NLRB Proposes Rulemaking Prohibiting Grad Student Unions at Private Universities

By Chandler Hart-McGonigle*

On September 20, 2019, the National Labor Relations Board (NLRB) announced a Proposed Rule reversing the agency’s recent recognition of private university graduate students’ right to organize.[i] The Proposed Rule would exclude graduate students from the legal definition of “employees” under the National Labor Relations Act.[ii] The Proposed Rules are one of many proposed in a regulatory agenda announced by the agency over the last year, signifying an attempt by the administration to make these changes more difficult to roll back because the rulemaking process typically takes longer and is subject to extensive public comment. In the past, the Board has typically limited its policymaking activity to adjudicatory decisions made on a case by case basis. With this proposed rulemaking, the Board has failed to provide a rationale for the exclusion of graduate students from the category of employee under the meaning of the Act. If the rulemaking is codified, it could weaken the bargaining power that graduate students and decrease university incentives to come to the bargaining table.

The reasoning for the change in categorization turns on the definition of the relationship between graduate students and the university. The current Board classifies the relationship as one of a primarily educational, rather than economic nature, thus reviving the discarded “primary-purpose” test. The Board first considered bargaining rights for graduate students beginning in the 1970s and went on to display an inconsistent record concerning its position on their right to bargain beginning in the early 2000s through a series of adjudicatory decisions that vacillated between both positions. The Board first exercised jurisdiction over nonprofit colleges and universities in 1970, when it considered the petition of Cornell University library employees in Cornell University.[iii] In Cornell, it determined for the first time that while education may still be the primary goal of colleges and universities, “universit[ies have] become involved in a host of activities which are commercial in character.”[iv] From there, the Board went on to establish the foundations of the “primary purpose” test when it distinguished the difference in standing between graduate assistants from regular faculty, including professional librarians and research associates in Adelphi University, holding that because the employment of graduate assistants depended entirely on their continued status as students and because they lacked the same benefits and eligibility for promotion, they did not share a sufficient community of interest for the purposes of establishing a common bargaining unit.[v] In The Leland Stanford Junior University, the Board further distinguished research assistants in a narrow holding and determined that they could not be considered employees under the meaning of the Act because they were paid through tax exempt stipends, rather than wages, consequences for unsatisfactory work were merely academic, the scope of the work was tied to the student’s specific area of interest, and performance was not within the control of the employer.[vi]

The Board’s decisions stood until 2000, when it finally addressed the broad category of graduate students as a whole in New York University, in holding that graduate students should be considered employees regardless of their standing as students because the two categories were not mutually exclusive.[vii] The Board applied a plain meaning analysis, finding that a broad interpretation of the definition of employee was supported by the Act’s legislative purpose of “encouraging and protecting the collective bargaining process.”[viii] Students were not explicitly listed among the exceptions from the statute and so the Board proceeded to examined the nature of the relationship by applying the traditional common law master-servant test, which covers workers who “perform services under the control and direction of the employer, in exchange for compensation.”[ix] The Board considered numerous features of the graduate assistant role, including the specific expectations set out by the administration in departmental handbooks or job descriptions, the supervision structure, the provision of supplies and a place of work, extensive training, taxable paychecks, and the potential consequence of removal or transfer.[x] The Board later overruled this decision in Brown University, arguing that because graduate assistants have a primarily educational relationship with their employer, they cannot be considered statutory employees.[xi] The Board highlighted other policy concerns as well, including the thought that collective bargaining will unduly intrude on academic freedom in the university setting and the interpersonal relationships between professors and students.[xii] Most recently in 2016, the Board issued a final reversal in Columbia, once again finding that graduate assistants, and additionally undergraduate student assistants, fell under the category of employees in the meaning of the Act and specifically rejected the employment of the primary purpose test in Brown, finding no basis in federal statute or regulation for the exclusion from coverage under the Act “because his or her employment relationship co-exists with an education or other non-economic relationship.”[xiii]

The current Proposed Rulemaking is jurisdictional in that it seeks to exclude both undergraduate and graduate students who “perform any services for compensation, including, but not limited to, teaching or research, at a private college or university in connection with their studies.”[xiv] The Board relies on the view that the Act “contemplates a primarily economic relationship between employer and employee.”[xv] The Board justifies the unusual (only successfully used twice before) use of a Rulemaking here, as opposed to the method of adjudication, the Board’s preferred mechanism for policy-making, by invoking the industry-wide effects of any decision and the benefits of an opportunity for a public comment process.[xvi]

The policymaking of the NLRB has elicited much criticism from legal scholars, as well as labor activists.[xvii] Legal scholars argue that the legal reasoning and statutory interpretation in New York University, Brown, and Columbia has been largely devoid of empirical or social science-based analysis that would shore up the legitimacy of the Board’s decisions.[xviii] Here, the Board relies on various Brown rationales, like the idea that the purpose behind student assistant work is to advance educational goals, that students spend the majority of their time studying as opposed to working, and that the main goal for faculty supervisions is to mentor and educate students.[xix] The Board also reiterates its policy concern advanced in Brown over protecting academic freedoms, like the institutional ability to make curriculur choices.[xx] However, like the dissenting view Board Member Lauren McFerran articulates in the Proposed Rulemaking, “There is no good basis-in law, in policy, or in fact-to take these workers’ rights away.”[xxi] The Board has failed to provide evidence for its rationale to support the exclusion of graduate students from the category of employee under the meaning of the Act.

The lack of empirical evidence supporting the Board’s legal reasoning emphasizes its failure to address the economic realities of graduate student workers today. Today, universities increasingly rely on graduate student workers, along with other adjunct faculty, to take on research and teaching duties, likely because they cost budget-constrained universities less to employ.[xxii] Meanwhile, graduate students are increasingly economically burdened because they are taking on an higher amounts of student debt to cover the rising costs of tuition and living expenses.[xxiii] The Board bases its reasoning partially on the speculative belief that allowing collective bargaining would interfere with academic freedoms, however it ignores the long history of graduate student union successfully bargaining in public sector universities (which are governed by state law) and even the more recent history since the New York University decision, of graduate unions in private universities. Unionization has been found to actually have a positive effect on graduate student relationships with their universities, with studies finding higher levels of personal and professional support and better wages for students with no reported adverse impact on academic freedom.[xxiv] Graduate student unions, in addition to bargaining for better pay, health care coverage, working conditions, and protections like unpaid leave, have also bargained to ensure academic freedom and paid parental leave.[xxv]

Labor law scholar, William Herbert, has suggested that if adopted, the Rule may be challenged by litigation based on the argument that only Congress has the ability to exclude classes of workers from coverage under the statute.[xxvi] The notice-and-comment period generated 13,434 comments and had been extended twice until January 15, 2020.[xxvii] One strength of the rulemaking approach is that the Board must consider each and every comment, along with data, expert opinions, and facts compiled during this period. Consequently, in the Final Rule the Board will have to address its lack of empirical evidence to support the basis for its reasoning underlying the Proposed Rule and ultimately conclude that its concerns about academic freedom, the educational experience of the students, and the delicacy of interpersonal relationships between faculty and student workers are based on speculation and should not be the basis for excluding this category of workers from coverage under the Act.

*Chandler Hart-McGonigle is a Junior Editor on MJEAL. They can be reached via email at chartmcg@umich.edu.

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.


[i] Jurisdiction—Nonemployee Status of University and College Students Working in Connection with their Studies, 84 Fed. Reg. 49691 (proposed September 23, 2019) (to be codified at 29 C.F.R. pt. 103).

[ii]  29 U.S.C. §§151-69 (2018).

[iii] Cornell Univ., 183 N.L.R.B. 329 (1970).

[iv] Id. at 332.

[v] Adelphi Univ., 195 N.L.R.B. 639, 640 (1972).

[vi] Leland Stanford Junior Univ., 214 N.L.R.B. 621, 622-23 (1974).

[vii] New York Univ., 332 N.L.R.B. 1205, 1206 (2000).

[viii] Id. at 1216.

[ix] Id. at 1207.

[x] Id. at 1217-18.

[xi] Brown Univ., 342 N.L.R.B. 483, 487 (2004).

[xii] Id. at 489-90.

[xiii] Trs. of Columbia Univ., 02-RC-143012, 2016 N.L.R.B. LEXIS 619, at *1, 5-6 (N.L.R.B. Aug. 23, 2016).

[xiv] Jurisdiction—Nonemployee Status of University and College Students Working in Connection with their Studies, 84 Fed. Reg. at 49691.

[xv] Id. at 49693.

[xvi] See Hiba Hafiz, Economic Analysis of Labor Regulation, 2017 Wis. L. Rev. 1115 at 1130; Jurisdiction—Nonemployee Status of University and College Students Working in Connection with their Studies, 84 Fed. Reg. at 49691.

[xvii] See Catherine L. Fisk & Deborah C. Malamud, The NLRB in Administrative Law Exile: Problems With Its Structure and Function and Suggestions for Reform, 58 DUKE L.J. 2013 (2009); Colleen Flaherty, Ruling Out Grad Unions, INSIDE HIGHER ED (Sept. 23, 2019), https://www.insidehighered.com/news/2019/09/23/trump-labor-board-proposes-new-rule-against-grad-unions; David Yaffe-Bellany, Graduate Students, After Gains in Union Efforts, Face a Federal Setback, N.Y. TIMES (Sept. 20, 2019), https://www.nytimes.com/2019/09/20/business/economy/grad-students-labor.html.

[xviii] See Catherine L. Fisk & Deborah C. Malamud, The NLRB in Administrative Law Exile: Problems With Its Structure and Function and Suggestions for Reform, 58 DUKE L.J. at 2077 (2009).

[xix] Jurisdiction—Nonemployee Status of University and College Students Working in Connection with their Studies, 84 Fed. Reg. at 49694.

[xx] Id.

[xxi] Id. at 49695.

[xxii] See Teresa Kroeger, The state of graduate student employee unions, 1, Economic Policy Institute (2018), https://www.epi.org/publication/graduate-student-employee-unions/.

[xxiii] Id. at 6.

[xxiv] Sean E. Rogers, Adrienne E. Eaton, and Paula B. Voos, Effects of Unionization on Graduate Student Employees: Faculty-Student Relations, Academic Freedom, and Pay, 66 Industrial & Labor Relations Rev. 487, 507 (2013).

[xxv] See Colleen Flaherty, A TA Union Contract, 2 Years Later, INSIDE HIGHER ED (Sept. 5, 2018), https://www.insidehighered.com/news/2018/09/05/brandeis-grad-students-win-significant-gains-union-contract-even-trump; Jessica Blough, Arts and Sciences graduate students ratify first contract in unanimous vote, THE TUFTS DAILY (Oct. 22, 2018), https://tuftsdaily.com/news/2018/10/22/arts-sciences-graduate-students-ratify-first-contract-unanimous-vote-2/.

[xxvi] Colleen Flaherty, Ruling Out Grad Unions, INSIDE HIGHER ED (Sept. 23, 2019), https://www.insidehighered.com/news/2019/09/23/trump-labor-board-proposes-new-rule-against-grad-unions.

[xxvii] N.L.R.B., NLRB Extends Time for Submitting Comments on Rulemaking for Election Protection Rule (Dec. 5, 2019), https://www.nlrb.gov/news-outreach/news-story/nlrb-extends-time-submitting-comments-rulemaking-election-protection-rule.

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