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NLRB Moves to Reverse Rule Deeming Graduate Students Employees

Harvard Graduate Students Union marked the launch of their historic bargaining sessions with the University in October 2018 by holding a "Bargainfest" celebration by the John Harvard statue.
Harvard Graduate Students Union marked the launch of their historic bargaining sessions with the University in October 2018 by holding a "Bargainfest" celebration by the John Harvard statue. By Joshua Y. Chiang
By James S. Bikales and Ruoqi Zhang, Crimson Staff Writers

The National Labor Relations Board proposed a rule Friday that would essentially reverse a 2016 decision that opened the door for students at private universities and colleges — including Harvard — to unionize.

It remains unclear what effect the rule change might have at Harvard, where the University recognized, and began bargaining with, its graduate student union last fall and negotiations are ongoing. The proposed rule — which will officially publish in the Federal Register on Monday — will undergo a 60-day public comment period before it can be implemented, according to an NLRB press release.

Sam Klug, an organizer with Harvard Graduate Students Union-United Automobile Workers, wrote in an emailed statement that while he does not expect the rule to affect Harvard’s union, the proposal is an “egregious and desperate misuse of power by the Trump administration.”

“It is practically unprecedented for the NLRB to engage in rulemaking on an issue like this,” Klug wrote. “This latest attack on our democratic rights will only embolden our massive and growing movement of tens of thousands of student workers.”

Klug added that the union plans to submit a public comment opposing the change.

NLRB Chairman John F. Ring said in the release that the board wanted to clarify a regulation that has been reversed three times in the past 19 years.

“This rulemaking is intended to obtain maximum input on this issue from the public, and then to bring stability to this important area of federal labor law,” Ring said.

University spokesperson Jonathan L. Swain wrote in an emailed statement that Harvard is “reviewing the proposed rule” to determine how it may affect the ongoing negotiations.

The proposed rule would revoke the employee status of students undertaking academic work under the National Labor Relations Act — a law that grants recognized employees the right to form unions. Universities, however, could still voluntarily recognize such student unions.

The board’s proposed view is that these students are primarily on campus to learn, not work, thus they should not be classified as employees, according to the release. In 2016, under the Obama administration, the NLRB ruled that private university students could be classified as employees, though that decision was made as a result of a case brought by students at Columbia University, not through the board’s rulemaking processes.

Former NLRB Chairman William B. Gould IV said it is “unprecedented” for the NLRB to use rulemaking to overturn an established principle.

Rulemaking is typically only applied to fill a gap in the current law, he said.

Gould said that the dynamics of graduate student unionization before and after the proposed rule will remain fundamentally the same, but the university might be able to take a different approach to recognition.

“At the margin, it creates a greater incentives for universities to refuse to recognize unions and contracts,” he said.

The NLRB voted 3-1 in support of the proposal, with board member Lauren McFerran dissenting.

McFerran wrote on Twitter that she opposed the decision because student employees have “workers’ interests and workers’ rights.”

“There is no good basis – in law, in policy, or in fact – to take their rights away,” she wrote. “But it is not too late for the Board to reverse course. I urge my colleagues to hold public hearings to hear directly from the workers whose lives are affected by this proposal.”

—Staff writer James S. Bikales can be reached at Follow him on Twitter @jamepdx.

—Staff writer Ruoqi Zhang can be reached at Follow him on Twitter @RuoqiZhang3.

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