[co-author: Tara Patel  - Summer Associate]

During the Obama Administration the National Labor Relations Board (“NLRB” or the “Board”) opened wider the gates of private colleges and universities to organized labor.  In 2014 the Board made it easier for faculty to unionize by making it harder to prove faculty are management.  In 2015, while rejecting a petition for recognition by student athletes at Northwestern University, the Board left open the possibility that Division I student athletes are employees under the National Labor Relations Act.  And in 2016 the Board reversed precedent and ruled that graduate—and even perhaps undergraduate—student teaching and research assistants are employees eligible to form unions.  Unions saw opportunities; some colleges and universities saw the potential transformation of academe.

With the shift to the Trump Administration, the question is what now?  On July 14 the Senate Health, Education, Labor & Pensions (“HELP”) Committee held a confirmation hearing for Marvin Kaplan and William Emanuel, President Trump’s nominees to the Board.  If confirmed, the nominees will likely shift the Board’s ideological center of gravity.  Although the hearing offered little in the way of answers, Senators from both political parties questioned the nominees about higher education issues.

• Senator Christopher Murphy (D-CT) emphasized the importance of upholding past precedent on the ability of graduate student teaching assistants to organize. He asked the nominees to confirm that employee status and the ability to organize do not depend solely on receipt of cash compensation.  In what became something of a refrain, both nominees responded that such a question would depend upon various factors.   Kaplan added that the Senator’s question was “relatively novel,” had “not been adjudicated in a thorough fashion,” and required community input through amicus briefs.  Senator Murphy then took the position that the issue was already clearly decided and called on the nominees to respect precedent.  Mr. Kaplan responded that he did not “mean to imply that [he] was going to overturn or anything like that . . . we would have to look at the facts.”

• Senator Murphy shifted topics to ask about the Board’s recent approval of micro-units (subsets of employees who can organize and negotiate on issues that affect a larger group of employees). In answering the question, Mr. Emanuel mentioned that a recent case in which a Regional Director had approved nine micro-units of graduate students was “quite extraordinary” and that he had “never encountered [such] a bargaining structure.”  Senator Murphy responded that institutions of higher education are extraordinary since each administers departments in different ways.

• Senator Lamar Alexander (R-TN) revisited graduate student unionization and micro-units later in the hearing. He posed a series of hypotheticals to the NLRB nominees, suggesting that a liberal construction of the NLRB’s recent rulings could lead down a slippery slope: Could micro-units bargain over whether it is appropriate to teach American studies at a university? Could they bargain over whether the university could hold classes before noon? Over whether giving grades is oppressive and should be substituted for pass/fail options?   Emanuel repeated that “it would be a fact-intensive inquiry”  and added that some principles from past precedent could be extended.  Senator Alexander then ran his hypotheticals further down the slippery slope, emphasizing that failing to draw tight boundaries on past precedent would allow undergraduate students to negotiate issues harmful to their best interests (e.g., whether classes should be held before noon) and would discourage universities from offering students work-study positions.  He capped his questions by stating that he hoped that the Board “would be skeptical about extending this line of thinking.”

Additional questions from Senators for written responses from the nominees were due by 5pm Friday, July 14.  The HELP Committee’s next meeting is scheduled for Wednesday, July 19 at 10am to vote on nominees.