At a growing number of institutions, including Brown, student labor organizations allege that administrators’ crackdowns on their pro-Palestine demonstrations violate federal labor law that protects certain types of work-related protest activity.
They argue, for various reasons, that the protests are linked to their working conditions. The students’ argument is uncharted territory for federal labor law, but experts say that students face long odds in making their case.
“I don't know that the Board has approached this issue or resolved this issue to date,” said William Gould IV, former chairman of the National Labor Relations Board.
At Brown, at least 15 members of the Graduate Labor Organization received disciplinary letters for participating in encampment-related activities last spring, said Michael Ziegler GS, the organization’s president. The encampment called on Brown to divest from 10 companies which activists identified as having Israeli military ties. A University spokesperson declined to comment on the cases.
The National Labor Relations Act protects workers’ right to mobilize and protest “regarding terms and conditions of employment” without penalty. For GLO, divestment protests are tied to their employment, so they consider it federally protected. For example, GLO has argued that Brown’s resources are a product of graduate students’ labor, so they should have a say in how those resources are invested.
“For us, everything that has to do with Brown’s money is stuff that comes from our labor,” GLO Organizing Director Adit Sabnis GS said. That connection, Sabnis argues, allows for workers to have a say on the companies in which Brown invests.
But for the University, the protests are independent from the graduate students’ employment with Brown, pursuing disciplinary procedures against students. This has sparked unfair labor practices charges filed by GLO with the NLRB, challenging Brown’s disciplinary authority.
The Herald interviewed three experts on labor law about how the NLRB might view union attempts to connect members’ protests to their working conditions. While the NLRB has not yet evaluated the merits of these charges, the experts suggested that student labor unions may face an uphill battle.
For the protests to be protected by the NLRB, they must directly tie to students’ working conditions. According to William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, “working conditions” specifically relate to the work done by employees, their compensation and benefits.
“To say, ‘everything's related to my employment’ — that's just not going to bear weight before the NLRB,” said Harry Katz, professor of collective bargaining at Cornell University’s School of Industrial and Labor Relations.
“Unions have a right, and management has an obligation to bargain about wages and other employment conditions,” Katz said. But he wouldn’t “call the construction of tents or other forms of an encampment a work condition, (or) an employment condition.”
GLO’s contract with the University specifically notes that Brown has the right to discipline students for academic and non-academic conduct.
“I understand the outrage that students and others feel about the way in which monies are being used for the terrible things that we see happening in the Middle East,” said Gould. “I'm just not sure that this would pass muster based upon the Supreme Court precedent that I'm aware of.”
Gould cited the 1981 Supreme Court case First National Maintenance Corp v. NLRB, which gave employers broad discretion to make management decisions that didn’t have employees in mind, he said.
According to Katz, the University’s investments could be considered a management decision and “not a wage and employment condition.”
This would mean that GLO’s actions regarding divestment are not protected labor activity, allowing for Brown’s disciplinary actions.
Still, GLO has focused on divestment as a goal for months.
At a rally early in the spring semester, GLO announced a union-led campaign for divestment.
Then-president Sherena Razek GS told attendees, “I don’t think we have to choose between our advocacy (for union workers) and our work in organizing around Palestine,” she said. “We have an obligation to do both.”
Prior to issuing student conduct violations, in a community-wide Today@Brown message, Provost Frank Doyle III warned that participants could face potential discipline for violating the student code of conduct during protests “unrelated to their employment.”
“If a union-sponsored protest unrelated to their employment does not comply with University rules, that union’s leadership and/or members can be held accountable for failing to follow University policies — just like every other member of our community,” University Spokesperson Brian Clark wrote in an email to The Herald.
Clarification: This article was updated to clarify why members of the Graduate Labor Organization received disciplinary letters.
Ethan Schenker is a senior staff writer covering staff and student labor. He is from Bethesda, MD, and plans to study International and Public Affairs and Economics. In his free time, he enjoys playing piano and clicking on New York Times notifications.
