NLRB Victory for Graduate Employee Unionization

In a major victory for graduate employees at private universities, the National Labor Relations Board (NLRB) announced today that it was withdrawing a rule proposed in late 2019 that would have barred graduate assistants from engaging in union organizing and collective bargaining under the protection of federal law. Currently, graduate teaching and research assistants, and other students receiving compensation from their university, can organize and bargain in unions at many private universities under the federal National Labor Relations Act (NLRA). The act does not cover public universities or some religious private universities. Graduate employees have taken advantage of these rights by organizing unions and negotiating collective bargaining agreements that greatly advance the rights and benefits of their members.

The proposed rule sought to undo this progress. Graduate employees currently have the right to organize and bargain under the NLRA as the result of a 2016 decision by the NLRB in a case involving graduate teaching and research assistants at Columbia University. The AAUP has long supported the bargaining rights of graduate employees and submitted an amicus brief in the Columbia University case, which was cited and relied upon by the board in its decision. The 2019 rule proposed under the Trump administration would have reversed this decision and would have established that students at a private college or university who perform any services for compensation in connection with their studies, including but not limited to teaching or research, would not be “employees” under the purview of the National Labor Relations Act. Therefore, they would not be accorded the right to unionize under the NLRA. The AAUP submitted comments opposing the proposed rule and demonstrating both that graduate assistants are employees with the right to unionize under the NLRA and that unionization advances their academic freedom.

The issue of graduate employee coverage under the NLRA has been the subject of back-and-forth decisions by the NLRB, with Republican-dominated boards often excluding them from coverage (as in a 2004 Brown University case) and Democratic-dominated boards often including them in the coverage (as in the 2016 Columbia University case). The proposed rule would have established the exclusion as a regulatory rule, which is much harder to overcome.

Because the rule is withdrawn, graduate employees can continue to organize and bargain under the protection of the NLRA as provided in the Columbia University decision. Given the change in administrations, which should ultimately yield a change in the composition of the NLRB, we are hopeful that the rights of private-university graduate employees to unionize will be firmly established.