In the latest volley across the partisan line in the saga of whether college teaching and research assistants can unionize, the National Labor Relations Board (NLRB) released a proposed rule that would deny the ability to unionize (see 9/20/19 press release). For those who have followed the NLRB over the years, this notice comes as no great surprise. The crux of the issue is that teaching and research assistants often hold dual roles as students who also teach or provide assistance for which they are compensated by their college or university.

The three President Trump-appointed Republicans on the board approved the notice, indicating that teaching and research assistants are not employees under federal labor law, because their primary relationship to their college or university is educational. The lone Democrat dissented. Should the proposed rule go into effect, it would reverse the majority President Obama-appointed board’s interpretation that teaching and research assistants are employees under federal labor law. This reversed the majority President George W. Bush-appointed board’s ruling in a Columbia University case that assistants were not employees. This, in turn, reversed a President Clinton-appointed majority’s interpretation that they were employees.

The difference? Here, the board is engaging its rule-making authority to make this interpretation more permanent and difficult to overturn—which we’ve also seen this current board do with other matters—when past boards have issued less formal guidance or case-specific rulings. As the most recent reverse regarding college teaching and research assistants did not shock “board watchers,” neither did the approach of this board to set the matter in a rule. It’s recently flexed its rule-making discretion to propose rules on other matters.

Now that the Board has issued the proposed rule, the public commentary is certain to begin. However, with broad discretion in its rule-making authority, this is likely to become NLRB rule. While this won’t stop the inevitable future return hit from another administration, the return volley will take longer and look more like slow playback.

The proposed rule is scheduled to be published on September 23, 2019, and comments will be accepted for 90 days after publication through the Federal Register.

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