Graduate Assistants’ Right to Organize Spreads to Private Universities

By Allen Smith, J.D. Aug 24, 2016
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Collective bargaining of graduate assistants already works fine in public universities and will work in private universities as well, the National Labor Relations Board (NLRB) decided Aug. 23. The NLRB ruled that graduate student-employees at private universities are "employees" within the definition of the National Labor Relations Act (NLRA) and should be allowed to form unions and collectively bargain.

The NLRB ruling will open the floodgates to unionization drives at private universities, predicted Steve Bernstein, an attorney with Fisher Phillips in Tampa, Fla.

Public University Student-Employees

The NLRA excludes any state from its definition of "employer." So, state law governs collective bargaining at public universities, not the NLRA. 

In its decision Aug. 23, the NLRB overturned an old NLRA decision, Brown University, 342 NLRB 483 (2004), which held that graduate assistants at private universities could not organize because they weren't defined as "employees" under the NLRA. That prohibition didn't prevent graduate assistants from organizing at public universities, however. And they've been doing so without harmful effects, the current NLRB said.

Graduate student-employees are more frequently participating in collective bargaining at U.S. universities, the NLRB found. "Recent data show that more than 64,000 graduate student-employees are organized at 28 institutions of higher education, a development that began at the University of Wisconsin at Madison in 1969 and that now encompasses universities in California, Florida, Illinois, Iowa, Massachusetts, Michigan, Oregon, Pennsylvania and Washington," it noted.

"At these universities, to be sure, collective bargaining is governed by state law, not by the NLRA," the NLRB acknowledged. "Even so, the experience with graduate student[-employee] collective bargaining in public universities is of relevance in applying the act, as the closest proxy for experience under the act."

The board noted that the University of Illinois, Michigan State University and Wayne State University all have language in their graduate-assistant collective bargaining agreements giving management defined rights concerning courses, course content, course assignments, exams, class size, grading policies and methods of instruction, as well as graduate students' progress on their own degrees. "These agreements show that parties can and successfully have navigated delicate topics near the intersection of the university's dual role as educator and employer," the board stated.

The board also noted in its Columbia University decision, 364 NLRB No. 90, that it has frequently applied the act to faculty in the university setting and stated that no clear language exempts student assistants from the NLRA's coverage.


NLRB member Philip Miscimarra dissented, raising the following concerns:

  • Strikes. Student assistants could go on strike, resulting in the university suspending all pay.
  • Lockouts. The university could implement a lockout, which would require student assistants to cease working, and all pay would be suspended.
  • Loss, suspension or delay of academic credit. If a student ceased working because of a strike or lockout, he or she would have no entitlement to credit for requirements that are not completed, such as satisfactory work in a student-assistant position for a specific period of time.
  • Suspension of tuition waivers. Without pay, students would likely be foreclosed from attending classes unless they paid the tuition. The student assistant's attendance could require the immediate payment of tuition, which averages $32,410 annually at private universities.
  • Potential replacement. In the event of a strike, the university would have the right to hire temporary or permanent replacements.
"The board's decision in Columbia seems to clash with its decision in the Northwestern University football case, 362 NLRB No. 167, where [the board] declined for policy reasons to even get to the question of whether the student-athletes were covered employees under the act," said Jerry Lutkus, an attorney with Barnes & Thornburg in South Bend, Ind. "Here, the board found no problem getting to the employment question. Yet Columbia raises the same fundamental question that existed in Northwestern when you are dealing with a proposed bargaining unit that is seasonal and often transient. When the proposed bargaining unit finally gets to collective bargaining, many of the adherents of unionization may be gone and the union could very well have lost its majority status by the very next school year."

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