As graduate fellows at Brown make an unprecedented push to unionize, the University and the Graduate Labor Organization are clashing over whether the law permits the fellows to do so.
In interviews with The Herald, some of the nation’s leading experts on labor law offered varying perspectives on what might come next for the fellows in their historic endeavor after Brown declined to voluntarily recognize their unionization last week.
In 2023, a National Labor Relations Board decision ruled that fellows at the Massachusetts Institute of Technology were not employees under federal law, prohibiting them from unionizing. This decision established “precedent” for considering “people who are paid not by the university, but by external means,” to not be employees, explained William Herbert, the executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College
Still, experts discussed the possibility of Brown graduate fellows unionizing at the state level following the passage of an amendment to Rhode Island’s Labor Relations Act last year. The amendment allows fellows to be considered employees if they “perform services for an employer in return for payment or other compensation.”
The union has not yet brought the case to the state labor board. But in an interview with The Herald, Michael Ziegler GS, the president of GLO’s parent group RIFT-AFT Local 6516, said the union was prepared to do so if they feel it is needed.
Fellows must be considered employees by law in order to unionize, Herbert explained. “The fundamental question is whether or not the employer pays specifically for work being performed and has control over that work.”
In a statement to The Herald, University spokesperson Brian Clark wrote that fellows are not employees since they receive funding to support their academic pursuits, unlike graduate student employees who are paid in exchange for their service as teaching assistants and research assistants.
Arguing the opposite, Ziegler said that there is no difference between the nature of the payment of TAs, RAs and fellows.
According to former NLRB Chairperson Wilma Liebman, Brown could use the precedent set in the 2023 MIT decision to argue that fellows are not employees. But she noted that the R.I. state board may not rule the same way as the NLRB did.
But even if fellows are considered employees under state law, the University could argue that provisions of the law are preempted by the National Labor Relations Act, according to Liebman. Brown has previously invoked this argument in communications with GLO.
Under the supremacy clause of the U.S. Constitution, federal labor law preempts state labor law, Liebman explained.
According to Michael Harper, a professor of law emeritus at Boston University School of Law, two Supreme Court rulings govern whether or not state action is preempted by the NLRA: San Diego Building Trades Council v. Garmon and Machinists v. Wisconsin Employment Relations Commission.
Under the Garmon doctrine, states cannot regulate employee groups if they are arguably under the NLRB’s jurisdiction. But because the 2023 MIT decision found that fellows are not employees under federal law — effectively placing them outside the NLRB’s jurisdiction — Garmon “doesn’t apply” to the graduate fellows at Brown, Harper said.
“I don’t know how the attorneys for Brown would deal with (the MIT decision),” Harper said.
Under the Machinists doctrine, the NLRA preempts state labor laws when those laws pertain to conduct that federal law deliberately left unregulated in order to preserve a balance between employer and employee rights. In the case of the fellows, though, Harper said he does not think Machinists would apply.
“I really don’t think this upsets any balance,” he said.
Herbert said he believes “Brown would have a good argument” that fellow unionization at the state level is preempted by federal law. He referenced a 1947 U.S. Supreme Court case that prohibited steelwork supervisors in New York from unionizing. The Supreme Court ruled that the state could not interfere with the employer and employee labor relation that was already governed by the NLRA.
“The state could not seek to expand the rights that exist under the National Labor Relations Act,” Herbert said.
In a letter to GLO last week obtained by The Herald, Brown Director of Employee and Labor Relations Benjamin Trachman offered a similar justification for preemption, writing that “the governing legal framework is the National Labor Relations Act (NLRA), which applies to private-sector employers such as Brown University, rather than the Rhode Island Labor Relations Act.”
But Harper said he believes cases involving supervisors present a unique dynamic to upset federal labor law — one he said is not present in the Brown graduate fellows’ quest to unionize.
“The difference there is that there’s a reason that you don’t want supervisors in the same union as an employee,” Harper said. “That takes away or undermines the employer’s managerial authority.”
“But that doesn’t apply to this at all,” he added.
James Libresco is a senior staff writer covering staff & student labor. He is a first-year student from Alexandria, Va. studying political science and contemplative studies. In his free time, he can be found playing basketball, meditating, or losing in Among Us.
