The National Labor Relations Board said Friday it will withdraw a proposed rule to deny teaching and research assistants at private universities the legal protection to form unions, upholding a 2016 decision that cleared the way for collective bargaining at elite schools.
In a statement Friday, the board said it is shelving the rule, which was proposed in 2019, to “focus its limited resources on competing agency priorities, including the adjudication of unfair labor practice and representation cases currently in progress.”
Although President Joe Biden named Lauren McFerran, a Democrat, to serve as board chair in January, Republicans still hold a 3-to-1 majority on the panel. Those Trump appointees were instrumental in the 2019 rule that asserts graduate workers are students, not employees of their universities, even if they assist in teaching courses and research that benefits schools.
Given the majority’s stance, some labor experts say abandoning the proposed rule was unexpected.
“It is somewhat surprising,” said William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College in New York. “At the same time, the withdrawal reflects the changed political climate with President Biden emphasizing in a recent speech that federal labor law explicitly encourages the formation of unions and collective bargaining.”
The labor board has a history of shifting positions on the question of graduate worker rights that reflects the ideology of the party in power. It supported collective bargaining for graduate students at New York University in 2000, but four years later, with members appointed by President George W. Bush, it reversed the ruling in a case involving Brown University. That decision was then overturned in 2016 by a board largely appointed by President Barack Obama.
Biden is anticipated to fill a vacant seat on the board, and Democrats will have an opportunity in August to retake the majority when the term of Republican member William Emanuel expires.
Withdrawal of the proposed 2019 rule will not settle the debate over the rights of graduate student workers. The labor board can reconsider the issue in a future litigated case involving graduate assistants or other student employees, Herbert said.
Universities have been divided on the issue. While Brandeis, Tufts and American universities have let student bargaining proceed with little objection, Boston College and the University of Chicago have stymied efforts. Ahead of the 2016 decision, the Massachusetts Institute of Technology, Stanford University and the entire Ivy League told the NLRB that student unions would disrupt operations if negotiations included class length or what is included in curriculum.
Collective bargaining among graduate students is a contentious issue that is as much about economics as it is about power. Graduate students say collective bargaining is the only way universities will listen to their demands for balanced workloads, higher pay and comprehensive health insurance.
“Student workers are employees of their universities, full stop, and it’s a huge victory for the NLRB to firmly say so,” said Peter MacKinnon, the Service Employees International Union’s higher education council chair. “Withdrawing the proposed rule opens the door to allow more student workers to organize, win a union and make their voices heard.”
According to the collective bargaining center at Hunter, graduate students at 16 private universities nationwide have held elections to form unions since the 2016 ruling. Eight private institutions, including American and Georgetown universities, have contracts with graduate unions.