Students First: Graduate Students and Unionization (Or Not)
Monday, April 24, 2017 at 2:48PM
David H.K. Nguyen

The unionization of students has recently become a hot topic in higher education.  In particular, graduate students serving as teaching and research assistants have made large coordinated efforts in recent decades to receive collective bargaining rights.  Some have been successful, others less successful.  These efforts have looked differently at private and public institutions and have been shaped by history.  

The Taft-Hartley Act of 1947, or better known as the Labor Management Relations Act, gave the states jurisdiction over state and local employees’ collective bargaining, thus excluding student employees from federal collective bargaining rights.  While the federal government did not protect graduate students, multiple states created their own collective bargaining laws.  As a result, there are currently more than 20 graduate employee unions at public American universities.  Many states, however, provide no protection for collective bargaining among their student employees.  Why is this, you ask? For most of the last 70 years, graduate students at public universities have not been seen as employees.  They were viewed solely as students, and their work for the university was considered part of their education.  

In theory this might make some sense.  But over time, graduate students became utilized as teaching and research assistants more heavily.  As a result, their workloads increased.  Meanwhile, as higher education costs remained high, students had less time for additional jobs, which provided supplemental income.  Graduate students, many of whom had families to support and student debt to pay off had less time to earn outside income.  These students were left without a voice in the matter and saw unionization as the next logical step.  But of course this was not an option in many states. 

While students at public universities have consistently found themselves at the mercy of their states’ governments, students at private schools have had quite a different experience.  In 1951, the National Labor Relations Board (NLRB), a panel of Presidentially-appointed members that hears cases concerning labor, ruled that the educational focus of graduate work denied students coverage under the National Labor Relations Act.  This ruling was reversed in 1970 in Cornell University v. NLRB.  The Board stated that, the lines between business and education were beginning to blur, and it would be most beneficial for the NLRB to gain jurisdiction over private educational institutions.  Over time the NLRB’s decisions on whether students were considered employees or not hinged on two criteria: (1) whether the “primary purpose” of the work was educational or economical, and (2) whether they are compensated for services in a way which closely resembles employment.  In Adelphi University (1972), the NLRB utilized this “primary purpose” criterion to rule that graduate students should be classified differently than faculty.  In Leland Stanford (1974), the NLRB stated that graduate students’ work was primarily educational.  The ruling also stated that the stipends graduate students received were not given to compensate for work done but were merely efforts to financially support students.  This precedence was used for the next twenty-five years.

In 2000, the NLRB made a landmark ruling in favor of graduate students at New York University (NYU), stating that they were indeed statutory employees.  It was determined that the students were providing services and receiving compensation in a way which resembled an employer-employee relationship. The NLRB also granted graduate students collective bargaining with this ruling.  Unfortunately, this precedence did not last.  In 2004, a newer NLRB reviewed the earlier ruling in Brown University II.  This NLRB reversed the NYU ruling by returning to the “primary purpose” doctrine.  It is worth noting that the vote was 3-2 with the minority in strong opposition to the majority position.  Finally, in Columbia University (2016), the NLRB reversed its position once again and allowed for students at private institutions to unionize.  

It seems that regardless of whether students should be considered employees or not, keeping them from unionizing prevents them from adequately supporting themselves and their families.  Working or “studying” conditions are not what they should be and allowing them to bargain collectively would be the best way to take the student-first approach many universities claim to take.   Students need a voice, whether that is granted by the federal government or the individual states.  At this point it is difficult to say for sure what will come next.  While private universities’ graduate students now have the opportunity to unionize, it seems unlikely that students at public institutions will be granted the same rights on a federal level.  While that seems like a certainty, the ever-changing nature of the NLRB creates an element of uncertainty for future graduate students at private universities.

This post was co-authored by Mr. Isaac Hale and Dr. David Nguyen. Mr. Hale is a Hall Director at the University of North Dakota and a masters student in the UND Higher Education program.

Article originally appeared on Highereducationlaw.org (http://www.highereducationlaw.org/).
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