Labor Agency to Propose Rule on Grad Students’ Right to Unionize

When it comes to ruling on graduate students’ right to unionize, the National Labor Relations Board has a history of flip-flopping based on which political party controls it.

Democrats have supported grad students’ right to unionize. Republicans have not.

So once President Trump had the opportunity to start appointing Republicans to the board, graduate-student unions whose institutions had refused to bargain collectively made a decision: They would avoid petitioning the NLRB so the agency wouldn’t have the chance to overturn a 2016 ruling that gave graduate students at Columbia University and other private colleges the right to bargain collectively.

That strategy, however, appears to have been a short-term shield. The NLRB announced this week that it planned to propose a rule “to establish the standard for determining whether students who perform services at a private college or university in connection with their studies are ‘employees’” and can form unions. Rulemaking, as it’s called, will allow the labor board to revisit the issue without having to wait for a case to be brought up.

Although rulemaking by the agency isn’t common, under the current NLRB board it’s not a surprise, said William A. Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, based at the City University of New York’s Hunter College. The chairman of the labor-relations board has publicly supported the process.

“The majority of the NLRB is clearly in favor of doing rulemaking on this issue,” Herbert said. “What happens is that the agenda is controlled by the agency as opposed to being controlled by parties litigating.”

Case in point: The Columbia ruling was a reversal of a 2004 decision by the NLRB that took away collective-bargaining rights — and that decision was a reversal of the board’s granting the right to unionize in 2000. Each time the decision was made on a case-by-case basis.

The proposed rule, once issued, will be followed by a comment period that Herbert expects many parties to take advantage of.

More immediately, the NLRB’s announcement provoked reactions from unionized graduate students and others on social media, some of them barbed and directed toward institutions.

Here’s one:

All the elite college presidents who sent out letters to their communities expressing Deep Concern over Trump’s election are thrilled about what his NLRB is doing. https://t.co/26AM0F1NYm

— third use of the law respecter (@benjamindcrosby) May 23, 2019

Sentiments like that might not be far off the mark. One labor expert said, “Universities that are determined not to bargain with graduate students’ unions will surely see this notice as good news,” said Charlotte Garden, an associate professor at the Seattle University School of Law, in an email. “That doesn’t mean that the issue is going away — instead I expect that graduate students will continue to pressure universities to come to the bargaining table in other ways, such as through protests and strikes.”

On Sunday, for example, Graduate Students United, at the University of Chicago, voted overwhelmingly to authorize a strike against the institution, which has yet to recognize the group 19 months after it voted to unionize. The union, in a Facebook post this week, said: “If it comes to it, we will walk the picket lines proudly.”

Since 2012, five institutions have voluntarily agreed to recognize graduate-student unions, said Herbert. They are the University of Connecticut, and Brown, Georgetown, Montana State, and New York Universities. Regardless of what the NLRB decides, he said, institutions will still have the latitude to make their own decisions about graduate-student unions on their campuses.

Garden, an employment- and labor-law expert, agreed.

“Ultimately,” she said, “graduate students may be able to convince universities that it is in their interest to come to the bargaining table, no matter what the board does.”

Audrey Williams June is a senior reporter who writes about the academic workplace, faculty pay, and work-life balance in academe. Contact her at audrey.june@chronicle.com, or follow her on Twitter @chronaudrey.