SUBJECT: Final Decision Regarding Our Graduate Assistants
TO: The NYU Community
FROM: Executive Vice President Jacob Lew and Provost David McLaughlin
DATE: August 5, 2005
SUBJECT: Final Decision Regarding Our Graduate Assistants
TO: The NYU Community
FROM: Executive Vice President Jacob Lew and Provost David McLaughlin
DATE: August 5, 2005
Research universities both confront and shape important trends, some external and some particular to higher education. Circumstances have placed our University, uniquely among private universities, at the forefront of those facing the efforts of organized labor to unionize graduate assistants, thereby obliging us to reconsider the traditional definitions of the words "student" and "employee," and to recast the relationship between the University and it graduate students.
Graduate education is a core enterprise of a research university. The preparation of the next generation of scholars and faculty leaders is one of our most critical and enduring missions.
After extensive conversation and study throughout our community and focused consideration of the balance of principles involved in this issue, we are announcing today that the University will not negotiate a new contract with the UAW and that we will implement the financial aid benefits and other proposals described in our June 16 memorandum to the NYU community, including some additions and revisions based upon comments we received during the period of "notice and comment."
In 1999, NYU's graduate assistants sought to unionize. In 2000, the National Labor Relations Board overruled 25 years of precedent by holding that it was lawful for them to do so. In 2001, based upon both the UAW's representation that it would respect the University's discretion on academic matters and contract language drafted to ensure compliance with that promise, the University elected not to appeal this ruling to the federal courts and signed a contract with the UAW. At that time, there were no other private universities with unionized graduate students, and no others since have chosen to join us. This agreement is due to expire on August 31, 2005.
Last summer, in a new case, the NLRB returned to its long-standing precedent that graduate students are not "employees" as defined by the National Labor Relations Act (342 NLRB 42). In explicitly overruling its decision in the NYU case, the NLRB concluded that graduate assistants are first and foremost students, and that their assistantships are part of their academic program and a form of financial aid. This determination is consistent with NYU's long held and often expressed view.
The NLRB's 2004 decision removed the University's legal obligation to negotiate a new contract with the UAW as the collective bargaining representatives of certain of our graduate assistants.
Thoughtful discourse is a hallmark of truth-seeking in higher education. Because of the choice presented by the NLRB's decision, our campus has been engaged in a conversation about whether voluntarily to negotiate a new contract with the UAW as the bargaining representatives of our graduate assistants. This conversation, which has taken place since February in both formal and informal settings, has had many participants. It has included many opportunities for views to be shared and for voices to be heard: school-based faculty meetings, faculty chairs' meetings, student town halls, comments by e-mail, a review and report from a joint committee of our elected University Senators, a review and report by senior faculty serving on the Academic Priorities Committee, and meetings with elected officials and public figures, among others.
Our conversation also included a May meeting with UAW representatives at which they requested that we delay issuing our decision in an attempt to find language to address a deep concern for the University—a proliferation over these last three years of grievances filed by the UAW that imperiled the academic rights of the University and its faculty. We agreed to the delay and spent considerable time carefully examining this option; however, ultimately we concluded that in the context of a traditional union grievance process, the language in the original contract could not be strengthened in a way that provided more certain protection of the University's essential academic rights (see http://www.nyu.edu/provost/resources.information/ga/academicrights.html for the language in the 2001 contract). Moreover, we learned from experience that this language was not honored.
On June 16, after considering the various views and recommendations on this matter that had been offered over the previous six months, the senior leadership published, for a period of notice and comment, its proposed decision not to negotiate with the UAW as the collective bargaining representative of our graduate assistant students. We announced in that decision a set of financial aid proposals for the next three years (including an increase in the minimum stipend of $1,000 per year for each of the next three years, continued payment by NYU of the full cost of the student health insurance premiums), a proposed grievance procedure, and proposals for new mechanisms to strengthen graduate student voice within the NYU community (see http://www.nyu.edu/provost/resources.information/ga/communications-061605.html). During the notice and comment period, we invited written comments at ga.dialogue@nyu.edu (see http://www.nyu.edu/provost/resources.information/ga/noticeandcomment.html) and held a town hall meeting.
Many members of our community shared their thoughts during this period, both in favor of and against the collective bargaining paradigm for our GAs. Much of the comment and advice was well-reasoned, thoughtful, and powerful, advancing the University towards a reasoned decision on this matter. At the same time, some of what was offered was inconsistent with the better traditions of our academic community, relying instead on sloganeering, spamming, and efforts to silence opposition. Needless to say, this latter conduct made our task more challenging, as it is difficult to have an advancement in thought based upon assertions and slogans rather than reasoned dialogue.
A distillation of our conversation is not reducible to pithy sound-bites. Decidedly, the question is not whether NYU is "for or against" organized labor: NYU has contracts with many unions and works with those unions and the colleagues in them in a positive and professional manner, just as we accepted the UAW as the representative of our graduate assistants (in the hope that a genuine partnership might blossom) when, in embracing the union's assurances about academic rights, we declined the opportunity to appeal their right to organize our students. And, the question is not whether graduate students should or should not have a meaningful voice in our community: of course they should, and the University and its schools will continue to strive to ensure they have an effective voice as valued members of our community. Instead, what we face is a complex and challenging set of interdependent questions: Is collective bargaining appropriate in any way as a vehicle for students and the University to interact? If so, how could we preserve within a collective bargaining context the core principle that graduate assistants are students, not workers? And finally, how, if at all, do we address the disappointing experience under the current contract?
In a letter dated March 1, 2001 the UAW affirmed the University's sole discretion in academic matters. This agreement was codified in the collective bargaining contract in the clause providing that "[d]ecisions regarding who is taught, what is taught, how it is taught and who does the teaching involves academic judgment and shall be made at the sole discretion of the University". These guarantees were critical to our decision to bargain with the UAW, and we believed that this commitment would make possible the co-existence of the University's academic decision-making discretion with the UAW's representation of our graduate assistants on non-academic matters.
Unfortunately, this has not proved to be the case. Grievances about such matters as whether an assistant was paid in a timely manner or whether a GA was paid what was promised were understandable. However, a number of UAW grievances—those seeking decisions from an arbitrator about whom the University could assign to teach in a classroom—violated both the spirit and the letter of the agreement, and had a profound impact upon our thinking about our partnership with the UAW.
For example: the UAW brought to arbitration a grievance challenging teaching appointments that faculty members in the College of Arts and Sciences made in Morse Academic Plan (MAP) recitation sections and in the Philosophy Department, claiming such assignments could only be offered to GAs in the bargaining unit. The UAW proposed that anyone appointed to teach in these programs must by definition be a "graduate assistant," even if that meant labeling someone who was not even an NYU graduate student as a "graduate assistant," as though it were merely a job title. The external arbitrator wholly rejected the Union's claims (see http://www.nyu.edu/provost/ga/arbitration.pdf for the full decision); nonetheless, these and many other grievances that the UAW brought—all unsuccessfully—diverted a great deal of time and energy from more important matters that the University wanted to address and severely undermined our confidence in the commitment they had made to us in 2001.
During the course of the campus conversation leading up to our proposed decision, certain UAW representatives sought to recast these grievances, suggesting they were simply disagreements about wages. They were not. We believe they were brought to assert powers specifically prohibited by the contract; namely, to challenge who can and cannot teach. And, beyond the drain they placed upon University resources, if even one arbitrator had sided with the UAW in any of these decisions, it would have had a profound impact on our faculty's academic rights and ultimately the academic quality of the institution. Both the faculty committee and the faculty/student committee that considered this matter highlighted the costs and concerns posed by these grievances (http://www.nyu.edu/provost/ga/saacreport.pdf and http://www.nyu.edu/provost/ga/ap042605.pdf) in their recommendation that we not negotiate a new contract with the union.
For many faculty members, the nature of the graduate assistant as student emerged as a key principle. In one submission from some 160 members of the University's faculty, they advised that:
"For a graduate student union to be appropriate, the predominant or primary relationship between the University and its graduate students must be that of employer to employee. But that is clearly not the case... "...[O]ur PhD students are chosen for their potential to become, after a period of intensive training lasting several years, important contributors to their academic disciplines. A part—but not the main part—of that training involves learning the craft of teaching, which in turn involves the often arduous tasks of grading, lecturing and interacting with students. But could anyone looking at this picture in the whole seriously maintain that the primary nature of the relationship between the University and its graduate students is that between an employer and its employees?"
We found this principle, and the argument of these colleagues, provided powerful guidance. At its core, this principle rests on the academic rights of the faculty, and it demands that graduate students be governed by academic norms and academic processes. These principles make the grievances taken to outside arbitrators (described in the foregoing paragraphs) all the more problematic.
Rarely, however, in any challenging decision is there only one principle at issue, even one as important as this. In our University community, there are other important principles as well—valuing voice mechanisms for our graduate students; valuing comity and collegiality in our dealings with one another; and valuing the advancement of NYU's academic excellence. And, in this case, an additional reality exists: the UAW currently represents certain of our graduate assistants, and has done so for the past four years. While many—including we—may have reservations about the current probity and relevance of the election in 2000 (because the union chose to exclude science students at that time and because the graduate student population turns over relatively rapidly), a number of our graduate students have expressed their desire to continue to be represented by the UAW, and these students have indicated that they would view the removal of the union as a significant setback with regard to their voice within the community.
We believe that it is of the utmost importance to respect the principle that students are students and not employees. But we were very mindful of the fact that the union is already here, and that many of our students have come to rely on it as the vehicle by which they may express their concerns. Accordingly, we sought to formulate an approach, carefully circumscribed, in which the presence of a union would be compatible with the principle that our graduate assistants are in essence students (not "workers") and that the primacy of the University's academic rights cannot be assailed.
Labor negotiations typically involve both public and private components. On Tuesday, August 2, we sent an offer to the UAW that we thought struck a careful balance, permitting the UAW to continue to negotiate stipend levels and benefits on behalf of graduate assistants, but also including the following conditions:
The UAW rejected this offer. In short, the UAW was not prepared to structure a relationship based upon a new paradigm of union representation of graduate assistants, a paradigm which would allow for union representation of the GAs while protecting the integrity of the academic decision-making process that is essential to maintaining core academic principles. Our proposal offered a new approach to university-union relations for graduate assistants, one that balanced the academic nature of the university with the collective action of a union. We were willing to enter into an agreement that would have created this new paradigm; the UAW was not.
The new academic year is approaching, and the current contract is close to expiring. After extensive consultation and based upon the careful review of all comments made during the notice and comment period, we announce today that the University will not negotiate a new collective bargaining agreement with the UAW. Accordingly, we will proceed to implement the benefits for graduate assistants outlined in our June 16 memo to the community, including:
In addition, we are adopting two suggestions that came during the notice and comment period:
We will continue to move forward with the other mechanisms for graduate student voice that we outlined in the June 16th memorandum: the formation of a representative group of graduate students to collaborate in the establishment of a new grievance policy and a set of rights and responsibilities for graduate students (for information on the financial aid proposals and the student voice mechanisms, go to http://nyu.edu/provost/resources.information/ga/communications-061605.html).
We believe this decision significantly improves the already strong financial aid packages for our graduate students, provides continuity for their planning, and offers University-wide voice mechanisms while fundamentally preserving the principles that graduate students are students and that academic decisions – including grievances attending those decisions—must be handled within the University.
Professor Derrick Bell, based on his personal experience with legal efforts to implement fully the school desegregation commitment in the Brown v. Board of Education Supreme Court decision, recently reminded the senior leadership in an email on this matter that it is easy "in social reform movements to confuse the vehicle with the much desired goal" (see http://www.nyu.edu/provost/resources.information/ga/noticeandcomment.html for this email and all others sent to ga.dialogue). The ultimate goals, both for those who support union representation of our graduate students and those who oppose it, are the same: to forge a long-term relationship with our graduate students that addresses their key issues in an academic context; to attract the best students in the nation to our graduate programs; to ensure that they are well-supported financially; to guarantee that they are treated with the respect due those who will be the next generation of faculty leaders in higher education; and to support their voice in University affairs.
There will be challenges going forward, given the intensity of feelings on both sides of this matter among not just some graduate students but also some faculty, administrators, and undergraduates. However, we have faith in the good will of the NYU community and in our shared hopes for our University's continued progress, and we believe these will ultimately be of greater influence than the spirited and sometimes sharp differences that have emerged on this issue.