Solidarity Forever: Graduate Student Unionization and the Law in a Time of Activism

As a law student currently studying labor law, who also has a PhD in philosophy, I have a lot of strong views about the role universities are currently playing in opposing graduate student unionization at private institutions. My own current institution, Harvard, filed an amicus brief, co-signed by other of this country’s supposedly great institutions of higher learning, with the National Labor Relations Board a couple weeks ago opposing unionization. The occasion for this display is that the NLRB will once again take up the question in cases involving graduate students at Columbia and the New School. The Board may decide to scrap its decision in Brown University, decided in 2004, which itself scrapped a 2000 decision in NYU. The arguments against unionization in Brown are truly awful; at the very least, they evince a lack of understanding of graduate student labor.

But supposing that the Board, which is not made up of academics, misunderstands that labor, what’s Harvard’s excuse? The dissent in Brown is a breath of fresh air, delivering this money line: “[The majority] 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.” This is suggestive of Harvard’s reason, which is that it, and institutions like it, desperately need a docile intellectual underclass willing to take on meager pay and intense work for the promise that they will have a shot on the increasingly bleak academic job market. (As a side note, this docility is maintained in part by a dual faith in the mythology of merit and academic work as labor of love, but you already knew that.)

In this post, I don’t want to get into the substance of the debate on graduate student unionization. Rather, I want to suggest that a day will come–or may already be here–when these institutions regret their short-sighted opposition to unionization.

People don’t need a union to organize. They don’t need a union to strike, make demands, or hold institutions accountable through collective action. Nor do they need the NLRB to tell them what they’re allowed to do. What the NLRB can do is force an employer to recognize a designated representative of a group of employees as the bargaining agent for that group and require them to bargain in good faith. They can also proscribe unfair labor practices, e.g., firing organizers or threatening not to negotiate, by either side. The National Labor Relations Act was not passed just with curbing abuses by bosses in mind (thought it was)–it aimed, inter alia, at industrial peace. Organized workers had used their power for decades to bring industry to a halt, a practice which was untenable in the mid-1930s. In a context of strong organization, then, employers should welcome the role the NLRB plays in regulating the relationship between labor and boss. Labor law is not a radical left intervention into the workplace–it’s a center left compromise that nonetheless has radical potential against a capitalist backdrop. Only when, as in recent decades, labor is weak does the NLRA come to look like more like an explicitly pro-labor statutory vehicle.

Recent waves of activism across the country, including student and labor (and student labor) activism, have ignited anew a sense of possibility and promise that has been lacking in the post-Vietnam era. If this re-ignition began with Occupy Wall Street, it exploded with Black Lives Matter, and has been blooming since in sites across the country. This collective power was on display in, for example, the swiftness with which the threat of strike by the Mizzou football team brought down the university president in two days, about a week after a graduate student had begun a hunger strike seeking that result. It was on display, too, last night in Chicago, when activists shut down a Donald Drumpf rally at the University of Illinois Chicago.

My own involvement with the ReclaimHLS movement has shown me first hand what I could only guess at before in reading extensively about social movements: the phenomenology of organization is one of excitement, togetherness, and power. It’s the kind of power that makes you realize that you might actually be able to change oppressive institutions, but, perhaps more importantly, that you might not have to deal with the institution anyhow because you can get what you really need from each other. The institution, whatever it is, recognizes that power, too, and tries desperately to co-opt it. To squash it, to tire it, to bore it, to mollify it, and to assure the outside world that it will not give an inch. Thus, the irony of a law school Dean who goes around the country talking about how great it is to “upstand” instead of “bystand” in the face of injustice who flatly refuses to stand up alongside a movement for justice in her own school makes perfect sense.

But the power is undeniable, and once you feel it, you know. As graduate student workers, adjunct workers, football players, students of color, staff, and other exploited groups on campus and in the country gain this first-hand knowledge of their power, universities will wish they had welcomed graduate student unionization. Through unionization, in the case of private universities, some of this energy and power would have been channeled to, and to an extent weakened by, the collective bargaining process, overseen by the NLRB. It would have been hemmed in by a sense of labor relations more familiar to mainstream politics and economics instead of the radical potential opened up in an activism that refuses an institutional role. In the meantime universities are proceeding on the view that business as usual will win the day, and it may, but all around them, exploited groups are beginning to learn about institutional weak points, usually revenue generators like sports, endowments, and alumni, and how to leverage them for social change.

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