By: Marissa Ditkowsky

On March 1, 2017, American University Provost Scott Bass sent out a community-wide email surrounding the unionization of graduate assistants through the Service Employees International Union (SEIU), Local 500. According to Provost’s email, SEIU Local 500 filed a petition with the National Labor Relations Board (NLRB) seeking to be a certified representative for a unit of graduate assistants, and the graduate assistants will vote on whether they wish to be represented by the union. The movement to unionize graduate assistants, as well as adjunct faculty, has become a countrywide phenomenon with the assistance of SEIU.

Although Bass respected the legal right of graduate assistants to unionize, Bass nonetheless expressed concerns about such a unionization. “American University believes that the primary role of graduate assistants at the university is that of being students rather than employees, and that work done by graduate students as assistants is an integral part of their education,” he wrote. Bass further noted that “the University has concerns regarding the unionization of students and, by consequence, the bargaining over matters traditionally involving issues of academic discretion.”

The National Labor Relations Act secures the right for employees to unionize. The National Labor Relations Act states

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment …

National Labor Relations Act, 29 U.S.C.A. § 157 (West 1935).

The National Labor Relations Act defines an employer as “any person acting as an agent of an employer, directly or indirectly,” and only excludes United States or any wholly owned Government corporation, the Federal Reserve Bank, any State or political subdivision thereof, any person subject to the Railway Labor Act, any labor organization unless acting as a direct employer, or anyone acting in the capacity of an officer or agent of a labor organization. National Labor Relations Act, 29 U.S.C.A. § 152(2) (West 1935). American University is considered an employer under the NLRA. See id. American University falls under the Act as a private employer.

The National Labor Relations Act defines employee as “any employee, and shall not be limited to the employees of a particular employer.” National Labor Relations Act, 29 U.S.C.A. § 152(3) (West 1935). The sole exceptions include any individual employed as an agricultural laborer, any individual employed in domestic service of any family or person at his home, any individual employed by his parent or spouse, any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act. Id. However, the question of whether graduate assistants, as students of the university, is a more complicated legal question.

In Adelphi, graduate assistants sought to be included in a faculty unit of an Adelphi University Chapter of the American Association of University Professors. Adelphi University, 195 N.L.R.B. 639 (1972). The National Labor Relations Board, however, held that graduate assistants were primarily students working toward advanced academic degrees, and thus could not be included in a faculty unit. Id. at 640. The NLRB further stated that the graduate assistants did not have faculty rank, were not listed in the Adelphi catalogues as faculty members, had no vote at faculty meetings, could not be promoted or receive tenure, were not covered by the Adelphi personnel plan. Id. However, the graduate assistants did receive health insurance benefits. Id.

Then, in Leland Stanford Junior University, graduate assistants sought to join the Stanford Union of Research Physicists. Leland Stanford Junior University, 214 N.L.R.B. 621 (1974). The National Labor Relations Board held that graduate assistants did not fall within the NLRA meaning of “employee.” Id. at 623.

In 2000, this precedent was overruled in New York University. The NLRB held that New York University graduate assistants, which included teaching assistants and research assistants, were employees within the meaning of the NLRA. New York University, 332 N.L.R.B. 1205 (2000). The NLRB found that simply because graduate assistants were primarily students, there was no sound reason to deny that graduate assistants could be statutory employees entitled to collective bargaining rights. Id.

In 2004, however, the NLRB once again adopted the pre-NYU status of graduate students. Brown University, 342 N.L.R.B. 483 (2004). The NLRB argued that graduate student assistants are primarily students and have a primarily educational, not economic, relationship with their university. Id.

In 2016, the NLRB once again overturned precedent and allowed Columbia University graduate assistants to unionize under Graduate Workers of Columbia. Trustees of Columbia University, 2016 WL 4437684, at *1 (2016). The NLRB observed that under the NLRA, “employee” includes all employees, subject to certain exceptions. Id. However, no exceptions address graduate assistants at universities. Id.

The decision in Columbia currently stands. However, the NLRB functions as an agency within the executive branch.  The NLRB is a five-member board which the president appoints members for five-year terms, with one appointment expiring each year. The Board, National Labor Relations Board, (last visited March 2, 2017).   Yet, currently, the Board has three members due to the obstacles President Obama faced with Senate confirmations, and the inability to take advantage of recess appointments. See NLRB v. Noel Canning, 134 S. Ct. 2550, 2557 (2014).

Although the three members are President Barack Obama’s appointees, President Donald Trump will have the opportunity to fill vacant positions, and likely with ease due to the Republican majority in the Senate. Therefore, it is unclear whether this precedent will remain. If President Trump, over the next several years, successfully nominates non-labor friendly board members to encompass a majority on the Board, and a university decides to file a complaint with the NLRB challenging graduate assistant unionization, the current legal doctrine could be reversed again. The instability and constant overturns in this area seem to be an indicator of the potential for reversion. The opportunity for President Trump to successfully appoint new members to the Board combined with Bass’ language, as well as the language of other university administrations across the country, points in the direction of potential overturn in the relatively near future.