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.