College students working as research and teaching assistants could see their unionization rights on the line thanks to an organizing drive at a small liberal arts college in Iowa.

The case could inadvertently provide the Republican-majority National Labor Relations Board the chance to undo an Obama-era precedent allowing student assistants at private universities to unionize. That potential shift in policy is something major unions have been trying hard to avoid.

Student workers at Grinnell College are set to vote Nov. 27 on whether to expand their union for student dining workers into a campuswide undergraduate-employee union. The college recently retained a high-powered law firm that has defended other universities against union campaigns. The student union has no legal representation and isn’t affiliated with an international union.

Are Student Assistants Employees?

A Democrat-controlled NLRB ruled in 2016 that student assistants at Columbia University are employees under federal labor law, paving the way for graduate and undergraduate assistants at private universities to organize. Unionization rights for student workers at public colleges depend on each state’s labor laws.

But unions stepped away from the NLRB after a Republican majority took control of the board, withdrawing any pending student assistant petitions that could be the vehicle to reverse the Columbia decision. The Service Employees International Union, UNITE HERE, American Federation of Teachers, and United Auto Workers banded together in March to push for graduate assistant unionization outside of the NLRB process, which requires cooperation from the schools.

The NLRB has flip-flopped on student assistants’ status multiple times depending on which party has a majority on the board, with Democrats supporting their rights to unionize and Republicans saying student assistants aren’t employees under the National Labor Relations Act. The NLRB gave student assistants organizing rights in 2000, took them away in 2004, and reinstated them in the Columbia decision.

UAW official Beverly Brakeman told Bloomberg Law that the UAW supports student workers’ right to unionize and is “very invested in the Columbia decision not being overturned.” Brakeman declined to comment on the campaign at Grinnell.

Meanwhile, organized labor is experiencing a growing momentum on private campuses. AFT won elections at Brown University and Georgetown University this month in non-NLRB elections. Earlier this week, Columbia University said it would finally bargain with a UAW affiliate that won an election nearly two years ago if the union agrees to certain negotiation terms.

Grinnell’s Unexpected Escalation

Grinnell College has doubled down on its opposition to the student union, requesting that the election be delayed or the ballots impounded. School administrators this week brought on board the New York-based Proskauer Rose law firm, which has represented Columbia, Yale University, Duke University, and the University of Chicago in union disputes.

The school’s opposition to the election surprised student organizers. The college previously had said it would respect the results of an election and bargain while they appeal the eligibility of students organizing, according to Union of Grinnell Student Dining Workers President Quinn Ercolani. He called the school’s latest move “disheartening.”

“This is just an escalation we weren’t really expecting,” Ercolani said.

It’s unaffiliated with an international union but has been in touch with internationals and may decide to affiliate in the future depending on the circumstances, Ercolani said. Such an affiliation may provide a larger network of resources and organizing knowledge to support their bid.

A campuswide union “could harm Grinnell’s ability to pursue its core educational mission and maintain its distinctive culture,” Grinnell spokeswoman Lisa Lacher wrote in a statement to Bloomberg Law. She also said a union would cause privacy concerns and diminish educational opportunities.

Election Delay Unlikely

The school’s motion to stay the election stands little chance of being approved, William A. Herbert at Hunter College, City University of New York, told Bloomberg Law. He’s the executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions.

There’s no indication the NLRB plans to review the status of the law in the two pending cases involving library workers at the University of Chicago and postdoctoral researchers at Columbia, Herbert added.

“There’s no necessity for staying an election,” Herbert said. “This is basically stopping the democratic process.”

Wide-Ranging Effects

A decision taking away student assistants’ organizing rights could hurt union attempts to negotiate for non-NLRB elections at college campuses.

Lawyers for Grinnell criticized the “circumvention of the NLRB’s processes” by not allowing the board to revisit the Columbia decision. They said that unionizing on campuses has fractured student-faculty relationships. The tension around students unionizing “threatens to permanently alter” the model of education that exists today, the lawyers added.

Unions would lose the fear of going through the NLRB process in 2021 if Democrats took back the White House, William Gould, a Stanford University law professor emeritus and former NLRB chairman, told Bloomberg Law.

Nevertheless, efforts to set up non-NLRB elections wouldn’t be doomed if Columbia were overturned, said Catherine Fisk, a law professor at the University of California-Berkeley.

“It’s always better to have the law on your side,” Fisk told Bloomberg Law. “But if there is a strong enough will among student workers to unionize and they have public sentiment behind them, a university could choose to negotiate collectively with workers rather than just resist endlessly.”