by By Jared Odessky*
In August 2016, the National Labor Relations Board (NLRB or “the Board”) held that graduate student assistants at Columbia University were statutory employees under Section 2(3) of the National Labor Relations Act (“the Act”) with the legally enforceable right to unionize. The ruling extended to private colleges and universities generally and spurred a wave of organizing on campuses across the country.
When President Trump took office, analysts predicted that his new appointees to the Board would move quickly to reverse the Columbia decision. Yet while the Trump NLRB has overturned a number of important Obama-era precedents, Columbia remains intact. Below I explain the decision’s staying power and explore the legal prospects for graduate employee unionization in an evolving labor law climate.
Employee Status Under 2(3)
The National Labor Relations Act safeguards the collective action and bargaining rights of employees in the private sector, including at private colleges and universities. In 2000, the NLRB, with a majority of Clinton appointees, first recognized that graduate student assistants at New York University met the definition of employees under Section 2(3) of the Act. In 2004, the Board, then with a majority of Bush appointees, reversed NYU in a case involving assistants at Brown University. In 2016, the Obama Board reversed Brown in Columbia, restoring the rights guaranteed by the Act to graduate student assistants.
After Columbia, graduate student assistants won union representation elections at numerous colleges and universities. Following union victories at Boston College, the University of Chicago, and Yale University in 2017, all three university administrations planned appeals to the newly appointed Trump NLRB majority seeking review of graduate student assistants’ employee status under Section 2(3). Rather than risk another reversal a la Brown, student assistants at these schools made the difficult choice to pull their petitions and pursue voluntary recognition by their university administrations. Harvard student assistants will vote in what will likely be the last graduate employee union election under the Trump NLRB on April 18-19, but the administration has so far not indicated it will challenge the Act’s applicability. Absent a case raising the question of employee status, the Board lacks a direct means to overturn Columbia.
Meanwhile, Columbia University’s graduate student assistants voted overwhelmingly (72%) to unionize in December 2016. The NLRB certified their union this past December. In January of this year, the Columbia administration announced that it would refuse to bargain with the union in violation of existing law. Because of Columbia’s outright abdication of its duty to bargain in good faith, the NLRB, despite its political make-up, is likely to grant an unfair labor practice charge filed by the union. The Columbia administration then plans to appeal to a federal appeals court for review of the NLRB’s interpretation of the Act in Columbia.
Without an active question of employee status before the Board and with appellate review some steps away, Columbia does not face imminent reversal.
Bargaining Unit Composition
While leaving Columbia untouched, other reversals by the Trump NLRB have limited the legally available options for employees to organize into bargaining units. Following Columbia, union campaigns took divergent approaches to bargaining unit composition as the law then sanctioned. At Yale, for example, graduate student assistants pursued separate union elections by academic department relying on the Obama-era Specialty Healthcare decision, which allowed bargaining units tailored to specialized communities of interest within a larger workplace. At Harvard, on the other hand, the union proposed a university-wide bargaining unit that included student assistants from all departments and schools. Harvard’s student assistants reasoned that a university-wide union would maximize bargaining power without sacrificing adaptability. In its December 2017 decision PCC Structurals, Inc., the Board overturned Specialty Healthcare, eliminating Yale’s department-specific approach as a legally permissible configuration. In the current climate, a university-wide approach to organizing is the legally safe and practically sensible route.
Voluntary Recognition
Since new petitions for union representation can trigger a reversal of Columbia, graduate student assistants at schools that would challenge employee status are seeking an alternative to the NLRB process. Voluntary recognition of unions by university employers is not only legally permissible but can also save cost and time for both sides. After Brown reversed NYU in 2004, a majority of New York University student employees continued to demand recognition of their union, which they received in 2013. On April 2 of this year, Georgetown University signed a private election agreement with its graduate student assistant union, submitting to a representation election conducted by a third-party organization rather than the NLRB and contracting to bargain in good faith if employees vote for unionization. While Brandeis University, The New School, and Tufts University student employees won their unions in NLRB-run elections, their administrations have voluntarily pledged to bargain. Graduate student employees at Boston College, the University of Chicago, Yale University, and other schools are now working to secure recognition.
Public Universities
Currently, some 35,000 graduate student assistants at public universities, including the University of California, the University of Florida, the University of Michigan, and the University of Washington, belong to unions, most often the UAW. Such unions have decades of experience winning measurable wage and benefit improvements for graduate student assistants without disturbing academic relationships. Changes at the NLRB have no direct impact on unions at public universities, which are governed by state labor laws rather than the National Labor Relations Act. Student assistants at Penn State, for instance, will vote on union representation April 10-17 without risking employee status for assistants at private schools.
While the Trump NLRB poses new obstacles to graduate student assistant unionization, the movement continues to grow. Through voluntary recognition campaigns and continued organizing at public universities with favorable state laws, graduate student assistants in the Trump era are continuing to fight for a voice on the job in a changing academic workplace.
*Jared Odessky is a 1L at Harvard Law School. He previously was an organizer of the Graduate Workers of Columbia (GWC-UAW) and is currently a Law School leader of the Harvard Graduate Students Union (HGSU-UAW).