Alin
A graduate teaching assistant leads a lab at Michigan State University. The NLRB’s rulemaking proposal reflects the talking points of universities that have opposed graduate worker unionization, instead calling it a “quasi-academic” arrangement.
As college campuses across the country opened for the fall semester, the Trump Administration moved to shut down a longstanding legal battle over the labor rights of graduate students. The National Labor Relations Board (NLRB) just proposed a rule that deems them students, not workers, under federal law.
Under the Obama Administration, the Democrat-dominated Board ruled that graduate student “assistants”—who perform much of the teaching labor at private colleges and universities—qualify as employees under the National Labor Relations Act (NLRA), meaning they could organize unions and collectively bargain for a fair contract. The Trump Administration’s proposed rulemaking would effectively overturn the previous ruling and explicitly exclude graduate student workers from employee status under the NLRA and by extension, strips their collective bargaining rights.
The rulemaking, now in the public comment period, is a top item on the NLRB’s overarching anti-labor agenda. Since the issue was first litigated for Cornell University graduate students in 1970, the board's position on graduate worker unions has historically reflected the political oscillations of Democratic and Republican administrations. (The NLRB under the second Bush administration had ruled against graduate worker unions in 2004, which overturned a 2000 decision in favor of New York University’s graduate workers).
When Trump entered office, graduate workers from several universities still had cases pending before the NLRB and, in anticipation of the board swinging rightward again, they withdrew their cases in order to avoid an unfavorable ruling under an NLRB dominated by Trump appointees. The NLRB then decided to bypass the litigation process and bring about the changes it wanted to see through rulemaking, which changes the administrative guidelines for enforcing the statute.
The rulemaking undermines years of steady gains in graduate worker organizing in private higher education institutions. Graduate worker activists have campaigned not only for union rights, but also various reform demands, pressing their institutions to address issues like mental health benefits, sexual harassment, and faculty diversity. Some graduate worker unions are seeking voluntary recognition—a tactic successfully used by New York University’s graduate workers—but without a legal guarantee under the NLRA, collective bargaining may remain out of reach for many.
The NLRB’s 2016 decision, to consider graduate student assistants at private colleges and universities employees under federal labor law, opened a legal avenue for unionization and spurred successful union campaigns at twelve private universities, including Brown, Harvard, American, Brandeis, Tufts, and Loyola Universities; a handful have managed to negotiate contracts. (Public college and university graduate students, who are covered by public-sector labor laws, not the NLRA, have long enjoyed collective bargaining rights.)
However, Trump’s election, and the potential threat posed by a hostile NLRB stacked with Trump appointees, prompted some graduate worker unions to bypass the NLRB’s formal union election process, which requires a majority vote for union representation. Graduate workers at Duke University, for example, withdrew their union petition with Service Employees International Union after a legal challenge from the university upended the vote count with 500 disputed ballots.
The proposed rule would return to the Bush-era NLRB’s position, which considered graduate student workers to be engaged in a “predominantly academic, rather than economic, relationship with their school.”
One of the graduate worker unions that has negotiated a formal contract, the New School’s SENS-UAW, denounced the NLRB proposal in an email as “a desperate effort to squelch the unprecedented momentum of tens of thousands of student workers organizing in recent years” and “a disgusting effort to prevent student workers from negotiating fair procedures to address problems like sexual harassment in our university workplaces.”
The proposed rule would return to the Bush-era NLRB’s position, which considered graduate student workers at Brown to be engaged in a “predominantly academic, rather than economic, relationship with their school.” The NLRB found that graduate workers’ relationship with their institution—the organization that paid them wages, determined which courses they taught as part of their degree program, and set their working conditions—is not a form of employment, but a quasi-academic arrangement in which they are acting simply as scholars in training.
The NLRB’s rulemaking proposal reflects the talking points of universities that have opposed graduate worker unionization. Administrators have insisted that recognizing graduate workers as real employees would somehow sully the delicate educational relationship between the faculty and students.
“Faculty members educate, evaluate, and mentor students,” the board argues. “Collective bargaining over those matters appears to be inappropriate given that faculty and students are engaged in an individualized learning experience.”
The rulemaking proposal also contends that “a collective bargaining system would undermine academic freedom,” because “free speech rights in the classroom,” along with other academic and administrative matters for their courses, would somehow be compromised if the board had an active role in overseeing labor relations between graduate workers and administrators.
Advocates for graduate workers argue precisely the opposite: They say that a collective bargaining agreement might actually be essential for protecting academic freedom, by guaranteeing students protection from retaliation or discrimination simply for expressing dissident viewpoints.
Graduate student workers also reject the romantic notion that graduate students’ supposed scholarly rapport with faculty and administrators preempts their labor rights. Academia’s rarefied image masks the daily grind of doctoral students dealing with relentless stress and poverty pay, while maintaining the veneer of academic prestige.
Now that legal avenues for unionization have been foreclosed, the path forward for graduate student activists may be clearer. For example, the Duke Graduate Students Union, which decided to forgo the NLRB election process and instead focus on waging union battles through direct action on campus, has continued to campaign on improving wages and benefits. It still claims to represent instructors and research assistants across twenty departments.
Union Co-Chair Matthew Taft tells The Progressive that even if the administration sides with anti-labor administrators, “the graduate union will continue to be a collective voice that advocates for all graduate students . . . whether the NLRB determines or rules that we are workers or not.”
Maybe the only way for teaching assistants to make their case is by deciding not to show up to class—forcing their institutions to recognize the real value of their labor by withholding it.
Taft contextualizes the rulemaking “as part of a broader attempt by the Trump Administration to undermine workers’ rights across the country, from workers in higher ed . . . to people working in the gig economy to homecare workers.” For many types of precarious workers without formal unions, “if it's going to be difficult for them to achieve certain outcomes from the NLRB, then absolutely, they'll continue to organize and use alternative routes, alternative methods, that may have to sidestep the NLRB process completely.”
Moreover, Taft says, the limits imposed by the rule change could also bring “certain opportunities to try to introduce different modes of participation and engagement at the level of the rank and file membership,” including petitions, protests, or even going on strike (as Columbia graduate students did in 2018).
So if administrators refuse to recognize their graduate students as real employees, maybe the only way for teaching assistants to make their case is by deciding not to show up to class—forcing their institutions to recognize the real value of their labor by withholding it.