The National Labor Relations Board’s July 15 decision that teaching assistants at Brown University are primarily students--and therefore not protected by the national labor act when seeking unionization--is of a piece with the U.S. Supreme Court's 1980 Yeshiva opinion.
In Yeshiva University v. National Labor Relations Board, five of the Supremes said that faculty at private universities are members of management and therefore outside the protection of the NLRA. Mirroring the Supreme Court's 5-4 split in Yeshiva, the NLRB broke 3-2 along partisan political lines. Three Bush appointees squared off against two Clinton holdovers in overruling the 2000 New York University decision, which shook up private-college campuses and unleashed a tidal wave of graduate-student organizing across the country.
The significance of Yeshiva and Brown is that university employers can refuse to bargain with faculty and grad-student unions--and even fire their instigators--without fear of legal repercussions such as the bargaining and reinstatement orders that are the NLRB’s staple remedies.
Faculty "held the cards"
Before labor leaders and union advocates engage in too much hand-wringing about this result, let’s ask how much it really matters. To see what I mean, consider that the faculty of Rider University, where I handle labor relations from the employer’s side, organized under the auspices of the American Association of University Professors some 30 years ago. When Yeshiva came down a half-dozen years later, and numerous private colleges and universities withdrew recognition from and refused to bargain with their faculty unions, Rider remained steadfast to its collective-bargaining obligations. Why? Well, most likely because the faculty's bargaining unit was a strong and cohesive cohort. The faculty held the high cards in the power game. And so Rider did not refuse to bargain.
In the final analysis, relative power remains the sine qua non of labor relations. The NLRB is relatively ineffectual, even when dominated by pro-union Democrats. As my co-author, Professor Pat Cihon of Syracuse University--an avid activist in the AAUP--points out in the new edition of our textbook, Employment and Labor Law, "Although the NLRB has rather broad remedial powers under the NLRA, the delays involved in pursuing the board’s remedial procedures limit somewhat the effectiveness of its powers…Because unfair-practice cases take so long to resolve, the affected employees may be left financially and emotionally exhausted by the process. Furthermore, the remedy, when it comes, may be too little, too late."
He adds, "One study found that when reinstatement was offered more than six months after the violation of the act occurred, only 5 percent of those discriminatorily discharged accepted their old jobs back." In my experience, six months is speedy by board standards!
When labor is powerful, the NLRA is hardly necessary. And when labor is weak, the act is hardly helpful. For example, three decades prior to passage of the NLRA, Clarence Darrow won the eight-hour day and a substantial wage hike for Pennsylvania’s hard-coal miners in the Anthracite Arbitration. (See my article in the February 15, 2003, Progressive Populist.) President Teddy Roosevelt, a Republican, joined with financier J.P. Morgan in brokering the 1902 bargain because the UMWA stayed out for six months and a critical coal shortage loomed in Philadelphia and New York as winter approached.
An even better example is the issue of replacement workers. The Supreme Court recognized the right of private employers to hire permanent replacements for economic strikers as early as 1944. But during the 1950s and early 1960s, that decision was essentially irrelevant because mega-unions like the UAW and Steelworkers could always force GM, Ford, U.S. Steel and the like to reinstate strikers. Indeed, big business rarely even bothered to hire scabs during a work stoppage.
By 1981, organized labor’s position in the United States had eroded so far that Ronald Reagan realized he could permanently replace striking air-traffic controllers and make it stick. His union-busting signaled a new era in labor relations. Major private employers such as Greyhound soon followed his example.
My point is simple: In labor relations, power prevails. Unless and until organized labor rebounds from its paltry 10 percent of the American workforce, neither a Kerry/Edwards victory--and the pro-labor court and board appointments that inevitably would follow--nor reversals of Yeshiva and Brown University will turn the tide that has run against American workers in the late 20th and early 21st centuries.