Graduate students at most private universities have been allowed to unionize since the 2016 decision of the NLRB in Columbia University. This decision was controversial because the employee status of graduate students has flip-flopped over time, depending on whether members appointed by Democratic or Republican Presidents controlled the Board. Since 2016, the makeup of the Board has shifted from a Democratic majority to Republican control. While Democratic appointees generally support the notion that graduate students should be considered employees, Republican appointees do not. Thus, it is highly likely that graduate students’ status before the eyes of the Board will change, if a University brings a challenge.
However, for Columbia University it is not that simple because the Board has already ruled on the merits of graduate student employee status, and it recently approved the election last December. Columbia cannot simply ask the Board to reverse itself because the Board’s membership has changed. Rather, Columbia must first refuse to bargain with the United Auto Workers Union (“UAW”), the representative of its graduate students, and rely on the UAW to file a refusal to bargain charge with the Board. This Columbia has already done. In a recent letter, Columbia notified the union that it will not bargain with the UAW regarding a first contract for Columbia’s graduate students. The Board would then hear the matter, and likely conclude that Columbia did in fact violate the National Labor Relations Act (“the Act”) and order Columbia to bargain. This in turn will permit Columbia to challenge the Board’s ruling that Columbia’s graduate students are employees under the Act before a United States Circuit Court of Appeals, presumably the D.C. Circuit.
The outcome of this looming appeal will cast a long shadow on graduate student organizing across the country. If one of the parties to the appeal is unhappy with the result, the matter could reach the U.S. Supreme Court, which would settle this matter for good.
Regardless, how a U.S Court of Appeals decides the matter, expect the Trump Board to reverse course and once again find that graduate students are primarily students rather than employees and conclude that they are guaranteed the right to organize under the Act.
Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.
Chip Zuver is an associate in the firm’s Labor and Employment Department, resident in its Los Angeles office.