The National Labor Relations Board has published a Notice of Proposed Rulemaking (NPRM) that would reverse its ruling that gave graduate and undergraduate student workers at private colleges and universities the ability to unionize.
The proposed rule, published in the September 23 Federal Register, marks a significant shift for the board, which has historically adjudicated student unionization attempts one case at a time. The case-by-case process had resulted in a frequently shifting precedent, and the board stated that it hopes this new permanent rule will help provide some stability to both students and institutions.
The proposed rule is predicated on the assertion that the relationship between compensated student workers and their institutions is primarily educational, not economic. Thus, student workers cannot be “employees” within the meaning of section 2(3) of the National Labor Relations Act (NLRA) and cannot unionize. The NPRM cites adjudications dating back to a 1970 decision in which the board held that graduate student assistants should be excluded from a faculty bargaining unit on the basis that they are primarily students.
The proposed rule has support from three of the board’s four members. The dissenting member, whose term expires in December 2019, calls the basis for the rule a “made-up distinction” and asserts that the NLRA should recognize a common-law employment relationship between student workers and their institutions, as the board did in its 2016 decision.
Presently, there are five private institutions with graduate student unions and another four negotiating initial contracts. The board is accepting public comments until November 22.