NLRB Plans to Revisit Student Organizing
The National Labor Relations Board (NLRB) indicated in the federal government’s May 22 spring regulatory agenda that it plans to issue a proposed rule by September addressing the extent to which students who perform services for private higher education institutions are considered employees under the National Labor Relations Act (NLRA). Under the NLRA, employees working in the private sector, including at private colleges and universities, have a legally protected right to bargain collectively.
The test for determining when a student is primarily an employee, with rights to collectively bargain, or primarily a student and thus not entitled to NLRA protections, has been debated and reversed back and forth by the last three administrations. Many expected the Trump administration would reverse the NLRB’s 2016 ruling in Columbia University that said grad students and certain undergraduates are employees under the NLRA. The Columbia decision overruled a 2004 NLRB ruling in Brown University that grad students could not organize. Unions organizing students, however, have avoided bringing matters before the Board in hopes they can deny the Trump NLRB the opportunity to reverse or limit Columbia.
The Board’s decision to address the issue via rulemaking, rather than ruling on an individual case, will likely frustrate the union effort to deny the NLRB a vehicle to make changes to Columbia. The Board has increasingly favored rulemaking, which the Obama Board issuing several rules and the Trump Board choosing to tackle joint employment liability through rulemaking. The NLRB also announced plans for two more proposed rules expected by September — one that would establish standards for union access to an employer’s private property and one that would address decertification elections.
CUPA-HR has weighed in on the grad student issue at each opportunity with the last three administrations and plans to do so again.