By Allen Smith, J.D.
September 20, 2019 - SHRM
College or university students working in jobs connected to their studies aren't employees covered by the National Labor Relations Act and so can't unionize, according to a new National Labor Relations Board (NLRB) proposed rule.
"The board believes that this proposed standard is consistent with the purposes of the act, which contemplates jurisdiction over economic relationships, not those that are primarily educational in nature," the NLRB stated. "This rulemaking is intended to bring stability to an area of federal labor law in which the board, through adjudication, has reversed its approach three times since 2000."
The board said that its proposed rule upholds academic freedoms, including both free speech rights in the classroom and several matters in the domain of academic decision-making, including those concerning:
Students who assist faculty members with teaching or research generally do so because the activities are vital to their education, the board noted. They gain knowledge of their discipline and cultivate relationships with faculty.
As for pay, the board said, "Students typically receive funding regardless of the amount of time they spend researching or teaching, and only during the period that they are enrolled as students." So, the NLRB concluded, the funds, which are provided to help pay the cost of students' education, "are better viewed as financial aid than as 'consideration' for work."
The NLRB invited comments on whether the proposed rule should apply to students employed by their educational institution in a capacity unrelated to their course of study.
Board member Lauren McFerran dissented from the proposed rule, saying that in the wake of the NLRB's 2016 Columbia University decision "student employees across the country have been seeking—and often winning—better working conditions: better pay, better health insurance, better child care and more." In Columbia University, the board held that students who work for their universities are protected by the National Labor Relations Act. "Today, the majority proposes to reverse this progress, in the name of preserving higher education. While student employees clearly see themselves as workers, with workers' interests and workers' rights, the majority has effectively decided that they need protecting from themselves. I disagree."
She said that the proposed rule "reflects a deep misunderstanding of our statute, as interpreted by the Supreme Court, which broadly protects private-sector employees and which has no special exception for working students."
We've gathered articles on student unionizing from SHRM Online and other trusted media outlets.
Graduate Assistants' Right to Organize Spread to Private Universities
Collective bargaining of graduate assistants already works fine in public universities and will work in private universities as well, the NLRB decided in 2016 in Columbia University. The NLRB overturned an old National Labor Relations Act decision, Brown University, which held that graduate assistants at private universities could not organize because they weren't defined as "employees" under the act. That prohibition didn't prevent graduate assistants from organizing at public universities, however. And they've been doing so without harmful effects, the NLRB said. However, Steve Bernstein, an attorney with Fisher Phillips in Tampa, Fla., predicted that the NLRB ruling would open the floodgates to unionization drives at private universities.
University of Chicago Students Went on Strike
In June, University of Chicago graduate students went on strike to demand that the school recognize their union. "Our health care is inadequate," Claudio Gonzáles told NBC News. "I have a chronic condition, and I should be able to see a doctor regularly for it, but I can't afford it." Cedric de Leon, a professor and director of the Labor Center at the University of Massachusetts, Amherst, said, "Graduate students are cheap labor," so schools capitalize on them.
(NBC News)
Iowa College Opposes Unionization
Last year, Grinnell College in Grinnell, Iowa, fought off an effort by students to expand a union formed in 2016 on behalf of dining hall workers to represent all student-workers. School officials said they opposed an expansion of the union, asserting it would "negatively impact Grinnell's mission and culture." The college had recognized the dining workers union because "their work is standardized, routine work carried out in regular shifts."
Unionization Efforts at BC Attracts Presidential Candidate's Support
Presidential candidate and Sen. Elizabeth Warren, D-Mass., earlier this month sent graduate students calling for unionization at Boston College (BC) a video of support. "BC may have a technical right to hide behind the Trump NLRB by refusing to recognize your union but make no mistake about it: BC has a moral responsibility to do what's right," she said. "And that means bargaining with you right now." Boston College Vice President of University Communications Jack Dunn stated, "Our position remains that graduate student unionization would undermine the collegial, mentoring relationship among faculty and students that is a cornerstone of the BC academic experience."