As the unionization rate in America continues to decline, union leadership has been searching for new industries, groups, and workplaces in which they might have success with unionization campaigns. One sector of employees that unions have been exploring is graduate students. While the National Labor Relations Board (“NLRB”) has swapped positions on allowing graduate students to organize over the last few decades, unions have continued to work towards ensuring that teaching assistants and research assistants have the opportunity for their voices to be heard through the collective bargaining process. Graduate students face a variety of issues in the workplace. As students struggle to grade papers, teach classes, perform research, and ensure the education of undergraduate students is fulfilling, the working conditions are rarely ideal. Although compensated, many have argued that graduate students performing this type of work are only performing part of their academic duty, which allows them to graduate with their degrees. Yet, graduate students are hard-working employees, who are employed by the universities that they attend to perform specific job functions. Recently, the NLRB, under the Trump administration, has sought to codify a new regulation that would recognize graduate students as students rather than actual employees; ensuring that universities will not be forced to bargain with graduate students.
The National Labor Relations Act (“NLRA”) was passed in 1935, providing workers across the country the right to unionize. The NLRA gives workers a voice and a seat at the table to negotiate their collective bargaining agreements with upper management. The Act applies to “employees” in the private industry, only carving out exceptions for agricultural workers, domestic workers, independent contractors, supervisors, and those covered by the Railway Labor Act. Barring those exceptions, Section 2 of the NLRA makes clear that all other employees are guaranteed the right to unionize and that protections are “not [to] be limited to the employees of a particular employer.” Since graduate students are not in an exempt category, it appears that the NLRA would allow graduate students to unionize and bargain with their employer.
While the matter appears unambiguous based on the language of the NLRA, the complex battle over whether graduate students can unionize began several decades ago. Under the Clinton administration, the NLRB held in the New York University case that graduate students would meet the definition of an “employee” and were covered by the NLRA. The NLRB reasoned that graduate students who worked for the university by participating in supervised teaching or research as a crucial part of their academic requirements would be considered “employees.” The decision legitimized graduate student unions and forced universities to come to the bargaining table. The NYU case overturned the NLRB’s 1972 Adelphi University decision in which the NLRB had stated that graduate assistants did not qualify as employees under the NLRA. The NYU case overturned decades of precedent set by the NLRB and was the first decision in which the NLRB stated that graduate student unions were protected under the NLRA.
This policy changed in 2004 under the Bush administration. The NLRB’s ruling in the Brown University case reversed the NYU decision, holding that graduate students performing work as are part of their academic requirements, were not employees. The NLRB decided that graduate students who were working as part of their degree were merely students and did not qualify as employees under the NLRA. This ruling returned graduate students to the same status they had before the NYU case. Universities were no longer required to negotiate with graduate students who sought to unionize, as the NLRA no longer offered protection.
Graduate student workers’ status as students would last for another twelve years, until the NLRB, under the Obama administration, ruled in the Columbia University case that graduate students who work at a university as part of their academic program are considered employees under the NLRA. The agency noted that no exception within the NLRA excluded coverage of compensated graduate student employees. Therefore, universities would be required to bargain with graduate students that chose to unionize.
Despite repeated policy reversals, unions still face additional struggles while unionizing graduate students. Graduate students cover a wide variety of programs, each with their own set of challenges. While those in the sciences may wish to bargain over their hours in a lab, or the working conditions for performing research, others in the arts may be focused on the amount of time they need to spend teaching undergraduate students. With such a wide spectrum of issues in the workplace, unions face an uphill battle trying to demonstrate that they can bargain for all graduate student employees.
Additionally, even though graduate students at American University, Brandeis University, Tufts University, and Harvard University were successful in unionizing, graduate student elsewhere faced challenges in the aftermath of the Columbia decision. For example, students at Cornell University, a school with a college devoted to Industrial Labor Relations—often championing the benefits of unionization and the labor movement—faced a tough unionization election, as the administration violated the union election rules. Cornell University was found to have violated federal labor law, after the Dean of the Graduate School sent a threatening email stating graduate admission may decrease should unionization take place. Another example is Yale University, where the administration refused to negotiate with the elected union, even though the Columbia decision required them to do so. Even with the protections of the NLRA, graduate students must fight with their own universities to ensure that their rights as workers are not violated.
Today, unions face a new potential threat from the NLRB. Under the Trump administration the Board has proposed a new regulation that would classify graduate student employees as solely students, who do not have the protections of the NLRA. If the regulation were to be put into place, which will likely take effect in the next few months, graduate students would once again be stripped of their status as “employees.” Many universities have refused to recognize graduate student unions, and while the unions could petition the NLRB to ensure collective bargaining takes place, many unions have withdrawn their petitions, out of fear that the NLRB under the Trump administration would overturn the 2016 Columbia decision. With unions not offering the NLRB the opportunity to overturn precedent, the Board has turned to drafting this new regulation. With a regulation in place establishing graduate students as purely students, it could become more difficult in the future to reestablish graduate students as university employees.
With graduate students set to no longer be protected by the NLRA, unions must look to new ways of unionizing graduate student workers. One possibly is seeking voluntary recognition from universities, which was accomplished at NYU and the University of Connecticut. While universities may not be forced to collectively bargain with graduate student workers, they nonetheless can consent to such an agreement. Many universities are not likely to enter these agreements freely. With public pressure and unions putting resources towards campaigns targeting certain universities, they may find success. Public pressure campaigns highlighting the working conditions of graduate students’ workers, while gaining support from the alumni of each university may lead to enough pressure on universities to voluntarily agree to recognize unionization.
While many universities advertise themselves as a place where students voices are heard and where the administration seeks to work with students during their academic experience, schools like Cornell University, University of Chicago, and Yale University have worked to silence the voices of their graduate student employees. Instead of provoking free thought, discussion, and working with students through the collective bargaining experience, these universities, and many others, suppress their student workers’ voices. Even though these students perform research, educate thousands of undergraduate students, and help contribute towards day-to-day operations, universities continue to view graduate students as academics, who should be grateful that they were accepted into a program. Unfortunately, universities fail to see the value of helping their workforce thrive and ensuring a better experience for not only the graduate students, but for all those affected by the work that they accomplish.
Unions must continue their fight and work towards ensuring that the NLRB does not stifle the progress it has made over the last few decades. Fighting against this regulation, fighting for candidates that will not weaken labor, and engaging workers to ensure that they know that their voices are being taken away from them is the only path forward. Graduate students cannot wait for a future NLRB to overturn this new proposed regulation, should it be approved. Instead unions and graduate students must fight to prevent this injustice. The NLRA is unambiguous and now unions and workers must fight to ensure that this powerful law continues to protect workers’ rights.
Gregory Nelson is a J.D. candidate for the Class of 2021 at Cornell Law School. He graduated in 2018 from Cornell University with a B.S. in Industrial and Labor Relations. He is highly interested in the area of labor and employment law and plans to continue to perform research and eventually practice in this area of law.
Suggested Citation: Gregory Nelson, National Labor Relations Board Gives Graduate Student Unions Whiplash, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Feb. 7, 2020), http://jlpp.org/blogzine/national-labor-relations-board-gives-graduate-student-unions-whiplash/.