Grad student unions dealt blow as proposed new rule says students aren’t ‘employees’

Graduate students are not “employees” with a right to unionize, according to a rule proposed today by the National Labor Relations Board (NLRB), an agency that’s tasked with enforcing U.S. labor laws. If implemented, the rule would undercut a recent wave of grad student unionization efforts at private U.S. universities. The NLRB will be accepting public comment on the announcement for 60 days.

The NLRB has traditionally made these kinds of decisions on a case-by-case basis—not through rulemaking—notes Risa Lieberwitz, a professor of labor and employment law at Cornell University and general counsel for the American Association of University Professors. “But this current NLRB has a strong majority of very conservative board members; … [it’s] shown itself to be extremely political and quite focused on overruling precedent that had expanded employee rights to unionize.”

In 2016, the NLRB decided that students at Columbia University who receive compensation for teaching and research could be considered employees with a right to unionize. Prior to that though, in 2004, the board ruled that students at Brown University did not have the right to unionize—overturning a 2000 ruling that grad students at New York University (NYU) could unionize. The back and forth is because NLRB members are appointed by the presidential administration. Pro-union decisions were made under Democratic Presidents Bill Clinton and Barack Obama; the anti-union Brown decision was made under Republican President George W. Bush.

The crux of the argument boils down to whether the teaching and research that graduate students undertake is a form of training that is part of their education—or if they are “working” for their universities and therefore qualified to be considered employees. In an amicus brief filed ahead of the Columbia decision, nine of the nation’s most prestigious universities argued that “graduate assistants are students whose relationship with the university is primarily academic, not economic.” But in that case, Lieberwitz says, the NLRB ultimately ruled “that you can be both an employee and a student—that that kind of dual status can coexist.” (The NLRB doesn't have jurisdiction over public universities, where grad students are widely recognized to be workers who are permitted to form unions in states that allow collective bargaining by state employees.)

In the wake of the Columbia decision, graduate students mobilized to form unions at Columbia and other leading private institutions. Students at 12 universities—including Harvard University, Brown University, Yale University, and the University of Chicago—have held votes that came out in favor of unionization, and four unions have negotiated contracts with their institutions. Union representatives have pushed for better pay, benefits, and protections for their workers, and in some cases they have called for a formal third-party procedure to deal with sexual harassment and discrimination complaints.

It’s unclear how the NLRB’s proposed rule will impact negotiations that are currently ongoing. “Our university agreed to bargain in good faith after we won an election,” says Annie Wentz, a Ph.D. student in epidemiology at Brown University. “If they decide to stop doing that, I would be upset—but we’re going to work hard to hold Brown to that agreement.”

There’s precedent for universities to come to the bargaining table during periods when the NLRB has ruled that grad students don’t count as workers. Three years before the Columbia decision, NYU voluntarily recognized the right of grad students to unionize and began contract negotiations, even though the Brown decision meant that it wasn’t required to do so.

But for grad students, that hasn’t always been an easy path to follow. After Columbia graduate assistants voted to unionize—by a vote of 1602 to 623—the university refused to come to the bargaining table for more than 2 years, only agreeing to do so after graduate assistants went on a weeklong strike. Contract negotiations are ongoing.

At the University of Chicago, administrators tried to block a union vote in 2017, arguing to a regional NLRB board that graduate teaching and research assistants aren’t truly workers. The NLRB sided with the graduate students, allowing the vote to proceed, and in October of that year they voted in favor of unionization.

Since then, though, the university has refused to recognize the union or come to the bargaining table. “The University believes the NLRB’s ruling in Columbia was wrongly decided,” wrote a university spokesperson, who pointed to an email provost Daniel Diermeier sent to the campus community in June: “Graduate students are students, first and foremost. They come to the University to study, to learn how to teach future generations of students, and to make original contributions in their chosen fields of knowledge.”

Students such as Claudio Gonzáles, a Ph.D. student in math at the University of Chicago in Illinois who serves as the union’s co-president, are frustrated. “The whole point of us [unionizing] is we have very material, very immediate needs that are not being met,” he says—adding that “this place does rely on our labor.”

Gonzáles and his fellow grad students have fought back with walkouts designed to push administrators into voluntarily recognizing their union. But in 2018, they decided to withdraw their petition with the NLRB seeking formal union certification out of fear that that the board—newly refreshed with appointments made by President Donald Trump—would use the petition as an opportunity to issue an antiunion decision. Graduate students at Yale University, Boston College, and the University of Pennsylvania withdrew their petitions at the same time, which left the NLRB with no other option than the rulemaking process to overturn the Columbia decision.

It’s unusual for the NLRB to use rulemaking in this way. Congress has the authority to stipulate who is—and is not—considered an employee under U.S. labor law, notes William Herbert, the executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College, part of the City University of New York system. “This rule seems to be usurping that congressional prerogative,” he says. “Inevitably there will be litigation.”