Columbia Student Worker Strike Could Become Testing Ground for Biden-Era NLRB

As an international PhD student, Daniel Santiago Sáenz falls into one of the most precarious categories of about 3,000 graduate student workers in the strike that has roiled Columbia University for the past six weeks.

On December 2, student workers received an email from the university’s human resources department informing them that if they continued to strike, they would not be guaranteed reappointments to teaching positions for the Spring semester.

“Please note that striking student officers who return to work after December 10, 2021 will be appointed/assigned to suitable positions if available,” reads the email, which was signed by Daniel Driscoll, vice president of Columbia University Human Resources. (Columbia University did not respond to multiple requests for comment.)

The email was sent to all student workers, raising the possibility that a source of income, academic position and in some cases student housing and visa status could be at risk.

“That created a lot of anxiety for many of us who immediately thought, ‘Okay, I’m packing up and I’m moving back home because I cannot afford to pay tuition here at this University,’” Santiago Sáenz told New York Focus.

The union representing the student workers, Student Workers of Columbia (SWC), decided to continue the strike, after an informal poll of striking student workers found that 87% of respondents wanted to continue striking. On December 8, hundreds of student workers—supported by SWC parent union United Auto Workers—staged a large protest on Columbia’s campus, placing picket lines around university entrances and encouraging students not to attend classes.

As tensions ratchet up, a key player in the dispute is still waiting in the wings: the National Labor Relations Board.

The looming appearance of that federal body was set in motion after the student workers made a series of unfair labor practice charges starting in the fall, the first of which is expected to receive a decision as soon as this week.

That decision will mark the first NLRB ruling on a grievance made by student workers since the board formally acknowledged them as employees in 2016—and could suggest the board’s approach to a major question about their legal status.

“This is probably the most thought-out kind of collective bargaining dispute that has arisen under the earlier Columbia decision,” said Wilma Liebman, who served as chair of the NLRB during the Obama administration, referring to the 2016 ruling about Columbia graduate students that found them to be entitled to labor protections as a bargaining unit.

Unfair Labor Practices

Federal labor law distinguishes between workers who are striking in response to an employer’s unfair labor practices (known as “ULP strikers”) and those who are striking for more general reasons (known as “economic strikers”).

ULP strikers are entitled to legal protections that economic strikers are not—including the right to get their jobs back once the strike ends.

A strike gains ULP protections if the NLRB finds an employer to have violated federal labor law through illicit actions, like refusing to bargain in good faith or coercing employees to not participate in a union. Without a favorable ULP ruling, workers fall under the economic striker category, which would allow them to be permanently replaced.

So far, the SWC student workers have filed three different ULP charges against Columbia. The first, filed in September, alleges Columbia unilaterally froze student wages without consulting the union, thus violating a mandatory subject of bargaining.

The second charge, filed in November, claims that the university’s decision to shift the timeline of stipend payments from an upfront lump sum to dispersed intervals throughout the semester was another violation of mandatory bargaining. The third argues that the Dec. 2 email from human resources that warned against non-appointment was unlawful because it threatened to hire permanent replacements.

The NLRB is expected to rule as soon as this week on the first of three charges. If it rules in favor of the student workers, then they will be classified as ULP strikers.

But such a win may merely amount to one skirmish in a drawn-out struggle. According to labor experts, the temporary nature of teaching assistant positions means that it might not be possible for the Columbia student workers to get their jobs back after the strike, even if the NLRB does classify them as ULP strikers.

A wrinkle in the NLRB protection arises from the fact that graduate student workers are typically appointed for their jobs for a stint that extends no more than two consecutive semesters. Even if the NLRB rules in favor of the student workers on the pending charges and categorizes them as ULP strikers, questions remain as to whether the NLRB will decide that an appointment for the extent of a year, semester or summer can be considered a permanent job that would be protected by this designation.

Samuel Estreicher, the director of NYU Law’s Center for Labor and Employment, suggested that the short-term nature of grad students’ positions is likely to stop them from being guaranteed reinstatement. Columbia might run afoul of labor law if they hired permanent replacements for the strikers, he said, but not if they just hired replacements for a single semester.

“If this is seasonal work, then nobody gets a permanent job here,” he said. “So if they turn around and just gave striker replacements a permanent job, call me, I think we would have a case,” Estreicher said.

Liebman, the former NLRB Chair, told New York Focus that there are simply too many “what ifs” to speculate about how the board will answer this question.

“I think the counter-argument would be, ‘Well, they were on an unfair labor practice strike during that period of that contract. So the contract should be renewed.’ And, to be honest with you, I don’t know what the outcome of that argument would mean,” Liebman said.

Ethan Jacobs, a doctoral student in philosophy who serves on the union’s bargaining committee, conceded that the question falls in an area of labor law that’s still somewhat in flux under the NLRB.

But he pointed to the board’s 2016 decision that confirmed Columbia students’ right to unionize at the end of the Obama term as precedent. That decision explicitly dealt with the temporary nature of student employment and found that because their employment is “regularly recurring, with some carryover between semesters,” students should be considered “a stable unit capable of engaging in meaningful collective bargaining.”

“Many people are in these programs for a long time, like in my program I’m anticipating my entire time being in this program to be somewhere around seven, maybe even eight years,” Jacobs said.

Whether or not graduate student workers are technically permanent employees does not change the fact that they were guaranteed teaching positions for both the Fall 2021 and Spring 2022 semesters, he continued.

“So for them to sort of rescind this appointment is really tantamount to discharge, not even just permanent replacement,” Jacobs said.

The board is not likely to make a determination on the third ULP until well into the spring semester.

As the union’s bargaining committee engages in mediation with the university, Columbia’s lawyers have continued to contest the ULPs and maintain that they have the right to permanently replace workers, according to Jacobs. Columbia did not respond to a request to confirm whether it has officially taken this stance.

Students and Workers

For decades, federal law left the status of private graduate student workers ambiguous, leading to debates over their right to unionize. Since 2000, the NLRB has issued contradictory rulings on the question, veering back and forth on the issue depending on whether a majority of its members were appointed by a Democratic or a Republican president.

In 2000, the Clinton-era NLRB ruled that graduate student workers at private universities were employees entitled to union recognition. In 2004, the Bush-era NLRB reversed that ruling, finding that graduate student teaching assistants, research assistants, and proctors were not employees of the universities and therefore not entitled to union recognition.

Toward the end of Obama’s term in 2016, the NLRB reversed course and recognized the rights of Columbia University student workers to unionize. During the Trump administration, the NLRB tried unsuccessfully to overturn the 2016 Columbia decision. In 2019, the Trump-era NLRB proposed a new federal rule that would have exempted student workers from NLRB jurisdiction, but the proposed rule was never finalized.In March 2021, the NLRB reversed course yet again and announced that it would abandon the proposed new rule. In so doing, the NLRB reaffirmed the union rights of student workers at private universities.

“They’ll be sympathetic to the union’s arguments,” Liebman said of the current NLRB membership.

The economic model of universities like Columbia relies on graduate students to conduct research and provide instruction, which would otherwise be the responsibility of higher-paid faculty. An Economic Policy Institute report from 2017 found that graduate students made up about 20 percent of the academic workforce, and earned about a third of the salary of tenured professors.

Jacobs likened the state of Columbia’s grad students to employees of early 20th century company towns.

“Columbia is my landlord, they’re the provider of my health insurance, they’re my employer and they’re also responsible for my academic progress. So, many aspects of my life are sort of under tight control by Columbia,” he said.

His total compensation—including annual stipend, payroll income and a summer stipend—only amounts to about $32,000, he said. That means the prospect of a strike that lasts into the spring leaves him in a precarious position.

The United Auto Workers has offered a stiped of $270 per week for striking workers on the condition that they log 10 hours per week on the picket line, and the union has raised funds for a hardship fund for students in financial crisis. But bargaining committee member Jackson Miller said that “there are definitely people who are at risk of being evicted if they can’t pay rent. And definitely people who are at risk of not being able to not live and work in New York City.”

“People Are Really Insulted”

The ongoing strike is the second one at Columbia this year. The first began last March, in the midst of negotiations for a contract that guarantees higher wages, provides dental and vision health coverage and allows third-party arbitration for cases of discrimination and harassment.

The previous strike ended in May after the bargaining committee reached a tentative agreement with the university that was subsequently voted down by the rank and file. The Columbia Spectator reported that student workers had criticized the agreement for not delivering adequate compensation, health care and access to third-party arbitration in the case of harassment or discrimination.

An offer that the Columbia Provost proposed on December 9 met a similar reaction. The substantive changes of the contract include an increase in compensation for nine- and 12-month appointments and additional dental care. But union members say that the offer didn’t go far enough for health coverage or compensation, eliminated a “fair share” fee student employees would have to pay if they opt out of the union, and did not substantively meet their demands for a third-party arbitration process.

“I think people are really insulted that Columbia would come to us with this sort of offer and attach a sort of deadline to it, just knowing full well that it doesn’t really address any of our key demands. And in many ways is regressive from the offer that they already gave us in the spring,” Jacobs said.

In a general body meeting the union held the weekend after the December 10 deadline had passed, around 90 percent of its card-carrying members voted to continue the strike.