CHICAGO – In a landmark decision, the National Labor Relations Board (NLRB) has ruled that graduate students employed at private universities have the right to unionize. And while benefits won in potential collective bargaining may increase costs and tuition, it may also open colleges and universities to greater risks of being sued.

In a 3-1 decision on Aug 23., the NLRB sided with graduate students, approving their right to unionize as employees of private colleges. The ruling was in favor of students at Columbia University in New York who had tried to unionize at the college and had their efforts shut down by the university.

The NLRB decision effectively overturns the 2004 ruling against graduate student unions in a case which arose at Brown University in Providence, R.I., where the NLRB found that the relationship between graduate students and the university was primarily educational and not of the employee and employer nature under the National Labor Relations Act.

In the new ruling, the NLRB found that under the National Labor Relations Act the students should be considered employees of the university for which they work and that the educational relationship that Columbia University argued for doesn’t exist in the act's language. The NLRB ruled that the probability of these students unionizing wouldn’t hamper the higher education process and could be viable to the university.

“The board reversed its 2004 decision in the Brown University decision, in which it held that graduate students were not statutory employees, and held that graduate students/student assistants at private colleges and universities are statutory employees under the National Labor Relations Act,” Bryan Bienias, associate at Seyfarth Shaw, told the Cook County Record. “This status allows student assistants to not only form and join unions for the purpose of collective bargaining, but provides certain protections over the right to engage in other concerted activities for their 'mutual aid or protection' (i.e., the right to address issues over wages, hours, and other terms and conditions of employment without interference or retaliation from the college or university). The impact of this ruling will vary from school to school, mainly depending on what, if any, organizing efforts occur at a given school.”

The NLRB decision going forward could affect how many students are hired on as graduate student employees, as the cost to employ these students could increase through the demands placed by the formation of a union on campus. Tuition also could increase if universities were to pass along higher labor costs to all students at a school.

“The decision may not necessarily impact tuition rates,” said Bienias. “However, unionized colleges and universities could pass on to tuition-paying students any additional administrative costs resulting from dealing and bargaining with unions, responding to unfair labor practice charges, etc., or any increased expenses negotiated at the bargaining table.”

The new union ruling may also increase litigation risks for the universities, as they would be responsible under the National Labor Relations Act for the welfare of their graduate student employees.

“Colleges and universities could experience significant litigation as a result of this ruling,” said Bienias. “Graduate students or their unions may now file unfair labor practice charges against the schools for any number of alleged violations of the National Labor Relations Act, (such as) interference with protected activities, discrimination, bad faith bargaining, etc., which could result in extensive litigation at the NLRB’s regional office level up to the federal courts. Similarly, colleges and universities could face extensive litigation in simply responding to a union representation petition, either in challenging the petition itself or the results of a union election.”

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