Unions worked hard for President Obama in November -- and those in academic unions have had high hopes that his actions would revive the movement to organize graduate teaching assistants at private universities.
In his first move related to the National Labor Relations Board, Obama has cheered those unions by designating as chair Wilma B. Liebman,  who is on record as backing collective bargaining rights for private universities' graduate teaching assistants. Liebman was originally appointed to the NLRB by President Clinton, and she was one of two members who wrote a strong dissent to the 2004 decision  that effectively shut down union organizing at private institutions. While she has the same vote as chair as do other members, the signs suggest that her views won't be in the minority.
There are currently three vacancies on the five-member board, and Obama's appointees are expected to create a majority that would favor private university unionization of graduate students. Obama himself is on record in favor of that view, having backed legislation  introduced (but not passed) last year to restore that right. Assuming that the president's appointees do back collective bargaining for T.A.'s, the stage could be set for a reversal of the 2004 decision, which itself was a reversal of a 2000 decision upholding the right to unionize. To date, only one union has successfully negotiated a contract for graduate teaching assistants at a private university -- New York University -- and NYU exercised its legal right under the 2004 ruling not to continue such negotiations. A strike ensued, but was defeated. 
At the time of the 2004 ruling, organizing drives were under way at several private universities -- including Brown, Columbia and Yale Universities and the University of Pennsylvania -- and more embryonic efforts were getting started elsewhere. The 2004 ruling effectively quashed those drives, and unions have focused organizing efforts elsewhere. Now, with the prospect of another reversal, unions are getting ready to return to private universities on behalf of graduate students.
The 2004 decision came at a time that "a number of organizations were in the midst of beginning to organize graduate employees at private institutions, and I expect those activities to pick right up," said Lawrence N. Gold, director of higher education at the American Federation of Teachers, which was organizing the grad students at Penn and has maintained ties with a group there.
Private universities do not share Gold's enthusiasm for a new outlook at the NLRB. Several have been closely monitoring the likely changes at the board, and while not seeking to pick fights with a new president whose higher education agenda they largely endorse, are trying to consider whether they have options to prevent unionization.
Unions for graduate students are hardly new in higher education. The NLRB oversees labor rights at private entities, but state law governs the rights of public university graduate students to unionize -- and many of them have done so. The AFT, for example, represents the graduate unit at the University of Michigan,  while the United Auto Workers represents a similar unit at the University of California  and the Communications Workers of America represents one for the State University of New York. 
The argument on which the NLRB has zigged and zagged is whether graduate students are primarily students (a view endorsed by the Republican majority in the 2004 ruling) or should be seen as employees (the view endorsed by the new NLRB chair and union leaders). The 2004 ruling characterized the financial assistance graduate students receive as financial aid and the work performed as being part of the process of learning to teach. But the dissent noted that graduate students are paid to work as teaching assistants, are supervised in their work, and generally meet the definition of an employee, regardless of whether they happen to also be enrolled in a graduate program.
The dissent signed by Liebman, the new NLRB chair, called the majority ruling "woefully out of touch with contemporary academic reality," and said that the decision "errs in seeing the academic world as somehow removed from the economic realm that labor law addresses -- as if there was no room in the ivory tower for a sweatshop."
Ada Meloy, general counsel of the American Council on Education, said that private universities have legitimate reasons to worry about a shift in NLRB policy. "Especially in this economic environment, any increase in expenses will put an even greater strain on the universities' already challenged fiscal situation," she said.
If a state's laws permit public university graduate students to unionize, she noted, the university can ask the state for extra funds (at least in normal budget years) to meet contract demands, but private institutions do not have that option.
Meloy stressed, however, that private universities are not uniform in their view of the issue of the way their graduate students work as teaching assistants. "I'm not sure that all graduate students or teaching assistants at a wide range of private universities perform the same learning opportunities," she said. So even if the NLRB rules that there are circumstances where some private universities need to permit unionization, "there is an opportunity for each one to make its own case." Officials at the National Association of Independent Colleges and Universities said that they were also concerned about the possible shift in the NLRB position, and were "closely monitoring" the situation.
Others think that the coming shifts at the NLRB will result in a major push for graduate student unionization -- and that's as it should be. "I think the graduate employees find themselves in the same kind of fragile condition that is the case in public universities. They have the same grievances," said Richard Boris, director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, at the City University of New York’s Hunter College.
While Boris predicted that many private universities would fight the organizing drives, he said that it is not logical to have graduate student unions at public institutions and not privates. "I think it would be beneficial for the university world if there were a standard policy throughout the country," he said.
A likely path to an NLRB reconsideration of the 2004 ruling would start with an organizing drive leading to a union request for an election on collective bargaining. If, as would be likely, a regional NLRB official were to reject the request, citing the 2004 ruling, the union could then appeal to the reconstituted NLRB.
Much has changed since the 2004 ruling. The growth of the union movement, as well as generally robust university endowments, led many private universities to increase stipends significantly and to add benefits that had previously been denied graduate students. The current economic environment is, to put it mildly, very different. Brown University  -- where a union drive led to the 2004 NLRB decision -- announced on Tuesday that one way it would respond to financial woes was that there is "likely to be little or no increase in the base graduate student stipend for the next few years."
The economy may also make graduate students more receptive to unions, said Shonni Enelow, a graduate student in comparative literature and previously co-chair of GET-UP, the AFT affiliate at Penn, which stands for Graduate Employees Together -- University of Pennsylvania.
"I think what we're going to see is a real culture shift in the way graduate employees at private universities think of themselves, and think of themselves as employees," she said. The adjunct union movement has grown in recent years, and many graduate students see themselves facing the same conditions that prompt collective bargaining in that sector, she said -- lack of adequate pay and benefits.
GET-UP has been largely focused on other issues beyond collective bargaining since the 2004 NLRB ruling. Last year, its members worked on behalf of Democratic candidates in the elections, she said. "But we still have a great deal of support for a union. Once private universities can be unionized, we'll get going."
Yale University has been site of one of the longest and most bitter organizing campaigns. Ariana Paulson, chair of the Graduate Employees and Students Organization, which is affiliated with the union Unite Here, said she was "very hopeful" about changes in the NLRB. While the organization has been asking Yale to negotiate even without the NLRB's ruling, the situation could change if there is again federal approval for such collective bargaining, she said. "Yale has been able to hide behind the legal right to say no," she said.
Paulson, a doctoral student in American studies, said that there has been some shift in priorities over the years as Yale and other universities have improved the treatment of graduate students in some areas. "We're very pleased," she said, arguing that many of those improvements wouldn't have come without the union organizing drive. But graduate students at Yale are increasingly concerned about the prospect of working for years (or careers) off the tenure track, she said, and see the value of the union movement to academic labor as a whole.
She declined to say how long it would take the union to submit petitions for a union election, if the NLRB again approved unions at private universities. "As with any campaign, we'd have to assess when the right time would be," she said.
It is not a done deal that elections on collective bargaining lead to union victories. In 2002, Cornell University graduate assistants rejected a drive to be represented by the UAW.
Bobbi Sutherland, chair of the Graduate Student Assembly at Yale (an elected body that is not affiliated with the GESO union), said that she sees graduate students making progress on issues without a union. She said that health insurance is good now, and that some students are working on dental insurance issues. While there are some frustrations, she said she didn't feel that there was anger on the part of graduate students.
"I don't get a sense of anger, but a sense that some students think things could be better, and things always could be better," said Sutherland, a graduate student in medieval studies. "I don't get a strong sense that people are clamoring to join a union."