United States: NLRB Holds Student Assistants Who Have A Common-Law Employment Relationship With A Private University Are "Employees" Under The National Labor Relations Act

Executive Summary: In an August 23, 2016, decision, Trustees of Columbia University, 364 NLRB No. 90 (2016), the National Labor Relations Board (NLRB) overruled existing precedent and held that student assistants, who have a common-law employment relationship with a private university, are statutory employees under the National Labor Relations Act (NLRA) and are entitled to its protections. Applying its new holding to the facts of the case before it and based on current Board law in representational cases, the NLRB concluded that a petitioned-for bargaining unit consisting of "graduate students, terminal Master's degree students, and undergraduate students" was an appropriate unit. The NLRB also concluded that none of the petitioned-for classifications contained temporary employees who should be excluded from the unit. Previously, the NLRB in Brown University, 342 NLRB 483 (2004), held that graduate student assistants were not employees within the meaning of the Act. Given the holding in Columbia, private colleges and universities will likely see an increase in union organizing activity by graduate and undergraduate student assistants who have an employment relationship with the university. The increased organizing activity will in turn likely lead to more union representation elections and a concomitant increase in collective bargaining with unions representing student assistants.

The NLRB's Position on Graduate Assistants Pre-Columbia

In 2004, the Board in Brown ruled that graduate assistants at a private university are not employees under the Act since they "are primarily students and have a primarily educational, not economic, relationship with their university." The NLRB decision in Brown overruled the Board's 2000 decision in New York University, 332 NLRB 1205 (2000), which rejected the contention that graduate students could not be statutory employees simply because they were "predominately students."

The Board Overrules Brown University

The NLRB concluded that its decision in Brown was wrongly decided for a number of reasons, and endorsed the Board's reasoning in New York University. First, the NLRB found that the Brown Board erred by finding, as a matter of statutory interpretation, that student assistants could not be employees under Section 2(3) of the NLRA. The Board concluded that "[w]here student assistants have an employment relationship with their university under the common law test... this relationship is sufficient to establish that the student assistant is a Section 2(3) employee for all statutory purposes." Moreover, the Board found that there was no statutory language or legislative history to support excluding student assistants from the Act's coverage. Next, the NLRB found that the Brown Board failed to adequately consider the actual text of Section 2(3) by improperly focusing on the existence of an academic relationship as a basis for excluding student assistants despite the existence of an employment relationship. The Board also noted that extending coverage to student assistants was supported by federal labor policy as expressed in Section 1 of the NLRA.

The NLRB further rejected the contention that academic freedom under the First Amendment would be infringed by its finding that student assistants are statutory employees. Finally, the Board found that empirical evidence and the Board's own experience supported the decision to exercise jurisdiction over student assistants. The Board pointed to, among other things, the experiences of public universities bargaining with graduate student employees in a number of states (under state labor law) as well as NYU's experience in voluntarily recognizing the union representing graduate assistants following the Board's decision in Brown.

Employers' Bottom Line

The Board's decision in Columbia will make it easier for unions to organize student assistants (graduate and undergraduate) at private colleges and universities. As a corollary, private colleges and universities face an increased risk of being required to bargain over the terms and conditions of employment of student assistants.

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