The dog days of summer are over and the NLRB is dropping some major action. Namely overturning a twelve year precedent and allowing graduate students (and other student assistants) to unionize.
The Board’s decision overturns a previous 2004 decision involving Brown University graduate students, where the NLRB found that—since they had primarily an educational relationship with the school—the grad students were not statutory employees, and therefore could not unionize. Over the years there has been a few attempts to overturn that precedent; most recently in 2013, when many thought that the NLRB was close to overruling past precedent. But after the schools and unions reached a voluntary elections agreement in November 2013, the issue returned to the back burner.
But in the three years since, more and more graduate schools saw unionization efforts. In 2015, the United Auto Workers’ (UAW) petitions to represent various student assistants at Columbia University and The New School were denied, pursuant to the Brown decision (then-)eleven years prior. But thanks to some tenacity on the part of UAW, the Board granted a request for review after the UAW urged them to reconsider Brown, stating “The time has come to squarely overrule a decision that has no basis in the statute, precedent, logic, or experience.” The fact that the NLRB voted to review the case in a 3-1 vote finding the case involved “substantial issues warranting review” seemed to indicate that Brown was not long for this world, at least in its original form.
Almost a year later, and the Board has finally reached a decision: Graduate students who work as teaching and research assistants at private universities are entitled to collective bargaining.
“There is no compelling reason—in theory or in practice—to conclude that collective bargaining by student assistants cannot be viable or that it would seriously interfere with higher education,” wrote the majority in their opinion, which found the Browndecision flawed. “Finding student assistants to be statutory employees, and permitting them to seek union representation, does not conflict with any federal statute related to private universities, as far as we can discern. Certainly the Brown University Board cited no statutory conflict, nor have the parties and amici in this case. Our conclusion is that affording student assistants the right to engage in collective bargaining will further the policies of the Act, without engendering any cognizable, countervailing harm to private higher education.”
According to the NLRB, the Board is permitted to treat students as employees if they perform and are compensated for work that the university oversees, even if their complete relationship with the university is substantially broader. In their eyes—and the eyes of many graduate students—this better reflects the reality of work that feels like work, not learning.
“As students and as workers, we have a different relationship than someone who is just a student,” said Matilda Stubbs, 32 and six months away from completing her doctorate in anthropology at Northwestern University, to The Chicago Tribune. “This is our livelihood, these (faculty members) are our colleagues.”
Graduate students at public universities in a number of areas already have the ability to unionize, thanks to local state laws. Even still, this decision marks a major expansion of those rights—but not too far beyond grad students.
The decision comes just a year after the Board’s denial of jurisdiction over a union’s attempt to organize football players at Northwestern University. In that opinion, the NLRB specifically mentioned that “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.”
“They didn’t go as far as to say whether they were employees under the act,” said Gregg Clifton, one of the editors on the Collegiate and Professional Sports Law Blog in an interview with LXBN at the time. “The argument has often been whether or not football players are analogous to graduate school students or other student employees. [But] the NLRB’s decision clearly distinguishes the football players from those other employees.”
Whether there will be a continued push from student athletes remains to be seen. In the meantime, graduate students and other student assistants can now bargain for larger stipends, better health coverage (that may take into account possible children), and basic protections, such as unpaid leave. The university may still appeal the NLRB decision in court.
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