Teach, Hit the Lab, Grade Some Papers and… Unionize? NLRB Rules That Private University Graduate Students Can Unionize

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Are PhD students at a private university who also teach courses and grade papers – tasks that are a part of their development but also certainly assist the university – employees who can unionize?  The NLRB said yes for a second time. This trend that allows unionization of employees who were once thought to be only students or athletes is likely to continue, at least under the current NLRB makeup. 

Background on Duke Graduate Students

Students at Duke University who are working toward their PhD degrees also provide instruction services in undergraduate or graduate-level courses or labs. Duke pays the PhD candidates approximately $6,100 per course as a teaching assistant (TA) or research assistant (RA) and $3,050 per course as a grader. The students also receive a yearly stipend. An affiliate of the Service Employees International Union (SEIU) filed a petition with the NLRB for an election to represent the PhD students. 

Duke contended that the TA and RA duties were avenues of “service” rather than “work,” but the fact that these duties were mandatory suggested that the students were employees.  The university directed this work through specific training and regulations and also contended that the teaching components benefited the growth of the PhD candidates. Obviously, the university benefitted from this work in many ways. “The faculty member to whom the student is assigned tells the student what tasks to perform and how to perform them.” In addition, poor performance by the TA and RA could have consequences such as removal from the lab or remedial training. 

The Law

Section 2(3) of the NLRA defines an employee for unionizing and collective bargaining purposes, but the act does not define the employment status of students in higher education.  In Columbia University, 364 NLRB 1080 (2016), the board held that student assistants were statutory employees when, in connection with their studies, they provide services or work under the university’s direction for compensation. The decision overruled Brown University, 342 NLRB 483 (2004), where the board had determined that students could not be statutory employees because they were “primarily students and ha[d] a primarily educational, not economic, relationship with their university.”

But in September 2019 the NLRB proposed a rule that graduate students who perform services for compensation were not employees. Following the change in administration, in March 2021 the NLRB withdrew this proposed rule. The proposed rule would have applied only to private universities because the NLRB does not have jurisdiction over public universities, where grad students are widely recognized to be workers and can form unions in states that allow collective bargaining by state employees.

So, this was not a settled issue when Duke brought its action for review. Whether the students were employees hinged on whether (1) the employer has the right to control the employee’s work and (2) the work was performed in exchange for compensation. The hearing officer found that “[e]ven where the economic component is relatively small in comparison with other aspects of the relationship, “the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship for purposes of the [NLRA].”

Students Can Unionize

The hearing office of the NLRB affirmed that the PhD students were employees and could hold a union election on July 24. In the eyes of the NLRB officer, the students assisted in “the business of universities by providing instructional services for which undergraduate students pay tuition.” 


This issue of whether private school students who also perform work for the school and are paid are employees has gone back and forth over the years with the shift of the NLRB, and it will continue to be of interest. Those private universities impacted should be aware of the developments should they face potential union organization. This latest decision reflects the current NLRB’s expansion of the definition of employee, as seen with independent contractors and college student-athletes