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The Trump-appointed National Labor Relations Board wants to make sure -- really sure -- that graduate students at private institutions can’t form unions.

Previously, the board has flip-flopped as to whether graduate students at private institutions are employees entitled to collective bargaining under the National Labor Relations Act (public campus unions are subject to state law on the matter). But now, instead of settling the issue on a case-by-case basis, the board is seeking to make a permanent rule against graduate students unions.

The board said Friday that its intent in seeking this new rule is to bring stability to graduate students and institutions. And indeed the board, which is subject to political tides, has changed its stance on graduate students three times in 19 years. Case in point: its most recent ruling (not rule) was in a 2016 decision involving graduate assistants at Columbia University, when the Obama-era board said student workers are in fact employees with collective bargaining rights. The precedent allowed graduate students on a number of campuses to hold union elections and in some places secure first contracts.

Yet some institutions challenged the NLRB’s 2016 decision. Their position strengthened with President Trump’s election and each of his new appointees to the board. And while many anti-graduate-union administrators hoped that the NLRB might reverse the pro-union Columbia precedent in some new case, or that their legal appeals would prove fruitful, the proposed rule is a boon to their cause.

Others see the rule as an example of shocking overreach by the board.

“What’s troubling about this is this is Congress’s job,” said William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at City University of New York’s Hunter College. “This is rule making about excluding a class of employees from the National Labor Relations Act. If this rule is adopted, it will likely be challenged in the courts, because, again, it is really Congress’s job to amend the statute.”

In a notice published in the Federal Register today, the board said the proposed rule would explicitly exempt from its jurisdiction undergraduate and graduate students who perform services for financial compensation in connection with their studies. The undergraduate part of the proposal is clearly a reference to the 2016 NLRB decision about Columbia, which was surprisingly sweeping in that it opened the door to unionization for not only graduate assistants who do teaching and research but even undergraduates who work for their institutions.

There hasn’t been much movement toward undergraduate student unions, however. As for graduate students, there are currently five private institutions with graduate student union contracts: New York University (whose contract predates the 2016 NLRB decision), along with American, Brandeis and Tufts Universities and the New School, for about 3,500 students. Four more institutions are currently negotiating first contracts, according to the National Center. There have been 15 elections since 2016.

Thirty-two public institutions have contracts with gradate student unions, representing about 66,000 assistants.

The board’s basis for the proposed rule is its preliminary position that the relationship between students and institutions is predominantly educational, not economic.

Three of the board’s four members, including Trump appointee and chair John F. Ring, support the new rule; one, Obama-era appointee Lauren McFerran, whose term ends in December, dissented.

Public comments are invited for the next 60 days.

Herbert said that the board should study the issue via empirical data before adopting any rule, to see what exactly students gain and what they don't when they unionize. And if the board wants to bring stability to the private graduate student question, the new rule might have the opposite effect, he added. Why? In addition to inviting legal challenges, a rule also risks pushing the issue to state legal systems. Herbert noted that New York State, for instance, recently changed its laws to allow farm workers to unionize, even though these agricultural workers are exempt from collective bargaining under the national labor act.

Steven Bernstein, a Florida-based attorney whose firm, Fisher Phillips, has represented many administrations in labor cases, said he thought it was nevertheless improbable that state courts would breathe new life into the student union question.

Of the new rule, Bernstein said it’s not only good for institutions but “for the marketplace generally. Any time there’s a rule issued that in its proposed form offers guidance, it seeks to offer clarity in an area of law that is probably crying out for that.”

Moreover, he said, the board has throughout its history defined the scope of what it means to be an employee through both decisions and rule making.

“They’re providing the administrative guidance that’s delegated to them by law.”

If there’s some gray area regarding the board’s authority, one thing is clear: graduate student unions hate the proposed rule.

The American Federation of Teachers, for example, said Friday that the new rule “falsely asserts that grad workers -- who grade the papers, do the research and teach the classes that keep their universities running -- are merely students.” It would continue to allow universities to “profit from grads’ work on the one hand, while claiming they aren’t even workers on the other.”

The AFT also called rule “illegitimate because it exceeds the board’s statutory authority.” Union president Randi Weingarten said in a statement, “This assault is of a piece with the Trump-DeVos agenda to hurt students by changing Title IX, siding with loan servicers over borrowers and now attacking grads’ right to organize.” In other public statements, graduate assistants at a number of private institutions where graduate students have elected to form unions called on their administrations to voluntarily work with them on collective bargaining, regardless of the NLRB’s official position.

Jewel Tomasula, a graduate assistant in biology at Georgetown University, which is currently negotiating a first contract with AFT-affiliated student employees, said, “We know we are workers by the simple reality of doing our jobs as teachers and researchers. No NLRB rule reversal will change our reality as workers who need livable wages, good benefits and a voice in decisions that impact our lives.”

Tomasula added, “We have found our power in unionizing, and there's no stopping this movement now. Whether it's at the bargaining table or through collective action, graduate unions will continue to fight for and win tangible improvements for grad workers.”

The AFT-affiliated Georgetown Alliance of Graduate Employees said that Friday's announcement won't impact its ongoing negotiations because it already secured a framework agreement guaranteeing that the university will continue to bargain "in good faith" regardless of any decision by the NLRB.

Herbert said that current contracts will likewise be unaffected by any new rule -- at least until they expire.

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