No Education Without Representation: Codifying Graduate Student Labor Protections

Ajay Dugar, Emily Guske, Christopher Healy, and Rina Ravisundar

Vol. 1 No. 2 – Spring 2019

I. Abstract

Graduate students at public and private universities across the country are shortchanged for their work by both their institutions’ administrations and their state governments. In response, graduate students have sought to increase their representation and leverage in labor negotiations through unionization. Caught in between classification as employees and as students, graduate students occupy a legal gray area when it comes to their ability to form unions.

Historically, it has largely been the courts, not Congress, that have been the arbiters of organized labor law challenges and changes. Objections to labor laws are assessed according to three main criteria:

  1. Are employees essential to organizational operations?
  2. What is the relationship between employee and employer?
  3. How does each instance of labor unrest differ from precedent?

It is the murkiness of such questions regarding graduate students that causes such confusion regarding their status. Worse yet, conflicting descriptions of their financial and educational responsibilities lead to vastly different outcomes in each case. Through either litigation or case law, a standard must be set by either the Supreme Court or the National Labor Relations Board regarding the rights of graduate students to organize.

II. Thesis

“Power concedes nothing without demand. It never did and never will.” Frederick Douglass’ words about the inequities of labor still ring true today. Over the past century, labor laws in the United States have been codified and strengthened, resulting in the rise of both private and public sector unions. Previous legal doctrine has chosen to demarcate these two types of representative bodies along a distinct and effective line, namely through consumer choice Public sector unions work in industries funded with taxpayer money (mandatory), while private sector unions work in fields subjected to economic competition (optional).

Over the last 20 years, unionization of university students has increased. Spearheaded by the movements at private universities, public university students, specifically athletes and graduate students, have undertaken efforts to organize. However, as graduate students across the country begin to collectivize, their unions fall in between the above categories, a gray area which is only now being litigated. These attempts have been hindered by precedence in Chamber of Commerce v. Brown, the Taft-Hartley Act, and state-specific legislation against collective bargaining rights for public university employees in an attempt to minimize disruption to higher education institutions.

In this article, we explain why student groups have the right to unionize by marking the distinctions between these workers and public and private sector employees. We will then discuss the ramifications and boundaries with regard to making such a classification. This article will examine many popular terms used in legal cases pertaining to labor, unionization, employment and student rights. The next section clarifies and codifies our derived definitions from case law and norms attributed to discussions of students, employees, labor and unions.

III. Definitions

When discussing student labor, unions and collective bargaining, familiarity with common terms and jargon ground our exploration of student unionization in both public and private universities, as well as generalized labor in public and private sector occupations. Levels of employment and legal protections vary dependent on where a student is located and what the state laws mandate. [1]

We will be focusing topics pertinent to Midwest employees and universities. The terms introduced here are germane when exploring case law and labor practices relating to student group unionization.

A. Employees

The argument that graduate students should not be considered employees is similar to the argument used to explain that student athletes should not be considered employees. We chose to establish “employee” as an individual who works full-time or part-time as the subject of an organization with recognized duties. A worker is synonymous with an employee, but to use the term worker to describe the recognized duties of a student athlete would not be appropriate, due to the fact that their service is non-integral to the functioning of the university. Graduate students would be described best as workers regardless of wages. Just as graduate students gain important training from their extra duties, student-athletes gain relevant education from their experiences in amateur collegiate sports. The NCAA clings to its amateurism mission on the basis that the right to unionize would eliminate the essence of being a student-athlete. In addition to scholarship, student-athletes gain access to quality education which, according to the NCAA, is payment in itself.[2] Student athletes and graduate assistants desire the right to unionize for benefits that extend beyond compensation.

From a federal viewpoint, parts of the payments given to graduate students classify them as employees rather than students. For tax purposes, the Internal Revenue Service considers the compensation of graduate students to be wages.[3] When they receive payment for teaching, it is not taxed on a 1042-S form, which is frequently used for scholarships, but on a W-2, which is the form for employment income. The income from teaching is taxed differently from scholarships and treated like employment income.[4] The significance of this is twofold; first, we see a distinction between federal and state classification, and two, the difference between compensation and wages. This lends credence to the notion that graduate students are treated as employees, at least on the federal level, giving a legal basis for unionization.

Public university employees provide valuable goods and services the private sector is not commissioned to provide and should be guaranteed the right to unionize and form movements .[5] Private and public graduate students are essential cogs in the educational sector, a role similar to the function that public and private sector employees serve the national economy in producing essential goods and services. The push for unionization of university students has been guided by private universities with public universities following suit.[6] But the issue for private university student unionization is reduced to individual organizational practices coupled with federal mandates, unlike the complexities of public education and the accompanying state, federal, and local restrictions. Private universities rightfully should have been the poster child for student unionization, as their push had the clearest and least legally muddled path. The blockades public university students and public sector employees face are of interest to this piece as both are subject to scrutiny, meshed with government funds and public ownership providing newfound difficulties for efforts to -unionize .[7]

B. Employers

Employers pay and protect their employees and workers. The degree to which they do so is dependent on a number of factors, including sector, experience, or classification (public or private). Private and public employers grant compensation or payment after their employees perform their designated duties. The Illinois Educational Labor Relations Board (IELRB) administers the Illinois Educational Labor Relations Act (IELRA) which establishes the rights for educational employees to organize, and in response, employers in public education — universities — have fought against their own employees’ attempts at unionization. Organizations like the IELRB determine when a public education employee can strike or when a strike can be followed with action in a court.[8] State laws regarding labor like the IELRA can provide the necessary impetus and traction for successful unionization of graduate students or assistance in the path towards unionization.

Employers of professional athletes, meanwhile, pay for the performance of designated duties by their athletes (employees) in a systematic and coordinated manner. The structure of most American professional athletic leagues provide adequate spaces for employee unions (player unions) with current players serving as board members of this staff.[9] The chief executive of the National Basketball Association (NBA) is also the Commissioner of the NBA, an executive position embedded with duties of a commissioner who directly works with the National Basketball Players Association, the NBA’s “labor” union. The differences between employee/employer relations in collegiate athletics is vastly different than that of professional athletics and their institutions. Granted, the entire entity of professional athletics involves a central layer absent from college athletics. The entirety of professional athletics revolves around athletics, unlike universities and their student athletes. The financial compensation guaranteed to professional athletes and the necessity of a contract from the employer affords greater assumed protections and rights than that of an unpaid graduate student punter at a public state university. We will be examining employers by distinguishing between public versus private, and will assess how they tend to examine unionization. The employers of student athletes are the same employers of top professors at these universities. These institutions are structured to handle claims for many employees providing vastly different services with a bias towards administrators and educators’ grievances.[10] Understandably, these universities are created to educate. But the role of amateur athletics at these universities is central and has become even more so over the course of the past half-century. The employers should provide the same basic rights and protections to its student athletes as it does to its tenured professors, whether the athletes are paid or not. Organizations like universities are hierarchical and the voices of students are at the bottom.[11] The structure of this organization helps ensure that the potential for unionization of student athletes and graduate students is low.

C. Unions

The term union and its application in this article is no different than most popular definitions of unions and unionization. We define unions as a body of workers or employees seeking to improve their labor or labor conditions by pursuing and promoting specific interests registered by the group as important to the functionality of their designated duties. The role of unions in the development of America into the leading hegemon goes underappreciated particularly because the country has historically offered fewer union benefits and legal protections than most other developed leading industrial countries.[12] Most unions focus on collective bargaining and collective action, and most require payment plans for its members in order to reduce any free riders and members who reap the benefits of the work of others, while using funds for political advocacy as well.[13] Modern unions are found in more public sector occupations like teachers and police and modern union members are normally paid slightly more than non-union workers in the United States.[14] Unions have been important to the lives of workers and employees as a symbol of protection and representation especially in hierarchical structures like a university or corporation.

Popularly looked down upon, unions offer many benefits to companies or organizations willing to allow their formation. If student athletes could form a group as empowering and protective as a union, then the possibility for substantive change nationwide at both public and private universities in the lives of student athletes increases. Graduate students have found some mild success (normally after long bargaining processes and strikes) in forming unions at universities, including the noteworthy 2018 GEO strike at the University of Illinois at Urbana-Champaign.

The rights and privileges offered to other members of the public university staff and private sector employees should be guaranteed to students who are demonstrating action that collectively benefits the university, whether they are graduate students or student athletes. Denial of collective bargaining rights is borderline exploitation of a defenseless and generally wage less majority at these universities.

IV. Historical Progression of Student Unions

Tinker v. Des Moines Independent Community School District (1969) is best remembered for its now-famous line: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[15]The Warren Court underscored the importance of preserving the constitutional rights of those in the educational system in an attempt to safeguard against indoctrination and abuses in these public power structures.

In Commonwealth v. Hunt (1842), the Massachusetts Supreme Court ruled that labor unions were allowable, but provided two instructive stipulations.[16] First, that they use legal means to achieve their goal. Second, and more importantly, they were organized for a legal purpose. These criteria are the basic initial criteria considered when approaching modern unionization cases.

Specifically in Illinois, the 1984 Illinois Educational Labor Relations Act dictates the guidelines and stipulations of labor allowances available to those engaging in unionization attempts.[17] These guidelines were derived from the National Labor Relations Act of 1935 [18] and the Illinois Public Labor Relations Act.[19]

Organized labor law in educational systems is a complex and often contradictory subject. It is based on a variety of pieces of legislation, cases, executive orders, and judicial precedent. However, especially in the last 50 years, there have been a variety of challenges to the set definitions and limitations on student graduate unions.

Under to the Enumeration Clause, bargaining and collectivization laws regarding state public workers are ceded to the states to decide. But there exists a wide range of how states legislate the collective bargaining rights of public university students. Fourteen states have explicit protections for graduate students; 11 states allow for university employees to collectivize, but don’t explicitly mention graduate students; Ohio allows for public university employees to bargain, but explicitly prohibits graduate students; and 23 states deny these rights to all university employees.

At the federal level, it becomes even more muddled. In 1951, the NLRB ruled that it did not have authority to determine the collective bargaining rights of private university with regard to Columbia University.[20] Then, in 1970, when ruling against Cornell University, the NLRB reversed this decision, asserting its discretionary jurisdiction over private, non-profit educational institutions. Citing the effects of private universities on interstate commerce and the amount of government appropriation funds used by these institutions, the NLRB ruled that any private colleges taking in at least one million dollars per year from these sources were subject to regulatory authority from the NLRA’s statutory jurisdictions.[21] [22]

In 1969, the University of Wisconsin at Madison saw the first graduate student union in the United States to successfully organize. They won recognition from the Wisconsin state legislature, establishing a foundation for future public graduate student unions.[23]

In 1972, a wide variety of workers at Adelphi University went on strike. The group included professors, faculty, and, most notably, graduate students. The NLRB ruled immediately against the petitioners due to their inclusion of graduate students. The Board chose to invoke this same ruling in 1974, when doctorate students at Stanford University chose to strike. These decisions were rooted in the idea that the service and teaching components were integral parts of students’ education, and universities were therefore not liable to compensate graduate students for such work.

These ideas were reflected in related cases based on “housestaff” collectives. In a series of rulings in the mid-1970s, the NLRB stated that neither medical students completing their residencies nor clinical fellows were required to be compensated for their work. Because these were work requirements for full medical practice, these were valid constraints on the definition of what an educational experience entails. This distinction is important, as it marks the distinction of what graduate students are owed in terms of compensation for specified duties.

In NLRB v. Yeshiva University (1980), the Supreme Court ruled that decisional authority was another necessary criterion for legal unionization. It ruled against full-time faculty members attempting to strike because of their relative autonomy of decision-making with regard to academic matters.[24] This demarcation is important. Because of the lack of autonomy and authority enjoyed by graduate students, there is no sufficient argument to be made regarding the discretionary powers of such individuals. They are subject to the rulings and whims of the administration of university faculty. The enumeration laid out in this case, while damaging to other groups’ bargaining rights, laid the groundwork for graduate student unions in the decades to come.

One such reversal came in 1999, when the NLRB ruled against Boston Medical Center Corporation.[25] It was a complete reversal of the mid-1970s rulings against the compensation of house staff in medical practices. Now, medical residents were treated as full employees under the applicable federal and state tax codes regarding employment. So this established a precedent for different federal and state authorities holding conflicting views on the status of graduate students. This obfuscation of the boundaries between the two overlapping jurisdictions has remained an issue ever since. After this case, the NLRB was less likely to rely on precedent and continues to take and decide cases on a decidedly more case-by-case basis. This leaves the Supreme Court as the arbiter of any drastic shifts in the definition of what constitutes the ability for graduate student unions to form.

Under the Clinton administration, the National Labor Relations Board (NLRB) extended the protections of public graduate student unions to those student unions at NYU. This was the first time that the NLRB ruled in such a fashion, in effect allowing for the collectivization of graduate students at private universities.[26] However, in a 2004 ruling regarding Brown University, the NLRB under the Bush administration backtracked on their NYU precedent, categorizing graduate students as students first and mentors second.[27] The NLRB called into question the nature of the relationship between students and universities, choosing to distinguish them separately from a standard employee-employer relationship, citing possible infringements of widely-accepted academic freedoms.

Today, we see graduate student unions at over 60 universities across the United States. With the precedent in place for both private and public graduate student unions, it becomes increasingly difficult to roll back protections of certain groups insofar as the specific circumstances regarding new collectivization processes are relatively straightforward. As the NLRB becomes increasingly careful about the cases they take on and mindful of the effects of their precedent, the Supreme Court has also weighed in on specific key cases. It remains to be seen whether any consequential events will affect the demarcations and distinctions of graduate student labor laws in the near future.

V. Recent Cases

A. Northwestern (2014)

Although graduate students at some universities have been able to unionize, student athletes have yet to gain access to collective bargaining. In 2014, Northwestern University football players generated controversy regarding labor laws when they fought for their right to form a student-athlete union. Although Northwestern is not a public university, their fight for unionization presents a great example of the complexity of the relationship between student athletes and collective bargaining. The Northwestern football players argued that unionizing would allow them to more effectively communicate their concerns with regard to financial burden and post-collegiate health care.[28]

In many cases, student athletes have virtually no say in their working conditions. Injuries can be terminal for a student athlete’s career. Additionally, some injuries like concussions and ACL tears can have lifelong impacts.[29] Northwestern’s movement was led by Kain Colter, the quarterback of the team. The football team’s petition to unionize was originally approved by the Chicago chapter of the National Labor Relations Board (NLRB). Ultimately, the federal NLRB denied Northwestern the ability to unionize, declaring a threat to the stability of collegiate athletics and a violation of the National Labor Relations Act.[30]

Northwestern’s movement presents a variety of issues regarding student labor laws. The National Collegiate Athletic Association (NCAA) maintains that if student athletes were to be considered employees, the foundation of collegiate athletics would be undermined. For the NCAA, amateurism is essential to the effectiveness of college sports. Athletes are not allowed to receive compensation in the form of prize money or payment for performance outside of a given scholarship.[31] According to the NLRB, 85 of the 112 athletes on the Northwestern football team received grant-in-aid scholarships. Each of the individual scholarships totaled $61,000 per year. The scholarship amount was based on yearly tuition, books, fees, and room and board. In their final report, the federal NLRB stressed that scholarship players were unlike any group that they had analyzed before. The NLRB explicitly mentioned graduate students as well as janitorial and cafeteria student workers as other cases of interest.[32]

Scholarship was at the core of the NLRB’s decision to deny Northwestern’s petition. Collegiate athletes differ from professionals because their monetary contribution depends on more than athletic performance. There are strict academic regulations that apply to every collegiate athlete. Withal, Northwestern is one of only seventeen private schools that compete at the NCAA Division I Football Bowl Subdivision (FBS) level. The Northwestern Department of Athletics stated that overall annual expenses exceeded the revenues for the timeframe of the petition ruling. Northwestern declared that they had to subsidize the Athletic Department in order to balance the budget. Consequently, revenue was another essential factor in the NLRB’s final ruling.[33]

B. UIUC (2018)

Many university students, undergraduate and graduate, are often employees of the university in positions such as teaching assistants. In fact, in the school year of 2011-2012, “12.1 percent of all graduate students and 57.9 percent of non-education Ph.D students worked as graduate student assistants” which includes teaching and research assistants.[34] Since then, their numbers have only increased. In addition, the work these teaching and research assistants accomplish influences, in large part, the prestige and “grant-based financial support” universities receive.[35]

At large research universities like the University of Illinois Urbana-Champaign (UIUC), graduate students complete a number of tasks that fall outside of the scope of their advanced academic degrees. Those tasks are usually compensated in the form of tuition waivers or stipends. Although graduate students receive compensation for their efforts, their time commitment to additional tasks is demanding and stressful. In addition to developing and defending their theses, graduate assistants may be tasked with teaching undergraduate courses, grading undergraduate coursework, maintaining office hours, and performing extra research for their advisors.[36] These laborious tasks rest outside of the responsibilities of a typical student, yet graduate assistants are not considered educational employees by the Illinois Educational Labor Relations Act (IELRA).[37] Because of the IELRA’s designation for graduate assistants as students, graduate assistants do not have the right to employee organization, collective bargaining or mutual aid. Without the right to unionization, graduate assistants have no channel to express their collective concerns.

Opposers of student unionization argue that graduate assistants should not be considered employees because activities like teaching and research are essential parts of education. Graduate students usually do not pursue an advanced degree because they simply want to be paid for their work. They do so in order to cultivate job marketability and gain invaluable experience. In turn, graduate students will eventually work in careers that might require teaching and research. Work- related activities are a part of the educational training that graduate students receive, and those activities do not automatically qualify graduate students to be employees.[38]

Some graduate students, like the teaching assistants at the University of Illinois Urbana-Champaign, have unionized successfully. The UIUC Graduate Employees’ Organization (GEO) GEO was created in a long process that began in the 1970’s. Salaries, workload, healthcare, and campus parking were the earliest issues that the UIUC GEO confronted. In the late 1980’s, the UIUC GEO was victorious when they argued for a delay in student fee payment until graduate assistants had received their first paychecks. Before the UIUC GEO’s victory, students were required to pay their student fees at the beginning of the semester while already responsible for housing and textbook payments. Graduate assistants were able to alleviate financial stress through the UIUC GEO’s efforts.[39]

The UIUC GEO did not become active again until 1993 when a group of graduate assistants rebuilt the organization. As other public universities like the University of Wisconsin (UW) and the University of Michigan (UM) cultivated active graduate organizations, the UIUC GEO strived to match their efforts. In 1994, the UIUC GEO won another victory when they fought to retain their access to staff identification cards. The identification cards allowed graduate assistants to park in staff designated lots, use the Illinois Credit Union, and use special discounts.[40]

In 1995, the UIUC GEO utilized their organization to warn against the UIUC administration’s new tuition waiver plan. The UIUC GEO could adequately inform graduate assistants about the administration’s new changes which would not guarantee full tuition waivers. Although the UIUC GEO was able to present their concerns to the administration, they were not able to make impactful changes to the plan because they had yet to obtain an official contract that deemed them a union. The UIUC GEO’s lack of power forced them to consider the limits of their organization, and it encouraged them to find a new path for greater impact. More graduate assistants signed to become a part of the organization, and by April of 1996, the UIUC GEO called for an official union election. [41]

The UIUC GEO submitted 3,226 signed cards to the Illinois Educational Labor Relations Board to request a union election. The University of Illinois administration did not support the action and argued that graduate assistants were students and not employees. The administration did not believe that the IELRA applied to the UIUC GEO and chose to oppose the graduate assistants in court. While the court case continued into 1997, graduate assistants held an election to elect the GEO as their representative. The University of Illinois continued to deny the results of the election and refused a healthy dialogue with the graduate assistants.[42]

In April 1998, the Illinois Educational Relations Board ruled that the work of graduate assistants was primarily educational and the IELRA did not necessarily apply.[43] A dissenting opinion in the case argued that graduate assistants should be considered employees because of their extra duties. The UIUC GEO appealed the case to the Illinois Court of Appeals with hopes that they could advance their cause. In subsequent years, the UIUC GEO held a number of work-ins and sit-ins to protest for their rights. In June of 2000, the Illinois Court of Appeals unanimously overturned Illinois Educational Labor Relations Board’s ruling. The Illinois Court of Appeals deemed the IELRB’s decision as “clearly erroneous” and an “overly simplistic interpretation” of the graduate assistants’ situation. The Illinois Court of Appeals stated that assistants whose duties are not significantly tied to their duties as a student should retain the same benefits as other educational employees. This decision was the final drive for the UIUC GEO’s official recognition as a student union. The UIUC GEO case represents how difficult it is for public university graduate assistants to form a union with the current definition of employee in the IELRA. Although UIUC was eventually successful, the graduate assistants lacked the power to make real change in the time that they were uncontracted. Now, the UIUC Graduate Employees’ Organization bargains for a host of different issues, and their mission statement includes, but is not limited to, grievance procedure, health care, workplace safety, family issues and the rights of international students.[44]

C. UIC (2019)

The University of Illinois at Chicago (UIC) GEO has experienced similar issues to the UIUC GEO. The UIC GEO was not recognized until 2004, and they were not able to effectively bargain until 2005. Once their contract had settled, however, the UIC GEO was able to demand pay raises and health care subsidies, both of which were granted in 2006. Since then, the UIC GEO has continued to fight for their members and has won guaranteed tuition waivers, guaranteed on-time pay, and increased transparency in university processes.[45]

Most recently, on March 19, 2019, the UIC GEO gathered to exercise their rights and strike. The University repeatedly expressed its displeasure at participating in a 23rd negotiating session, but holds firm that it understands the legalities and rights provided under the Illinois Educational Labor Relations Act, and therefore is willing to find common ground with GEO members.

On March 22, the bargaining teams came together to negotiate several topics including wages, health care fees, expenses/student fees, and union rights. Before striking, graduate employees were paid a salary of $18,065 for two school semesters made up of 20 hours of work weekly; the University justified this salary in combination with the $13,502 graduate employees received in tuition and fee waivers (considering the graduate employee is a full-time student). When summing both, the amount received in all is $62,375, when considering a 12-month employment made up of 40 hour work weeks, according to UIC. While GEO members requested a near 24% increase on their salaries, UIC had counter offered an 11.5% increase in the past. But while comparing the financial benefits of graduate employees to full-time workers seems valid, it actually isn’t. Tuition waivers significantly benefit graduate employees, but the $13,502 they are “saving” is not a financial asset they can apply to their basic living expenses, rent, etc; the benefits are inherently invisible and not comparable to a full salary of $62,375 in combination with the additional payment of $18,065.

Additionally, GEO members requested healthcare fees be completely covered by UIC. The university was charging GEO members enrolled in a program called Campus Care $570 per semester — a cost that would increase to $673 the following year; GEO members pay $295 per semester, and while UIC has agreed to cover the difference in incurring the costs this upcoming year, GEO members requested a drop to $220 per semester.

Lastly, GEO members also struck for an amelioration in student fees. Before striking, undergraduate and graduate students paid a fee of $431 per semester which is a general fee UIC plans on increasing to $481 starting next year. In addition to this fee, international students (undergraduate and graduate) pay $130 per semester for finance services catered to international students. GEO members requested all student fees be covered. Although GEO members are using their rights to fight hard against UIC seemingly taking advantage of graduate employees by paying them the bare minimum and harming students’ ability to live a life of comfort and safety, the UIC department claims that they are “dependent on the revenues from the general and international fees” that they are unable to waive those.[46]

D. Title IX

Revenue and scholarship present an interesting nexus regarding the unionization of student-athletes. How can the NLRB evaluate the wide variety of student-athletes who could potentially petition for unionization? The NCAA has three divisions. There are more than 460,000 student-athletes who compete in 24 different sports at private and public schools. NCAA Division I and II schools are allowed to give their students athletic scholarships. NCAA Division III schools are only able to provide academic scholarships. Within those regulations, scholarship amounts differ, both with respect to sport and division.[47] Likewise, men dominate revenue-making collegiate athletics, and football is the spearheaded sport.[48] If all student-athletes were given the ability to unionize, how would non-revenue making sports or non-scholarship athletes fare?

Title IX eliminates discrimination on the basis of sex in any educational sphere that receives federal funding. Title IX directly applies to the NCAA and collegiate athletics. Men and women are to be given equitable athletic participation opportunities, proportional scholarships to participation, and equal treatment between genders with regard to athletic facilities and services. Title IX does not guarantee that money will be spent equally between women’s and men’s sports, however, it protects both genders by providing the same “treatments” and “benefits”. When framed by Title IX, a female sports team that does not generate revenue should have the same rights as a men’s football team when evaluated by the NLRB or IELRA for unionization. If student-athletes were allowed to unionize, revenue could not be relied upon as a deciding factor to deny or approve a petition.[49]

Despite Title IX’s purpose, critics argue that revenue could be relied upon to regulate which student-athletes are able to unionize. In cases concerning the pay gap between female and male collegiate coaches, courts have ruled that a male coach is entitled to more pay if his work requires more “skill, effort or responsibility.” In Stanley v. University of Southern California, the U.S. Court for Appeals for the Ninth Circuit ruled that the University of South Carolina could offer more money to male basketball coaches based on the elevated annual revenue generated from the men’s basketball team.[50] The pay gap between female and male coaches demonstrates how Title IX can be bypassed with regard to revenue. If courts can rule in favor of male coaches based on revenue, they may be able to rule in favor of male teams who seek the right to unionize.[51]

E. Illinois HB0329 – Higher Education: Athletes are Employees

Members of the Illinois General Assembly are currently trying to push for legislation that would allow student-athletes to be considered employees based on the revenue generated from each sport. House Bill 0329 (HB0329) was introduced by Rep. Thaddeus Jones, and it amends previous acts that designate student-athletes as non-employees. The bill concerns only public universities in Illinois. The bill requires those public universities to consider student-athletes as employees in the top three financially profitable athletic teams. The athletes will receive a minimum salary of $25,000 a year, but work hours will be set by each individual university.[52]

As of the publication of this article, HB0329 is in the Illinois House and was sent to the Special Issues Subcommittee. Supporters of the bill hope to make it effective by July 1st, 2019. If HB0329 is passed, public universities in Illinois will have to amend their contracts with student-athletes. The universities mentioned in HB0329 include the University of Illinois campuses, Southern Illinois University, Chicago State University, Eastern Illinois University, Governors State University, Illinois State University, Northeastern Illinois University, and Northern Illinois University. HB0329 is a perfect example of how revenue could be used to decide which student-athletes are able to unionize and presents the potential backlash from other athletes who cannot accrue similar benefits. Although HB0329 is a step forward with regard to the collective rights of student-athletes, it does not address private universities, and it does not address gender-based concerns.[53]

VI. Rebuttal

Under the Taft-Hartley Act, the National Board of Labor Relations and other federal leadership have the ability to forcibly end strikes by federal unions. The three most commonly used methods to do so are: 1) Mediation (active intervention) 2) Publicity (calling attention to accelerate the bargaining process), and 3) Coercion (termination of employment or an injunction).

The most notable use of coercion was in 1981, when the Professional Air Traffic Controllers Organization (PATCO) was decertified by executive order by President Ronald Reagan in the same year of their strike. After giving the union an ultimatum of 48 hours to resume regular work activities, Reagan fired over 11,000 air traffic controllers and replaced them with a mixture of off-duty and retired air traffic controllers, as well as military personnel. Ultimately, the justification relied on the fact that without these federal employees providing service, the public is exposed to an immediate and quantifiable larger danger, specifically, risk of personal injury or death, as well as property destruction, not to mention the wholesale disruption of the transportation and logistics industries.

VI. Conclusion

Public sector employees, in most cases and when needed, have the opportunity to unionize and fight for their rights; their ability to do so is an essential aspect of democratic institutions which should give them the right to hold those in power accountable by voicing their concerns.

Take teacher unions, for example. According to sociologist Robert Carini, teacher unionism “favorably influences achievement for most students;” this is due to teachers organizing to improve school environments for students by protesting against “despicable and dangerous school facilities,” demanding “more public service for marginalized students”, and rejecting “racially disproportionate student discipline”, for example.[54] Given these admirable goals, it’s not surprising that public university employees are pushing so hard to organize.

In addition, the work these teaching and research assistants accomplish influences, in large part, the prestige and “grant-based financial support” universities receive.[55] Despite all of this, their right to unionize is often hindered by the Labor Management Relations Act of 1947, better known as the Taft-Hartley Act, which is a United States federal law that “restricts the activities and power of labor unions”. This vital piece of labor legislation, which still stands today, amended the Wagner Act, and is arguably the hindrance to free speech and the democratic principles our society and its institutions is supposed uphold.[56]


  1. Rebecca Ann Holmes, The Impact of State Labor Regulations on Manufacturing Input Demand During the Progressive Era, 65 The J. of Econ. History 531, 532 (2005). ↩︎
  2. Donald Remy, NCAA Responds to Union Proposal, ESPN (Jan. 28, 2014), http://www.ncaa.org/about/resources/media-center/press-releases/ncaa-responds-union-proposal ↩︎
  3. Jeremais Prassl, The Concept of the Employer (2016). ↩︎
  4. Bruce R. Hopkins’ Nonprofit Counsel, Irs Explains Exclusions for Graduate-Level Tuition Waivers. 27 Bruce R. Hopkins’ Nonprofit Counsel 6-7 (2010). ↩︎
  5. W.J. Tronsor, Unions for Workers in the Gig Economy: Time for a New Labor Movement. 69 Lab. L. J. 181-193 (2018). ↩︎
  6. L.J. Cavell & ERIC Clearinghouse on Higher Education. Graduate Student Unionization in Higher Education, ERIC Digest (2000). ↩︎
  7. N. DiGiovanni Jr., The Emergence and Evolution of Faculty Unionism, 53(4) New Hampshire B. J. 12-16 (2014). ↩︎
  8. 115 ILCS 5/20-101 (1984) ↩︎
  9. Chi-Cheng Hung, A Study of Human Resources Management for Mega Sport Event, National Taiwan Normal University, Taipei (2013). ↩︎
  10. Section 9(a) of Taft-Hartley Act Confers on Employee No Right to Compel Employer to Hear Individual Grievances, 63(8) Colum. L. Rev. 1513-1518 (1963). ↩︎
  11. L. Angerame, Meritocracy, Salem Press Encyclopedia 6th (2017). ↩︎
  12. L. Holthaus & J. Steffek, The Social-Democratic Roots of Global Governance: Welfare Internationalism from the 19th Century to the United Nations, 24(1) Eur. J. of Int’l Rel. 106-129 (2018). ↩︎
  13. J. Rosenfeld & P. Denice, What do Government Unions do? Public sector unions and nonunion wages, 1977-2015, 78 J. Soc. Sci. Res. 41-56 (2019). ↩︎
  14. Id. ↩︎
  15. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). ↩︎
  16. Commonwealth v. Hunt, 45 Mass. 111, 4 Metcalf 111 (Mass. 1842) ↩︎
  17. 115 ILCS, supra note 8. ↩︎
  18. National Labor Relations Act., 74 P.L. 198, 49 Stat. 449, 74 Cong. Ch. 372 (July 5, 1935), available at <https: advance-lexis-com.proxy2.library.illinois.edu=”” api=”” document?collection=”statutes-legislation&id=urn:contentItem:5CBP-FXH0-01XN-S4RM-00000-00&context=1516831″>. ↩︎
  19. 5 ILCS 315/1 [Short title], 5 ILCS 315/1 ( Statutes current through P.A. 101-1 of the 2019 Regular Session of the 101st General Assembly ), available at https://advance-lexis-com.proxy2.library.illinois.edu/api/document?collection=statutes-legislation&id=urn:contentItem:5C65-YR21-6YS3-D0T2-00000-00&context=1516831. ↩︎
  20. 97 N.L.R.B. 424 (1951). ↩︎
  21. Cornell Univ., 183 N.L.R.B. 329 (1970) ↩︎
  22. THE DEVELOPING LABOR LAW, supra note 28, at 640. ↩︎
  23. Lori J. Cavell, Graduate Student Unionization in Higher Education (2000) (ERIC Document Reprod. Serv. No. ED 446 647) ↩︎
  24. 444 U.S. 672,674-79 (1980). ↩︎
  25. Boston Medical Center (1-RC-20574; 330 NLRB No. 30) ↩︎
  26. New York Univ. (No. 2-RC-22082; 332 NLRB No. 1205). ↩︎
  27. Brown University and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW AFL–CIO. (No. 1–RC–21368; 342 NLRB No. 42). ↩︎
  28. Ben Strauss, N.L.R.B. Rejects Northwestern Football Players’ Union Bid, The New York Times(2015), https://www.nytimes.com/2015/08/18/sports/ncaafootball/nlrb-says-northwestern-football-players-cannot-unionize.html (last visited Apr 4, 2019). ↩︎
  29. Tom Farrey, Northwestern players denied request to form first union for athletes, ESPN(2015), http://www.espn.com/college-football/story/_/id/13455477/nlrb-says-northwestern-players-cannot-unionize (last visited Apr 4, 2019). ↩︎
  30. Strauss, supra note 40 ↩︎
  31. Amateurism, NCAA.org – The Official Site of the NCAA(2018), http://www.ncaa.org/student-athletes/future/amateurism (last visited Apr 21, 2019). ↩︎
  32. Northwestern University and College Athletes Players Association (CAPA), (13–RC– 121359; 362 NLRB No. 167). ↩︎
  33. Id. ↩︎
  34. Teresa Kroeger, Celine McNicholas, Marni von Wilpert & Julia Wolfe, The State of Graduate Student Employee Unions: Momentum to Organize among Graduate Student Workers Is Growing Despite Opposition, Econ. Pol’y Inst. 1-14 (2018). ↩︎
  35. Id. ↩︎
  36. Sheldon D. Pollack and Daniel V. Johns *, GRADUATE STUDENTS, UNIONS, AND BROWN UNIVERSITY, 20 The Labor Law. 243, (Fall, 2004), available at https://advance-lexis-com.proxy2.library.illinois.edu/api/document?collection=analytical-materials&id=urn:contentItem:4FNN-H9N0-00DB-512F-00000-00&context=1516831. ↩︎
  37. 115 ILCS, supra note 8 ↩︎
  38. Omri Ben-Shahar, The False Hope Of Graduate Student Unions Forbes (2017), https://www.forbes.com/sites/omribenshahar/2017/05/28/the-false-hope-of-graduate-student-unions/#6369a9cb4038 (last visited Apr 4, 2019). ↩︎
  39. History, Graduate Employees’ Organization at UIUC(2017), https://uiucgeo.org/history/ (last visited Apr 4, 2019). ↩︎
  40. Id. ↩︎
  41. Id. ↩︎
  42. Id. ↩︎
  43. Id. ↩︎
  44. Mission, Graduate Employees’ Organization at UIUC(2017), https://uiucgeo.org/mission/ (last visited Apr 4, 2019). ↩︎
  45. UIC GEO History, UIC Graduate Employees Organization, http://uic-geo.net/mainsite/?page_id=582 (last visited Apr 4, 2019). ↩︎
  46. GEO strike, March 19, GEO Bargaining, https://geobargaining.uic.edu/news-stories/geo-strike-march-19/ (last visited Apr 4, 2019). ↩︎
  47. Scholarships, NCAA.org – The Official Site of the NCAA(2018), http://www.ncaa.org/student-athletes/future/scholarships (last visited Apr 4, 2019). ↩︎
  48. Cork Gaines, The average college football team makes more money than the next 25 college sports combined, Business Insider(2016), https://www.businessinsider.com/college-sports-revenue-2016-10 (last visited Apr 4, 2019). ↩︎
  49. Title IX Frequently Asked Questions, NCAA.org – The Official Site of the NCAA(2014), http://www.ncaa.org/about/resources/inclusion/title-ix-frequently-asked-questions#title (last visited Apr 4, 2019). ↩︎
  50. Stanley v. University of S. California, 178 F.3d 1069, (United States Court of Appeals for the Ninth Circuit, June 2, 1999, Filed), available at https://advance-lexis-com.proxy2.library.illinois.edu/api/document?collection=cases&id=urn:contentItem:3WMB-8MV0-0038-X4NS-00000-00&context=1516831. ↩︎
  51. Id. ↩︎
  52. HB 0329, 101st Gen. Assemb., Reg. Sess. (Ill. 2019). ↩︎
  53. Id. ↩︎
  54. The Double Standard for Public-Sector Unions, tcf.org – The Century Foundation,[https://tcf.org/content/commentary/double-standard-public-sector-unions/?session=1]{.underline} (last visited Apr 22, 2019). ↩︎
  55. Kroeger, supra note 36 ↩︎
  56. § 141. Short title; Congressional declaration of purpose and policy, 29 USCS § 141 (Current through PL 116-8, approved 3/8/19), available at https://advance-lexis-com.proxy2.library.illinois.edu/api/document?collection=statutes-legislation&id=urn:contentItem:4YF7-GRS1-NRF4-40R8-00000-00&context=1516831. </https:> ↩︎