NLRB Reverses Course On Teaching Assistant Unionization
The National Labor Relations Board (“NLRB” or “Board”), the independent federal agency charged with interpreting and implementing the National Labor Relations Act (“NLRA”), has a long-established pattern of changing its stances on important labor issues. These changes in approach often, though not always, coincide with changes in the political composition of the Board, based on which party holds the presidency.
In one such instance, the NLRB recently withdrew a proposed regulation, promulgated during the Trump Administration, that would have excluded graduate and undergraduate student teaching assistants and research assistants (“TAs”) at private colleges and universities from the unionization rights provided by the NLRA. This action leaves in place a 2016 Board decision under which TAs do enjoy the right to unionize.
The question of whether TAs at private colleges and universities should be permitted to unionize under the NLRA has been a hotly debated issue, on which the NLRB has issued contradictory rulings over the years. (TAs at public institutions of higher education are covered by state labor laws, rather than the NLRA, and therefore have not been the focus of these Board decisions.)
At the heart of this debate lies the issue of whether TAs – who typically teach undergraduate classes or assist professors with research for compensation while pursuing their own degrees – are properly considered “employees” within the meaning of the NLRA or, conversely, are appropriately viewed as students, with their teaching duties merely an ancillary aspect of their studies.
Under pre-2000 Board rulings, TAs were not regarded as employees of their educational institutions, and therefore did not have the right to unionize. In 2000, however, during President Clinton’s second term of office, the NLRB held that TAs at New York University were, indeed, employees for purposes of the NLRA.
Just four years later, during President George W. Bush’s first term of office, the NLRB again changed course, ruling in favor of Brown University in its challenge to TAs’ right to organize. The Board concluded that the TAs’ relationship with Brown was “primarily educational” in nature, rather than employment-based, and that they therefore fell outside the NLRA’s reach.
The 2004 Brown University ruling remained intact until 2016, when the Board – now with a Democrat majority under President Obama – ruled in favor of TAs at Columbia University, finding that the TAs could simultaneously stand in educational and employment relationships with Columbia.
Following the Board’s 2016 Columbia University ruling, TAs at numerous private universities voted to unionize, and a number of those universities agreed to recognize and bargain with the new unions. Several other educational institutions, however, refused to recognize such unions, contending that Columbia University had been wrongly decided and/or that their TAs were not employees even under that standard. In light of the shift in the NLRB’s political composition under President Trump, these would-be unions opted not to challenge those actions through unfair labor charges with the NLRB, given the likelihood that the Columbia University decision would be overruled.
Perhaps prompted by the lack of ongoing litigation on the matter, the Republican-majority Board issued a Notice of Proposed Rulemaking in September 2019. The proposed regulation provided that “students who perform any services for compensation, including, but not limited to, teaching or research, at a private college or university in connection with their studies are not ‘employees’” within the meaning of the NLRA. The then-Chair of the NLRB, John Ring, explained that the proposed regulation was intended to “bring stability to this important area of federal labor law.”
The proposed regulation, however, was never finalized. Instead, in March of this year –soon after President Biden’s inauguration -- the NLRB announced that the proposed regulation was being withdrawn. The Board explained that the withdrawal would enable it to “focus its limited resources on competing Agency priorities, including the adjudication of unfair labor practice and representation cases currently in progress.”
At the time of this announcement, the NLRB still had a Republican majority. Since then, however, President Biden has made two new appointments to the Board, thereby shifting its composition once more in favor of the Democrats. In rescinding the proposed regulation, then, the NLRB may well have concluded that moving forward with a change that would likely soon be reversed by a new Board majority would have served no useful purpose.
Implications For Colleges And Universities
As a result of the Board’s action, the 2016 Columbia University ruling remains in place, giving TAs at private colleges and universities the right to unionize – at least until the White House changes hands again and a Republican-majority Board has another opportunity to revisit the issue. For at least the time being, then, private colleges and universities may be obligated to recognize and bargain with TA unions, or face potential unfair labor practice charges if they decline to do so.
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If you have any questions about the NLRB’s recent actions in relation to TA unionizing, or any other labor issues, please feel free to reach out to one of our experienced labor and employment attorneys. We would be happy to assist.
*Brian gratefully acknowledges the assistance of Elizabeth L. Sherwood, formerly with Schwartz Hannum, in preparing this article.