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NLRB Announces Withdrawal of Proposed Rule Preventing Private Student Unionization

Higher Education Lindsey Davis, Steve Kruzel

Private school building.

The National Labor Relations Board (NLRB) announced Friday its plan to withdraw a proposed rule that would have characterized paid undergraduate and graduate workers at private colleges and universities as non-employees unentitled to collective bargaining rights under the National Labor Relations Act (NLRA). Though the rule promised to bring an end to the historical flip-flopping on the issue via Board decisions that shifted with each administration, the NLRB rejected it, citing a desire to “focus its limited resources on competing Agency priorities, including the adjudication of unfair labor practice and representation cases currently in progress.”

The withdrawal decision eschews the Trump-era position that such workers should be excluded from the protections of the NLRA because their relationship to their college is primarily educational (not economic). This shift therefore opens the door for a potential surge in organizing efforts by such individuals. Indeed, in the absence of the rule, the NLRB’s 2016 Columbia University decision—which held that graduate research and teaching assistants at private institutions were entitled to collective bargaining rights under the NLRA—remains the key precedent on the topic. However, as the Biden Board (who are likely to uphold Columbia University if challenged) will not be fully in place until August of this year, any anticipated uptick in unionization efforts—which we expect to be led by teaching and research assistants who argue that their functions are crucial to keeping their colleges and universities running—is likely still a few months away.

Given the NLRB’s announcement, private colleges and universities should examine both their vulnerabilities and openness to union organizing. Regardless of their position on unionization, private colleges and universities should train their leaders regarding do’s and don’ts under the NLRA. Additionally, private institutions hoping to stave off unionization efforts should assess their existing relationships with and treatment of paid undergraduate and graduate workers, including teaching and research assistants (a group we have seen demonstrate success in organizing efforts in the past). Such an assessment should include a review of teaching and research assistant pay, benefits, and housing, as well as the policies and procedures governing the terms and conditions of their employment. In addition, such colleges and universities should evaluate whether they are providing meaningful and effective opportunities for teaching and research assistants to interact with faculty and administrators, including a process to raise and receive responses to issues of concern.

If you have questions regarding the NLRB’s announcement or need assistance regarding on-campus unionization efforts, please contact your local Quarles & Brady attorney or:

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