NLRB to reconsider whether grad students may unionize

  • May 22, 2019

The NLRB plans to issue a proposed rule addressing whether graduate students at private colleges and universities may join labor unions.

The proposed rule, which appears likely to override the board’s 2016 ruling that graduate students who work as teaching or research assistants are permitted to unionize, follows the same strategy that the board is pursuing to reverse a 2015 ruling on joint employment, effecting a policy change through regulation rather than by considering individual cases brought to the board.

The board will issue its proposed regulation by September, according to the Office of Management and Budget’s spring regulatory agenda.

The regulatory agenda states that the board will 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’ within the meaning of … the National Labor Relations Act.”

That same question was addressed in the board’s 2016 ruling concerning Columbia University. The Obama-era decision said graduate students at private colleges and universities (and also undergraduates, though they are less likely to hold teaching or research jobs) are eligible to join unions.

The 2016 ruling in Columbia reversed a 2004 ruling concerning Brown University that was issued under President George W. Bush. The Brown decision said that student assistants were not eligible to unionize.

The NLRB will also issue by September, according to the regulatory agenda, a proposed rule to establish standards for union access to an employer’s private property. In 2010 the Obama-era NLRB ruled that a supermarket violated federal labor law in excluding the union from distributing handbills on its property even as it granted similar access to other groups. The board later agreed to a somewhat inconclusive settlement in the case.

As with its joint-employer rulemaking, the board may be opting for a regulatory solution to the private-property matter to avoid conflict-of-interest concerns. During his tenure as a management-side attorney for the Littler Mendelson, Republican NLRB member William Emanuel helped businesses challenge state laws that “allow labor unions to trespass on the private property of employers,” according to the firm’s website.

By August the NLRB also plans to issue a proposed rule updating its “blocking charge” and election bar regulations. The former will address the circumstances under which the NLRB may halt a union decertification election due to allegations of unfair labor practices; the latter will address the timing of when a union decertification election may take place.

In December, the conservative National Right to Work Legal Defense Foundation submitted a letter to the NLRB requesting that it “expand the scope of upcoming rulemaking” to address blocking charge and election bar policies.