Background on NLRB Decision
In a case involving Columbia University, the National Labor Relations Board (NLRB) ruled on August 23 in a 3-to-1 decision that graduate students employed by private colleges and universities are eligible to form collective-bargaining units under the National Labor Relations Act. This case was brought by a group of graduate students who wanted to join the United Auto Workers Union. There are currently active union drives on other private campuses led by other unions as well. Columbia has left open the possibility that it may challenge this ruling in Federal court. A decision on a similar case involving The New School is still pending. The NLRB granted review of this case in December 2015, and AGB members have requested that we follow this issue.
This latest NLRB decision overturns a 2004 decision involving Brown University that made graduate student employees ineligible to form unions because the institution’s relationship with those students was “primarily educational” as opposed to economic.
Graduate student unions at public institutions are relatively common, although only a small fraction of enrolled students are currently represented, in part because their collective bargaining status on public campuses is governed by state law.
Key findings in the Columbia case that have relevance for both public and independent institutions and their boards include:
- Graduate students who have a common-law employment relationship with their university are considered statutory employees under the ruling.
- Finite tenure alone cannot be a basis on which to deny bargaining rights. Thus, graduate student employees cannot be deemed ineligible for unionization by virtue of their finite tenure at the institution.
- Graduate students have the right to exercise full freedom of association and self-organization and to designate representatives of their own choosing.
- It is appropriate for the NLRB to exercise jurisdiction over student teaching assistants.
- The NLRB is permitted to define the scope of mandatory bargaining over wages, hours, and other terms and conditions of employment to delineate mutually satisfactory boundaries of the parties’ respective rights and obligations.
In a related matter, the NLRB in 2015 declined to assert jurisdiction in a case addressing the failed attempt by Northwestern University football players to organize as a union. While the decision did seem to effectively end union organizing in college sports in the short term, no precedent was established that would apply to graduate student workers. AGB filed an amicus brief in support of Northwestern’s appeal last summer and provided an AGB alert to members on the ruling.
Key Issues for Institutional Leaders
- Due to potential appeals and related cases, the extent to which this matter is resolved by the Columbia case remains unclear; however, this ruling will be in effect into the next presidential administration.
- Private colleges and universities should be prepared for potential unionization efforts by graduate students, similar to the surge in organizing among adjunct instructors.
- New organizing efforts are more likely to occur in states that have significant union representation and, especially, in states where unions already represent faculty members or graduate students at public colleges and universities.
- Novice student unions may well seek to affiliate with existing unions that have years of experience in labor/management relations, which could significantly add to their negotiating powers.
- A wide range of working terms and conditions may now be subject to collective bargaining beyond just pay and hours.
- Some experts believe that graduate student unions will be concentrated at large research institutions, but the opportunity to unionize is open to any graduate student, including instructors and research assistants, providing some service for a stipend.
Advice for Governing Boards and Institutional Leaders
- Unless your institution is directly affected by the decision, no immediate action is needed. However, you should discuss the strategic implications of the case. Be sure to inform the board’s thinking with information and advice from legal counsel, human resources leadership, and the chief financial officer.
- Request an update on the status of graduate student life on the campus. The update should include a review of this ruling and the existing relationships the institution has with its graduate students who receive compensation for services. Particular attention should be paid to the impact new policies could have upon career opportunities and overall student welfare, while balancing these concerns with institutional issues such as budgetary impact and campus human resources policy.
- If your institution is affected by the decision, discuss the strategic implications of the case, potential responses, and best practices from public universities that have experience with graduate student employee unions.
- Carefully review campus employee policies impacting graduate students to identify possible problem areas. Points of graduate student dissatisfaction that have arisen at other institutions may offer a good starting point for policy review.
- Foster open lines of communication with members of the campus community to gain stakeholder perspectives that can inform board decisions and institutional policies and practices going forward.
- Discuss how this ruling intersects with both new and existing federal regulations that impact human resources policy, such as those stemming from the Affordable Care Act (especially regarding part-time faculty healthcare) and the newly released Department of Labor overtime regulation (especially regarding postdoctoral scholar pay).
There is no doubt that this decision will result in wide-ranging ramifications for institutions. Past labor agreements with graduate student unions have allowed for collective bargaining over stipends, pay periods, discipline and discharge, job postings, a grievance-and-arbitration procedure, and health insurance. The agreements also often incorporate a “management and academic rights” clause. In recent collective bargaining agreements, colleges and universities have preserved the right to “determine . . . qualifications . . . and assignment of graduate employees; to determine the processes and criteria by which graduate employees’ performance is evaluated; . . . to schedule hours of work; . . . to determine how and when and by whom instruction is delivered; . . . to introduce new methods of instruction; . . . and to exercise sole authority on all decisions involving academic matters . . . decisions regarding who is taught, what is taught, how it is taught and who does the teaching.”