But federal law allows them to unionize as if they are, at least for now.
W hy do graduate students at private universities get to pretend they’re auto workers or electrical workers? Thousands of U.S. grad students at elite universities such as Harvard, Columbia, and the University of Chicago are now members of traditionally blue-collar unions, such as the United Auto Workers (UAW) and United Electrical, Radio and Machine Workers (UE).
They are allowed to do so because the National Labor Relations Board (NLRB) ruled in 2016 that graduate students at private universities who are paid by the university to perform work, most commonly as a teaching or research assistant, are employees eligible for unionization. Now, a graduate student at Cornell is challenging that ruling in a bid to return some common sense to a nonsensical legal regime.
The NLRB has already flip-flopped on this issue. Private university graduate students were viewed as, well, students, until 2000, when under President Clinton, the NLRB ruled that they could be considered employees eligible for unionization. The National Labor Relations Act (also known as the Wagner Act) only governs labor relations in the private sector. Graduate students at public universities are sometimes allowed to unionize depending on state laws.
In 2004, under President Bush, the NLRB changed its mind. Private university students were not considered employees from then until 2016, when, under President Obama, the NLRB changed its mind again. Since then, tens of thousands of graduate students have joined unions.
As of early 2024, 150,100 graduate students were union members across public and private universities, an increase of 133 percent since 2012. Graduate assistants’ union membership rate of 38 percent is now higher than that of any private-sector occupation tracked by the Bureau of Labor Statistics, and equal to the union membership rate of local government employees. The union membership rate for all U.S. workers is 10 percent, and it has been gradually declining for decades.
The 2016 ruling involved graduate students at Columbia University. (Columbia opposed unionization — everyone is a conservative with his own business.) It’s interesting to read because the Democratic majority takes a textualist approach and the Republican dissent is more purposive and based on precedent.
The definition section of the Wagner Act says, “The term ‘employee’ shall include any employee, and shall not be limited to . . .” It goes on to list exceptions of what an employee is not, but it never actually says what an employee is, other than “any employee.”
The Democratic majority on the NLRB in 2016 took this to mean that graduate assistants are employees. They are paid by the university to do work, and the text of the statute doesn’t exclude students. Additionally, the Wagner Act says that “encouraging the practice and procedure of collective bargaining” is “declared to be the policy of the United States,” so in cases where it’s not clear, the law should side with allowing collective bargaining.
That the graduate assistants are primarily students, not workers, doesn’t matter, the majority said. “Statutory coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the Act does not reach.”
Against that very narrow textualism, the Republican dissent noted that the Supreme Court has repeatedly said that the NLRB’s job is to apply the Wagner Act to “industrial life” and has recognized in numerous cases that the academic world is in many respects different from industry. In writing the Wagner Act, Congress presumed an adversarial relationship between employer and employee that mostly does not exist between professor and student. Unlike most workers, students are paying thousands of dollars in tuition to the universities that the NLRB has ruled “employs” them.
The dissent also says that Congress has passed many other laws about higher education that do not envision collective bargaining by students as beneficial to the college experience. “Collective bargaining and its attendant risks and uncertainties will tend to detract from the primary reason that students are enrolled at a university — to satisfy graduation requirements, including in many cases the satisfactory completion of service in a student assistant position,” it says. That the NLRB recognized this difference for all but four years of its existence is good reason to keep students in a separate category from employees.
That makes a lot of sense, but it’s not in the Wagner Act . . . but the Wagner Act doesn’t make a lot of sense. In general, NLRB decisions are fake law made by fake judges who have to interpret a poorly written statute from 90 years ago that is based on assumptions about industrial organization that no longer obtain in the United States. But the NLRB remains powerful nonetheless, and its decisions matter.
That’s why Russell Burgett, a doctoral candidate at Cornell University, which is private, is asking the NLRB to overturn the 2016 Columbia ruling. He isn’t a member of the Cornell graduate students’ union, a UE affiliate, and he said in charges filed with the NLRB on Monday that his choice not to join makes it harder for him to complete his education.
Because Cornell is located in New York, and New York is not a right-to-work state, the union can essentially force Burgett and any other student who doesn’t wish to join the union to financially contribute to it. If students choose not to, the university can’t do business with them, because the Wagner Act mandates exclusive representation once a union is recognized. And if the university can’t do business with him, he can’t complete his degree requirements, which may involve teaching and research for the university.
Burgett says students are not employees, and federal law prohibits organizations from refusing to do business with people simply because they refuse to associate with a union. And there are plenty of good reasons to not financially contribute to graduate student unions, which are hyper-progressive in their politics and deliver little in benefits to students.
Dues for members or agency fees for non-members are 1.44 percent of pay, which is automatically deducted by Cornell from graduate students’ stipends. Under the minimum pay level listed in the contract, that comes out to at least $684 per year.
The National Right to Work Foundation is aiding Burgett’s defense. The group’s president, Mark Mix, said, “At America’s elite universities, union bosses empowered by the Obama and Biden NLRBs are coercing dissenting students into funding their political radicalism and constant agitation — including Jewish students who have sincere religious objections to the anti-Israel vitriol that campus unions push.”
That’s why every state needs a right-to-work law, so people like Burgett never have to join a union. But because of the latitude that the NLRB has from Congress to interpret a vague law outside the Constitution’s three-branch structure, graduate students have become employees because Democrats wanted them to be. Now, Republicans can undo it. This is a rather poor way to make law, which is part of why the Constitution does not say law should be made this way.
The Constitution says the judicial power belongs to courts under Article III with judges who serve for life, not transient partisan appointees of an executive agency looking to benefit their political allies in organized labor. Cases like Burgett’s shouldn’t have to be brought, because the NLRB shouldn’t have judicial functions, and the Wagner Act shouldn’t be rigged in favor of unions. But it does, and it is, so Ivy Leaguers can be transformed into auto workers and unions can coerce graduate students into paying them, as long as three out of five unelected lawyers agree.