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Tag Archives: National Labor Relations Act


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Great news for Graduate Employees

In a major victory for graduate employees at private universities, the National Labor Relations Board (NLRB) announced today that it was withdrawing a rule proposed in late 2019 that would have barred graduate assistants from engaging in union organizing and collective bargaining under the protection of federal law. Currently, graduate teaching and research assistants, and other students receiving compensation from their university, can organize and bargain in unions at many private universities under the federal National Labor Relations Act (NLRA). The act does not cover public universities or some religious private universities. Graduate employees have taken advantage of these rights by organizing unions and negotiating collective bargaining agreements that greatly advance the rights and benefits of their members.

The proposed rule sought to undo this progress. Graduate employees currently have the right to organize and bargain under the NLRA as the result of a 2016 decision by the NLRB in a case involving graduate teaching and research assistants at Columbia University. The AAUP has long supported the bargaining rights of graduate employees and submitted an amicus brief in the Columbia University case, which was cited and relied upon by the board in its decision. The 2019 rule proposed under the Trump administration would have reversed this decision and would have established that students at a private college or university who perform any services for compensation in connection with their studies, including but not limited to teaching or research, would not be “employees” under the purview of the National Labor Relations Act. Therefore, they would not be accorded the right to unionize under the NLRA. The AAUP submitted comments opposing the proposed rule and demonstrating both that graduate assistants are employees with the right to unionize under the NLRA and that unionization advances their academic freedom.

The issue of graduate employee coverage under the NLRA has been the subject of back-and-forth decisions by the NLRB, with Republican-dominated boards often excluding them from coverage (as in a 2004 Brown University case) and Democratic-dominated boards often including them in the coverage (as in the 2016 Columbia University case). The proposed rule would have established the exclusion as a regulatory rule, which is much harder to overcome.

Because the rule is withdrawn, graduate employees can continue to organize and bargain under the protection of the NLRA as provided in the Columbia University decision. Given the change in administrations, which should ultimately yield a change in the composition of the NLRB, we are hopeful that the rights of private-university graduate employees to unionize will be firmly established.

Sincerely,

Risa Lieberwitz, AAUP General Counsel
Aaron Nisenson, AAUP Senior Counsel


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AAUP Opposes Proposed NLRB Rule That Would Bar Grad Unionizing

The AAUP has submitted comments to the National Labor Relations Board (NLRB) opposing a proposed rule that would bar many graduate assistants from forming unions. The rule put forward by the NLRB holds that students who are also teaching or research assistants at private colleges or universities are not employees and are therefore not entitled to unionize or bargain collectively under the National Labor Relations Act.

The AAUP’s comments reject this claim and strongly refute the board’s assertion that “academic freedom” supports the proposed rule.

The AAUP has long supported the union rights of faculty and graduate assistants. In addition to the other benefits it provides, collective bargaining is an effective tool to promote and protect academic freedom. AAUP chapters have established explicit guarantees of academic freedom in their collective bargaining contracts, sometimes incorporating language from the 1940 Statement of Principles on Academic Freedom and Tenure. These contracts make promises of academic freedom legally enforceable.

Graduate assistants perform specific work in return for compensation. The work they do is often indistinguishable from that performed by faculty members, and universities generally treat graduate assistant stipends as payment for teaching or research work, not as general financial support. As such, and as the AAUP’s comments make clear, graduate assistants are employees who should have the same rights as other private-sector employees under the National Labor Relations Act.

The comments also refute the NLRB’s assertion that potential harm to an institution’s academic freedom is a basis for excluding graduate assistants from collective bargaining, arguing that “collective bargaining by faculty and graduate assistants is one of several ways to promote academic freedom on campus, as it allows faculty, students, and administrators to discuss collectively how best to do their shared work of teaching and research.”

The comments were drafted by Risa Lieberwitz, AAUP general counsel and professor of labor and employment law at Cornell University’s School of Industrial Relations, and Rana M. Jaleel, assistant professor of gender, sexuality, and women’s studies at the University of California, Davis.

You can read the comments and a summary of them here.

The AAUP

P.S. Looking for a primer on academic freedom? Check out our one page overview here.


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Protecting Organizing Rights for Faculty at Religious Institutions

The AAUP filed an amicus brief yesterday in support of Duquesne University faculty who have voted to form a union. The case, Duquesne University of the Holy Spirit v. National Labor Relations Board (NLRB), is currently before the federal court of appeals in DC.

The brief explains that academic freedom is essential to higher education and that the 1940 Statement of Principles on Academic Freedom and Tenure, jointly formulated by the AAUP and the Association of American Colleges and Universities (and endorsed by more than 250 higher education institutions) is its bedrock. Most religiously affiliated institutions recognize the need for unencumbered academic freedom for faculty. The statement establishes that in those instances in which a university seeks to impose a religiously based limitation on academic freedom it must do so in a way that is clear to faculty members, prospective faculty members, students, and the public.

The NLRB established an analogous principle in its 2015 decision in the Pacific Lutheran University case, which found that unless a religious institution has held out faculty as performing a specific religious function, faculty have a right to unionize under the National Labor Relations Act.

Based on this precedent and supported by the widely accepted tenets of the 1940 Statement, we argue that an institution’s failure to articulate a religious function for its faculty in advance of an appointment means that it is subject to NLRB jurisdiction, and the faculty should have a right to organize.

The case started in 2012 when adjunct faculty in the McAnulty College and Graduate School of Liberal Arts at Duquesne sought to form a union affiliated with the United Steelworkers. The Duquesne administration fought at every step, but the faculty voted overwhelmingly to unionize. Duquesne refused to recognize the faculty vote and to bargain with the union and ultimately appealed to federal court. In doing so, it is seeking to overturn the Pacific Lutheran University case. Thus, the ruling in this case could impact not just the faculty at Duquesne, but faculty at many of the nearly 1,000 religiously affiliated institutions in the United States.

We’ll keep you posted on developments in the case. To read the brief, go to this link.

Aaron Nisenson
Senior Counsel, AAUP

P.S. Help support the AAUP’s legal work. Donate to the AAUP Foundation’s Legal Defense Fund.