RyAnn McKay Hooper Quoted in “Organizing Boom Likely After NLRB Drops Student Union Rule”

Law360 Employment Authority

RyAnn McKay Hooper, Associate in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360 Employment Authority, in “Organizing Boom Likely After NLRB Drops Student Union Rule,” by Tim Ryan. (Read the full version – subscription required.)

Following is an excerpt:

A renewed organizing push is likely to arise from the National Labor Relations Board's announcement last week that it is abandoning a proposed rule that would have prevented student teaching assistants at private colleges and universities from unionizing, experts said, as unions anticipate a more sympathetic board under President Joe Biden.

The NLRB announced Friday that it is withdrawing the rule on grad student organizing, which would have excluded student teaching and research assistants from the definition of employees under the National Labor Relations Act. First proposed in 2019, the rule would have meant those student workers could not unionize, a reversal from an Obama-era board decision involving Columbia University that allowed them to do so. …

A Wave of New Organizing

Organizing among student teaching and research assistants at private universities has taken on a cyclical pattern since a 2000 board decision involving New York University that, for the first time, approved a union of graduate assistants. That decision said the assistants qualified as employees under the NLRA, inviting more unionization efforts.

But once President George W. Bush appointed a Republican majority, the board reversed itself in a case involving Brown University, ruling in 2004 that student teachers don't count as employees because their relationship with their school is focused mainly on education. That holding governed student worker organizing until 2016, when a Democratic board majority under President Barack Obama reversed it and said the assistants at Columbia were employees and could vote on union representation. …

RyAnn McKay Hooper, an Epstein Becker Green attorney who represents employers, said schools whose graduate assistants may have been covered under the proposed rule will need to change course, as the board's decision "puts organizing back on the table." …

The Columbia bargaining unit that was the subject of the 2016 precedent-shifting decision still has not come to agreement on a first contract, and on Monday launched a strike seeking to put pressure on the university.

Impact on Future Decision-Making …

Hooper, who spent a decade as an attorney at the NLRB, said it wouldn't necessarily be difficult for a future board to reverse the Columbia University holding through its normal route of deciding cases, though it would take considerable time. She also said any decision reversing Columbia University would not touch unions that successfully reach contracts in the meantime.

The Future of the Trump Board …

Hooper agreed that the rapidly approaching change in the makeup of the board was a primary driver of the decision. What the move to back away from the graduate student rule might mean for how the Democratic majority wields rulemaking power is difficult to say, she said.

"We don't know what the future board is going to do with rulemaking," Hooper said. "I would like to believe that the historical path of just looking for the right set of facts and changing precedent would be an appropriate route, but if you're looking for a change that's a little harder to undo, rulemaking is there."