The Slatest
In Landmark Decision, NLRB Allows Graduate Students at Private Universities to Unionize
By Mark Joseph Stern
Aug 23, 20163:39 PM
Graduate students now have a right to unionize under federal law.
Timothy A. Clary/AFP/Getty Images
On Tuesday, the National Labor Relations Board ruled that graduate students employed by private universities are permitted to unionize under federal law. The 3–1 decision reversed a previous NLRB ruling that barred these students from unionizing in 2004. Every Ivy League school opposed the decision, which was spurred by Columbia University's efforts to shut down a union drive on campus.
The critical question at issue in this litigation was whether students employed by a private university are "employees" as defined by the National Labor Relations Act. Twelve years ago, a Republican-dominated NLRB found that working students aren't employees under federal law because their relationship with their employer was "primarily educational." That board also found that collective bargaining between a university and its employed graduate students could not "coexist successfully with student-teacher relationships, with the educational process, and with the traditional goals of higher education." Finally, it held that "collective bargaining would unduly infringe upon traditional academic freedoms," including the "right to speak freely in the classroom."
But the NLRB—which has since swung majority-Democrat—found on Tuesday that these rationales simply do not hold up to scrutiny. First, the board rejected the argument that graduate students cannot be employees because their relationship to their employer remains "primarily educational." This interpretation, the board wrote, cannot actually be found in the "statutory text" of federal labor law, and cannot be derived from its "fundamental policy." Instead, the board asked whether colleges and students had a "common-law employment relationship," with the school exerting control over its student employees and compensating them for their labor. Because such a relationship obviously exists, students may be considered "employees" of the universities for which they work.
As for the earlier ruling's other concerns, the NLRB noted that almost all of them are "purely theoretical." There is no empirical evidence that collective bargaining would somehow destroy the relationship between working graduate students and their employers by disrupting "traditional goals of higher education." There is no proof that collective bargaining might restrict freedom of expression in the university setting. Indeed, graduate students at public universities have been unionizing for years without imperiling their school's academic mission. And recent research has found "no support" for the assertion that graduate student unionization "would harm the faculty-student relationship" or "would diminish academic freedom."
"In sum," the board concluded, "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."
Tuesday's decision is an unqualified triumph for the many graduate students who work as teaching assistants, fellows, and research assistants at their universities. It's also a sharp rebuke to the prestigious universities that hoped to stifle their employed students' ability to negotiate a fair wage. Since 2004, these schools have cleverly exempted themselves from federal labor law by misrepresenting their employed students' work and warning ominously about the abstract horrors of collective bargaining. That era of special treatment ends today.