Private colleges and universities may get more certainty over whether they must treat graduate-student teaching assistants as employees who have the right to unionize.
It’s the result of a somewhat technical shift in policy at the National Labor Relations Board (NLRB), which, in answering the grad student question, “has flip-flopped with each change of presidential administration,” says Steven Suflas, an attorney who represents management in labor and employment law issues.
Currently, under an Obama-era board ruling, graduate students have the right to organize. But for years, the board has come down on both sides because its policy (which doesn’t impact public institutions) has been steered by conflicting court rulings. In May, the board announced plans to make an official rule (UBmag.me/NLRB). The process requires publishing the proposed policy, soliciting public comments and crafting the new rule.
“Once you have a rule in place, you have to go through the same process to undo it,” says Suflas, who is a partner in law firm Ballard Spahr’s Denver office. “It provides a bit more stability.”
Yet a new rule may not settle the question. Several schools appealed the Obama-era decision and refused to bargain with their budding campus unions, Suflas says.
This has inspired some student groups to try to sidestep the NLRB in efforts to win recognition from campus administrations. “At a number of universities—Brown, Georgetown, NYU—the unions have gone the way of protests in trying to stir up public support,” Suflas says. “Several universities have succumbed to that and voluntarily recognized graduate student unions.”
What is certain, Suflas adds, is that administrations should fortify themselves legally for grad-student organization movements, regardless of what the NLRB decides. Leaders may also find ways to work with grad students to head off unionization, he adds. “Administrators should be setting up their treatment of grad student assistants so they get the desired results.”
And what about athletes?
Any new rule set by the National Labor Relations Board will not likely impact college athletes. The board has been reluctant to address that issue because the number of students who play truly revenue-generating sports at private schools is small, says Steven Suflas, a labor lawyer who represents management.
Also, athletes have lost every court case in which they’ve sought the right to unionize as campus employees.