Legislation introduced last week would allow private university students who serve as teaching and research assistants to form or join a union. The Teaching and Research Assistant Collective Bargaining Rights Act (H.R. 1461) would amend the National Labor Relations Act (NLRA) by including such students in the definition of “employee.” Specifically, the bill would add the following provision:

(B) The term ‘employee’ includes a student enrolled at [a private] institution of higher education . . . who is performing work for remuneration at the direction of the institution, whether or not the work relates to the student’s course of study.

The bill is intended to reverse the 2004 National Labor Relations Board decision in Brown University where the NLRB ruled that graduate student assistants are not statutory employees. 

The bill provides no guidance on the meaning of the phrase “work for remuneration.” One can expect debate over whether “remuneration” covers tuition credits, grant funding or financial assistance. Students who receive “remuneration” would be considered employees, even if the teaching or research work constituted academic requirements to obtain the degree.

This bill is identical to one introduced, but not passed, last year by Rep. George Miller (D-CA) and Sen. Edward M. Kennedy (D-MA), and co-sponsored by then Senators Clinton and Obama. In Senator Kennedy’s comments supporting last year’s bill, he said the NLRB’s Brown decision “stopped an active organizing movement in its tracks and deprived thousands of teaching and research assistants of their right to organize and bargain over their wages and working conditions.”

The NLRB’s decision, however, pointed out that the decision was returning to a precedent that had existed for twenty-five years that graduate student assistants were primarily students and not statutory employees. The Board said that:

imposing collective bargaining would have a deleterious impact on overall educational decisions. . . .  These decisions would include broad academic issues involving class size, time, length, and location, as well as issues over graduate assistants' duties, hours, and stipends.  In addition, collective bargaining would intrude upon decisions over who, what, and where to teach or research – the principal prerogatives of an educational institution. . . .  Although these issues give the appearance of being terms and conditions of employment, all involve educational concerns and decisions, which are based on different, and often individualized considerations.

The arguments outlined in the Brown decision will undoubtedly be made again, either in Congress or before the NLRB. The entire higher education community will be watching these developments with intense interest. 

This bill has been referred to the House Committee on Education and Labor.

This article was authored by Walter Hunter, a shareholder in Littler’s Providence office