For the past 90 years, the ability of private-sector employees to form unions, collectively bargain, and engage in union-protected activities has fallen under the purview of the National Labor Relations Board (NLRB). For the past several months, however, the Board has lacked its three-member quorum, which has meant it can no longer make any rulings. By removing Biden-appointed Board member Gwynne Wilcox within a week of his return to the Oval Office, Donald Trump plunged the Board into this sub-quorum territory. With the Republican justices on the Supreme Court poised to quash the powers of independent commissions like the NLRB, or to enable Trump to fire any member at his whim, the future of workers’ rights looks tenuous at best.
Fearing an unprecedented gutting of the NLRB, and its ability to enforce workers’ legal rights to have a union and bargain collectively—something no other federal agency is empowered to do—legislators and organized labor in New York, Massachusetts, and California have been pushing to implement statutes that would protect the right of private-sector workers to organize and bargain collectively if the NLRB is unable to carry out its functions—as is currently the case—or is stripped of that jurisdiction altogether. These so-called “trigger laws” are designed to patch a gap the aforementioned states never found a need to fill when they began establishing labor boards in the 1960s. To date, the vast majority of state labor boards have exclusively regulated public-sector bargaining, since the National Labor Relations Act (NLRA) covers only private-sector workers. (In a number of Southern or Republican-controlled states, however, public employees have never won the right to unionize or collectively bargain.)
But for one group of private-sector employees, their ability to form unions and collectively bargain has fluctuated in recent decades, with the pendulum swinging toward workers’ rights under Democratic administrations and away during Republican administrations. That group is private university graduate student workers.
Despite Trump’s unsuccessful efforts to strip teaching and research assistants of their employee status during his first term, the NLRB’s 2016 Columbia decision affirming this status and the Biden administration’s efforts to support workers in hard-to-organize sectors have underpinned the upswell in student worker unionization at private colleges and universities. As my colleague Harold Meyerson observed at the time, the NLRB conducted elections at 17 private universities over the 16-month period prior to May 1, 2023, and close to 90 percent of student workers voted to unionize. This wave continued to gain amplitude in 2024, with the majority of new bargaining units emerging at private institutions. In California, student workers at the California Institute of Technology and University of Southern California organized under the United Auto Workers (UAW).
“It’s really exciting to see this increase in organizing and in bold contract campaigns that are very successful,” Mike Miller, director of the UAW’s Western states region, told the Prospect. “It bodes well for the future of the labor movement in general, as well as [the prospects for winning] economic and social justice for the student worker workforce.”
Historically, graduate student workers at private universities have experienced myriad organizing challenges, the most salient of which is high turnover, but their unions have pressed on. Some have gone as far as to say the Trump administration’s hostility toward labor is bound to backfire.
“The reason we have the NLRA [enacted in 1935] in the first place is because people didn’t want us marching on the streets like we did in 1934,” said Patrick Crowley, president of Rhode Island AFL-CIO, in an interview with the Prospect. In that year, the rising wave of strikes featured general strikes that closed down San Francisco and Minneapolis. “We can go back to those days if they want,” Crowley added.
Models created by interstate innovation on labor law could open the door for more robust protections at the federal level.
Rhode Island has been ahead of the curve by about 80 years or so on state labor law, and it carried on with that tradition this year. In 1941, the Ocean State codified collective bargaining for private-sector workers as a complement to the NLRA, and this past summer, it became the first state to enact a trigger law guaranteeing graduate student workers’ ability to form unions should an NLRB stacked with Trump appointees strip that right from them. This new trigger law resulted from a collaborative effort between Rhode Island AFL-CIO and the Graduate Labor Organization (GLO) at Brown University, which, Crowley noted, is not a small group of workers “that gets lost in the shuffle of a large labor movement.” The GLO has about 1,000 members—not a negligible number in a state the size of Rhode Island.
“We thought it made sense to do something at the state level to protect their right to collectively bargain,” Crowley told the Prospect. “They’re an integral part of the labor scene in Rhode Island, and … it was of critical importance to make sure that that energy that that union brings to the labor movement does not get snuffed out by some bureaucratic maneuver from an anti-worker administration.”
Rhode Island’s AFL-CIO has pursued a unique approach to advancing state-level legislation “to protect all workers, whether they’re in a collective-bargaining agreement or not,” Crowley said, alluding to the prospects of state-level wage boards and embedding just cause statutorily. With the help of GLO, the labor federation has taken a crucial step toward expanding state labor law to reflect protections that are common in collective-bargaining agreements. For GLO president Michael Ziegler, the novel collective-bargaining law “opens up the possibility for a more expansive vision” of what the labor movement can accomplish at the state level.
The state’s new trigger law has helped to lay the groundwork for other states to be proactive in developing policies that protect workers in the absence of a functioning NLRB, or at least one that turns its back on the labor movement. “We want other states to take what we’ve done and improve on it,” Crowley told the Prospect.
Massachusetts is one such state. A pair of related bills currently making their way through the black box that is the Commonwealth’s legislature—the Protect LABOR Act—would codify a private-sector collective-bargaining trigger law. Unlike the legislation pending in New York and California, the Massachusetts proposal follows the Rhode Island model of preauthorizing the state to assert jurisdiction over student workers at private universities if the NLRB revokes their status as employees or cannot operate. The bill is the result of Ocean State–style collaboration between the Harvard Graduate Student Union-UAW (HGSU) and Massachusetts AFL-CIO. Dorothy Manevich, a member of HGSU serving on the executive board of UAW’s political action committee for Massachusetts, told the Prospect that the union has “not been represented in a lot of the legislative processes because we haven’t had an organized voice,” until now.
“The reason that the Protect LABOR Act specifically contains provisions that would protect graduate workers is because we have been more active in the AFL-CIO,” she said. “For private-sector graduate student workers, we’ve consistently been under this existential threat because our unionization rights have come from the NLRB, [and] these NLRB decisions have flipped off over time.”
The precariousness of grad students’ status as employees—it had been stripped away by George W. Bush’s NLRB and reinstated by Barack Obama’s—is precisely why academic student employees are leveraging their relationships within the labor movement for a seat at the table in state politics. The coalition of labor groups in Massachusetts advocating for workers at the state level combines long-standing unions’ experience and knowledge with the “new energy” that young organizers have injected into the movement in the years following the Columbia decision enabling grad students to unionize again, Manevich told the Prospect.
While the future of Massachusetts’s proposed Protect LABOR Act remains uncertain, New York’s private-sector collective-bargaining bill has passed that state’s legislature and is currently awaiting Gov. Kathy Hochul’s signature. That bill would implement a private-sector collective-bargaining trigger law. According to William Herbert, executive director at the National Center for the Study of Collective Bargaining in Higher Education and the Professions and former deputy chair of New York’s Public Employment Relations Board, the proposal offers protection to student workers at private universities, at least “on its face,” because it would require one union to file a petition with the state’s labor board following an NLRB decertification of academic student employees. NLRB preemption could prevent the trigger law from applying to private university student workers if the courts side with the agency. A similar scenario would play out in California. On the other hand, private-sector workers explicitly not covered by the NLRA—farmworkers and domestic workers, for instance—have been able to win bargaining rights in various blue states without the NLRB ever going to court to oppose those state laws.
In any case, Herbert told the Prospect “there’s still opportunities for states to be creative.”
“There’s great potential in using state labor laws to strengthen the rights of workers,” he said. “It requires creativity, a combination of innovative policy ideas, and crafty legal analysis.”
Interstate innovation on labor law goes deeper, though, as the models they create could open the door for more robust protections at the federal level.
“We’ve already seen states step up in this moment and recognize that their role is extremely important. In many ways, it always has been. A lot of labor law advancements at the federal level were made because states did it first,” said Julie Su, former acting U.S. labor secretary under President Biden, in an interview with the Prospect. “The federal law is a floor, and states can go higher.”
It is both an exciting and frightening time for the American labor movement. Resisting the erosion of workers’ rights under the Trump administration also presents an opportunity for organizers to take a stand on behalf of unions everywhere. For Crowley, who once served as president of the academic student employee union at the University of Massachusetts Amherst, the struggles of graduate student workers at public and private higher-education institutions across the country, and those of union members in Rhode Island rallying against the shutdown of Revolution Wind (due to Trump’s idiosyncratic hatred of wind farms), are one and the same.
“It’s all one fight,” he said. “They’ve thrown everything—including the kitchen sink—at us, and we are still here.”
Crowley told me the ongoing efforts to claw back hard-fought labor victories reminded him of what Eugene Debs wrote in an essay over a century ago: Ten thousand times has the labor movement stumbled and fallen and bruised itself, and risen again.