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Student-Employees And The Obama NLRB

two long-haired students in graduation garb, seen from behind, at Columbia University's commencement
Columbia University students. Photo by Flickr user llee_wu.

In an administration known for its broad and aggressive assertions of administrative power, possibly no agency has been more nakedly cynical than the National Labor Relations Board.

The NLRB has cast itself as a defender of employee rights even as it intruded everywhere from Boeing’s decision on where to locate its second assembly line for 787 jetliners to the hiring practices of fast-food franchisees and their relationship to franchise companies that neither own nor operate the outlets. It has asserted its power to interpret the rules as vaguely as it wishes in order to not only protect the potential for workers to organize, but to actually promote worker unions. The organization has made no secret of its aims in any of these instances.

In the latest gambit, the NLRB has decided that Columbia University graduate students who teach are, in fact, employees and have the right to unionize. More specifically, both graduate and undergraduate students who serve as either teaching assistants or research assistants at private universities have this right. Overturning prior precedent, the board found the National Labor Relations Act had no clear language prohibiting student assistants from organizing and that they otherwise met the definition of employees.

Let’s set aside the argument about whether the conclusion is correct – an argument you can read plenty for and against elsewhere – and give the NLRB the benefit of the doubt, or what the courts would call “deference” to an administrative agency’s discretion. Instead, let’s just ask a simple question: If the NLRB believes a Columbia graduate teaching assistant has the right to be represented by a union, why would it not take the same position on behalf of a Northwestern University football player?

The football player gets a tuition break and a stipend, just like the graduate assistant. The football player devotes time to that work – enough that many students find pursuing rigorous academics simultaneously impossible, as was the case for former Northwestern University starting quarterback Kain Colter, who gave up on the idea of becoming a doctor due to unresolvable scheduling conflicts. The football player performs his duties under the strict supervision of a boss, otherwise known as a head coach, who maintains a staff of middle managers, known as assistant or position coaches. The graduate student typically works directly for a professor who, in between writing scholarly treatises, may pay varying amounts of attention to whatever the assistant is doing. And the university inarguably makes far more profit from the football player’s efforts than it does from those of the graduate student.

Colter, who became the face of Northwestern’s football players and their attempt to form a union, said bluntly of his time on the team, “There is no way around it – it’s a job.” His fellow Wildcat Matilda Stubbs, a graduate student pursuing a PhD in anthropology, cited similar concerns in discussing the then-upcoming NLRB decision with The Daily Northwestern. Many of the principal desires underpinning student assistants’ desire to unionize – better compensation, increased health care coverage and other benefits, reasonable hours – apply as much or more to undergraduate student athletes.

But you can’t match today’s NLRB for its Machiavellian approach to governance. Lacking any principled basis to leave the football players in the lurch, it simply chose not to offer any basis at all. Last year the board unanimously exercised its discretion not to assert jurisdiction over the Northwestern players’ union drive. The Board did not say they were employees, and it did not say they were not employees. It just summarily tossed them under the team bus.

Many graduate assistants point out the need for better health insurance options from the university that they view as their employer. To my knowledge, most doctoral candidates in liberal arts or STEM programs are not at great risk of career-ending injuries on the job. Student athletes in any sport run this risk – no one who saw Kevin Ware’s gruesome injury on the basketball court is likely to forget it – but football players especially now face the specter of repeated concussions and their likely fallout. Chronic traumatic encephalopathy can lead to a shorter and debilitated life, even for students who do not go on to play professional football.

If anyone on any campus needed the NLRB’s supervision and protection, it was the football players at Northwestern and the players elsewhere watching the case’s outcome. But politics is a sport at least as brutal as football. And as the NLRB showed the Northwestern players – who must be shaking their heads at the Columbia intervention – sportsmanship and fairness are not highly prized in the game of politics.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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