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NLRB Proposes to Make Student Workers Ineligible to Unionize (1)

Sept. 20, 2019, 12:47 PMUpdated: Sept. 20, 2019, 7:11 PM

Graduate teaching assistants and other student workers at private universities and colleges wouldn’t qualify for federal protections that grant most private-sector workers the right to form or join a union under a new regulatory proposal.

Students who receive compensation for teaching or conducting research “in connection with their studies” wouldn’t be considered employees, who have the right to unionize and are protected from various unfair labor practices, the National Labor Relations Board said in a press release Sept. 20.

The board has in recent years swung back and forth on whether students are “employees” under the National Labor Relations Act. Federal labor law protections were extended to college student-workers in 2000 and 2016 under Democrat-majority labor boards, while a Republican-majority board relinquished jurisdiction over those workers in 2004.

The current proposal—which the board is pursuing through the rulemaking process rather than in an individual case decision—is supported by three of President Donald Trump’s Republican appointees to the NLRB, with the lone Democratic board member dissenting. The Republican members have faced backlash through much of their terms for a string of rulings that critics say favor large corporations, and an ethical violation by member William Emanuel.

“The basis for this proposed rule is the Board’s preliminary position, subject to revision in light of public comment, that the relationship these students have with their school is predominately educational rather than economic,” the agency said in the release.

“In the past 19 years, the Board has changed its stance on this issue three times,” NLRB Chairman John Ring said in the release. “This rulemaking is intended to obtain maximum input on this issue from the public, and then to bring stability to this important area of federal labor law.”

The proposed rule will be published in the Federal Register Sept. 23, the board said. Public comment will be accepted for 60 days after that date.

The proposal is one of several policy updates that the Trump labor board has moved to enact through formal, notice-and-comment rulemaking. Ring has said the regulatory route allows the NLRB, which traditionally has interpreted federal labor law through case decisions, to cement those updates in a way that will be more difficult to undo in future administrations.

Impact on Campuses

The eventual rule could have broad implications for universities and private colleges, and their graduate assistants, and other student workers.

Some labor unions and student organizers had already shifted their strategies in response to earlier signals that the board would reverse course on the issue. The proposed rule likely will compel more students and organizers to avoid filing unionization petitions with the federal government and pursue collective bargaining through other means—which also could slow down the emerging trend of student-worker organizing.

“An administrative carve-out of graduate assistants would not impact” existing contracts between student employee unions and universities, said William Herbert, director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College. But the proposal “would likely encourage other institutions to refuse to recognize graduate student unions.”

Five private universities—American University, Brandeis University, the New School, New York University, and Tufts University—have agreed to collective contracts after bargaining with their graduate students’ unions, according to the center.

There have been 15 representation elections involving graduate assistant workers at private institutions since the NLRB extended the protections of the law in 2016, and in 12 the workers voted to unionize.

Four institutions with certified unions—Harvard University, Columbia University, Brown University, and Georgetown University—are bargaining over their first union contracts, according to research by Herbert and his colleagues at Hunter College’s center.

Loyola University Chicago has a recognized union, but has refused to begin negotiating, Herbert said.

“At universities where there aren’t collective bargaining agreements yet, Harvard, for example, they may say, ‘Well the NLRB says you’re not employees under the act, therefore we’re going to cease bargaining'—although it’s probably too early to say,” said Shannon Farmer, a labor lawyer at Ballard Spahr LLP. Farmer represents higher education employers, including in collective bargaining negotiations.

“There might be the occasional school that agrees to recognize a union for its own reasons, but that also creates an interesting situation because if the NLRB says they’re not ‘employees’ then they can’t really go to the board and get the same kind of recourse” for unfair labor practices, Farmer said.

Harvard spokesperson Jonathan Swain said the school is reviewing the proposed rule and what impact it might have on negotiations with the Harvard Graduate Student Union.

Legal, Political Fight Underway

The “proposed rule is based on the view that the common-law definition of employee is not conclusive because the Act, and its policy promoting collective bargaining, ‘contemplates a primarily economic relationship between employer and employee,’” the board’s majority members wrote in their proposal.

The common-law standard for defining employees considers many factors in order to determine how much control an employer has over a worker’s job duties and performance.

Democrat member Lauren McFerran said in dissent that there’s “no good basis—in law, in policy, or in fact—to take these workers’ rights away.”

The proposal “reflects a deep misunderstanding of our statute, as interpreted by the Supreme Court, which broadly protects private-sector employees and which has no special exception for working students,” she wrote.

Jeffrey Hirsch, a labor law professor at the University of North Carolina, said a “blanket exclusion” of graduate student workers may be in conflict with U.S. Supreme Court jurisprudence holding that the board should rely on the common-law test for employee status.

The academics and practitioners agreed that lawsuits and other legal challenges are almost certain to follow.

The American Federation of Teachers, Service Employees International Union and other unions organizing graduate students announced national efforts at multiple colleges to oppose the rulemaking immediately after the board’s notice.

“We are mobilizing across the country to take bold direct action to ensure our voices are heard in this process,” said Matthew Taft, a member of the Duke Graduate Student Union working with the SEIU coalition.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Terence Hyland at thyland@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com