This paper examines two labor relations case studies through the lens of the National Labor Relations Act (NLRA). The first analyzes whether teaching assistants, research assistants, and proctors at a private university qualify as employees entitled to union representation and collective bargaining rights. The second evaluates the enforceability of a zipper clause in a labor contract and whether management's unilateral implementation of new work rules—including a bonus system and mandatory drug testing—constitutes bad faith bargaining. Together, the cases illustrate the limits of contractual authority when it conflicts with mandatory bargaining obligations under U.S. labor law.
Given the broad definition of "employee" found in the National Labor Relations Act (NLRA), one must conclude that teaching assistants, research assistants, and proctors are all employees of the university. At a public institution the NLRA would specifically not apply, but as a private institution the university provides compensation to its graduate students for contributions made to the operation of the school at large. The additional tuition remissions given to the majority of graduate students is the only portion of this compensation that could reasonably be considered financial aid. These remissions make clear that the services provided by graduate students are economically advantageous to the institution in and of themselves, regardless of the education that graduate students receive via those services — that is, teaching and research.
Anyone engaged in productive work for the university could be considered an employee under the NLRA. As teaching assistants, these graduate students are essential to the undergraduate education taking place at the university, which is undoubtedly a major source of revenue for a private institution. As researchers, they directly contribute to the more tangible products of the institution, which also provide economic benefit in the form of publications, patents, technologies, and similar outputs. Even proctors, who are less directly involved in the institution's core production functions, alleviate burdens on other paid employees through their counseling of undergraduate students and their administrative and clerical work. Though all of this may be part of the institution's educational plan, it is disingenuous to claim that these students are not also employees. A final proof lies in the fact that if graduate students did not fulfill these functions, the university would need to hire other employees in order to continue operations.
There are several reasons a labor union would wish to organize and represent teaching assistants and research assistants, as well as proctors and anyone else performing work for the university. On an altruistic level, unions may simply wish to ensure fair employment practices and better conditions and compensation for these workers. On a more pragmatic level, the bargaining power of the labor union would be far greater if teaching assistants and research assistants were unionized.
The recognized employees of the university — specifically instructors and researchers — are presumably already unionized. Adding teaching and research assistants to the union rolls would give labor near-complete control over the basic functions of the university: research and instruction. In addition to providing the union with a much stronger bargaining position in absolute terms, this would give the union greater flexibility in bargaining, with more available concessions at its disposal.
For those reasons, teaching assistants, research assistants, and proctors might be wary of joining the same labor organization as the professors and other union employees at the school. There are also many benefits, however, not the least of which would be their collective bargaining power and the ability to negotiate pay rates at all. Under current conditions — where stipends are delivered under the guise of financial aid — these graduate students have virtually no power to negotiate with the university. They are largely at the institution's mercy: their education as well as their stipend depends on their performance of whatever tasks are assigned to them by their immediate supervisors.
In this situation, unfair employment demands could potentially be made that the graduate student would feel obligated to carry out rather than risk not only their current position but also their academic and professional future. Unionization would go a long way toward alleviating many of these concerns and restoring a meaningful degree of bargaining equity between the students and the institution.
Under the NLRA, all of the graduate students mentioned in the case study — with the exception of fellows working solely on their dissertations — would have the right to assemble, organize, and engage in collective bargaining with the university concerning wages and other compensation for work performed. They would likewise be able to make demands regarding working conditions and the types and amounts of work they could be asked to perform. They would also, after a failure of collective bargaining between labor and management and a consensus as provided for by the union, be permitted to engage in a work stoppage.
The deceptively simple zipper clause included in the labor contract is profoundly powerful in its effects — or would be, if the legal exceptions to such a clause were not so prohibitive of its apparent intent. The clause is not especially complex and means exactly what it says: except for instances explicitly specified by the contract, no further bargaining is needed or can be required until the contract's termination or expiration, since "all the bargainable issues for the term thereof" have been definitively addressed. When both parties — labor and management — sign this contract, it is intended to signal that both agree all bargainable issues have been resolved and that no further bargaining is therefore necessary.
In reality, however, the full scope of the clause's stated powers cannot be enforced due to existing legal requirements mandating bargaining on certain labor issues. The zipper clause cannot prevent either labor or management from seeking or insisting on bargaining over an area that specifically requires negotiation under U.S. labor law. Even if the labor contract grants unilateral authority to one party regarding a particular issue, any action affecting an area subject to mandatory collective bargaining must be agreed upon by both labor and management. In this scenario, management's interpretation of the contract suggests that the contract supersedes law and legal precedent — claiming that both the unilateral power granted by the contract and the zipper clause separately confer absolute authority to implement the new rules.
Had these rules not encroached upon grounds of mandatory bargaining, that reading of the contract would have been applicable. However, bonuses and incentive pay are areas of employment compensation in which decisions must be reached via collective bargaining. The issue of increased wages for achieving perfect attendance is therefore something that must be negotiated. Because the union cannot actually force management to pay such a bonus when the contract in effect did not provide for one, pressing the issue at that stage may not seem especially advantageous — but the union certainly retains the legal right to do so. The new work rules specifically use the word "bonus" to describe the additional pay, which is clearly a form of incentive pay; management did not even attempt to circumvent the law through a manipulation of language, apparently through arrogance rather than forthrightness.
"Bonus pay and drug testing as mandatory bargaining subjects"
"Management's bad faith and NLRB complaint process"
You’re 77% through this paper. Sign up to read the remaining 2 sections.
Sign Up Now — Instant Access Already a member? Log inAlways verify citation format against your institution’s current style guide requirements.