United States: NLRB Rules That Student Assistants Can Unionize; Debate May Now Shift To Whether They Should

In a sweeping decision issued on August 23, 2016, the National Labor Relations Board reversed its 2004 holding in Brown University1 that graduate students are not employees under the National Labor Relations Act. The Board ruled that graduate and undergraduate student assistants at Columbia University are employees who have the right to unionize, including those assistants engaged in research funded by external grants. The broadly worded decision has far-reaching ramifications for private sector universities because of its apparently intended wide-spread applicability.

For many years, the focus of the debate has been whether graduate students have the right to unionize. The debate will likely now shift to whether they should.

Background

In Brown, the NLRB held that graduate student assistants who perform services at a university in connection with their studies are not statutory employees within the meaning of Section 2(3) of the National Labor Relations Act. It did so because the students "have a primarily educational, not economic, relationship with their university." Except for a brief four year period covered by the NLRB's divided decision in New York University (NYU),2 the Board's decision in Brown followed the Board's long history of treating graduate students as non-employees.

The NYU decision was issued by the Board appointed by President Clinton; the Brown decision was issued by the Board appointed by President Bush. It has been clear for some time that the Board appointed by President Obama has been eager to reverse Brown.

In 2010, the Board issued an order granting review of a Regional Director's decision dismissing a new graduate student petition at NYU, ruling that the request for review raised compelling issues warranting review.3 The Board stated: "we believe there are compelling reasons for reconsideration of the decision in Brown University." Republican appointee Brian Hayes wrote a dissenting opinion at the time arguing incisively that granting review "serves to reinforce the views of the Board's critics who charge that its view of the law is wholly partisan and thus changeable based on nothing more than changes in Board membership."

The new NYU case was never heard by the Board, however, because NYU voluntarily granted recognition to the union. NYU and the UAW issued a joint statement that they had agreed "on principles under which covered graduate students will make their choice on unionization without influence or campaigning by the University administration and without further delay." The statement added that the "parties concur that the 'academic management rights' of the University to make academic decisions separate from the bargaining relationship will be honored by the Union, making clear that academic decisions are not subject to bargaining." Based upon this agreement, the NYU/UAW case pending before the NLRB was withdrawn, which meant that reversal of Brown had to wait for another case on another day. With the Columbia decision, that day has come.

The Columbia Decision

On December 17, 2014, the Graduate Workers of Columbia-GWC, UAW, filed a petition seeking to represent a unit of graduate and undergraduate teaching assistants, and graduate research assistants at Columbia University.4 The NLRB's Regional Director in New York held a hearing, applied the then existing precedent in Brown and dismissed the petition. The NLRB granted review of the Regional Director's decision on December 23, 2015, however, and shortly thereafter issued a notice and invitation to the public to file amicus briefs. The Board reviewed the briefs of the parties and amici and issued its final decision on August 23, 2016.

The Board's decision stated that the threshold question was whether students who perform services at a university in connection with their studies are statutory employees within the meaning of Section 2(3) of the National Labor Relations Act. It overruled Brown University and concluded that they are statutory employees. It criticized the Brown decision as depriving "an entire category of workers of the protections of the Act, without a convincing justification in either the statutory language or the policies of the Act."

The Board majority rejected the Brown decision's conclusion that graduate assistants cannot be statutory employees because they "are primarily students and have a primarily educational, not economic, relationship with their university."5 The majority opinion stated, "[t]he Board has the statutory authority to treat student assistants as statutory employees, where they perform work, at the direction of the university, for which they are compensated. Statutory coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the Act does not reach." Basically, the Board is saying they can be both students and employees.

The Board also rejected the argument in Brown that imposing collective bargaining on a university's relationship with graduate students would "improperly intrude into the educational process and would be inconsistent with the purposes and policies of the Act." The majority stated this fundamental belief is "unsupported by legal authority, by empirical evidence, or by the Board's actual experience."

The NLRB's decision in Columbia not only gave the Union everything it asked for, but also broke new ground by including grant funded research assistants. The Board concluded: "(1) that all of the petitioned-for student-assistant classifications consist of statutory employees; (2) that the petitioned-for bargaining unit (comprising graduate students, terminal Master's degree students, and undergraduate students) is an appropriate unit; and (3) that none of the petitioned-for classifications consists of temporary employees who may not be included in the unit."

The Board stressed that the definition of employee in the NLRA is broad, and minimized the chance of a successful appellate challenge by citing to Supreme Court precedent that the "task of defining the term 'employee' is one that 'has been assigned primarily to the agency created by Congress to administer the Act.'"

The Board explained that the Brown Board's rationale was based in part on its belief that collective bargaining is not well suited to educational decision-making and that shifting focus from quality education to economic concerns would be detrimental to both labor and educational policies. The Board noted this "determination ostensibly was supported by several factors: (1) that the student-teacher relationship is based on mutual academic interests, in contrast to the conflicting economic interests that inform the employer-employee relationship; (2) that the educational process is a personal one, in contrast to the group character of collective bargaining; (3) that the goal of collective bargaining, promoting equality of bargaining power, is 'largely foreign to higher education'; and (4) that collective bargaining would 'unduly infringe upon traditional academic freedoms.'" In Columbia, the Board rejected all these justifications. The decision reflects a strong preference for collective bargaining as the appropriate model to address issues in an academic setting, expresses complete confidence that the parties would be able to negotiate appropriate limits on intrusions into academic decision-making and seems remarkably unconcerned over the consequences of a failure to reach an agreement stating, "labor disputes are a fact of economic life – and the Act is intended to address them."

Intrusions on Academic Freedom and Decision Making.

A major concern of universities, and graduate students opposed to unionization, is that the collective bargaining model could interfere with academic freedom and academic policy decision making. Columbia University, drafters of amicus briefs and the Brown Board all contended that collective bargaining could prove detrimental to a school's educational goals – that disputes could interfere with academic decisions on topics such as class size, time, length and location, formatting of exams, new methods of instruction and decisions over who is taught, what is taught, how it is taught and who does the teaching. The Columbia Board was not persuaded, and offered two solutions to these concerns: appropriate boundaries, it said, could result either from an NLRB conclusion that the topic is not a mandatory subject of bargaining, or from the parties' own negotiation process. The majority wrote: "the Board's demarcation of what is a mandatory subject of bargaining for student assistants, and what is not, would ultimately resolve these potential problems. Moreover, there is no good reason to doubt that unions and universities will be able to negotiate contract language to delineate mutually satisfactory boundaries of their respective rights and obligations. Indeed, faculty members have successfully negotiated collective-bargaining agreements that address terms and conditions of employment at private universities while contractually ensuring academic freedom for decades."

Although on the one hand the Board professes confidence that intrusions on academic decision-making can be avoided by operation of law or mutual agreement, it is also clear that the Board prefers the collective bargaining model as the mechanism to address these issues. The Board said, "the University of Illinois, Michigan State University, and Wayne State University include language in their graduate-assistant collective-bargaining agreements giving management defined rights concerning courses, course content, course assignments, exams, class size, grading policies and methods of instruction, as well as graduate students' progress on their own degrees. This is not to suggest a prescription for how individual collective-bargaining agreements should resolve matters related to the protection of academic freedom and educational prerogatives. Rather, these agreements show that parties can and successfully have navigated delicate topics near the intersection of the university's dual role as educator and employer." As for what happens if there is a strike when such issues are not satisfactorily resolved, the Board simply applies the industrial model to the academic setting stating: "Columbia and amici, as well as our dissenting colleague, also raise the specter of strikes (and lockouts), and the impact they might have on the educational trajectory of students and on their considerable investment in their education; but the problems raised by strikes are common to nearly all industries in which the Board accords employees bargaining rights." The Board's lack of concern over possible strikes was particularly concerning to dissenting Board Member Miscimarra.

The Dissent

Board Member Philip Miscimarra prepared a lengthy dissent challenging the majority's ruling and analysis. He wrote:

The question here is not whether colleges and universities should constructively engage their students, including student assistants, in a variety of ways. The question is whether Congress intended—and whether our statute can be reasonably interpreted—to make the NLRA govern the relationship between students and their universities merely because students may occupy a variety of academic positions in connection with their education. As noted above, for most students including student assistants, attending college is the most important investment they will ever make. I do not believe our statute contemplates that it should be governed by bargaining leverage, the potential resort to economic weapons, and the threat or infliction of economic injury by or against students, on the one hand, and colleges and universities, on the other.

Member Miscimarra expressed concern about the impact of strikes on the students' academic development, economic burden and attainment of a degree. He wrote that, "applying our statute to university student assistants may prevent them from completing undergraduate and graduate degree requirements in the allotted time, which is the primary reason they attend colleges and universities at such great expense. It is not an adequate response to summarily dismiss this issue, as the majority does, with the commonplace observation that 'labor disputes are a fact of economic life.' For the students who may find themselves embroiled in them, labor disputes between universities and student assistants may have devastating consequences."

Member Miscimarra was also critical of the composition of the final bargaining unit. He noted that "'the petitioned-for bargaining unit includes all 'student employees' who engage in 'instructional services,' including 'graduate and undergraduate Teaching Assistants,' 'Teaching Fellows,' 'Preceptors,' 'Course Assistants,' 'Readers,' and 'Graders,' plus 'Graduate Research Assistants' and 'Departmental Research Assistants.' No distinctions are drawn based on subject, department, whether the student must already possess a bachelor's or master's degree, whether a particular position has other minimum qualifications, whether graduation is conditioned on successful performance in the position, or whether different positions are differently remunerated. As a result of today's decision, all of these university student assistant positions are made part of a single, expansive, multi-faceted bargaining unit."

The majority in Columbia pointed out that the next student assistant bargaining unit petition need not be similarly expansive, noting that in its decision "[i]n Specialty Healthcare and Rehabilitation Center of Mobile,6 the Board held that a unit is appropriate if the employees in the proposed unit constitute a readily identifiable grouping and share a community of interest... [A]lthough there might potentially be other appropriate unit groupings among these student assistants—the petitioned-for classifications share a sufficient community of interest to form an appropriate unit." In other words, while the next petition could conceivably include only teaching assistants, research assistants, or even teaching assistants in a particular department, the Board will accept any unit proposed by a petitioning union that it deems to have a sufficient community of interest.

Member Miscimarra also listed numerous unfortunate consequences that could flow from the conclusion that teaching assistants are employees – consequences unrelated to collective bargaining. He wrote, "[i]t is also a mistake to assume that today's decision relates only to the creation of collective-bargaining rights. Our statute involves wide-ranging requirements and obligations. For example, existing Board cases require employers subject to the NLRA to tolerate actions by employees that most reasonable people would find objectionable, and it is unlawful for employers to adopt overly broad work rules to promote respect and civility by employees. Therefore, parents take heed: if you send your teenage sons or daughters to college, the Board majority's decision today will affect their 'college experience' in the following ways... ." He then listed rules that would be viewed as impermissible, such as routinely asking student-assistant witnesses to maintain confidentiality during harassment investigations, rules promoting civility, rules banning profanity and abuse, rules prohibiting outrageous conduct by student assistants and rules governing outrageous social media postings.

The majority was unconcerned about these points raised by Miscimarra. It wrote, "we cannot give credence to the dissent's speculation that, among other things, the provisions of the Act might negatively interfere with university confidentiality practices or standards of decorum, for example by authorizing abusive language by student assistants directed against faculty. The Act's provisions pertaining to document production and the boundaries of protected conduct are, and always have been, contextual. The Board evaluates such claims in light of workplace standards and other relevant rules and practices." Nothing in the Columbia decision suggests it is likely, however, that the current Board will show deference to rules universities adopt regarding standards of community behavior and decorum when applied to conduct such as obscene tirades against management, which the Board has traditionally held to be protected conduct under Section 7 of the Act.

Although not mentioned in the decision, one problem with the Board's position in Columbia is that by declaring student assistants to be employees, the Board risks depriving university communities (students and administrations) of the choice between a collective bargaining model and a "traditional model of relations." Because of NLRB proscriptions against "company unions" in the industrial context, this decision could impose a one-size-fits-all model on the majority of university communities that now thrive under a collaborative, shared governance, representative model characteristic of the academic community.

Shift in Debate From Can They Unionize, to Should They Unionize

Regardless of whether this decision is appealed, it will likely lead to discussions at other schools. The debates on many campuses will likely focus on whether unionization of student assistants is in the best interests of the students or their institution. The debate shifts from whether they should have a choice, to what the choice should be. And the debates will likely cover many of the same policy arguments made before the NLRB.

In the Board's view, "the eagerness of at least some student assistants to engage in bargaining suggests that the traditional model of relations between university and student assistants is insufficiently responsive to student assistants' needs. That is not to say collective bargaining will necessarily be a panacea for such discontent, but it further favors coverage by the Act, which was designed to ameliorate labor unrest."

It is not a foregone conclusion that graduate students will abandon the current collaborative model in higher education for a collective bargaining model. Students have rejected unionization by wide margins at several schools, and many organizing efforts have not gotten off the ground.

Where Do Schools Go From Here?

1. The Columbia decision may trigger a renewed discussion among university leaders regarding what their position should be regarding unionization of student assistants. These decisions will require careful analysis of each institution's core values, culture and educational objectives.

2. While Columbia permits unions to file election petitions on behalf of graduate student assistants, it may encourage demands for universities to enter into neutrality agreements, card check arrangements or other ways for unions to become certified collective bargaining representatives without winning an election. Agreement to any such alternative could have very serious repercussions and requires careful consideration of both legal and practical consequences.

3. It would be ill-advised to allow the discussion to degenerate into a debate between the administration and the students. Students have rejected unionization at institutions where the strongest advocates against unionization were the students themselves. The best approach is to foster open and informed debate regarding the pros and cons of unionization. Consult with counsel about how Board rules apply to attempts by an administration to support students advocating one position or another.

4. Schools should ensure that current mechanisms for student input are effective – that students have a real voice, that their voices have impact, and that they have a seat at the table. Consult with counsel on appropriate mechanisms for such input.

5. If there is a decision to embrace unionization of students, ensure that you establish a framework that delineates satisfactory boundaries of the parties' respective rights and obligations. The first agreement regarding such boundaries will be the most critical.

6. Recognize that these discussions involve more than bread and butter issues for graduate students. Students are deeply concerned about the impact unionization could have on mentorship, academic freedom, independence, academic advancement, culture, collaboration, collegiality and quality.

Footnotes

1. 342 NLRB 483 (2004).

2. 332 NLRB 1205 (2000).

3. New York University and GSOC/UAW. Case 2–RC–23481 (2010).

4. The petition defined the bargaining unit sought as follows:

Included: All student employees who provide instructional services, including graduate and undergraduate Teaching Assistants (Teaching Assistants, Teaching Fellows, Preceptors, Course Assistants, Readers and Graders): All Graduate Research Assistants (including those compensated through Training Grants) and All Departmental Research Assistants employed by the Employer at all of its facilities, including Morningside Heights, Health Sciences, Lamont-Doherty and Nevis facilities.

Excluded: All other employees, guards and supervisors as defined in the Act.

5. Brown University, 342 NLRB at 487.

6. 357 NLRB at 946.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.