On September 23, 2019, the National Labor Relations Board ("NLRB" or the "Board") set forth a proposed rule that would make it far more difficult for students at private colleges to unionize. Under the proposed rule, both graduate and undergraduate students who perform services for financial compensation at private colleges and universities — such as teaching and research assistants — would be expressly exempted from coverage under the National Labor Relations Act ("NLRA"). As such, private universities would be under no legal obligation to recognize unionization efforts among their paid teaching and research assistants or to collectively bargain with their chosen representatives.

The proposed rule represents yet another change in the NLRB's position on this contentious issue. Up until this point, the NLRB had taken a case-by-case approach, often with divergent results. Indeed, since members of the NLRB are selected by the current presidential administration, it is common for the Board to adopt radically differing stances within the span of just a few years. For example, the NLRB ruled in 2000 that graduate students at New York University could unionize, while a 2004 NLRB ruling held that graduate teaching assistants at Brown University could not. The NLRB's position shifted yet again in 2016, when the Board held that teaching and research assistants at Columbia University who receive compensation may unionize. Never before, however, has the NLRB resorted to official rulemaking on this issue.

The Board's proposed rule raises several questions, particularly for universities that either already have a collective bargaining agreement with a graduate student union or are actively engaged in negotiations with a recognized graduate student union. The status of current agreements may be called into question, and it would not be surprising if private colleges and universities tabled all ongoing negotiations pending a final rule from the NLRB. Further, it is atypical for the Board to expressly exclude a group of individuals from coverage under the NLRA by way of rulemaking. This is more commonly undertaken by Congress. As such, there will almost certainly be legal challenges to the proposed rule.

The Board's proposed rule is now open for a 60-day period of public comment, after which the Board will consider all comments before setting forth a final rule. Employers are strongly advised to consult with labor and employment counsel to discuss this significant and ongoing development.