The National Labor Relations Board has ruled in a 3-1 decision that graduate students at private, nonprofit higher education institutions "who perform services at a university in connection with their studies are statutory employees within the meaning of Section 2(3) of the National Labor Relations Act." The decision paves the way for undergraduate and graduate students at private universities nationwide to unionize.

The decision arose from a petition filed by the Graduate Workers of Columbia-GWC, UAW, seeking to represent a group of Columbia undergraduate and graduate students who work as teaching and research assistants.

The Board's decision reversed a 2004 decision involving Brown University, which had reversed a 2000 decision involving New York University. In the 2004 Brown decision, the Board held that graduate assistants have a primarily academic, not economic, relationship with their universities. Therefore, the 2004 decision held, graduate students are not employees within the meaning of the NLRA and may not unionize.

The majority of this Board, however, disagreed because it believed that the 2004 decision "deprived an entire category of workers of the protections of the [NLRA] without a convincing jurisdiction." The Board found that the NLRA contains no clear language to prohibit teaching and research assistants from being afforded the rights of other employees, including the right to unionize, and that the students’ academic relationship with the university did not foreclose an employment relationship at the same time. Finally, the Board rejected the university's argument that the students' finite relationship with the university rendered them temporary employees ineligible to unionize. Therefore, the Board's majority concluded that undergraduate and graduate students are entitled to protection under the NLRA when "they perform work, at the direction of the university, for which they are compensated."

The dissent contended that the 2004 Brown decision should be upheld because "Congress never intended that the NLRA and collective bargaining would be the means by which students and their families might attempt to exercise control over such an extraordinary expense" as attending college or university. The dissent explained that "collective bargaining and, especially, the potential resort to economic weapons protected by our statute fundamentally change the relationship between university students, including student assistants, and their professors and academic institutions." Also, "collective bargaining is likely to detract from the far more important goal of completing degree requirements in the allotted time, especially when one considers the potential consequences if students and/or universities resort to economic weapons against one another" because student assistants will participate in strikes and lockouts. The majority dismissed these arguments, noting that such concerns had not materialized at public universities in states in which graduate student unions have existed for many years.

Given the Board's recent rulemaking and decisions making it easier for unions to organize in the workplace, colleges and universities need to consider proactive strategies to deal with these issues before organizing drives begin.

Ballard Spahr's Labor and Employment and Higher Education Groups regularly represent private colleges and universities in labor matters, and have extensive experience with graduate student organizing.


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