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NLRB to Propose New Rule on Graduate Student Organizing


This article was originally published on

Background on the NLRB’s Action

In a surprising update in late-May, the NLRB announced plans to propose a federal rule this fall that will “establish the standard for determining whether students who perform services at a private college or university in connection with their studies are ‘employees’” and, therefore, eligible to form unions. Rulemaking by the agency isn’t common. The labor board typically sets policy by deciding on cases brought before it.

As the White House has changed from Republican to Democrat and back again, the NLRB — whose members are appointed by the President — has flip-flopped on this issue three times since 2000. The current standard, set in the Columbia University decision made by the NLRB in 2016 at the tail end of the Obama Administration, permits union organizing by graduate (and potentially undergraduate) students serving in research or teaching assistantship roles.

Unions have subsequently won representation elections at a number of private educational institutions. However, none of these unions has proceeded to have the election results certified by the current Republican-majority Board. This has been a strategic move by the unions to keep the now Republican-majority NLRB from reviewing a case it could use to overturn the Columbia decision and prohibit union organizing by graduate student employees nationwide.

Instead, the rulemaking process allows the NLRB to put a more permanent, potentially harder to reverse, outcome in place without considering and rendering a decision on a specific, pending case. Given the current Board’s Republican majority, the rule is expected by many to essentially reverse the Columbia decision and prevent union organizing by most students at private institutions. (Student workers at public universities are covered by state employment laws and are not under the purview of the NLRB.)

The Likely Outcome: Aggressive Campaigns for Voluntary Recognition of Unions

So, if the labor board, as expected, ultimately ends or limits the ability of most student research and teaching assistants to organize, can schools expect this issue to quiet down? Unlikely — in fact colleges and universities should expect just the opposite.

The more likely outcome is that groups of students — with active logistical and political support from national labor groups — will push universities to voluntarily recognize these unions, regardless of what the NLRB decides. Voluntary recognition bypasses the typical NLRB union election process and essentially makes the union’s role on campus official.

To do this, colleges and universities should anticipate union organizers significantly ratcheting up the pressure with protests, occupations, social media campaigns and, as we saw this week at the University of Chicago, strikes. As a number of higher education institutions have seen over the last few years (including Columbia, Duke, Yale, NYU, The New School and Grinnell College), these campaigns tend to get aggressive, pointed, personal and public.

The Stage Is Set for a Tough Fight on Campuses across America

While unions across the country have been dealing with shrinking membership numbers for decades, higher education has been an important base of growth for organized labor (especially the UAW and SEIU). The unions have momentum as well as an important incentive to keep the pressure on.

In addition, they will do so this year and next — and especially as the fall semester starts — with the presidential primaries and shifting public opinion as a backdrop. Issues of fairness, livable wages, job security and income inequality — which are frequently mentioned in student organizing campaigns — are already front and center with the public and the campaigns. And visible support for labor unions will continue to be a central focus for most Democratic candidates.

University Reputations Will Be a Target

Clearly, the stage is set, and the reputation risk has increased substantially for many colleges and universities. Given the complicated issues and nuanced positions involved, it is critical for educational institutions to think through them carefully and candidly as they determine next steps. Key factors to consider include:

1. Preparing Well in Advance — If a university determines that a student labor organizing or recognition campaign is a possibility, it should begin to plan its response strategy now. What will you say and where will you say it? How will you ensure that all of your most important stakeholders understand your position, especially in the white-hot glare of a union campaign? Summer break can provide a productive window for this kind of work and reflection on many campuses, rather than waiting for the busy months of the academic year or the university to find itself the target of labor activity.

2. Determining Now if You Can Address Key Student Worker Issues — Are there steps now that the university can take to make the experience for student workers better, easier or more effective? Is there a process in place to identify and make any changes – and to communicate them out to your academic community?

3. Carefully Considering the Implications of Your Communications — Labor issues can often create unique challenges for educational institutions, particularly when decisions — even if driven by important academic, legal or curricular concerns — can be perceived, misperceived or labeled as the university being “anti-union.” Whether it is a university’s response to the NLRB regarding the proposed rulemaking, statements to the media, answers to union questions or communications directly with students, faculty, staff or alumni, the tone and content around these complicated issues need to be carefully considered for how they will be understood — or could be used — by each audience.

Finsbury, the global strategic communications firm, works extensively with colleges and universities across the U.S. as well as leading companies across a range of industries. It also has one of the country’s most active practices focused on labor, employment and workplace issues.