NLRB Returns to Grad Student Unions

Board agrees to review issue of whether teaching assistants at private nonprofit universities are entitled to collective bargaining.

October 23, 2015

WASHINGTON -- The National Labor Relations Board -- voting 3 to 1 -- agreed Wednesday to reconsider whether graduate teaching assistants at private nonprofit universities are entitled to collective bargaining.

The board accepted a case involving a bid by the United Auto Workers at the New School to unionize. While the board only agreed to review the issue, the current majority of the board is generally viewed as sympathetic to unions. Having the board reverse its position on unionization at private universities has been a major goal of academic labor during the Obama administration.

But for much of the administration, legal and political disputes blocked President Obama's ability to appoint NLRB members. And while it looked for a while like a similar case involving New York University would be the one the NLRB would use to reconsider union rights, that case was settled before the NLRB could rule. So while NYU graduate students won their union, they didn't change the legal landscape.

Timeline on Graduate Student Unions at Private Universities

2000: NLRB -- in case involving NYU and UAW -- rules that graduate teaching assistants are eligible for collective bargaining and can be considered employees.

2002: NYU recognizes the UAW union for its graduate students, becoming the first private university to do so.

2004: NLRB -- in case involving Brown University and the UAW -- reverses the 2000 ruling, and says graduate students cannot be considered employees entitled to collective bargaining.

2005: NYU withdraws recognition of the UAW.

2005-6: Graduate teaching assistants go on strike at NYU, seeking to force the university to restore recognition, but strike fizzles out without such recognition.

2011: Regional NLRB official, in response to new petition from NYU graduate students to unionize with UAW, rules that the 2004 decision that grad students lack collective bargaining rights is still in place, but questions logic of that ruling, which is then appealed to full NLRB.

2012: NLRB announces it will use the appeal on behalf of NYU grad students to reconsider the 2004 ruling.

2013: NYU and UAW announce compromise under which the appeal to NLRB will be withdrawn.

2015: NLRB agrees to reconsider whether graduate students have collective bargaining rights.

The issue of whether graduate students have collective bargaining rights at private universities has gone back and forth, as the NLRB's sympathies have changed under Democratic and Republican administrations. So this could be the last shot for a reversal on the issue during the Obama administration.

Many public universities have long had unionized graduate teaching assistants. But public universities are governed by laws in their states, not by the NLRB.

“This sets in place for the first time for the NLRB to examine its 'Brown' decision,” said William A. Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, at Hunter College of City University of New York. He was referring to a decision in which the NLRB rejected union rights for teaching assistants at Brown University.

“What's going to be interesting is whether the fact of a large number of bargaining units in the public sector, including recent units, will have an impact on evaluating whether graduate students are employees,” he said.

Unions have argued that graduate students should have rights as employees, while universities have maintained that they should be viewed as students.

The NLRB gave a hint that it was open to reconsidering its ban on graduate student unions in August when it declined to assert jurisdiction in a union bid by Northwestern University football players. The board used an aside in its ruling in that case to say that “the scholarship players do not fit into any analytical framework that the board has used in cases involving other types of students or athletes…. In this regard, the scholarship players bear little resemblance to the graduate student assistants or student janitors and cafeteria workers whose employee status the board has considered in other cases.”

Academic labor on one side, and higher education administrators on the other, are likely to now file briefs in the New School case. If the briefs follow the NYU case, pro-union voices will say that graduate students are entitled to bargain for better wages and working conditions. Higher education leaders are likely to argue that collective bargaining would interfere with the professor-student relationship and could restrict academic decisions made by professors who supervise graduate students.


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