Will Grad Students Lose the Right to Unionize Under Trump?

Last year, students at private universities were granted collective bargaining rights. A reversal may be coming.

University of Pennsylvania graduate students on strike demanding that the college recognize their union, in 2004 (William Thomas Cain / Getty)

Trevor Hull wakes up every morning and goes to a lab where he mixes chemicals together, using materials like lead and cadmium to synthesize other substances. A man who he calls his boss sometimes gives him directions and orders, and he’s paid on a bi-weekly basis. He says he feels like he works at a small business. “In my day to day life, it feels like a job,” he told me.

Hull’s lab, though, is at Columbia University—he’s a PhD student there—and whether or not he is a worker is a matter currently being debated at places like Columbia and across the country. Being a graduate student, some universities say, means doing research with professors, teaching courses, and fulfilling other obligations that may seem a lot like work, but are actually academic responsibilities meant to train students to be professors. That means that Hull and other graduate students at private universities should not be defined as employees under the National Labor Relations Act, the universities argue, and thus should not be allowed to join unions that collectively bargain on their behalf. For their part, Hull and other graduate students who are pushing for bargaining power argue that without it, universities won’t listen to their complaints about everything from how they’re paid to how they’re assigned classes to teach.

The National Labor Relations Board (NLRB), which governs private-sector workplaces, has gone back and forth on this issue in the past two decades. In 2000, the NLRB, reversing precedent, ruled that graduate students at New York University were employees and had a right to engage in collective bargaining under the National Labor Relations Act. In 2004, the board, with different members, some appointed by President George W. Bush, reversed that ruling in a case involving Brown University graduate students. Then in 2016, the NLRB, with a majority of members appointed by President Obama, ruled that Columbia’s graduate students are employees.

Now, two of the five seats on the NLRB are vacant, and it’s likely that the board will revisit this question once President Trump, with Congress’s approval, fills those seats. (Late Tuesday, Trump nominated William Emanuel, an attorney, to fill one of the two seats, and he had previously nominated Marvin Kaplan, also an attorney. If these nominees receive Congressional approval, the NLRB will be controlled by Republicans for the first time in nearly a decade.) At the end of the day, it may not be the strength of each side’s arguments that determines whether graduate students at private universities are allowed to unionize—which is a shame, because it’s a debate worth having.

As William A. Herbert, the executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, at Hunter College, told me, the 2016 Columbia decision has led to a wave of unionizing efforts at private universities across the country, many of which are currently being challenged by the universities. (Graduate students at public sector universities are governed by state laws, rather than by the National Labor Relations Act, and in many states, have already organized.)

This has happened at a number of schools. At Columbia, graduate students voted to join a union, 1,602 votes to 632, and the union received certification from the NLRB, but the university asserts that this isn’t allowed on the grounds that the students shouldn’t be considered employees. (It’s up to the NLRB to certify a union if an employer doesn’t recognize it.) Earlier this year, students in eight of the nine departments at Yale that tried to organize voted to join a union, which the NLRB has certified, but the university is challenging that certification too. (Yale students then went on a hunger strike to protest that challenge.) Students at Loyola University also voted to join a union, and were certified, but the university is challenging the certification on the grounds that it is a religious institution. And at Tufts University, Brandeis University, and American University, graduate students have voted to join unions, and those unions have been certified, but the universities have not challenged that certification.

The students say that they work they do is essential to the functioning of a university, and that a school would not be able to run as it does without them. They teach courses, they perform research, they help guide undergraduate students, and they get paid for the work they do. “We’re the backbone of the university,” Amanda Shubert, a doctoral student at the University of Chicago who is working on the unionization campaign there, told me. “Every student at the university will be taught by a graduate employee at some point in their career here. And graduate researchers are advancing the frontiers of science and knowledge.” Indeed, Hull, the Columbia student, said that the work he is doing is analogous to the work employees do at private labs across the country. “I do research all day—if I were doing the same activities that I do in a lab, I’d be a private employee,” he said.

The 2016 NLRB decision made these same arguments. It noted that many PhD candidates took on teaching duties for most of their time at Columbia, and that sometimes, they taught components of the core curriculum, which is required for all undergraduate students. Many teaching assistants spent 15 to 20 hours a week on duties related to teaching courses, and they graded papers, held office hours, and led course discussions, the decision found. If they did a bad job on teaching, the university would train them, or remove them from their post and revoke their stipend.

This meant, according to the NLRB, that the students had a “common-law” relationship with the university, so they could be considered employees under the National Labor Relations Act. A common-law test is used when there’s a dispute over whether a worker, technically speaking, has an employment relationship with a private employer. The test looks at whether the employee is performing services for another entity, under that entity’s control or right of control, in return for payment. In the NLRB’s determination, the university directs and oversees students’ teaching and research activities, and it compensates them for their duties, which advance key components of the university’s business—educating undergraduates and performing innovative research. “There is undoubtedly a significant economic component to the relationship between universities, like Columbia, and their student assistants,” the opinion reads.

The lone dissenter on the 2016 Columbia decision was Philip A. Miscimarra (who Trump happened to recently appoint as the chairman of the NLRB). In his opinion, Miscimarra argued that students are admitted to a university based on their academic qualifications, not hired to work there. The National Labor Relations Act, on the other hand, is meant to cover economic relationships—and the graduate assistants are students before they are employees, he wrote. If a university’s business is education, he argued, the students are not the “means of production”; they are, instead, the product.

The universities also make the argument that they could operate without the graduate students, if need be—something an employer couldn’t say of its workers. In hearings earlier this year over the dispute between the University of Chicago and its graduate students, for example, one professor testified that having someone else grading in his class of 19 students “is not a relief to me,” the idea being that his class was small enough that he could handle the extra work, if necessary. Another professor said that although graduate students taught many of his small discussion groups, “I could just teach all the discussion groups myself.” (When asked if he had ever done that, he responded, “No.”)

Joseph Ambash, a partner at the law firm Fisher Phillips who represents universities such as Columbia, Yale, and Brown, told me that an additional concern is that unionization could damage the “academic relationship” between students and universities. If graduate students are allowed to unionize, Ambash argues, they could be bound by union rules that might limit the number of hours they spend researching. They might begin to negotiate over what a curriculum includes, or how relationships between professors and students are structured—things that he says could create an adversarial relationship between professors and students where a teacher-student dynamic had once been. The union might require that students with the most seniority teach certain classes, even if other students are better teachers. “It will create great disruption and havoc among universities and graduate students,” Ambash told me.

I pointed out to Ambash that having graduate-student unions at public universities has not seem to have caused havoc. A 2013 study that looked at PhD students at eight public universities found that unionization did not have a negative effect on grad students' academic freedom or relationships with faculty, and in some cases had a positive effect, since graduate students represented by a union reported higher levels of personal and professional support, and had higher pay than those without a union. But Ambash said that the study looked only at the impact of collective bargaining on the graduate students, and not on the institution. No peer-reviewed studies have looked at the impact of unionization on the administration or on the university as a whole, he said.

“To suggest that it is not extraordinarily burdensome and impactful is not accurate,” he added, pointing to when, between 2001 and 2005, the union representing NYU grad students filed what he considered to be unreasonable grievances. One such complaint was over the university’s right to select which graduate students teach particular courses. An NYU faculty advisory committee later concluded that the readiness of the union to pursue grievances “leads the Committee to conclude that it is too risky to the future academic process of NYU for it to have graduate assistants represented by a union that has exhibited little sensitivity to academic values and traditions.” Because of the grievances, the University Senate, a body composed of deans, faculty, and students, advised against offering a new contract to the union that had been representing graduate students, according to an NYU spokesperson.

Of course, many graduate students say that the process of pushing back against wrongs at their universities is one of the reasons they need a union. Hull, the chemistry PhD, says that although there is a student government at Columbia that ostensibly represents the students, “it seems obvious they have no power”—they bring up issues, he says, and the university ignores them. A union could help resolve concerns about sexual harassment, or ensure that Hull, who works with dangerous chemicals, is adequately protected. Another Columbia student, Olga Brudastova, told me that her paycheck was delayed for the first three months of school, and that she couldn’t find anyone to help her get paid. A union would have been able to help, she said. “After that, I started realizing that there are many more issues that could be resolved by a union contract,” she said.

Herbert, of Hunter College, points out that collective bargaining “is not a one-way street” and can help universities too—they can make proposals for changing how they interact with grad students, which can benefit both sides. But this probably isn’t something many universities are interested in at the moment. Instead, they seem to be waiting for a reversal of the 2016 ruling at some point during the Trump administration.