On March 12, 2021, the National Labor Relations Board (NLRB or "the Board") announced its decision to withdraw its rule, proposed more than a year ago ("Proposed Rule"), to exempt certain college and university student workers from coverage under the National Labor Relations Act (NLRA). Under the Proposed Rule, the NLRB sought to remove student workers from the definition of employees under the NLRA. The Proposed Rule was crafted to overrule the NLRB's 2016 decision that extended the right to unionize to teaching assistants in private colleges and universities ("the 2016 Decision") and to remove the obligation of such educational institutions to recognize student unions. Now, after more than a year of anticipating the Proposed Rule's contemplated changes, these institutions can expect a redoubling of student organizing efforts on their campuses under the NLRB's 2016 Decision.
Board Decision vs. Proposed Rule
Over the past two decades, the Board has reversed course several times on the issue of whether certain graduate students are "employees" for purposes of the NLRA. Following the 2016 Decision—which itself overruled nearly twelve years of precedent prohibiting student workers from organizing—private educational institutions saw a wave of graduate student organizing efforts on their campuses. However, these efforts were largely cut short after the Trump administration took office, when student workers and unions quickly withdrew pending NLRB petitions seeking union recognition to avoid an adverse ruling from the Trump-elected Board. The Trump administration then took an unprecedented step toward resolving the question through a formal administrative rulemaking process, which culminated in the promulgation of the Proposed Rule.
Had the Proposed Rule been finalized, private educational institutions would have received a certain level of clarity on this decades-old question, but the withdrawal of the Proposed Rule has once again remanded the issue to the unpredictable case-by-case determination framework at the NLRB. Republican appointees continue to hold a majority of the Board's seats until August 2021, so it is far from clear how this issue might be decided by the Board if a prominent student organizing case is elevated for decision. Nevertheless, there is little doubt that unions and student workers will be emboldened by the withdrawal of the Proposed Rule and revamp their efforts to gain union recognition for student workers.
The Legal Implications for Private Educational Institutions
Collective bargaining efforts by graduate students remain a thorny issue for institutions of higher education. On the one hand, refusing to recognize a student union or engage in negotiations may lead to a hostile relationship between a university and its graduate students, and even its faculty who support such efforts. On the other hand, collective bargaining with student workers will implicate every aspect of their terms and conditions of employment, including expansion of expensive healthcare plans, negotiation of independent grievance procedures for workplace disputes, and the potential narrowing of long-standing academic freedoms, such as control over course content, class sizes, and other policies that are typically reserved for university administrations and professors.
The uncertainty of the state of the law further complicates the ability of educational institutions to chart a path through the thorns. The 2016 Decision came under a narrow set of facts, finding that graduate research and teaching assistants at private educational institutions who received compensation could be considered "employees" under the NLRA. The precise scope of the 2016 Decision is still unknown and now will be decided on a case-by-case basis. Even assuming that union recognition is not mandated for all private educational institutions under the NLRB's 2016 Decision, institutions still need to understand the requirements of the NLRA and must develop a strategy for responding to student union organizing efforts before they arise. Many institutions have already been forced to do so in states that permit student unionization, including Washington, Oregon, California, Montana, Kansas, Minnesota, Iowa, New York, Pennsylvania, Michigan, Massachusetts, and Florida. More than two dozen public colleges currently have student assistant unions.
The Moment Requires Strategic Thinking
The withdrawal of the Proposed Rule has implications for nearly all private educational institutions, regardless of whether they have yet to face organizing efforts, have paused negotiations pending a final decision on the Proposed Rule, or already have existing collective bargaining agreements with student workers. All of these institutions should anticipate emboldened union strategies for organizing and negotiations.
The pandemic has brought these issues into sharper relief. As students return to campus, they are urging their schools to engage in collective bargaining negotiations over COVID-19-related relief and protection. Educational institutions that have pushed back on these efforts have faced demands for arbitration and even strikes.
The stakes are extremely high and prudent institutions are preparing for a push for student unionization. Our labor attorneys will continue to monitor any further developments in this area and work with educational institutions seeking guidance on these issues.