Legal Watch: The New Reality at the NLRB

By Aaron Nisenson

The two years since the election of Donald Trump as president have demonstrated how quickly the law governing unions can regress. Trump has been able to exert his influence over the National Labor Relations Board (NLRB), which is responsible for interpreting and enforcing the National Labor Relations Act (NLRA), the federal labor law that provides the legal framework for unionization of employees in the private sector, including at nonprofit universities.

Labor law is highly politicized, pitting the rights of employees and unions against the interests of employers. The political tensions are magnified by the long-standing practice of allowing the president’s party to choose a majority of the five members of the board that leads the NLRB. While large differences exist between the appointments made under Democratic and Republican administrations, the NLRA itself clearly declares the policy of the United States as “encouraging the practice and procedure of collective bargaining and . . . protecting the exercise of workers of full freedom of association, self-organization, and designation of representatives of their own choosing” (emphasis added).

The Obama board took major steps toward achieving such policy. It expanded opportunities for employees to organize into unions, increased protections for both unionized and nonunionized employees, and simplified the processes for conducting union elections. Three major holdings directly encouraged collective bargaining among college and university employees, with the AAUP providing input in amicus briefs submitted to the board and the courts. First, in Pacific Lutheran University, the board modified the standard for determining whether faculty at religiously affiliated universities would be covered by the protections of federal labor law, expanding the opportunities for those faculty to unionize. Second, in the same case, the board modified the test for determining whether faculty are considered employees with rights to unionize or managers, who are not eligible to unionize under the NLRA. Third, in Columbia University, the board found that graduate student teaching or research assistants are employees with the right to unionize under the NLRA. The DC Circuit Court of Appeals is considering challenges to the first two holdings in cases involving Duquesne University and the University of Southern California, which could result in a remand to the Trump board.

Under the Trump board, the public policy of encouraging, or even allowing, collective bargaining is under threat. The three Obama board holdings expanding university employees’ rights may be reversed if cases raising these issues come before the Trump board. Since taking control, the Trump board has issued a number of decisions that not only overruled Obama-era decisions but also undermined long-standing labor law precedents. In one that directly affects faculty members, the Trump board limited the ability of workers to organize unions in “bargaining units” made up of subgroups or departments of the employer. This decision will likely hinder the ability of unions to represent employees at individual colleges or departments within a university. Other major protections are also under threat: the Trump board has proposed new rules that will reverse the Obama board’s rules for expediting union elections; it has proposed rules that will make it easier for large corporations to avoid responsibility for actions of related companies or employers (called “joint employers”); it is considering whether to reverse decisions that allowed employees to use employer-provided email accounts to discuss union organizing; and it has significantly cut back on the ability of employees to challenge employer rules restricting employees’ speech at the workplace and on social media.

This new reality is also affecting the activism of graduate employees who seek to form unions. The Obama board’s ruling that graduate employees at Columbia University had a right to organize energized a wave of activism. Graduate employee unions formed in dozens of private colleges and universities from coast to coast. Some filed election petitions with the NLRB and were certified as representatives of the graduate employees after winning the election; others engaged in activism that persuaded the administration to recognize and bargain with the union without involvement of the NLRB. Many fear that the Trump board will reverse the Columbia University decision and refuse to provide graduate employees at private institutions the right to organize under the NLRA, foreclosing that route to unionization. But there is also hope that activism will grow, with graduate employees continuing to pressure administrations directly to recognize their unions regardless of who is on the board. And if hope wins out over fear, perhaps the students will be the teachers, showing faculty the path to collective action.

Aaron Nisenson is senior counsel at the AAUP. 

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