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NLRB Grants Graduate Students the Right to Unionize

Owen H. Laird, Esq.

Earlier this week, the National Labor Relations Board (NLRB) decided in favor of graduate students at Columbia University, allowing them the right to unionize. The question at the heart of the case was whether graduate students who work as research or teaching assistants were “employees” under the National Labor Relations Act (NLRA), the legislation that defines collective bargaining rights in the United States. Under the NLRA, employees are able to organize unions, while other groups, such as independent contractors and students, are not. The NLRB held that graduate students qualify as employees because they perform work at the discretion of the university, for which they are compensated by the university.

This decision reverses a prior decision by the NLRB that denied graduate students at Brown University the right to unionize. In that case, the NLRB came to the opposite conclusion: that graduate students were students first, and therefore not employees. The most significant difference between the Columbia and Brown decisions is not the nature of the relationships between the universities and their graduate students, but the political makeup of the NLRB.

Generally, Republicans and Republican appointees to the NLRB are against the expansion of labor rights, while Democrats and Democratic appointees tend to favor unions. The NLRB consists of five members appointed by the President of the United States with the consent of the Senate, much in the same way that Supreme Court Justices are appointed. Each member is to serve a five-year term, with one member replaced each year. (The NLRB also resembles the Supreme Court in that the Republican-controlled Senate has refused to endorse President Obama’s nominees to each panel, leaving the Supreme Court operating with only eight of nine justices and the NLRB with only four of five members.)

The Brown decision was issued by the NLRB in 2004, four years into the Bush presidency; as a result, the NLRB was under Republican control and issued a decision limiting labor rights.  Conversely, the now Democrat-controlled NLRB issued the Columbia decision at the end of the Obama presidency. NLRB decisions are not always partisan, however: Last year, as we reported, a predominantly Democratic NLRB unanimously denied student-athletes at Northwestern University the right to unionize.

The Columbia decision is significant because it comes after decades of declining union membership in more traditional union sectors, such as government employees and industrial workers. Graduate students – as teaching and research assistants – have been taking on an increasing share of work at universities that used to be assumed by full professors and staff. These assistants will now be able to organize to negotiate their wages and workweek. Many universities are notorious for having their graduate students work long hours for low pay, which may change, should such students unionize. Several universities have voluntarily recognized graduate student labor organizations. The experience at those universities has largely been positive, which may bode well for labor relations at Columbia and beyond.

It is important that workers get the protections to which they are entitled in all contexts. If your employer has violated your legal rights, contact The Harman Firm, LLP.

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