravention of the Supreme Court's admonition to allow
universities to manage their own academic affairs, imposing collective
bargaining on Penn's relationship with its graduate students would
interfere with each of Penn's ``essential freedoms.'' Penn would be
required to bargain over terms and conditions of employment that,
according to the Board, are mandatory subjects of bargaining, which
would result in a direct conflict with the faculty's academic decisions
concerning the course of studies for its graduate students.
Consider the following:
--Under the NLRA, procedures governing the discipline and discharge
of unit employees are a mandatory subject of bargaining. See
Washoe Med. Ctr., Inc., 337 N.L.R.B. No. 32 (2001). Many of
Penn's graduate programs do not permit graduate students to act
as teaching or research assistants unless they remain a student
in good academic standing. Thus, to allow Penn's graduate
students to engage in collective bargaining over just cause
discipline protection and a grievance and arbitration
procedure--standard protections sought by unions in nearly all
contract negotiations--would intrude upon Penn's fundamental
right to determine for itself which students are entitled to
remain in its academic programs.
--Standards of employee work performance also are a mandatory subject
of bargaining. Tenneco Chems., Inc., 249 N.L.R.B. 1176 (1980).
Student performance as teaching and research assistants is used
as a basis for evaluating the academic progress of graduate
students. Allowing students to bargain over standards of
``work'' performance would result in a clear erosion of Penn's
academic freedom to determine which students have met their
program's academic requirements and standards and thus may
remain students in good academic standing.
--An employer's decision to use supervisors to perform bargaining
unit work is also a mandatory subject of bargaining. Hampton
House, 317 N.L.R.B. 1005 (1995). At Penn, many departments
choose to have faculty members teach labs or recitation
sections rather than graduate students. Thus, Penn's academic
freedom to structure and teach classes in the manner its
faculty find most effective would be affected by graduate
student collective bargaining.
--Assignment of work is also a mandatory subject of bargaining.
Engineered Control Sys., 274 N.L.R.B. 1308 (1985). At Penn,
professors choose students to be their teaching, and especially
research assistants, based upon a variety of factors, including
the students' interest in the professors' academic discipline.
Allowing students to bargain over how these selections are made
would prevent professors from working with students who most
closely share their own academic interests.
These examples illustrate the concerns recognized by the Board in
Brown that extension of collective bargaining rights to graduate
students will intrude upon universities' academic freedom. The unions'
arguments that such academic decisionmaking can be cordoned off from
the collective bargaining process ignores the substantial autonomy
granted Penn's graduate programs to shape and structure all aspects of
their students' educational programs.
The Board in Brown found:
``Imposing collective bargaining would have a deleterious impact on
overall educational decisions by the Brown faculty and administration.
These decisions would include broad academic issues involving class
size, time, length, and location, as well as issues over graduate
assistants' duties, hours, and stipends. In addition, collective
bargaining would intrude upon decisions over who, what, and where to
teach or research--the principal prerogatives of an educational
institution like Brown.''
Brown, slip. op. at 8.
get-up's proposed unit divided penn graduate students
Another myth I need to dispel is that unions seeking to organize
graduate students, including GET-UP, seek to represent all graduate
students. In fact, they seek to impose the ``employee'' model on only a
limited portion of a diverse graduate student population. The
bargaining unit GET-UP sought to represent at Penn was both divisive
and illogical.
In short, what GET-UP proposed was a unit oddly divorced from its
own purported concept that graduate students are employees because they
engage in ``work for pay.'' Consider the following:
--Students who receive a stipend and tuition and teach or research
were included in GET-UP's proposed bargaining unit, but
students who receive hourly pay and provide the same
``service,'' even within the same departments, were excluded.
We could never understand why.
--Professional students (that is law students and M.B.A. students)
were excluded altogether, regardless of whether they teach or
research.
--Wharton Business School Ph.D. teaching assistants were included,
but Wharton M.B.A. teaching assistants, performing in the
identical teaching in the very same class as the Ph.D.
students, were excluded.
Before the Board's Brown decision, these illogical and inconsistent
distinctions were being made all over the country. Consider the chaos
as reflected in the following:
--A ``natural science'' research assistant working toward his
dissertation while supported by an external grant at NYU is not
a member of the bargaining unit, though if he went to Columbia
or Tufts and were supported by that same grant, he would be a
member of the bargaining units at those schools. Had he chosen
Brown or Penn, however, he would not be eligible for union
representation.
--A teaching assistant in the Business School at Columbia would be in
Columbia's bargaining unit, but the same TA would not be in
Penn's bargaining unit if pursuing an M.B.A. But, at the same
time, the M.B.A. TA at Penn would be in the bargaining unit if
he were pursuing a Ph.D.
--A student serving as a research assistant in Penn's Graduate School
of Education would be included in the unit if pursuing an
M.S.Ed., excluded if pursuing an Ed.D., and included if
pursuing a Ph.D., notwithstanding that all three research
assistantships carry the same responsibilities.
--A student teaching legal research and writing at Columbia would be
a member of the bargaining unit, yet a student serving in the
same role at Penn would not.
--A Penn Engineering student serving as a teaching assistant for one
semester as part of his academic program (an Engineering Ph.D.
academic requirement), would be in the bargaining unit for that
one semester even though he has no expectation of being a TA
for any more than one semester. Yet, the Penn M.B.A. student,
serving as a teaching assistant for twice as long would be
excluded from the unit. The same Engineering student grading
papers the following semester would not be in the Penn
bargaining unit, even though grading papers is a TA function.
At NYU, Columbia or Tufts, however, his grading duties would
place him in the bargaining unit.
The distinctions the unions sought to make between different groups
of students performing the same teaching and research functions bear no
rational relationship to their claim of wanting to represent student
``employees'' and are impossibly divisive to the university
communities.
GRADUATE STUDENTS ARE, AT MOST, TEMPORARY EMPLOYEES
GET-UP maintains that the service performed creates an employee
model. Yet, even GET-UP recognizes that these services are performed
for a brief and finite duration--only a portion of the five years.
These facts highlight an additional reason--one that the Board does not
mention in the Brown decision--that graduate students are not subject
to unionization. Graduate students are, at most, temporary employees
who have no right to unionize under the NLRA and the Board's long-
standing precedent.
The Board's test for determining temporary employment status is
simple, straightforward, and well-settled: whether the employee's
``prospect of termination was sufficiently finite on the eligibility
date to dispel reasonable contemplation of continued employment beyond
the term for which the employee was hired.'' St. Thomas-St. John Cable
TV, 309 N.L.R.B. 712, 713 (1992). Under this test, even if one were to
assume that graduate students are employees, they are, at most,
temporary employees.
No Penn graduate student has any reasonable contemplation of
continued ``employment'' beyond the duration of his or her studies. No
Penn graduate student has any expectation whatsoever of a permanent
position. All appointments are finite, for periods substantially less
than the duration of the student's studies. Indeed, many appointments
last no more than a single academic semester.
GRADUATE STUDENTS ARE STUDENTS, NOT EMPLOYEES
In short, the attempt to place an employee label on Penn's graduate
students distorts the educational nature of graduate students' teaching
and research experiences. This effort to hammer the square economic
employment relationship at the heart of collective bargaining into the
round academic relationship between graduate student and university
ignores what drives students to attend graduate school in the first
place, and the totality of circumstances that shape their experience
for the brief and finite time they are there.
Recognizing this, the Board in Brown found that graduate students
were primarily students, not employees. The Board stated:
``It is clear to us that graduate students assistants . . . are
primarily students and have a primarily educational, not economic,
relationship with their university.''
Brown, slip. op. at 5. This finding is unquestionably the right one at
Penn.
Senator Specter. Thank you, Mr. Langel.
I note that you are a graduate of the James E. Beasley
School of Law at Temple. Worth noting for a moment that Mr.
Beasley was a very distinguished Philadelphia lawyer who,
regrettably, passed away a few days ago and made a great
contribution to law and in endowing the Temple Law School, and
a good friend of mine.
The process at Temple University, they do have graduate
student unions. Do you think there is a challenge to academic
freedom at Temple, Mr. Langel?
Mr. Langel. Senator, first let me tell you that I
represented Temple University in the proceedings that resulted
in there being a union at Temple University. At the hearing
level, Temple University prevailed and we prevailed in light of
the Adelphi University and the Stanford University cases.
With NYU that changed and the Pennsylvania Labor Relations
Board, following the precedent of the NYU decision, reversed--
--
Senator Specter. Historically that is very interesting, Mr.
Langel, but did it affect academic freedom?
Mr. Langel. Well, this is the second part of that, Senator,
and that is there was an agreement with Temple University and
the union that those items that are academic in nature--for
example if a student uses their research that they do while
they are a research assistant in their dissertation, they
cannot be in the union. Likewise, if they teach a course for
which it is a program requirement or for which they get credit,
they cannot be in the union.
So by agreement they took out all of the academic-related
issues, and almost all Penn students would not be in a
bargaining unit as defined with the Temple University
agreement.
Senator Specter. Well, could the Penn program be structured
as Temple was to preserve academic freedom in the same model?
Mr. Langel. We never got to that, Senator, because----
Senator Specter. Why not?
Mr. Langel. Because the union sought to take the academic
component and put it in the matrix of a union. And almost all
of Penn students use their research for their dissertation and
almost all who teach are part of a program requirement. So
there would be no employees by that definition. They would all
be students.
Senator Specter. Ms. Collins, how was the decision made as
to which graduate students were included and excluded from your
bargaining unit?
Ms. Collins. We based it on the precedent that was
available at the time, which was the NYU decision, and our unit
exactly matched the Board's ruling of that, of that decision.
So that was the basis for our decision.
Senator Specter. How many of the graduate assistants at the
university are members of GET-UP?
Ms. Collins. We seek to represent about a 1,000 people that
are currently teaching and research assistants. That number has
varied between 800 and 1,000 people who would potentially be
affected by this decision.
Senator Specter. Ms. Collins, could the Penn program be
structured like the Temple program to preserve the issue of
academic freedom under the structure described by Mr. Langel?
Ms. Collins. I certainly believe that academic freedom is
maintained under grad unionization. As I have mentioned in my
testimony, at universities like the University of Michigan, the
University of Wisconsin-Madison, they have had unions for over
30 years at this point and are well respected for the
independent professional academic scholarship that they
produce.
So I think that the evidence of that experience is the best
testimony really for our confidence that academic freedom would
not be compromised by unions at private universities either.
Senator Specter. Well, that is a generalization, but how
about the points Mr. Langel raised, which were in my question?
Could you structure the Penn program like the Temple program to
meet the considerations Mr. Langel raised?
Ms. Collins. In terms of the research that directly relates
to dissertations?
Senator Specter. That is what he testified about.
Ms. Collins. And to teaching that relates to grad
requirements? Basically, that was the reasoning in the original
NYU decision for why they did not want hard science RAs
included in that unit, because their research often does
directly relate to their dissertation.
My experience at Penn, as I mentioned, in two different
schools has not been that most people's research assignments
directly relates to their dissertation when they are assigned
as RAs, and many of the teaching requirements that Mr. Langel
mentioned have been instituted in the 5 years since the
unionization campaign began, rather than having been
longstanding Ph.D. requirements at the university. So our
feeling would be that we would certainly want an agreement that
preserves academic freedom, but an agreement that preserved it
without sacrificing our members' right to make that decision
themselves as to whether or not they wanted to be part of a
union.
Senator Specter. Mr. Langel, you made a comment about
unions distorting the process. I did not quite understand the
thrust of that particular contention on your part.
Mr. Langel. I think what I was referring to is that in who
they sought to represent and who they chose not to represent
that they were distorting the relationship. If you look at the
regional director's decision, she actually agrees with the
university and says that there is very little difference
between the hard sciences and the liberal arts and soft
sciences, but she felt constrained by NYU's decision.
Most of the case went to the fact that research overlaps
with dissertation and teaching is part of the training. In
fact, Ms. Collins testified at the hearing and I recently
reviewed her transcript of that testimony. She under the Temple
model could not be in a union because she said that she used
her research as part of her dissertation. That is really the
crux of the matter. There is no difference between the hard
sciences and the soft sciences and liberal arts and the hard
sciences. It is all part of the academic relationship with the
university.
Senator Specter. Ms. Collins, does it pose any problem on
an ongoing basis for you to take this kind of a position with
the university in your relationship with university officials
or with professors you work with?
Ms. Collins. No, it has not. I have actually--you mean in
terms of my own academic career so far has it posed any
problem?
Senator Specter. Your day to day relationships, your
career?
Ms. Collins. No. I have very collegial relationships with
all of my professors. We talk about the union. Occasionally
they ask me how the campaign is going. And they have been very
happy with both my teaching and my research work. So I have had
a very positive experience.
Senator Specter. Mr. Langel, is there any calculation as to
how much more money it would cost the University of
Pennsylvania if Ms. Collins' position were upheld?
Mr. Langel. I do not think it is a financial calculation,
Senator. I think the university is competitive with all the
other elite universities in giving its tuition and stipend. I
really think it is much more a matter of undermining the
academic freedom and the ability of the university to determine
the academic relationship.
Senator Specter. So these are matters of ``principle'' with
l-e and not a-l?
Mr. Langel. Absolutely.
Senator Specter. Okay. Well, it is a very fascinating issue
which we had heard a lot about and wanted to explore. We have
been careful not to intrude upon the judicial functions of the
NLRB in trying to assess what the underlying issues are.
Congress could legislate in the field. We could make a
definition as to where the academic interests begin and end and
where the economic interests begin and end.
But I must tell you candidly that I think that unlikely in
light of our great difficulties in passing appropriations bills
and dealing with the 9/11 Commission report, wrestling with all
of the other issues which we have. But this is an important
issue and it is helpful to see the thoughtful approaches being
undertaken on all sides by the members of the NLRB who
testified here today in the spirit of collegiality and the
concern which the subcommittee has for precedent and the issue
of delay and the kind of considerations which are articulated
by Ms. Collins and Mr. Langel.
So we thank you all very much.
We have a second issue to take up and that is the
recognition bar doctrine, the NLRB policy on decertifying
unions following voluntary recognition agreements. We are going
to adjourn the hearing for 15 minutes because it is necessary
for me to attend at least a portion of the joint session with
the Prime Minister of Iraq. So we will reconvene at 10:40.
Thank you.
Senator Specter. The Appropriations Subcommittee on Labor,
Health, Human Services, and Education will now resume.
STATEMENT OF ARTHUR ROSENFELD, GENERAL COUNSEL,
NATIONAL LABOR RELATIONS BOARD
Senator Specter. Our first witness on the panel on the NLRB
policy on decertifying unions following voluntary recognition
agreements is the distinguished General Counsel of the NLRB,
Mr. Arthur Rosenfeld. Confirmed by the Senate on May 26, 2001,
had served in senior staff positions in the Senate and the
Department of Labor, a native of Allentown, bachelor's from
Muhlenberg, master's from Lehigh, and a doctorate from the
Villanova University School of Law.
Thank you for joining us, Mr. Rosenfeld, and we look
forward to your testimony.
Mr. Rosenfeld. Thank you, Mr. Chairman. I will be
exceedingly brief. I would ask that my statement be made a part
of the record.
Senator Specter. Without objection, it will be made a part
of the record.
RECOGNITION BAR
Mr. Rosenfeld. My purpose here today I believe is to lay
out a foundation for a further discussion of the recognition
bar doctrine. On June 7, 2004, the Board in a 3-2 decision
granted review of an administrative dismissal by a regional
director of an ``RD petition,'' a decertification petition. The
purpose of the grant of review as I understand it from the
Board's order is to review the scope and application of the
recognition bar doctrine.
In a nutshell, that is, since at least 1966, where there is
a voluntary recognition of a union--where voluntary recognition
of a union is validly granted--and I emphasize, ``validly
granted''--by an employer, the Board will not entertain or not
consider for a reasonable period of time after that recognition
is granted election petitions. In other words, they are barred
by the grant of recognition.
I would contrast that just as an example to the
``certification bar,'' wherein after a union election the union
is certified as the exclusive representative of the unit of
employees, elections are barred in that circumstance also for 1
year, not for an ``undefined reasonable period'' of time but
for 1 year.
The purpose of the recognition bar--and again I emphasize I
am speaking of a valid recognition, based on valid indication
of employees' majority sentiment--the purpose is to allow the
new bargaining representative sufficient time to bargain
without looking over its shoulder, without a demand for
immediate results in bargaining. It removes an incentive for an
employer to delay bargaining in hopes of undermining union
strength. It minimizes the possibility of raiding during that
bargaining period by another union. It recognizes that majority
support for that union, for that exclusive representative, may
fluctuate over a period of time, but the employer is free of
concern that, after putting much effort into collective
bargaining and getting close to reaching an agreement, that the
union could be ousted by the employees prior to the agreement
being reached and all that effort wasted.
On June 14, the Board invited amicus briefing on the
recognition bar issue. These cases arise in representation
settings, usually decertification petitions, occasionally a
rival union situation. These cases are not within the core
aegis of the general counsel. The authority for ``R case''
matters runs from the Board to the regional directors, whereas
the delegation for unfair labor practice matters runs from the
general counsel to the regional directors.
Nonetheless, because we in the general counsel's office
have experience in investigating and prosecuting unfair labor
practices arising out of elections and voluntary recognition
and also have general responsibility for supervision of the
regional office staff, which is where R case petitions and
elections are processed, we filed a brief.
The brief of the general counsel is on the NLRB's website.
We did not include it with the testimony, for which I
apologize.
Senator Specter. Summarize what your brief said?
Mr. Rosenfeld. Let me summarize this way about a
recognition bar and what my brief says. What we propose in the
brief is that the Board allow, as a limited exception to the
recognition bar, because we believe the recognition bar is very
important, the holding of an election in situations where
support--either for representation by another union or for no
union representation--is expressed in writing by at least 50
percent of the bargaining unit employees. Further, such support
must be expressed either at the time the employees receive
formal written notice of the employer's recognition of the
union or no later than 21 days thereafter; and that a
decertification petition in the usual form must be filed no
later than 30 days after the formal notice of recognition.
PREPARED STATEMENT
The rationale for the proposed 50 percent threshold is that
any showing of less than 50 percent opposition to the newly
recognized union would not support an inference that a majority
of employees did not actually support the union at the time of
recognition, and moreover because there has already been a
showing of majority support that has not been challenged in an
unfair labor practice proceeding, reliance on the usual showing
of interest for an election petition, which is 30 percent,
would be insufficient to justify an exception to the
recognition bar.
I could go on, but I think at this point, Senator, I would
just respond to whatever questions you might have.
[The statement follows:]
Prepared Statement of Arthur F. Rosenfeld
Mr. Chairman and Members of the Committee: I am Arthur Rosenfeld,
General Counsel of the National Labor Relations Board. I have been
invited to appear before this Committee to discuss the Board's
``recognition bar doctrine'' and its recent decision to review that
rule.
The doctrine was first announced by the Board in 1966 in a case
called Keller Plastics.\1\ Stated simply, the Board will not conduct an
election to displace or replace a union within a ``reasonable'' period
of time following the employer's voluntary extension of recognition to
that union as exclusive representative of the employees in a bargaining
unit, where that extension of recognition was premised on a showing of
majority support.
---------------------------------------------------------------------------
\1\ Keller Plastics Eastern, 157 NLRB 583 (1966).
---------------------------------------------------------------------------
Thus, whether an election petition is filed by a group of employees
seeking to decertify a union as bargaining agent or by a rival union
seeking to replace the new incumbent, the Board will dismiss that
petition and will not proceed to an election if the petition is filed
within a reasonable interval after recognition was extended--again,
assuming the union has demonstrated majority support at the time of
recognition.
The Board is now considering whether to preserve, abolish, or
modify the recognition bar doctrine. It announced this intention to
reconsider on June 7, in a single published order that encompassed
three separate cases, brought by employees of the Dana and Metaldyne
corporations.\2\ These employees are seeking elections to decertify the
unions following voluntary recognition by their respective employers.
Those voluntary recognitions were extended pursuant to so-called ``card
check agreements'' that the respective employers had entered into with
the union.
---------------------------------------------------------------------------
\2\ Dana Corp. and Metaldyne Corp., 341 NLRB No. 150 (2004).
---------------------------------------------------------------------------
In each case the employee followed standard NLRB procedure and
filed a ``decertification'' petition with the appropriate Regional
Office of the Board. Each petition apparently met the Board's threshold
test--namely, that it was supported by at least 30 percent of the
employees in the bargaining unit. In each case, the Regional Director,
following Board precedent, dismissed the petition on the ground that it
was barred for a reasonable period of time by the employer's voluntary
recognition of the union pursuant to the card-check agreement.
The Board's grant of review signals its view that these cases raise
substantial issues as to whether, and under what conditions, an
employer's voluntary recognition of a union should bar a
decertification petition. On June 14, the Board invited the parties and
interested amici to file briefs addressing the issues raised in these
cases.
As General Counsel I am responsible for the investigation and
prosecution of unfair labor practice cases and also for the general
supervision of the Regional Offices. Although the recognition bar
doctrine is a representation case matter, not an unfair labor practice
matter, I decided to file an amicus brief in this matter. I did so
because the Office of the General Counsel has considerable experience
in the day to day processing of representation cases, arising both from
the General Counsel's responsibility for overall supervision of the
Agency's Regional Offices and from his or her statutory prosecutorial
authority with respect to the unfair labor practice cases that
sometimes accompany union elections and voluntary recognitions. A copy
of my brief is available online at: http://www.nlrb.gov/nlrb/about/
foia/DanaMetaldyne/NLRBGC.pdf.
I took the position in my amicus brief that the voluntary
recognition bar should be retained as an important and effective means
of promoting voluntary recognition and furthering the purposes and
policies of the NLRA, but that an exception to that bar is warranted in
certain circumstances.
As the brief explains, both Board-conducted elections and voluntary
recognition are accepted ways of establishing a legally valid
collective bargaining relationship. Of course, a Board-conducted
election--when held under well-established procedures in an environment
that is free from coercion--is the most reliable way of determining
whether a majority of bargaining unit employees desire exclusive
representation by a particular union.
A card check procedure is a less reliable, but nevertheless
legitimate, way to demonstrate that a majority of employees support a
particular union. Because of its practical advantages, the Board and
the courts have sanctioned voluntary recognition based on a card check
since the earliest days of the NLRA.
I agree that the voluntary recognition bar should be retained,
albeit with certain modifications. As I indicated in the brief, the
voluntary recognition bar effectuates the purposes of the NLRA in
several ways. As with the similar bar that is imposed after the Board
has certified a union pursuant to a Board-conducted election, the
voluntary recognition bar, among other things, gives a union time to
negotiate an agreement without undue time pressure and removes
incentives for an employer to delay or undermine bargaining in hopes of
ousting the union.
However, the brief goes on to argue that an exception to the
recognition bar is warranted in certain circumstances because of the
inherently less reliable nature of authorization cards, as compared to
a Board-conducted election, as an indicator of employee choice. As the
Supreme Court has pointed out, a Board election is a ``solemn''
occasion, conducted under ``safeguards to voluntary choice,'' including
the ``privacy and independence of the voting booth.'' \3\ Given the
lesser safeguards associated with the use of authorization cards, it is
appropriate, and I believe important, that greater vigilance be
exercised in deciding whether circumstances warrant barring challenges
to employees' expressions of support for a union based on cards.
---------------------------------------------------------------------------
\3\ Brooks v. NLRB, 348 U.S. 96, 99-100 (1954).
---------------------------------------------------------------------------
Thus, I proposed in my amicus brief that the Board allow, as a
limited exception to the recognition bar, the holding of an election in
situations where support, either for representation by another union or
for no union representation, is expressed in writing by at least 50
percent of the bargaining unit employees. Further, such support must be
expressed either at the time the employees receive formal, written
notice of the employer's recognition of the union, or no later than 21
days thereafter; and a decertification petition in the usual form must
be filed no later than 30 days after that formal notice of recognition.
As explained in the brief, the rationale for the proposed 50-
percent threshold is that ``Any showing of less than 50 percent
opposition would not support an inference that a majority of employees
likely did not actually support the union [at the time of
recognition].'' And, ``[b]ecause there has already been a showing of
majority that has not been challenged in an unfair labor practice
proceeding, reliance on the usual showing of interest' for an
[election] petition (30 percent) would be insufficient to justify an
exception to the recognition bar.''
Finally, the brief explains the rationale for the proposed 21 and
30-day cutoffs, as follows:
``The Board should therefore require that the showing of interest
be obtained as soon as reasonably possible after recognition. A more
extended period (such as 30 or 60 days) could allow time for active
undermining of a union's valid majority support, essentially continuing
the organizing campaign and contributing to the very instability [that
an election] bar is meant to prevent.''
* * * * * * *
``The General Counsel recommends allowing 30 days from formal
notice of recognition for employees to file the petition with the
regional office, as employees [who seek to oust a union] are often
[legally] unrepresented and may be unfamiliar with Board procedures. In
order to avoid litigation over when those periods (i.e., 21 days and 30
days) begin, the Board should require that they begin when the employer
and/or the union give formal written notice to the unit employees of
the voluntary recognition.''
As noted above, our amicus brief is available on the NLRB's website
at: http://www.nlrb.gov/nlrb/about/foia/DanaMetaldyne/NLRBGC.pdf.
All of this can be boiled down to a simple principle: if there's a
legitimate issue of whether a union had majority support at the time an
employer recognized it, the best way to untangle the knot is to have a
Board-conducted election.
Again, the idea is to balance two competing goals: on one hand the
right of a nascent union to enjoy the benefits of exclusive
representative status free of challenge, for a reasonable period; and
on the other, the need to guarantee employee free choice by deterring
the entrenchment of a union that does not truly enjoy uncoerced
majority support. This balance is best struck by a test that provides
that when half or more of unit employees promptly indicate their
dissatisfaction with a voluntary recognition, that recognition should
not act as a bar to an election.
In view of the Board's expressed desire to look very carefully into
the appropriateness of continuing the voluntary recognition bar in its
current form, my office will be alert to cases that may raise this
important issue. Indeed, shortly after filing my amicus brief with the
Board, I directed our Regional Offices to submit, to our Division of
Advice in Washington, unfair labor practice cases involving card check
and neutrality agreements, so that they may receive legal review and
coordination before any dispositive prosecutorial decisions are made. A
copy is available online at: http://www.nlrb.gov/nlrb/shared_files/
ommemo/ommemo/om04_76.pdf
It is essential that the legal theories and arguments advanced in
these cases be consistent and uniform. To date, no new cases involving
the recognition bar have been submitted.
Again, I thank you for this opportunity to provide my testimony on
this important issue.
Senator Specter. There are two methods for union
certification. One is the election procedure and a second is by
signatures of employees in a majority that they wish to be
represented by the union. Is that correct, Mr. Rosenfeld?
Mr. Rosenfeld. Yes. There is voluntary recognition, which
does not necessarily have to be through a card check. It could
be through a private agreement to have an election conducted by
a neutral party. There are a variety of ways, but contrast that
to the formal NLRB election process.
Senator Specter. But the card check is a procedure
generally used to ascertain whether there is a majority of the
employees who want the union?
Mr. Rosenfeld. Very often, yes, sir.
Senator Specter. And that is the essential provision
contained in S. 1925?
Mr. Rosenfeld. I have not reviewed that piece of
legislation.
Senator Specter. At the present time, you can have the so-
called card check if it is a matter where the employer
voluntarily agrees to it, correct?
Mr. Rosenfeld. Yes, sir.
Senator Specter. Are the considerations which you have
outlined to bear on revising that so that there would not be a
card check certification with the agreement of the employer?
Mr. Rosenfeld. No, sir. We support the concept of voluntary
recognition. We offer a proposal for a limited exception, which
I just read.
Senator Specter. A limited exception?
Mr. Rosenfeld. To the recognition bar, just to the
recognition bar. We support voluntary agreements.
Senator Specter. Well, are you saying that there is an
exception to supporting voluntary agreements?
Mr. Rosenfeld. No. There is an exception to being barred
from entertaining for an election petition. In other words, the
Board will not entertain an election petition during a
reasonable period of time after voluntary recognition has
been----
Senator Specter. Reasonable period of time? What is the 1
year requirement?
Mr. Rosenfeld. 1 year is for certification after an
election, a flat 1-year bar, that the Board will not entertain.
Senator Specter. A 1-year bar?
Mr. Rosenfeld. Yes.
Senator Specter. And there is a bar for a reasonable period
of time----
Mr. Rosenfeld. For the voluntary recognition situation.
Senator Specter. All right. Now, consideration is being
given by the NLRB to an exception to that rule?
Mr. Rosenfeld. Yes, sir.
Senator Specter. And what are the range of exceptions
possible?
Mr. Rosenfeld. Well, the Board asked for amicus briefs. I
believe they received, in addition to briefs of the parties,
about 20 other briefs. I have not read those, but they probably
range from doing away with completely, as a policy matter, the
bar itself, to not changing the law at all.
Senator Specter. Okay. And so far as you are concerned,
your brief took the position of a limited exception to the bar?
Mr. Rosenfeld. Yes, sir.
Senator Specter. Where there is indication on another card
check or some other means that a majority of the employees do
not want the union?
Mr. Rosenfeld. Yes, sir, within the very limited period
after recognition has been granted.
Senator Specter. How limited is the period?
Mr. Rosenfeld. Twenty-one days after formal written notice
of recognition.
Senator Specter. And if action is not taken within the 21
days, then you cannot decertify?
Mr. Rosenfeld. Right, exactly.
Senator Specter. Okay. It is an arcane field, but you are
well prepared for it because you have been educated in all
those great Pennsylvania institutions, Mr. Rosenfeld.
Mr. Rosenfeld. Thank you, Mr. Chairman.
Senator Specter. It is good to see a fellow Pennsylvanian
doing so well in this tough town.
Thank you. If you would stand by in the event some question
arises where we need some expertise, I would appreciate it.
STATEMENT OF NANCY SCHIFFER, ASSOCIATE GENERAL COUNSEL,
AFL-CIO
Senator Specter. We now turn to our second panel, Ms. Nancy
Schiffer and Mr. William Messenger. Ms. Schiffer is the
Associate General Counsel of the AFL-CIO. Before that she was
Deputy General Counsel to the United Auto Workers. She has a
bachelor's degree from Michigan State and a doctorate from the
University of Michigan Law School. Thank you for joining us,
Ms. Schiffer, and we look forward to your testimony.
Ms. Schiffer. Thank you very much, Mr. Chairman. Thank you
for this opportunity to address this very important issue of
voluntary recognition and the recognition bar doctrine, which
are so critical to workers' freedoms under the National Labor
Relations Act. I have submitted written testimony and I would
request that that be made part of the record here, and I am not
going to go through that testimony.
Senator Specter. Without objection, it will be made a part
of the formal record.
Ms. Schiffer. Thank you.
I would like to add one thing, if I may, to your
introduction. I am also a proud member of United Auto Workers
Local 1981.
I would like to tell you why continuation of the
recognition doctrine matters to workers and why the radical
change that is currently under consideration will harm the very
policies that the National Labor Relations Act is supposed to
support and defend. I would like to begin with a hypothetical.
Suppose all the employer's workers come into the owner's office
and say that they want to form a union, and the employer honors
their choice. Or suppose the employer agrees ahead of time that
if the workers demonstrate that a majority of them support
forming a union then it will honor their choice.
Workers have the right to choose union representation, so
why is it a bad thing when the employer respects that right and
honors their choice? And how does this become an abdication of
the Board's authority, as is urged in this case? Should not the
Board in fact applaud the employer's willingness to recognize
the union that its employees have selected pursuant to their
Federally protected right to do so? And why should workers be
forced through the Board's certification election process in
order for their choice to be respected?
In fact, the Board does recognize and applaud voluntary
recognition, as we have just heard. For many years after
passage of the Wager Act, voluntary recognition was primarily
used as a vehicle, it was the primary vehicle for forming a
union. The Act specifically allows it. It has been repeatedly
validated by the Board and courts as legitimate and well
accepted, and so too has this corollary, the recognition bar
doctrine. It has been consistently applied by the Board for 40
years.
So what has happened to suddenly compel a radical change
that is being now contemplated that would discard this 40-year
recognition bar doctrine? I submit the answer is: Nothing. So
why this challenge to the recognition bar doctrine? I think the
answer to that is found in the arguments used to make the
challenge, and that is that voluntary recognition is
illegitimate and so that the workers' choice it allows should
not be honored.
Changing the recognition bar doctrine is really a means to
attack all voluntary recognition, the recognition process
itself, and it surely does that, because such a change as is
being contemplated here would discourage the use of the
voluntary recognition process, because what is the point if the
Board certification process can be required anyway?
So this attack attempts to achieve through adjudication a
result that Congress has expressly rejected, and it serves to
remove a means to workers' representation that the Act
specifically permits. The proposed change would allow 30
percent of the workforce to overturn the expressed will of the
majority. So this minority of workers could undo the majority
support for the union and it would allow the minority to
control, stall, and delay the collective bargaining process.
Even the position articulated in the amicus brief filed by
the general counsel, with its time limits and the 50 percent
threshold, serves to seriously undermine the entire recognition
process. An employer is not going to agree to voluntary
recognition if decertification is permitted, can be permitted
immediately thereafter.
The recognition process inherently requires a snapshot of
the level of interest of the workforce in forming a union and
it is a process that must have finality in order to achieve the
stability necessary to foster collective bargaining.
I would like to just note that this is not the only attack
on voluntary recognition. This past July the NLRB's general
counsel issued a memo to its regional office that lists various
issues connected with voluntary recognition agreements which
the regions are directed to submit to the office. It is
mentioned in Mr. Rosenfeld's testimony.
Also, earlier this month and again just this week the
general counsel has announced that complaints will issue
against other voluntary recognition agreements. So that the
current status of voluntary recognition is frighteningly like
living in Florida this past summer and contemplating Bonnie and
Charles and Francis and Ivan and Jean. You do not know what the
impact is going to be, but meanwhile nobody is building new
homes and nobody is planning a trip to Disney World.
PREPARED STATEMENT
The point is that this series of attacks and this
consideration of reversal of a 40-year-old recognition bar
doctrine really undermines the entire recognition, voluntary
recognition process.
Thank you.
[The statement follows:]
Prepared Statement of Nancy Schiffer
Thank you for inviting me to testify before the Subcommittee today.
My name is Nancy Schiffer, I am an Associate General Counsel of the
AFL-CIO.
The notice of today's hearing states that it will examine the
recognition bar doctrine of the National Labor Relations Act.
This is an extremely important and timely issue for discussion
before this Subcommittee. It is an issue that is critical to workers'
freedoms under the National Labor Relations Act which, in turn, vitally
affect the quality of life of workers and the living standards of their
families.
Let me start with the NLRA itself--what it does and what it doesn't
do; then explain how voluntary recognition works for workers; and
finally, detail the harmful impact on workers' rights under the Act if
the recognition bar policy were to be radically changed or eliminated,
as proposed.
The National Labor Relations Act (NLRA) states that its purpose is
to encourage worker self-organization for representation in collective
bargaining with employers. According to the National Labor Relations
Act, it is ``the policy of the United States to . . . encourag[e] the
practice and procedure of collective bargaining and to protect the
exercise by workers of full freedom of association, self-organization,
and designation of representatives of their own choosing. . . .''
For workers, collective bargaining provides economic advantages.
Union workers earn 27 percent more than non-union workers. They are 53
percent more likely to have medical insurance through their job. And
they are nearly four times as likely to have a guaranteed pension,
according to the U.S. Department of Labor, Bureau of Labor Statistics.
The advantages for women and workers of color are even more dramatic.
Unionized women workers make 33 percent more than their non-unionized
counterparts; the differences for African Americans is 35 percent and,
for Latinos, 51 percent.
Even workers who are not unionized benefit from having strong
unions in their communities and states. States with a strong union
presence have higher wages--for all workers--than those with a weak
union presence. And, because union jobs provide more benefits than non-
union jobs, they alleviate the burden on public health care and other
social services which are increasingly relied on by the working poor
who lack union contracts and, accordingly, employer-provided benefits.
The NLRA has historically protected the rights of workers to
organize and bargain with their employers for fair wages and decent
benefits. But today, U.S. workers have lost these rights. The Act which
is supposed to protect them has degenerated into a law which protects
employer interests at the expense of workers' rights. The Act has
become a tool of the ``union-free'' interests and their consultants, to
the detriment of working families and their communities. When good
union jobs are lost, all workers face depressed wages and lose their
health care benefits and guaranteed retirement benefits. Their families
and communities all suffer.
The National Labor Relations Act provides two avenues for workers
to form a union. One starts with the filing a petition supported by
thirty percent of the workers, includes a Board-conducted election,
then Board certification and, eventually, an enforceable bargaining
order. This process can take months and years.
If the NLRB election process were applied to a political election,
then:
--You could not qualify for the ballot unless you first persuaded 30
percent of all eligible voters to sign a petition supporting
you.
--You would not know the names and addresses of eligible voters until
just a few weeks before the election. And the list would be
drafted and provided by your opponent, the incumbent.
--The incumbent would be allowed to hold as many campaign rallies as
he wants and could even compel voters to attend them, under
penalty of termination. The voters themselves would be
restricted from discussing the campaign except in non-work
areas and during non-work times. You would be barred as a
trespasser from entering the district. Instead, you would have
to stand at the edge of the district, outside the community,
waving signs or shouting about your qualification as voters
come and go.
--The incumbent would control the election, its timing and its
location. He would also control the economic livelihoods of the
voters. And he could use that control to influence voters'
choice. He could even fire voters from their jobs if he thinks
they support you. Of course, this is illegal, but enforcement
will take months and years. Nothing would happen until long
after the election.
--If the incumbent lost, he could prevent you from taking office for
months and years, simply by filing appeals, even if he loses
every appeal.
This analogy demonstrates how flawed the election certification
process is. So do the NLRB's own statistics: the number of workers who
are retaliated against because they try to form a union has grown by
leaps and bounds. In 1969, the number of such workers was just over
6,000. By the 1990's, more than 20,000 workers each year were victims
of unlawful discrimination.
Research shows that at least one worker is illegally fired because
of union activity in one-fourth of the organizing campaigns attempted.
Over 90 percent of employers force employees to attend mandatory,
closed-door meetings against the union and 78 percent force their
workers to attend one-on-one meetings with their supervisors about the
union. In over half of all organizing campaigns, the employer threatens
to close the workplace if the union wins the election. Over half of
organizing campaigns that involve undocumented workers include threats
to call immigration officials.
These startling statistics of rampant interference with workers'
rights during organizing campaigns demonstrate the harsh fact that that
the NLRA process actually rewards employer violations. The Act's
remedies have no deterrent impact and are applied too late to protect
workers' free choice. This is precisely what Human Rights Watch
concluded and reported in 2000 in ``Unfair Advantage: Workers' Freedom
of Association in the United States under International Human Rights
Standards,'' p. 9. The bottom line is that workers are being robbed of
their right to a fair and free choice about forming a union because the
NLRB does not protect workers during organizing campaigns.
This interference is not cured simply because the NLRA
representation process includes a secret ballot election conducted by
an NLRB agent. A secret ballot election does not and cannot provide
workers with a fair and free choice when they have already endured
weeks and months of threats by their employer of the dire consequences
of a vote in favor of forming a union. A company's threat to lay off
workers or close the facility if the union is selected cannot be cured
by the secrecy of a polling booth. Insistence by a company that it will
never negotiate with a union, no matter how workers vote, cannot be
mitigated by a secret vote. An NLRB-conducted election does not allow a
worker, convinced by their employer's illegal threats that selecting a
union will cause grave personal and financial loss, to freely exercise
their right to vote.
The grim reality is that the Board's certification process forces
workers through a confrontational, divisive war that can last for
months and years. The inclusion, in that process, of a secret ballot
election procedure cannot erase the fears and cannot produce a fair
opportunity for workers to choose whether or not to form a union. It is
a process that not only fails to protect workers' right to a fair and
free choice regarding union representation, but also poisons the
resulting bargaining process.
But this certification process is not the only method of union
recognition provided for in the NLRA.
Since the passage of the Act, the Board and courts have recognized
that employees may demonstrate majority support for a union by means
other than a Board election. Employees may designate their majority
support by signing cards authorizing the union to represent them and
the employer may voluntarily recognize unions based on this
demonstration of majority support. Such a process has been validated by
the U.S. Supreme Court. Gissell Packing Co. v. NLRB, 395 U.S. 575
(1969) and United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62
(1956). It works in many Canadian provinces and it is required for
public sector workers in Illinois, New York and California.
The value of voluntary recognition and the legitimacy of card check
to establish majority support have been repeatedly affirmed by the
Board and are consistent with the express language of the Act itself.
Section 9(a) specifically refers to the union representative as
``designated or selected'' by a majority of the workers and does not
specify, require or prioritize any particular method. Moreover, in
passing the Taft-Hartley amendments in 1947 Congress rejected
provisions that would have eliminated voluntary recognition.
So what does this have to do with the recognition bar doctrine? How
does the recognition bar doctrine affect workers' rights to organize
and bargain?
The answer is that, through a challenge to the recognition bar
doctrine, the continued viability of voluntary recognition is at risk.
On June 7, 2004, the Board granted review in cases involving voluntary
recognition agreements and the recognition bar doctrine. The facts of
these cases are straightforward. Worker majorities at two automotive
parts supplier plants authorized the union to represent them, their
majority status was verified by a neutral third party, the employers
acceded to their workers' choice by granting recognition pursuant to a
recognition agreement with the union, and the union and employers
commenced collective bargaining negotiations. Shortly thereafter, NLRB
decertification petitions were filed seeking elections to determine the
union's continuing majority status. The petitions were dismissed by the
NLRB Regional Offices in which they were filed on the basis of the
recognition bar doctrine.
The NLRB recognition bar doctrine provides that a newly recognized
union representative will be accorded a reasonable period of time,
following voluntary recognition, to engage in collective bargaining for
a contract, free of challenges to its majority status. This policy
promotes industrial peace and stability, honors the expressed wishes of
a majority of the workers, and encourages good faith collective
bargaining between the parties. It is consistent with similar bars when
recognition is granted pursuant to a Board certification or as a result
of a settlement agreement.
The dismissals were appealed and review was granted by a divided
Board.
Dozens of briefs were filed in this case, including an amicus brief
by the NLRB's General Counsel. In his brief, the General Counsel
acknowledged that voluntary recognition through a card check process is
a ``long-established,'' ``legitimate,'' and ``well-accepted'' method of
establishing majority support. Moreover, according to the General
Counsel, voluntary recognition furthers harmony and stability of labor-
management relations and promotes ``the Act's fundamental policy of
promoting employees' choice regarding bargaining representation.''----
Brief, p. 3, 4, and 5.
A necessary corollary of voluntary recognition is the recognition
bar doctrine. Recognition bar has been the Board's policy since 1966
and has been repeatedly endorsed by the Board and courts since that
time. By insulating the newly recognized union from a decertification
election process, the recognition bar doctrine protects the new
bargaining relationship from disruption in order to allow it to mature
and succeed. It fosters stability in labor management relations and
promotes industrial peace by permitting the parties an unfettered
opportunity for negotiation of an initial contract. The predictability
and certainty it provides encourage the parties to bargain in good
faith and to work conscientiously toward agreement by eliminating the
pressure on unions of having to produce results immediately and by
discouraging employers from delaying in hopes that the union's strength
will erode. Recognition bar also respects the majority's authorization
of collective bargaining by allowing bargaining to bear fruit for
employees. The protection is not indefinite, but only for a reasonable
period of time, between about six months and one year. It is this
policy--and these goals--that the Board is now considering. To undo the
recognition bar doctrine is to so seriously undermine voluntary
recognition that it becomes meaningless and irrelevant.
The AFL-CIO is not the only organization with this view. General
Motors, Daimler/Chrysler, Ford, Delphi, Lear, Liz Claiborne, Levi,
Kaiser Permanente, and other employers filed briefs in support of the
continuation of the recognition bar doctrine. These are well-
established, solid companies that provide quality jobs for workers
here, in our local communities.
The brief filed by our nation's three largest auto manufacturers
states that they have each experienced, in varying degrees, disruptions
and distractions during the course of contentious organizing campaigns,
and that such campaigns have had an impact on their over-all labor-
management relationship. They express their belief that the recognition
bar doctrine is essential for the maintenance of industrial peace and
stability following voluntary recognition. They assert their view that
``voluntary recognition [i]s their established and valid right'' and
that each ``would experience a significant impact if voluntary
recognition were significantly undermined.'' They point out that,
without recognition bar, ``the continued viability of voluntary
recognition is threatened.'' Brief, p 8. Other employers have voiced
similar sentiments in briefs filed in support of continuing the
recognition bar doctrine.
The approaches being advocated against the recognition bar doctrine
are to either eliminate it altogether or to create a window period that
would allow the filing of a decertification petition after voluntary
recognition has been extended, regardless of the status of the parties'
collective bargaining negotiations. Such a petition, by a mere thirty
percent of the workforce, would require the Board to set aside the
expressed will of a majority of the workers in favor of a request by
only one third of the workers. A minority of the workforce would be
able to force all workers into the ordeal described above that is the
NLRB's representation process. Collective bargaining would be
effectively suspended; instead of developing a positive relationship at
the bargaining table, the union and employer would be squaring off for
a time-consuming, divisive campaign that disrupts the workplace and
creates tensions and hostilities that are not easily reversed.
What is the argument for eliminating the recognition bar doctrine?
It is being challenged on the basis of an underlying belief that
voluntary recognition is somehow inherently coercive and not entitled
to the full protection accorded recognitions resulting from either
Board certifications or settlement agreements. Not only are these
arguments just plain wrong, but they are also inconsistent with forty
years of NLRB and court precedent. As described above, voluntary
recognition has been repeatedly validated by the Board and courts since
the Act's inception; it has been endorsed by Congress and it is
embodied in the statutory language of the Act.
Voluntary recognition serves the interests of employers, employees
and unions. It is typically far more expeditious than obtaining Board
certification, so it more readily effectuates employee choice; it
minimizes the duration of workplace campaigning so as to enhance
productivity and customer service; and it creates positive labor-
management relationships.
Voluntary recognition is an NLRB regulated process, contrary to the
assertions of those who oppose it. It is subject to NLRB oversight and
enforcement. Collusion and coercion in the process of voluntary
recognition is strictly prohibited. The Act safeguards employee free
choice by ensuring the existence of majority support and outlawing
abuse in the collection of evidence of majority support. Board
procedures are already in place to make sure the process is fair and
that employee choice is honored.
In many ways, voluntary recognition incorporates even more worker
protections than the certification process. First of all, over half of
the entire workforce must support the union in order for the employer
to lawfully recognize the union as their representative. In a Board
certification process, however, workers achieve representation when
only a majority of those voting select unionization. Second, voluntary
recognition avoids the delays inherent in the certification process,
delays that deny employees the benefits of their election for months
and years. Finally, voluntary recognition fosters positive bargaining
relationships, while the certification process produces adversarial,
combative relationships which are hostile to good faith collective
bargaining.
What is currently being urged on the Board is a radical departure
from long-standing, well-established precedent. It would severely
undermine voluntary recognition, to the detriment of workers, unions
and employers. The change being sought serves no legitimate purpose,
but rather, is at odds with the stated policies of the Act, which are
to promote industrial peace, encourage collective bargaining, and
protect employees' free choice regarding representation. Instead, it
will do great harm.
Thank you for the opportunity to address this committee.
STATEMENT OF WILLIAM L. MESSENGER, STAFF ATTORNEY,
NATIONAL RIGHT TO WORK LEGAL DEFENSE
FOUNDATION
Senator Specter. Thank you very much, Ms. Schiffer.
We turn now to Mr. William Messenger, Staff Attorney for
the National Right to Work Legal Defense Foundation. He had
been on the staff of the Republican Senate Policy Committee and
the Assistant Majority Leader's Office, Federal Election
Commission, and the National Association of Manufacturers. He
has a bachelor's degree from Ohio University and a law degree
from George Washington.
Thank you for joining us, Mr. Messenger, and the floor is
yours.
Mr. Messenger. Thank you, Mr. Chairman, for the opportunity
to testify today on this important issue.
The recognition bar is a Board policy that prevents the
NLRB from conducting secret ballot elections after an employer
recognizes a particular union to be the representative of its
employees. I submit that this policy should be abandoned as it
deprives the Board and employees of the best means to determine
whether or not an employer-recognized union actually has the
support of a majority of employees.
Now, unions in this country are increasingly turning to
employer recognition to satisfy their organizing objectives.
Employer recognition is simply where an employer recognizes a
particular union as the representative of its employees and the
union accepts such recognition. Now, employer recognition over
the past decade is frequently bestowed pursuant to a
prearranged agreement between the employer and the union. These
agreements are often called voluntary recognition agreements,
neutrality agreements, or sometimes partnership agreements.
Now, while the terms of these agreements vary, the standard
provision is that they require the employer to recognize the
union, usually based upon authorization cards collected by the
union. These agreements usually also have many other types of
provisions, usually commitments by the employer to assist the
union organizing drive against its employees, and commitments
by the union to behave in an employer-friendly manner after
being recognized.
But the most important and critical aspect of employer
recognition is that it is a purely private process. It occurs
entirely outside of NLRB supervision and outside of NLRB
processes. In fact, the entire purpose of recognition or
partnership agreements is to exclude the NLRB from the
representational process. Again, employer recognition is simply
a private agreement between an employer and a union purporting
that a third party, employees, want the representation of that
union.
Now, the National Labor Relations Act was enacted to
protect the rights of that third party, of employees. And the
most important of those rights is employee freedom of choice as
to union representation. The Supreme Court has recognized there
can be no greater infringement of employee rights than for an
employer to recognize a union that does not actually enjoy
majority support.
That brings us to the underlying issue with regard to the
recognition bar: How does the NLRB determine if an employer-
recognized union actually has the support of a majority of
employees? Or to be rephrased, through what procedural
mechanism does the NLRB investigate whether the employer
recognition was in fact valid?
I respectfully submit that the NLRB secret ballot elections
are the best method for determining whether or not employees
truly support an employer-recognized union or if in fact they
do not support the union their employer recognized. In fact,
Congress enacted the representational procedures of the
National Labor Relations Act and gave employees a statutory
right to request a decertification election after employer
recognition for precisely that purpose.
The Board should not deprive itself of its primary tool for
divining employee representational preferences. Yet that is
exactly what it is doing with its recognition bar doctrine. The
bar is in fact a policy of deliberate blindness. It is a
license granting employers and unions complete control over the
representational process and the right to shut the NLRB and
employees out of that process.
PREPARED STATEMENT
Therefore, abolition of the recognition bar is needed so
that the Board can resume its proper statutory duty of ensuring
that an employer-recognized union actually has the support of a
majority of employees and therefore protect employees' rights
to choose to be represented by a representative of their
choosing or no union at all.
Thank you, Mr. Chairman.
[The statement follows:]
Prepared Statement of William L. Messenger
Chairman Specter and Distinguished Senators: Thank you for the
opportunity to comment on the National Labor Relation Board's (``NLRB''
or ``Board'') current ``recognition bar'' policy in these important
hearings.
My name is William L. Messenger. I am a Staff Attorney with the
National Right to Work Legal Defense Foundation, in Springfield,
Virginia. Since the Foundation was founded in 1968, it has provided
free legal aid to workers who choose to stand apart from a labor union,
to exercise the ``right to refrain'' that Congress granted them under
7 of the National Labor Relations Act, 29 U.S.C. 157, and that, more
fundamentally, is guaranteed by the First Amendment's freedom of
association.
I am counsel or co-counsel in several cases pending before the NLRB
challenging the Board's ``recognition bar'' policy, which is the
subject matter of this hearing. See Metaldyne Precision Forming/UAW
(St. Marys, PA), 341 N.L.R.B. No. 150 (2004); UAW & Dana Corp. (Upper
Sandusky, OH), 341 N.L.R.B. No. 150 (2004); USWA & Cequent Towing
Products (Goshen, IN), N.L.R.B. Case No. 25-RD-1447. I also represent
individual employees in several cases challenging various forms of so-
called ``neutrality agreements.'' \1\
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\1\ See Patterson v. Heartland Industrial Partners, et. al, No.
5:03 CV 1596 (U.S. District Court, N.D. Ohio); UAW & Dana Corp.
(Bristol, VA), Case Nos. 11-CB-3397, 11-CB-3398, 11-CB-3399; UAW &
Thomas Built Buses, Inc, (High Point, NC), Case Nos. 11-CB-3455-1, 11-
CA-20338; USWA & Heartland Industrial Partners (Cleveland, Ohio), Case
No. 8-CE-84; UAW (Detroit, MI), Case Nos. 7-CE-1786 & 7-CE-57; USWA &
Goodyear Tire & Rubber Co. , (Asheboro, NC), Case Nos. 11-CA-20434 et.
seq.; USWA & Metaldyne Corp. (Cleveland, OH), Case No. 8-RD-1966.
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INTRODUCTION
In 1966, with virtually no reasoning or analysis, the Board planted
the seeds of what has become known as the ``recognition bar'' in Keller
Plastics Eastern, Inc., 157 N.L.R.B. 583, 587 (1966). From this
rudimentary ruling mushroomed an unfair and undemocratic recognition
bar that blocks employees from exercising their statutory right to a
decertification election (or otherwise changing representatives) once
an employer unilaterally bestows voluntary recognition on a particular
union.
Employees enjoy a statutory right to petition for a decertification
election under 9(c)(1)(A)(ii) of the National Labor Relations Act
(``NLRA'' or ``Act''). By contrast, the voluntary recognition bar-which
frustrates employees' right to a decertification election-is not a
creature of statute. It is a discretionary Board policy which should be
reevaluated when industrial conditions warrant.
The time has come for the Board to reassess entirely the underlying
purpose of, and need for, a recognition bar. This is particularly true
given the growth of so-called ``voluntary recognition agreements.'' In
these agreements, unions and employers deliberately take advantage of
the Board's recognition bar rule to completely exclude the NLRB from
the process in which employees choose (or reject) union representation.
In a perverse way, the Board's electoral machinery is being driven to
obsolescence by its own recognition bar policy.
Exclusion of the NLRB from the representational process leaves
employee rights in the abusive hands of employers and unions that are
pursuing their own self-interests under these agreements. Unions are
desperately seeking additional members and dues revenues. Employers are
(naturally) pursuing their business interests, such as avoiding
coercive union corporate campaigns or obtaining pre-negotiated
``sweetheart deals'' regarding future-organized employees' terms and
conditions of employment. Neither entity has any interest in protecting
employee rights to freely choose or reject union representation (which
is what the NLRB exists to protect).
Employee free choice should not, and under the text of the Act can
not, be subject to the vagaries of self-interested unions and
employers. Accordingly, abolition of the ``voluntary recognition bar''
is needed to reestablish the Board's proper role in the
representational process, and thereby protect employee rights to freely
choose or reject union representation.
Thankfully, the NLRB is currently evaluating the propriety of the
recognition bar in a series of important cases.\2\ We hope that a
prompt decision in these cases will result in the rescission of the
recognition bar policy, thereby restoring to employees their right to a
secret-ballot challenging the status of an employer-recognized union.
---------------------------------------------------------------------------
\2\ See Metaldyne Precision Forming/UAW (St. Marys, PA), 341
N.L.R.B. No. 150 (2004); UAW & Dana Corp. (Upper Sandusky, OH), 341
N.L.R.B. No. 150 (2004); USWA & Cequent Towing Products (Goshen, IN),
N.L.R.B. Case No. 25-RD-1447.
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OVERVIEW OF BASIC CONCEPTS
Under current Board law, a union can become the exclusive
representative of a group of employees in three ways: (1) be
``certified'' as the representative of employees pursuant to an NLRB-
conducted secret-ballot election; (2) be ``recognized'' by an employer
as the representative of its employees; or (3) through an NLRB
``bargaining order'' in which the Board orders an employer to recognize
and bargain with a union as the remedy for its unfair labor practices.
The third method, which is reserved for extraordinary situations, does
not concern us here.
``Certification'' occurs when a union obtains the majority of votes
in a NLRB-conducted, secret-ballot election. The NLRB ``certifies''
that union is the exclusive representative of employees based upon the
uncoerced support of a majority of employees. NLRB officials control
and monitor the conduct of such elections to ensure their validity and
protect employee free choice. See General Shoe Corp., 77 N.L.R.B. 124,
127 (1948) (``In election proceedings, it is the Board's function to
provide a laboratory in which an experiment may be conducted, under
conditions as nearly ideal as possible, to determine the uninhibited
desires of the employees'').
``Recognition'' is where an employer recognizes a particular union
to be the exclusive representative of a group of its employees, and the
union accepts such recognition. The NLRB is not involved in this
process. Employer recognition is simply a private agreement between a
union and an employer in which both purport that a majority of
employees desire the union's representation.
Employers frequently recognize unions pursuant to pre-arranged
agreements between the entities. These agreements are often referred to
as ``neutrality agreements,'' ``partnership agreements,'' or
``voluntary recognition agreements.'' While the terms of the agreements
vary greatly, a standard provision is an obligation by the employer to
recognize the union without a NLRB secret-ballot election. Other common
provisions include employer commitments to assist union organizing
campaigns against their employees, and union commitments to behave in
an employer-friendly manner upon being recognized.
The National Labor Relations Act (``NLRA'') grants employees a
statutory right to petition for a decertification election challenging
the status of a recognized or certified union. Section 9(c)(1)(A)(ii)
states that employees may file an election petition asserting that
``the individual or labor organization, which has been certified or is
being currently recognized by their employer as the bargaining
representative, is no longer a representative.'' 29 U.S.C.
159(c)(1)(A)(ii).
The only statutory limitation on decertification elections is when,
within the ``preceding twelve month-period, a valid election shall have
been held.'' 29 U.S.C. 159(e)(2) (emphasis added). Thus, employees
may not petition for an election for one year after a union is
certified in an NLRB election. However, there is no statutory
restriction on an employee's right to petition for an election after a
union is merely recognized by their employer.
The ``recognition bar'' is an NLRB created policy that prevents
employees from exercising their statutory right to petition for an
election after employer recognition of a union. The bar precludes
elections for ``reasonable'' period of time, which can include a
year.\3\ The validity of this policy is the subject of this testimony.
---------------------------------------------------------------------------
\3\ See MGM Grand Hotel Inc., 329 N.L.R.B. 464, 471-472 (1999)
(election petition filed 356 days after employer recognition dismissed
pursuant to recognition bar). However, as a practical matter, the
actual bar to elections is three or more years due to common provisions
in ``neutrality agreements'' that guarantee a collective bargaining
agreement within a few months after recognition. This is discussed at
greater length below.
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ISSUE PRESENTED
How Does the NLRB Determine if an Employer-Recognized Union Actually
Has the Uncoerced Support of a Majority of Employees?
In a narrow sense, the issue is the validity of the Board's
recognition bar policy. However, the overarching issue is: how should
the NLRB determine if an employer-recognized union actually has the
uncoerced support of a majority of employees? The proper, statutorily
prescribed method for making this determination is an NLRB-conducted,
secret-ballot election.
The NLRB was created by Congress to protect employee rights.\4\ The
most important of these rights is an employee's right to choose union
representation, or refrain from union representation. 29 U.S.C. 157.
There could be ``no clearer abridgement'' of this right than for an
employer to recognize a union that does not enjoy the actual, uncoerced
support of a majority employees in the bargaining unit. Ladies Garment
Workers (Bernhard-Altmann Texas Corp.) v. NLRB, 366 U.S. 731, 737
(1961). The NLRB has a duty to ensure that an employer-recognized union
actually enjoys the uncoerced support of a majority of employees.
---------------------------------------------------------------------------
\4\ See 29 U.S.C. 153-54; Lechmere, Inc. v. NLRB, 502 U.S. 527,
532 (1992) (``By its plain terms, thus, the NLRA confers rights only on
employees, not on unions or their nonemployee organizers''); Levitz
Furniture Co. of the Pacific, Inc., 333 N.L.R.B. 717, 728 (2001)
(employers only statutory interest in representational matters ``is in
ensuring that they do not violate Section 8(a)(2) by recognizing
minority unions'').
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However, employer recognition of a union occurs entirely outside of
NLRB processes and supervision. Indeed, the primary purpose of
employer/union ``partnership agreements'' is to exclude the NLRB from
the representational process.\5\ Employer recognition is merely a
private agreement between a union and an employer in which both
entities purport that a majority of employees desire the representation
of the union.
---------------------------------------------------------------------------
\5\ Jonathan P. Hiatt & Lee W. Jackson, Union Survival Strategies
for the Twenty-First Century, Labor Law Journal, Summer/Fall 1996, p.
176 ( AFL-CIO's General Counsel writes that unions should ``use
strategic campaigns to secure recognition . . . outside the traditional
representation processes'').
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Employer recognition does not itself mean that the employer-
recognized union actually enjoys uncoerced support of a majority
employees. ``The fact that an employer bargains with a union does not
tell us whether the employees wish to be represented by the union.''
Baseball Club of Seattle, LP, Seattle Mariners, 335 N.L.R.B. 563, 567
n.2 (2001) (Member Hurtgen, dissenting); see also Ladies Garment
Workers, 366 U.S. 731 (employer negotiated with minority union based on
erroneous ``good faith'' belief that union had majority support of
employees).
The NLRB itself does not know whether or not employees actually
support the union their employer designated to represent them, unless
and until the Board takes some action to determine the representational
preferences of employees. This fact is readily apparent from the facts
of the three primary cases in which the NLRB is reviewing the validity
of the recognition bar doctrine:
``Metaldyne Precision Forming & UAW (St. Marys, PA), Case Nos. 6-
RD-1518 and 6-RD-1519. Metaldyne and the UAW are parties to a secret
``partnership agreement.'' In December, 2003, Metaldyne declared the
UAW to be the representative of its employees pursuant to that
agreement. Within days after employer recognition, over 50 percent of
employees signed a showing of interest against UAW representation and
for a decertification election. The election petition was dismissed
under the recognition bar policy.
``UAW & Dana Corp. (Upper Sandusky, OH), Case No. 8-RD-1976. Dana
and the UAW are parties to a secret `partnership agreement.' Pursuant
to this agreement, Dana provided the UAW with personal information
about employees, access to its facilities, and conducted a series of
captive audience meetings in which Dana praised its `partner' union.
Dana then recognized the UAW as the representative of its employees.
Approximately 33 days later, a decertification petition was filed, duly
supported by 35 percent of employees. The election petition was
dismissed under the recognition bar policy.
``USWA & Cequent Towing Products (Goshen, IN), Case No. 25-RD-1447.
Cequent and the USWA are parties to a secret `neutrality agreement.'
Pursuant to their agreement, Cequent and the union launched an
organizing drive against Cequent's employees in Goshen, IN. During the
campaign (and before employer recognition), a majority of employees
signed a petition stating that they did not want the USWA to be their
representative, and wanted an NLRB election in the event that Cequent
ever recognized the USWA. Despite this petition against USWA
representation, Cequent recognized the USWA as the representative of
its employees. An election petition was filed by employees within three
days of employer recognition. The petition was dismissed under the
recognition bar policy.''
In each of the above cases, it is at best unclear whether a
majority of employees actually desires the representation of the
employer-recognized union. Indeed, it is likely that the employees do
not want that representation.
Most important, the NLRB does not know what the actual free choice
of Metaldyne, Dana, and Cequent employees is with regard to union
representation.\6\ The Board has a statutory duty to ensure that a
union acting as the exclusive representative of employees enjoys the
uncoerced support of a majority. The issue then is how--or through what
procedural mechanism--does the NLRB determine if an uncoerced majority
of employees actually desires the representation of an employer
recognized union?
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\6\ That the recognition bar precludes the NLRB from conducting
elections in these cases, despite the fact that the NLRB does not know
employees' actual representational preferences at the time, is perhaps
the doctrine's greatest flaw. The recognition bar is effectively a
policy of deliberate blindness by the NLRB regarding the existence of
employee support for an employer recognized union.
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ANALYSIS
There are three possible methods through which the NLRB could
attempt to determine whether an uncoerced majority of employees support
an employer-recognized union. First, the Board can simply defer to the
decision of the employer and union. Second, the NLRB can rely on unfair
labor practice proceedings challenging the employer's recognition as
unlawful under the NLRA. Third, the NLRB can conduct secret-ballot
election to determine employees' true representational preferences.
As discussed at greater length below, the first and second options
are grossly insufficient to protect employee freedom of choice.
Deference to the decision of the employer and union leaves employee
rights in the abusive hands of these entities, each of which is
pursuing its own self-interests. This is particularly true given the
growth of ``voluntary recognition agreements,'' in which recognition is
bestowed pursuant to pre-arranged deal between an employer and union.
Unfair labor practice proceedings are also inadequate, as those
procedures were not designed to determine the representational desires
of employees. Instead, unfair labor practice charges are designed to
punish (and thereby prevent) violations of the NLRA. Moreover, conduct
which itself does not amount to an unfair labor practice, but is
offensive to employee free choice in an NLRB election because of the
higher standards of conduct required in election proceedings, is
inherent in any union ``card check'' campaign.
Only the third option--representational proceedings culminating in
an election--accurately determines whether an employer-recognized union
truly has the uncoerced support of employees. Indeed, Congress created
the representational procedures of the NLRA for expressly this purpose.
See 29 U.S.C. 159-61; see also NLRB v. Gissel Packing Co., 395 U.S.
575, 602 (1969) (``secret elections are generally the most
satisfactory-indeed the preferred-method of ascertaining whether a
union has majority support'').
Unfortunately, the Board's recognition bar policy precludes
elections after employer recognition, thereby preventing employees and
the NLRB from determining the actual representational preferences of
employees. This was the doctrine's affect in the Metaldyne, Dana, and
Cequent cases discussed above, in which election petitions were
dismissed in spite of manifest uncertainty as to what the free choice
of employees may be with regard to union representation.
The Board should overrule and discard its current recognition bar
policy. The bar serves only to prevent employees and the NLRB from
determining whether an uncoerced majority of employees desire the
representation of an employer-recognized union.
I. THE NLRB CANNOT DEFER TO THE SELF-INTERESTED CHOICE OF EMPLOYERS AND
UNIONS WITH REGARD TO THE REPRESENTATIONAL PREFERENCES OF EMPLOYEES
1. NLRB Cannot Assume That Employer Recognition of a Union Proves that
An Uncoerced Majority of Employees Actually Supports Union
Representation
An employer voluntarily recognizing a union does not itself
indicate that employees freely wish to be represented by that union.
Voluntary recognition means only that an employer has selected a
particular union to represent its employees without a Board-certified
election. An employer could potentially voluntarily recognize a union
that has majority employee support, does not have majority support, or
whose employee support was obtained through coercion.\7\
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\7\ See Ladies Garment Workers, 366 U.S. 731 (employer negotiated
with minority union based on erroneous good faith belief that union had
majority support of employees); see also Duane Reade, Inc., 338
N.L.R.B. No. 140 (2003), enforced, Case No. 03-1156, 2004 WL 1238336
(D.C. Cir. June 10, 2004) (employer recognized union after unlawfully
assisting the union by coercing employees to sign union authorization
cards).
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The Board cannot blindly defer to employer and union determinations
regarding employees' representational preferences.\8\ As the Supreme
Court long ago recognized, deferring to even an employer's ``good-
faith'' determination that a union has majority employee support
``would place in permissibly careless employer and union hands the
power to completely frustrate employee realization of the premise of
the Act-that its prohibitions will go far to assure freedom of choice
and majority rule in employee selection of representatives.'' Ladies
Garment Workers, 366 U.S. at 738-39 (emphasis added).\9\
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\8\ See Auciello Iron Works v. NLRB, 517 U.S. 781, 790 (1996)
(``There is nothing unreasonable in giving a short leash to the
employer as vindicator of its employees' organizational freedom''); see
also Levitz Furniture, 333 N.L.R.B. 717 (employer determinations as to
employee support or opposition to union representation disfavored);
Underground Service Alert Southern California, 315 N.L.R.B. 958, 960-61
(1994) (same).
\9\ This lesson was recently reiterated in Nova Plumbing, Inc. v.
NLRB, 330 F.3d 531 (D.C. Cir. 2003). There, the Board deferred to a
contractual agreement between an employer and union stating that the
union had majority employee support, without independently verifying
the truth of that assertion. The D.C. Circuit reversed, holding that
``[b]y focusing exclusively on employer and union intent, the Board has
neglected its fundamental duty to protect employee section 7 rights,
opening the door to even more egregious violations than the good faith
mistakes at issue in Garment Workers.'' Id. at 537.
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Indeed, there is a long and tawdry history of cases in which
employers recognized unions that did not enjoy the support of an
uncoerced majority of employees.\10\ In many cases, the employer itself
distorted employee free choice by pressuring employees to ``vote'' for
a favored union by signing union authorization cards.
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\10\ The cases where an employer conspired with its favored union
to secure ``recognition'' of that union are legion. See, e.g., Duane
Reade, Inc., 338 N.L.R.B. No. 140 (2003), enforced, Case No. 03-1156,
2004 WL 1238336 (D.C. Cir. June 10, 2004) (employer unlawfully assisted
UNITE and unlawfully granted recognition); Fountain View Care Center,
317 N.L.R.B. 1286 (1995), enf'd, 88 F.3d 1278 (D.C. Cir. 1996)
(supervisors and other agents of the employer actively encouraged
employees to support the union); NLRB v. Windsor Castle Healthcare
Facility, 13 F.3d 619 (2nd Cir. 1994), enforcing 310 N.L.R.B. 579
(1993) (employer provided sham employment to union organizers and
assisted their recruitment efforts); Kosher Plaza Super Market, 313
N.L.R.B. 74, 84 (1993); Brooklyn Hospital Center, 309 N.L.R.B. 1163
(1992), aff'd sub nom. Hotel, Hosp., Nursing Home & Allied Servs.,
Local 144 v. NLRB, 9 F.3d 218 (2nd Cir. 1993) (employer permitted local
union, which it had already recognized as an exclusive bargaining
representative, to meet on its premises for the purpose of soliciting
union membership); Famous Casting Corp., 301 N.L.R.B. 404, 407 (1991)
(employer actions unlawfully supported union and coerced the employees
into signing authorization cards); Systems Management, Inc., 292
N.L.R.B. 1075, 1097-98 (1989), remanded on other grounds, 901 F.2d 297
(3rd Cir. 1990); Anaheim Town & Country Inn, 282 N.L.R.B. 224 (1986)
(employer actively participated in the union organizational drive from
start to finish); Meyer's Cafe & Konditorei, 282 N.L.R.B. 1 (1986)
(employer invited union it favored to attend hiring meeting with
employees); Denver Lamb Co., 269 N.L.R.B. 508 (1984); Banner Tire Co.,
260 N.L.R.B. 682, 685 (1982); Price Crusher Food Warehouse, 249
N.L.R.B. 433, 438-49 (1980) (employer created conditions in which the
employees were led to believe that management expected them to sign
union cards); Vernitron Electrical Components, 221 N.L.R.B. 464 (1975),
enf'd., 548 F.2d 24 (1st Cir. 1977); Pittsburgh Metal Lithographing
Co., Inc., 158 N.L.R.B. 1126 (1966).
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The Board's current policy of dismissing employee election
petitions seeking to determine whether a union has the actual support
of employees, because an employer avers that the union it recognized
had majority employee support (i.e. the recognition bar), repeats the
folly identified in Ladies Garment Workers. The Board's failure to
determine for itself whether the employer-recognized union actually has
the uncoerced support of a majority of employees by conducting a secret
ballot election places fundamental employee rights directly in
``permissibly careless employer and union hands.'' Id.
Worse still, the Board abdicates its statutory duties by deferring
to employer and union determinations as to the representational
preferences of employees. Congress empowered the NLRB to administer the
Act and decide representational matters. See 29 U.S.C. 153-54, 159-
161. The Board is thereby charged with protecting employee rights under
7 of the Act, see, e.g., 29 U.S.C. 160, and with determining and
ensuring that employees' representational wishes are realized under 9
of the Act. See 29 U.S.C. 159. The Board cannot delegate its duties
to self-interested employers and unions.
2. Employer Recognition Bestowed Upon a Union Pursuant to a ``Voluntary
Recognition Agreement'' Counsels Heightened Board Scrutiny
Regarding Whether an Employer Recognized Union Truly Enjoys the
Uncoerced Support of a Majority of Employees
Employer recognition of a union pursuant to a pre-arranged deal
between the entities counsels even greater scrutiny from the NLRB than
employer recognition made in the absence of such an arrangement (which
is itself undependable). Employer recognition pursuant to a ``voluntary
recognition agreement'' is not an ``arm's length'' determination that
likely reflects the free choice of employees. Instead, it reflects only
the intersection of the employer and union self-interests that led to
the parties to make the agreement in the first place.
Unions are aggressively seeking voluntary recognition agreements to
satisfy their self-interest in acquiring more dues paying employees to
replenish their rapidly diminishing ranks.\11\ Every new facility
organized brings more members into the union, more money into union
coffers through compulsory dues payments, and places more power in the
hands of union officials.\12\
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\11\ The facts are well known: most unions are desperate for new
dues paying members. In 2003, 12.9 percent of wage and salary workers
were union members, down from 13.3 percent in 2002, according to the
U.S. Department of Labor's Bureau of Labor Statistics. http://
www.bls.gov/news.release/union2.nr0.htm (January 21, 2004). The number
of persons belonging to a union fell by 369,000 in 2003, to a total of
15.8 million. The union membership rate has steadily declined from a
high of 20.1 percent in 1983, the first year for which comparable union
data are available. For example, in 1982, the Steelworkers claimed 1.2
million members, but by 2002 the number was 588,000. In 1982 the UAW
claimed 1.14 million members, by 2002, 700,000 members. As of today,
only 8.2 percent of the private sector workforce is unionized, and the
other 91.8 percent do not appear to be flocking to join. IBM Corp., 341
N.L.R.B. No. 148, slip op. at 19 n.9 (2004). In UFCW Local 951 (Meijer,
Inc.), 329 N.L.R.B. 730 (1999), Texas A & M labor economist Morgan O.
Reynolds testified that the single largest factor hindering union
organizing is employee resistance. According to Prof. Reynolds, polling
data commissioned by the AFL-CIO indicates that \2/3\ of employees are
not favorably disposed towards unions. (Hearing Transcript pp. 1382-
83).
\12\ In United Food & Commercial Workers Locals 951, 7 & 1036
(Meijer, Inc.), 329 N.L.R.B. 730, 732, 734-35 (1999), the UFCW unions
and the Board majority relied upon the expert testimony of a labor
economist, Professor Paula Voos. Prof. Voos has written that unions
seek to organize for a whole host of reasons, including the desire of
union leaders for political aggrandizement and power; the monetary
self-interest of union leaders to keep and enhance their own jobs and
wages; and the perceived ``social idealism'' and ``ideological gains''
brought about by union organizing. See Paula Voos, Union Organizing
Costs and Benefits, 36 Industrial and Labor Relations Review 576, 577
(July 1983). Professor Voos also wrote that organizing is a profit-
making venture for many unions. Id. at 577 & n.5. For example, she
recognized that unions often organize larger units precisely because
that is ``where the money is!'' Id. at 578 n.8.
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By seeking voluntary recognition agreements, unions are effectively
organizing employers, not employees, by coercing or coaxing the
employers to agree in advance which particular union is to represent
employees. The employer and its anointed union then work together to
organize employees from the ``top down,'' irrespective of the
employees' actual preference.\13\
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\13\ Organized labor's ``top-down'' organizing strategy is
repulsive to central purposes of the NLRA, and creates the potential
for severe abuse of employees' 7 rights. See Connell Construction
Company, Inc. v. Plumbers & Steamfitters Local No. 100, 421 U.S. 616,
632 (1975) (``One of the major aims of the 1959 Act was to limit top-
down' organizing campaigns''); Woelke & Romero Framing v. NLRB, 456
U.S. 645, 653 n.8 (1982) (``It is undoubtedly true that one of the
central aims of the 1959 amendments to the Act was to restrict the
ability of unions to engage in top-down organizing campaigns'')
(citations omitted).
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Unions obtain voluntary recognition agreements from employers with
a combination of the ``stick'' and the ``carrot.'' The ``stick'' often
includes ``corporate campaigns'' against the employer,\14\ the use of
secondary pressure,\15\ and enlisting the aid of state or local
government to force private employers to sign voluntary recognition
agreements with a favored union as a condition of doing business with
the governmental entity.\16\
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\14\ It is well documented that these corporate campaigns include,
inter alia, baseless lawsuits, unfavorable publicity to cast the
employer in an evil light and pressure by so-called ``community
activists.'' See Daniel Yager & Joseph LoBue, Corporate Campaigns and
Card Checks: Creating the Company Unions of the Twenty-First Century,
24 Employee Relations Law Journal 21 (Spring 1999); Symposium:
Corporate Campaigns, 17 Journal of Labor Research, No. 3 (Summer 1996);
Herbert R. Northrup & Charles H. Steen, Union `Corporate Campaigns' as
Blackmail: the RICO Battle at Bayou Steel, 22 Harv. J. L. & Pub. Pol'y
771 (1999).
\15\ See, e.g., Pittsburgh Fulton Renaissance Hotel, Case No. 6-CE-
46, at 5 (N.L.R.B. G.C. Feb. 7, 2002) (Division of Advice finds that
provision of neutrality agreement that ``does not permit the Employer
to lease, contract or subcontract its operations . . . to any person
unless that person agrees to neutrality, access, voluntary recognition,
card-check, no-strike/no-lockout, etc. provisions of the neutrality
agreement'' violates 8(e), but advises against issuing a complaint
because it is time-barred under 10(b)); Int'l Union UAW, Case No. 7-
CE-1786 et al (case pending before General Counsel alleging that UAW
has 8(e) agreement with auto manufacturers to not do business with
automobile parts suppliers that do not sign voluntary recognition
agreements with UAW); Heartland Industrial Partners (USWA), Case No. 8-
CE-84 (case pending before General Counsel alleging that USWA has
8(e) agreement with an investment company that requires the company to
not do certain business with employers that will not sign the USWA
neutrality agreement).
\16\ See Aeroground, Inc. v. City & County of San Francisco, 170 F.
Supp. 2d 950 (N.D. Cal. 2001) (San Francisco Airport Authority mandate
that private concessionaires who wished to lease space at the airport
had to first sign a neutrality agreement preempted); Chamber of
Commerce v. Lockyer, 364 F.3d 1154 (9th Cir. 2004) (California statute
that forbids employers who receive state grants or funds from using
such funds to advocate against or in favor of union organizing is
preempted); H.E.R.E. Local 57 v. Sage Hospitality Resources LLC, 299 F.
Supp. 2d 461 (W.D.Pa. 2003), appeal pending, Third Circuit Case No. 03-
4168 (City of Pittsburgh pressured hotel operator to sign a neutrality
and card check agreement as a condition of approving the public
financing necessary to complete its project, even directing the hotel
operator to contact specific HERE officials to negotiate this mandatory
arrangement).
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The ``carrot'' frequently includes pre-negotiating terms and
conditions of employment favorable to the employer that will come into
effect upon the union successfully organizing employees.\17\ In each of
the three major recognition bar cases currently pending before the
Board, the union agreed to ``sweetheart'' collective bargaining terms
in exchange for employer assistance with organizing employees.
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\17\ See Majestic Weaving Co., 147 N.L.R.B. 859 (1964), enforcement
denied on other grounds, 355 F.2d 854 (2nd Cir. 1966)
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In USWA and Cequent Towing Products (Goshen, IN), N.L.R.B. Case No.
25-RD-1447, the USWA agreed to a ``Side Letter and Framework''
agreement that limits the wages and benefits employees can attain after
the USWA is recognized as their union representative.\18\ In UAW and
Dana Corp. (Upper Sandusky, OH), Case No. 8-RD-1976, the UAW signed a
``partnership agreement'' with Dana in which the union pre-negotiated
several terms and conditions of employee's employment in a manner
favorable to the employer.\19\ Finally, in Metaldyne Precision Forming
and UAW (St. Marys, PA)., Case Nos. 6-RD-1518 and 6-RD-1519, Metaldyne
and the USWA entered into a ``partnership agreement'' in which the USWA
sacrificed the right of employees to strike or engage in work actions
to support bargaining demands.\20\
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\18\ See November 27, 2000, Side Letter and Framework for a
Constructive Collective Bargaining Relationship Agreements between
Heartland Industrial Partners, LLP (Cequent's parent company) and the
USWA, at Side Letter 9(A-C).
\19\ On September 3, 2004, the NLRB's Office of General Counsel
decided to issue unfair labor practice complaints against the UAW and
Dana for violating 8(a)(1), 8(a)(2), and 8(b)(1)(A) of the Act by
entering into agreements regarding employees' terms and conditions of
employment in their ``partnership agreement''. See Dana Corp. (UAW),
Case Nos. 7-CA-46965 et. seq., Dana Corp. (UAW), Case Nos. 7-CA-47079
et. seq., and Dana Corp. (UAW), Case Nos. 11-CA-20134 et. seq.
\20\ Waiving employees' right to strike is a massive concession at
the expense of employees, as it destroys employee bargaining leverage
to obtain favorable terms and conditions of employment. ``The economic
strike against the employer is the ultimate weapon in labor's arsenal
for achieving agreement upon its terms.'' NLRB v. Allis-Chalmers Mfg.
Co., 388 U.S. 175, 181 (1967) see also Pattern Makers League v. NLRB,
473 U.S. 95, 129 (1985) (``The strike or the threat to strike is the
workers' most effective means of pressuring employers, and so lies at
the center of the collective activity protected by the Act'') (emphasis
added).
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A typical example of the ``carrot'' of favorable terms and
conditions of employment unions are willing to offer employers in
exchange for assistance with organizing is the ``Agreement on
Preconditions to a Card Check Procedure Between Freightliner LLC and
the UAW.'' This reprehensible agreement speaks for itself. A copy of it
is attached to this testimony.
Employers have a wide variety of self-interested business reasons
to enter into voluntary recognition agreements that have nothing to do
with facilitating employee free choice. This primarily includes
avoiding the ``stick'' of union pressure tactics, and/or obtaining the
``carrot'' of favorable future collective bargaining agreements, as
discussed above. Other reasons for which employers have assisted union
organizing drives include: (a) to cut off the organizing drive of a
less favored union; (b) because of the existence of a favorable
bargaining relationship with the union at another facility; or (c) as a
bargaining chip during negotiations regarding other bargaining
units.\21\
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\21\ See Price Crusher Food Warehouse, 249 N.L.R.B. 433 (1980);
Brooklyn Hospital Center, 309 N.L.R.B. 1163 (1992), aff'd sub nom.,
Hotel, Hosp., Nursing Home & Allied Servs., Local 144 v. NLRB, 9 F.3d
218 (2nd Cir. 1993); and Kroger Co., 219 N.L.R.B. 388 (1975),
respectively.
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None of the union or employer motivations or arrangements for
entering into voluntary recognition agreement center on ensuring
employee free choice. Instead, unions and employers seek and enter into
these agreements purely to satisfy their narrow self-interests.
Accordingly, employer and union determinations regarding the
representational choices of employees that are made pursuant to pre-
arranged ``partnership agreements'' are entitled to no deference from
the NLRB.
II. UNFAIR LABOR PRACTICE PROCEEDINGS ARE AN INADEQUATE SUBSTITUTE FOR
SECRET-BALLOT ELECTIONS FOR DETERMINING THE REPRESENTATIONAL
PREFERENCES OF EMPLOYEES
1. Unfair Labor Practice Proceedings Are Not Designed to Determine the
Representational Preferences of Employees
Unfair labor practice procedures are inadequate to determine
whether employees support or oppose union representation because that
is simply not what the procedures were designed by Congress to
accomplish. Sections 10 and 11 of the Act empower the Board to prevent
and remedy violations of the Act. 29 U.S.C. 160-61. Sections 3(d) and
10 of the Act assign the General Counsel with the responsibility of
investigating unfair labor practice charges, issuing and prosecuting
complaints, and seeking compliance with Board orders in Court. These
sections were not designed to determine the representational wishes of
employees. 29 U.S.C. 153(d) and 160. By contrast, Congress
specifically enacted 9 of the Act to gauge whether employees support
or oppose union representation. 29 U.S.C. 159
Congress also solely empowered the Board to decide representational
issues. Id. By contrast, unfair labor practice charges are filtered
sparingly through the General Counsel's discretionary prosecutorial
lens. See 29 U.S.C. 153(d); NLRB v. UFCW, 484 U.S. 112 (1987)
(General Counsel has unreviewable discretion to issue or not issue
unfair labor practice complaints). Allowing the General Counsel to
resolve what are effectively representational issues-determining
whether the union designated by an employer has the uncoerced support
of a majority of employees-is contrary to the basic structure of the
Act.
As a practical matter, an after-the-fact investigation of an unfair
labor practice allegation does not affirmatively determine the
representational desires of employees. It merely hunts for unfair labor
practices. It is impossible for the General Counsel, after-the-fact, to
divine the true wishes of employees by trying to piece together all the
myriad events and circumstances that occurred in a ``card check''
drive.
2. Conduct Offensive to Employee Free Choice in an NLRB Election, Which
Does Not Itself Amount to An Unfair Labor Practice, is Inherent
in ``Card Check'' Campaigns
A higher standard for union and employer conduct is required in
representational proceedings than in unfair labor practice proceedings.
In secret-ballot elections, the Board provides a ``laboratory'' in
which an experiment may be conducted, under conditions as nearly ideal
as possible, to determine employees' uninhibited desires.\22\ A lower
standard is utilized in unfair labor practice proceedings.
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\22\ See General Shoe, 77 N.L.R.B. 124, 127 (1948); see also NLRB
v. Sanitary Laundry, 441 F.2d 1368, 1369 (10th Cir. 1971); Gissel
Packing, 395 U.S. 525, 601-602 (1969).
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Conduct that does not rise to the level of an unfair labor practice
can interfere with employee free choice in an NLRB election, and
warrant overturning the results of that election. See General Shoe, 77
N.L.R.B. 124, 127 (1948). A union can become the exclusive bargaining
representative of employees via employer recognition by engaging in
conduct that would have precluded it from obtaining such status through
a secret-ballot election, without committing an unfair labor practice.
In fact, conduct objectionable in any secret-ballot election is
inherent to union ``card check'' campaigns!
For example, in an NLRB-supervised secret ballot election, the
following conduct has been held to upset the laboratory conditions
necessary to guarantee employee free choice, thus requiring the
invalidation of the election: (a) electioneering activities, or even
prolonged conversations with prospective voters, at or near the polling
place; \23\ (b) speechmaking by a union or employer to massed groups or
captive audiences within 24 hours of the election; \24\ and (c) a union
or employer keeping a list of employees who vote as they enter the
polling place (other than the official eligibility list).\25\
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\23\ See Alliance Ware Inc., 92 N.L.R.B. 55 (1950) (electioneering
activities at the polling place); Claussen Baking Co., 134 N.L.R.B. 111
(1961) (same); Bio-Medical Applications of P.R., 269 N.L.R.B. 827
(1984) (electioneering among the lines of employees waiting to vote);
Pepsi Bottling Co. of Petersburg, 291 N.L.R.B.578 (1988) (same).
\24\ Peerless Plywood Co., 107 N.L.R.B. 427 (1953).
\25\ Piggly-Wiggly, 168 N.L.R.B. 792 (1967).
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Yet, this conduct occurs in almost every ``card check campaign.''
When an employee signs (or refuses to sign) a union authorization card,
he is not likely to be alone. To the contrary, it is likely that this
decision is made in the presence of one or more union organizers
soliciting the employee to sign a card, and thereby ``vote'' for the
union.\26\ This solicitation could occur during or immediately after a
union mass meeting or a company-paid captive audience speech. In all
cases the employee's decision is not secret, as in an election, as the
union clearly has a list of who has signed a card and who has not.\27\
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\26\ The Board's justification for prohibiting solicitation
immediately prior to employee voting in a secret-ballot election is
fully applicable to the situation of an employees making a
determination as to union representation in a card check drive. ``The
final minutes before an employee casts his vote should be his own, as
free from interference as possible. Furthermore, the standard here
applied insures that no party gains a last minute advantage over the
other, and at the same time deprives neither party of any important
access to the ear of the voter.'' Milchem Inc., 170 N.L.R.B. 362, 362
(1968). Union soliciting and cajoling employees to sign authorization
cards is incompatible with this rationale.
\27\ An additional distinction is that in a secret-ballot election,
once an employee has made the decision ``yea or nay'' by casting a
ballot, the process is at an end. By contrast, a choice against signing
a union authorization card does not end the decision-making process for
an employee in the maw of a ``card check drive,'' but often represents
only the beginning of harassment for that employee. Eventually, many
employees sign union authorization cards just to get the union
organizers ``off their back.''
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A very recent Board decision further demonstrates that conduct
inherent to a card-check drive is objectionable and coercive if done
during a secret-ballot election. In Fessler & Bowman, Inc., 341
N.L.R.B. No. 122 (2004), the Board announced a prophylactic rule that
prohibits union officials from performing the ministerial task of
handling a sealed secret ballot--even absent a showing of tampering--
because where ``ballots come into the possession of a party to the
election, the secrecy of the ballot and the integrity of the election
process are called into question.'' (Slip. op. at 2).
In a card check campaign, union officials do much more than merely
handle a sealed secret ballot as a matter of convenience to one or more
of the employees. Union officials directly solicit employees to sign an
authorization card (and thereby cast their ``vote''), stand over them
as they ``vote,'' know with certainty how each individual employee
``voted,'' and then physically collect, handle and tabulate these
purported ``votes.'' This conduct is infinitely more intimidating and
intrusive than the theoretical taint found to warrant a remedy in
Fessler & Bowman.
Accordingly, even a card-check drive devoid of conduct that may
constitute an unfair labor practice does not approach the ``laboratory
conditions'' guaranteed in a Board-conducted election.\28\ The
superiority of Board supervised secret-ballot elections for protecting
employee free choice is beyond dispute. It is therefore incongruous for
the Board to apply the unyielding recognition bar to card check
recognitions, because the lack of integrity inherent in such card
checks would surely taint a Board election held under similar
circumstances.
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\28\ Of course, many card-check drives are also fraught with union
coercion, intimidation and misrepresentations that could amount to an
unfair labor practice charges. See eg HCF Inc., 321 N.L.R.B. 1320
(1996) (union ``not responsible'' for threats to employee by
authorization card solicitor that ``the union would come and get her
children and it would also slash her tires''); Levi Strauss & Co., 172
N.L.R.B. 732, 733 (1968) (Board recognizes the serious problem of union
misrepresentations about the purpose and effect of an authorization
card).
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3. Secret Ballot Elections are a Faster and More Decisive Method to
Determine Employee Representational Preferences Than Unfair
Labor Practice Proceedings
Finally, representational proceedings are faster than unfair labor
practice proceedings. See NLRB Case Handling Manual, para. 11000
``Agency Objective'' (``The processing and resolution of petitions
raising questions concerning representation, i.e., RC, RM, and RD
petitions, are to be accorded the highest priority''). This is
particularly true in the context of employer recognition bestowed
pursuant to a ``partnership agreement,'' as the ``partners'' are
unlikely to file blocking charges against each other that delay an
expeditious election.
Representational proceedings are also more decisive, as an election
is a one-time occurrence that definitively decides the issue, one way
or the other. By contrast, unfair labor practice proceedings generate
multiple preliminary decisions as the charge proceeds from the General
Counsel, to trial before an Administrative Law Judge, to the Board
itself, and then to an appellate court. These proceedings are the
equivalent to holding a ``sword of Damocles'' over a collective
bargaining relationship for years.
Thus, representational proceedings are far superior to unfair labor
practice proceedings for stabilizing (lawful) collective bargaining
relationships, as they settle the issue of whether the employer-
recognized union enjoys uncoerced majority support quickly and in ``one
fell swoop.'' Ironically, effectuating the Act's interest in the
``stability of labor-management relations'' is one of the primary
arguments proponents of the recognition bar raise to justify its
existence. In reality, by forcing employees to turn to drawn-out ULP
proceedings to protect their representational rights, the recognition
bar injures that interest. For all of the above stated reasons, unfair
labor practice proceedings are an inadequate and wholly inappropriate
substitute for secret-ballot elections for determining employees' true
representational preferences.
III. THE SUPERIORITY OF BOARD SUPERVISED SECRET-BALLOT ELECTIONS IS
BEYOND DISPUTE
1. Secret Ballot Elections are the Act's Preferred Method for
Determining the Representational Preferences of Employees
Congress created the NLRA's statutory representation procedures to
determine whether employees support or oppose representation by a
particular union. See 29 U.S.C. 159. The Supreme Court has long
recognized that Board supervised secret-ballot elections are the
preferred method for gauging whether employees desire union
representation.\29\ The Board and the lower courts similarly
``emphasize that Board-conducted elections are the preferred way to
resolve questions regarding employees' support for unions.'' Levitz
Furniture, 333 N.L.R.B. at 723, citing Gissel, 395 U.S. at 602.\30\
---------------------------------------------------------------------------
\29\ See Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301,
304, 307 (1974); NLRB v. Gissel Packing Co., 395 U.S. 575, 602 (1969)
(``secret elections are generally the most satisfactory-indeed the
preferred-method of ascertaining whether a union has majority
support''); Brooks v. NLRB, 348 U.S. 96 (1954) (``an election is a
solemn and costly occasion, conducted under safeguards to voluntary
choice'').
\30\ See also Underground Service Alert, 315 N.L.R.B. 958, 960
(1994); NLRB v. Cornerstone Builders, Inc., 963 F.2d 1075, 1078 (8th
Cir. 1992).
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Even the AFL-CIO has recognized that NLRB supervised secret-ballot
elections are superior to ``card checks'' in establishing the true
choice of the uncoerced majority. With regard to an employer
withdrawing recognition from a union (as opposed to bestowing
recognition), the AFL-CIO argued to the Board that employee petitions
and cards advocating decertification ``are not sufficiently reliable
indicia of the employees' desires,'' and that employees and employers
should only be able to remove a union pursuant a secret-ballot
election. See Brief of the AFL-CIO to the NLRB in Chelsea Industries &
Levitz Furniture Co. of the Pacific, Inc., Case Nos. 7-CA-36846, at 13
(May 18, 1998).\31\
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\31\ Clearly, labor union officials are not advocating employer
determinations based on cards or petitions because these officials
sincerely believe that this method reflects employee sentiment more
reliably than a Board supervised secret-ballot election. Rather, they
advocate the ``card check recognition'' process solely to advance their
self-serving interests.
---------------------------------------------------------------------------
Fully recognizing this principle, the Board has held that non-
electoral evidence of employee support--even if untainted by unfair
labor practices--is not as reliable in gauging employee support for a
union as an election. In Underground Service Alert Southern California,
315 N.L.R.B. 958 (1994), a majority of employees voted for union
representation in a decertification election. But, well before the
election results were known, a solid majority of employees delivered a
signed petition to their employer making clear that they did not
support union representation. The employer withdrew recognition. Even
though the investigation revealed no ``impropriety, taint, factual
insufficiency, or unfair labor practice of any type with respect to
this employee petition,'' id. at 959, the Board held that the employer
violated the Act because the election results were a far superior
indication of employee wishes. The employee petition was considered a
``less-preferred indicator of employee sentiment,'' particularly as
compared to ``the more formal and considered majority employee
preference for union representation which was demonstrated by the
preferred method--the Board-conducted secret-ballot election.'' Id. at
961. The Board explained why:
``The election, typically . . . is a more reliable indicator of
employee wishes because employees have time to consider their options,
to ascertain critical facts, and to hear and discuss their own and
competing views. A period of reflection and an opportunity to
investigate both sides will not necessarily be available to an employee
confronted with a request to sign a petition rejecting the union. No
one disputes that a Board-conducted election is much less subject to
tampering than are petitions and letters.''
Id. at 960, quoting W. A. Krueger Co., 299 N.L.R.B. 914, 931 (1990)
(Member Oviatt, concurring in part and dissenting in part).
That the superiority of secret-ballot elections could require
extended argument is itself remarkable. Every American understands
instinctively that such elections are the cornerstone of any system
that purports to be democratic. Accordingly, any averment by union
officials that they are attempting to save industrial democracy by
eliminating the secret-ballot election should be greeted with the
incredulity the proposition deserves.
2. Employee Freedom of Choice is Paramount Under the NLRA, and Thereby
Must be Given the Greatest Weight in Any Analysis
Because NLRB-conducted secret-ballot elections are the best means
to effectuate employee free choice as to union representation, it is
imperative that the Board favor and encourage this option. After all,
``employee free choice'' must be granted the greatest weight in any
analysis, as the fundamental and overriding principle of the Act is
``voluntary unionism.'' Pattern Makers v. NLRB, 473 U.S. 95, 104-07
(1985).\32\
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\32\ See also Rollins Transportation System, 296 N.L.R.B. 793, 793
(1989) (emphasis added) (``The paramount concern . . . must be the
employees' right to select among two or more unions, or indeed to
choose none'') (emphasis added); In re MV Transportation, 337 N.L.R.B.
770, 775 (2002) (``the fundamental statutory policy of employee free
choice has paramount value, even in times of economic change''); Bloom
v. NLRB, 153 F.3d 844, 849-50 (8th Cir. 1998) (``Enlisting in a union
is a wholly voluntary commitment; it is an option that may be freely
undertaken or freely rejected''), vacated & remanded on other grounds
sub nom. OPEIU Local 12 v. Bloom, 525 U.S. 1133 (1999).
---------------------------------------------------------------------------
Any notion that the NLRA's fundamental purpose is to increase the
membership ranks of labor organizations is false. The Act exists to
enable employees to freely choose union representation, or freely
reject union representation. It does not favor one choice over the
other.\33\ As former NLRB Member Brame cogently stated: ``unions exist
at the pleasure of the employees they represent. Unions represent
employees; employees do not exist to ensure the survival or success of
unions.'' MGM Grand Hotel, 329 N.L.R.B. at 475 (Member Brame,
dissenting).
---------------------------------------------------------------------------
\33\ Section 7 of the NLRA could not be more clear: ``Employees
shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of
their own choosing . . . and shall also have the right to refrain from
any or all such activities.'' (emphasis added). Similarly, 8(a)(3)
precludes ``discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization.'' (emphasis added).
---------------------------------------------------------------------------
Also, the policy of ``encouraging the practice and procedure of
collective bargaining,'' stated in the preamble to the Act at 29 U.S.C.
151, does not mean that the Act endorses favoritism towards unions or
employees who support union representation over those who wish to
refrain from union representation. Only where a majority of employees
freely select union representation is there any policy interest in
promoting collective bargaining or labor stability. Because collective
bargaining is entirely predicated on the exercise of employee free
choice enshrined in 7 of the Act.\34\ This is amply demonstrated by
the undisputable fact that the NLRA does not favor ``collective
bargaining'' between an employer and a union that lacks the uncoerced
support of a majority of employees, but instead condemns it as a
grievous offense against employee rights.\35\
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\34\ See Levitz Furniture, 333 N.L.R.B. at 731 (Member Hurtgen,
concurring) (``our nation protects and encourages the practice and
procedure of collective bargaining for those employees who have freely
chosen to engage in it''); In re MV Transportation, 337 N.L.R.B. 770,
772 (2002) (``[preservation of the stability of bargaining
relationships] is a matter of policy and operates with respect to those
situations where employees have chosen a bargaining relationship'')
(citations omitted, emphasis added).
\35\ See Ladies Garment Workers, 366 U.S. at 737; Majestic Weaving,
147 N.L.R.B. at 860-61.
---------------------------------------------------------------------------
Since collective bargaining is predicated on employee free choice,
the Act's policy of promoting stable collective bargaining
relationships favors secret-ballot elections. Unless and until the NLRB
holds an election to determine whether employees truly support or
oppose union representation, the interest of ``encouraging the practice
and procedure of collective bargaining'' cannot be attributed to any
bargaining relationship, as the employer-recognized union may in fact
lack majority employee support.\36\
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\36\ It is for this reason that the interest in ``encouraging . . .
collective bargaining'' cannot support the Board's current voluntary
recognition bar policy, as the bar prevents the Board from determining
if the employer-selected union has majority employee support. Without
such a determination, there is no interest in preserving the stability
of a union/employer bargaining relationship that may be unlawful.
---------------------------------------------------------------------------
Accordingly, when employees petition for a decertification election
after their employer selects a particular union as the representative
of its employees, the Board should conduct a secret-ballot election to
protect and facilitate the Act's paramount interest in employee free
choice. The recognition bar policy, which precludes the NLRB from
conducting such elections, should be discarded.
IV. THE BOARD'S RECOGNITION BAR POLICY THREATENS TO RENDER THE NLRA'S
REPRESENTATIONAL PROCEDURES IRRELEVANT AND UNUSABLE IN THE CURRENT AGE
OF VOLUNTARY RECOGNITION AGREEMENTS
The recognition bar policy threatens the continued viability of the
Board's representation machinery. Unions and employers are taking
advantage of the Board's current recognition bar policy by entering
into voluntary recognition agreements that render it virtually
impossible for the NLRB to conduct secret-ballot elections. The NLRB
must not permit self-interested employers and unions to render the
representation procedures of 9 unusable and irrelevant, and deny the
Board its supervisory role in the union selection (or rejection)
process.
Two common provisions of ``partnership'' or ``neutrality''
agreements operate to preclude the use of the Board's procedures.
First, virtually all these agreements require an employer to recognize
the union without an NLRB election. This provision automatically waives
both the employer's and union's right to request a Board-supervised
election,\37\ and blocks election petitions from employees under the
recognition bar.
---------------------------------------------------------------------------
\37\ See Central Parking, 335 N.L.R.B. 390 (2001); Verizon
Information Systems, 335 N.L.R.B. 558 (2001).
---------------------------------------------------------------------------
Second, many ``partnership'' agreements establish an arbitration
procedure that guarantees a collective bargaining agreement in the
event that the employer and union are unable to negotiate an agreement
within a certain amount of time after employer recognition.\38\ This
provision effectively ensures that a contract will be signed before the
recognition bar period expires. See e.g. MGM Grand, 329 N.L.R.B. 464
(1999) (recognition bar can last one year or more). Moreover, after
this contract is signed, the Board created ``contract bar'' rules then
apply to preclude an election for another three years.\39\
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\38\ The neutrality and partnership agreements used in the Dana,
Metaldyne, and Cequent cases all include such an arbitration provision.
\39\ See Waste Management of Maryland, 338 N.L.R.B. No. 155 (2003)
(``contract bar'' precludes election petitions during first three years
of a collective bargaining agreement, save a 30-day window period near
the end of the period).
---------------------------------------------------------------------------
Thus, under current Board policy, many ``neutrality'' or
``partnership'' agreements block election petitions for three or more
years because (i) employer recognition triggers the recognition bar;
(ii) an arbitration provision ensures that a collective bargaining
agreement is signed before the voluntary recognition bar expires; (iii)
the signing of the collective bargaining agreement triggers the
``contract bar,'' which bars petitions for approximately three years.
Under this regime, it is impossible for any party (employee, union or
employer) to obtain a secret-ballot election for over three years from
the date of union recognition. Unless the Board changes its current
policies, the Board's representational machinery is unusable and
irrelevant.
Many ``neutrality'' agreements also cut the Board out of other
aspects of the union selection process. Many agreements allow the union
to gerrymander the unit to include union supporters and exclude union
opponents, thereby removing the Board from the unit determination
process.
The Board is also often precluded from determining whether
particular organizing conduct is lawful or not, as most voluntary
recognition agreements forbid any post-selection disputes to be brought
to the Board. The result is that important challenges and objections
concerning the conduct of the ``card check elections'' (as some union
officials euphemistically calls them) are not heard by the Board, no
matter how coercive the conduct.
This leads to incongruous results like that demonstrated in Service
Employees International Union v. St. Vincent Medical Center, 344 F.3d
977 (9th Cir. 2003). There, a union lost an NLRB supervised secret-
ballot election, but was nevertheless able to force an employer to
``arbitrate'' before a private arbitrator over purported objectionable
election conduct. The purported ``objections'' of the SEIU union could
have been-and clearly should have been-filed with the Board under its
Rules and Regulations. Instead, the Board was cut out of post-election
proceedings in a Board supervised election!
Such results show the insidious nature of many ``voluntary
recognition agreements.'' In effect, private parties can now repeal, at
their mutual discretion, all of the Board's Rules and Regulations
related to elections and post-election challenges and objections. The
Board has no role in any of this, and, apparently, neither do the
individual employees whose rights are at stake whenever a union is
being selected.
The union strategy of eliminating the NLRB from its proper role in
determining representational issues through use of voluntary
recognition agreements is having its intended effect. The Board is
increasingly cast aside and prevented from making labor law policy and
overseeing private sector labor relations. The number of representation
elections held by the NLRB in 2003 decreased to 2,333 from 2,723 in
2002, continuing a sharp decline in NLRB elections since 1996, when
about 3,300 were conducted. See Daily Labor Reporter Online, Union
Representation Elections, June 8, 2004. The number of eligible voters
in representation elections fell to 148,903 in 2003 from 191,319 in
2002. (Id).
The Board should not (and cannot) abdicate its statutory duties to
the self-interested desires of unions and employers. Congress empowered
the NLRB to administer the NLRA and decide representational matters.
See 29 U.S.C. 153-54, 159-161. The Board is thereby charged with the
responsibility of protecting employee rights under 7 of the Act, see,
e.g., Lechmere Inc. v. NLRB, 502 U.S. 527, 532 (1992), and with
administering 9 of the Act. See 29 U.S.C. 159.
``In election proceedings, it is the Board's function to provide a
laboratory in which an experiment may be conducted, under conditions as
nearly ideal as possible, to determine the uninhibited desires of the
employees. It is our duty to establish those conditions; it is also our
duty to determine whether they have been fulfilled.''
General Shoe Corp., 77 N.L.R.B. at 127 (emphasis added). The NLRB must
not sit passively on the sidelines and allow its representational
processes to become irrelevant. See e.g., Charles I. Cohen, Neutrality
Agreements: Will the NLRB Sanction Its Own Obsolescence?, The Labor
Lawyer (Fall, 2000).
In short, the increased usage of ``recognition agreements'' permits
employers and unions to strip employees of their 7 rights and their
statutory right to a decertification election, and erases the Board
from the process of employees' selecting (or rejecting) a union. These
practices must be halted. The first step to doing so is for the Board
to eliminate the recognition bar.
CONCLUSION
For the foregoing reasons, the Board should abandon its recognition
bar rule.
Senator Specter. Thank you very much, Mr. Messenger.
Mr. Messenger, under current law employers are allowed to
withdraw from establishing a bargaining relationship on the
basis of evidence that the union has lost its majority status
and no NLRB process is required. If an employer can withdraw
recognition without an election being required, why should not
the same process be allowed when workers want their union
recognized?
Mr. Messenger. Well, I believe that after an employer
recognizes the union, the exception--or the abolition of the
recognition bar doctrine I believe would only apply to employee
petitions. If an employer voluntarily recognized a union to be
the representative of its employees, I believe that labor law
would prevent that union from changing--that employer from
later changing its mind and turning around and withdrawing that
recognition.
However, employees were left out of that initial
recognition process, in that employer recognition again is a
purely private agreement between the employer and the union. So
the issue is how do employees challenge or have the NLRB
determine whether or not the employer-recognized union is
really their representative.
Senator Specter. Ms. Schiffer, when you referred to the 30
percent figure what did you have in mind on that?
Ms. Schiffer. Under the Board's policies, a decertification
petition can be filed by an employee when it is supported by 30
percent of the workers in the bargaining unit. So that under
this proposal to eliminate the recognition bar doctrine and
allow a decertification petition to be filed, it can be filed
when only 30 percent of the workers support it. So then that
would trigger a Board election certification process under this
proposal to abolish the recognition bar doctrine.
Senator Specter. Mr. Rosenfeld, if you could come back to
the table, I have a question for you. The whole question of
industrial stability is really the backbone of the National
Labor Relations Act. There has been a longstanding practice
where the Board will not entertain--can you hear me?
Mr. Rosenfeld. Yes.
Senator Specter. There has been a longstanding practice, as
I say, for the industrial stability in a context where the
Board has recognized that a petition to decertify a union
voluntarily recognized will not be entertained until there has
been a reasonable period for the parties to establish their
relationship.
Why the necessity for the kind of proposal which you have
articulated in your brief?
Mr. Rosenfeld. Because there is a balance in the
application of the Act and the balance is between industrial
stability and employee free choice. Employee free choice is
guaranteed by section 7 of the Act. Some would argue that
stability is a policy choice, and where that balance lies is
for the Board to determine.
The difficulty with the recognition bar is, and I do not
think anybody at this table would argue, that the gold standard
of the NLRB is a secret ballot election. Now, I think, without
asking for more money, Mr. Chairman, we could not conduct our
day to day operations if there were not voluntary recognitions.
Senator Specter. So you are saying that the electoral
process is not really--well, you articulate it as--the gold
bar, not really indispensable to making a determination as to
what the real wishes of the employees are?
Mr. Rosenfeld. It is not. I do not have numbers because, as
was said before, the voluntary recognition scenario occurs very
often outside the Board's processes. We do not know the
numbers. But the truth of it is that voluntary recognition is a
way that employee sentiments are furthered through collective
bargaining, and there is absolutely nothing wrong with that.
Senator Specter. And there is a legitimate determination or
an accurate determination of employees' sentiments in the
voluntary procedures which you have described?
Mr. Rosenfeld. Right. But again, there is no argument that
an election is a better process. A secret ballot election
conducted by a government agent is the process. The solemnity
of that process has been accepted in the whole body of law and
Board decisions. Again, nobody would question that.
Senator Specter. What is your view, Mr. Rosenfeld? We had a
hearing in Harrisburg on July 16 where we were taking up the
provisions of S. 1925, which provides for a certification on
cards as opposed to the election process. We heard a fair
amount of testimony that the election process lent itself to a
lot of maneuvering and a lot of coercive practices by employers
against employees. We also heard testimony to the contrary.
That is what a hearing is all about. We had a balanced hearing,
as we have a balanced hearing today, to try to allow all sides
to be explored.
What is your view of the contention that there are coercive
practices in the electoral process which are very undesirable?
Mr. Rosenfeld. They exist. We file complaints on 8(a)(1)'s
all the time. They exist on both sides, frankly. We get
objections where there has been electioneering at an election
site. But in the main, in a secret ballot election conducted by
the Board, the overwhelming majority of those elections are
conducted within the laboratory conditions that the Board
insists upon. But yes, there are folks who cross the line. That
is probably the reason for----
Senator Specter. People cross the line on both sides?
Mr. Rosenfeld. On both sides. That is the reason for the
Act.
Senator Specter. Like offsides in a football game.
Ms. Schiffer, I am not saying there should be a change, but
if there is a change how would you evaluate Mr. Rosenfeld's
position? Would you say that that is a reasonable compromise,
unreasonable, if there is to be any change at all?
Ms. Schiffer. I appreciate that the general counsel's brief
recognizes that at least a minority of workers should not be
allowed to interfere with when a majority of workers have
indicated they want to be represented by a union. So I
appreciate that at least his position does not reflect that a
minority of workers should be able to control this process and
stall collective bargaining at this point.
But even the way that he describes this exception will
allow this bargaining process to be stalled, to be delayed,
even after a majority of workers have decided they want to have
a union and have collective bargaining. I mean, that is the
point, to have collective bargaining, and this would interrupt
that process.
When Mr. Rosenfeld talks about balancing stability with
employee free choice, I think we have to keep in mind that in a
voluntary recognition a majority of the workers have exercised
their free choice and indicated they want to be represented by
a union, and their rights need to be protected and they ought
to be entitled to get the benefit of collective bargaining that
they elected when they sought to form a union.
I also want to point out that there is Board supervision of
this process. There are Board rules and procedures in place to
make sure that it is an uncoerced majority. The union, the
employer, and employees can challenge the process through the
Board's unfair labor practice process if they think that it was
not an uncoerced majority or that there are other defects in
the grant of the recognition.
Senator Specter. Mr. Messenger, what is your sense as to
Mr. Rosenfeld's contention that the NLRB simply does not have
the facilities to have elections on many, many matters and has
to rely upon these voluntary procedures?
Mr. Messenger. Well, with the recognition bar, seeking the
abolition of the recognition bar will not affect the ability of
an employer to recognize the union. The only issue really is
through what procedures does the NLRB investigate the validity
of that recognition if a sufficient number, if a group of
employees challenge it as being illegitimate?
An employer can continue to recognize a union even if the
recognition bar is abolished. The issue is, under current Board
processes if employees disagree that the union their employer
recognized actually has majority support, the only way they can
challenge it is through unfair labor practice proceedings.
What we are advancing today is that the proper method to
determine this issue is through representation proceedings
because, after all, the issue is do a majority of employees
actually support the employer-recognized union or not. And the
representational procedures are designed to answer that
question, not the unfair labor practice procedures.
So really I believe the issue is not card check versus
secret ballot election. The real issue is unfair labor practice
proceedings versus representational proceedings to determine
the free choice of employees after employer recognition.
Senator Specter. Without intruding into the judicial
functions of the NLRB, Mr. Rosenfeld--and we did not ask the
NLRB members to stay. In fact, we separated these hearings so
there would be a clearcut distinction between our inquiries as
to the issue of the Brown decision, where we are exercising
oversight on something which has already concluded, as opposed
to something in the discretionary function.
Without intruding into the judicial functions, can you give
us any insight as to how close the Board is to having some new
rule on this area?
Mr. Rosenfeld. I have no idea. The dynamic of the Board at
this point is of interest because when Congress adjourns, one
of the members is a recess appointee and so that recess
appointment lapses and the Board would then be four members.
Senator Specter. So what do you think, we should stay in
session?
Mr. Rosenfeld. I think that is a great idea, Senator.
Senator Specter. You may find yourself as the sole
dissenter on Capitol Hill to that proposition.
Mr. Rosenfeld. Please do not quote me on that.
Senator Specter. I will not quote you. It is in the record.
Mr. Rosenfeld. That is what I was afraid of.
Senator Specter. Mr. Rosenfeld, I would ask you to take a
look at S. 1925 because it provides for certification on cards
and that has an impact on a proposed change. What Congress will
do on that nobody can predict. But when Congress is in the
field, I think, and considering that kind of an issue, it is at
least a factor which ought to be before the Board and ought to
be on their radar screen. They can make a determination for
themselves as to how much weight, if any, to give to it.
Well, thank you all very much for coming. This has been a
very interesting hearing. The movement by the subcommittee into
some of these areas is I think a very important oversight
function. There is general agreement that there is insufficient
oversight by the Congress and it is educational to stop for a
moment and deal with some of these arcane issues.
CONCLUSION OF HEARING
Thank you all very much for being here. That concludes our
hearing.
[Whereupon, at 11:27 a.m., Thursday, September 23, the
hearing was concluded, and the subcommittee was recessed, to
reconvene subject to the call of the Chair.]