After a series of back-and-forth rulings, graduate students at private colleges and universities may again lose their legal status as employees, and with that their right to unionize.

The change comes due to a Sept. 20 rule by the National Labor Relations Board stating that graduate students at private institutions like Duke do not meet the definition of “employee” under Section 2(3) of the National Labor Relations Act (NLRA). As a result, they do not have the legal right to organize under a union.

The rule would overturn the Board’s 2016 ruling in a Columbia University case which classified graduate students as employees, granting them the legal protection to form unions. This rule echoes 2004, when the NLRB under the Bush administration reversed a Clinton-era rule that graduate students were employees.

Although the rule has been announced, there is still a 60-day open-comment period before the board formally votes on it. Austin Wadle, second-year environmental engineering Ph.D. student and co-secretary of the Duke Graduate Students Union, said that during this period, the public may submit "substantive comments" which the NLRB must consider and to which they must respond.

"We're currently mobilizing our members [in DGSU], as well as our allies, to fill out as many comments as possible to make the NLRB contend with the material conditions that is caused by a decision like this," they said. "One of the scariest things about this [ruling] is that it not only takes away grad workers' rights, but it also squashes an ever-growing movement to unionize undergrad student workers as well."

However, Daniel Bowling, senior lecturing fellow at Duke Law, who teaches courses focused on labor and employment law, said that the open comment period is only a “formality,” and, since the board had already exercised its rulemaking authority, it is likely that the rule will pass.

He noted that historically, the Board has avoided rulemaking, instead waiting for cases or controversies to be brought before it. The present activity, with the Board taking on “rulemaking authority,” is relatively new. Much of the action began during the Obama administration, Bowling said, and it has continued into the Trump years as it undoes Obama-era rulings.

John Zhu, senior public affairs officer and communications strategist for the Duke Graduate School, declined to comment because the rule is still in the open-comment stage.

The DGSU was formed in 2017, after the Obama-era Board’s ruling in the Columbia case. Inspired by Duke’s adjunct and non-tenure-track faculty, who had formed a union under the Service Employees International Union, Duke graduate students decided to launch their own campaign for unionization with the SEIU, according to the DGSU website.

In response, Wadle said that Duke hired a law firm in attempts to "quash the union.” However, following the graduate election for unionization, the results were inconclusive; a majority of the ballots were challenged.

As a result, Wadle said that the DGSU decided to pull their petitions for legal recognition from the Board. Two options remained: strive for voluntary recognition from the University or form a minority union.

“We decided to go on the minority union route and build up our victories organizing on a very direct-action, grassroots level,” Wadle said.

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Despite not being recognized by the University, they said that the union has won huge victories in the past few years, including the 12-month pay increase promised for 2022, ending tuition fees for sixth-year graduate students and winning back access to the gym for third, fourth and fifth-year graduate students.

However, if the ruling passes, Wadle said that it would give the administration further ability to ignore the union and would force it to wait even longer to get full bargaining rights with the University.

Bowling acknowledged that with the new ruling, the union would have no legal power, at least under the NLRA.

Nonetheless, he emphasized that graduate students would still be able to engage in "concerted activity," whether they're in a union or not. Even without a union, graduate workers could put "economic pressure" on the university by, for example, refusing to teach in undergraduate classes.

Wadle asserted that it is integral that graduate students be recognized as both students and workers, as the university "would not function" without their work as researchers, teacher’s assistants and more. As such, Wadle said that it is crucial for graduate students to be legally recognized as workers and for them to have unionization rights, due to existing power dynamics between them and the university.

Wadle said that unions could benefit both graduate workers and the university given the fact that they are "preemptive," providing mechanisms for preventing problems through a more equitable process that balances power dynamics between workers and their superiors.

“As an individual worker, my ability to make change is often dependent on administrators’ willingness to meet with me, and on their good opinion of my work and my ethic,” Wadle said. “Whereas if we band together, there's not really an argument to be made against us, because we've come collectively and small-d democratically to fight for the things that affect our working conditions.”

Ultimately, they viewed the ruling as a larger attack on vulnerable groups by the Trump administration. They added that, by refusing to recognize the DGSU, Duke’s administration is "complicit" in these broader attacks on labor.

“[The Duke administration] could truly stand up to the Trump administration, not only in cases like the Middle Eastern Studies program’s recent investigation, but they could also choose to stand up against their labor rights violations, by formally recognizing and voluntarily recognizing the union and having a full good faith negotiation with us about our working conditions,” Wadle said.

Bowling noted that the ruling is one reason that the current period of U.S. labor relations is particularly fascinating. He noted that the current college-age generation has used the NLRA as an unprecedented tool to avoid workplace exploitation.

While these efforts are "overdue," Bowling commented, they have also created "very interesting issues."

“When the Labor Act was passed in 1935, it was certainly aimed at more of a typical blue-collar workforce,” he said. “I don't think Congress could ever have conceived of a day where college students, [football players], or docents in a museum would form a union... To me, it's a very interesting period in labor relations where we see how this all sorts out… I think it’s just—stay tuned.”