United States: NLRB: Graduate, Undergraduate Teaching Assistants Are Employees Under NLRA

David J. Santeusanio is a Partner in our Boston office.

HIGHLIGHTS:

  • The National Labor Relations Board (NLRB) has concluded that graduate and undergraduate teaching assistants at Columbia University are employees under the National Labor Relations Act (NLRA).
  • The decision means that student assistants at private universities may unionize and assert other protections under the NLRA, raising new challenges for colleges.
  • The NLRB overruled its 2004 decision in Brown University, in which it decided that graduate students at Brown were not employees because they "are primarily students and have a primarily educational, not economic, relationship with their university."

The National Labor Relations Board (NLRB or the Board) on Aug. 23, 2016, issued a 3-to-1 decision concluding that graduate and undergraduate teaching assistants at Columbia University are employees under the National Labor Relations Act (NLRA or the Act). The NLRB overruled its 2004 decision in Brown University, in which the Board decided that graduate students at Brown were not employees because they "are primarily students and have a primarily educational, not economic, relationship with their university."

As employees under the Act, student assistants at private universities may unionize and assert other protections under the NLRA. For more than 45 years, the Board has applied the Act to employees in private universities, and universities have regularly faced organizing efforts by faculty, adjuncts, and other groups of employees on campus. The Board's decision now expands potential unionization to graduate students, raising new challenges for colleges.

Board Overrules Brown and Concludes Student Assistants Are Employees Under the Act

This case arose from a regional director's November 2015 decision concluding that graduate students at Columbia were not subject to the Act. The regional director followed the Board's 2004 decision in Brown. The Graduate Workers of Columbia-GWC, UAW – the union organizing the graduate students at Columbia – appealed to the Board.

The NLRB began its analysis with the text of the Act and the definition of "employee." Section 2(3) of the Act states that "[t]he term 'employee' shall include any employee," subject to certain exceptions. None of the exceptions in the Act address students, graduate students or university employees generally. The Board has applied a common law of agency test to determine whether a worker is an employee under the Act: whether employer has a right to control the individual's work and whether the work is performed in exchange for consideration.

The NLRB concluded that the Brown Board did not appropriately consider the text of Section 2(3). According to the NLRB, the Brown Board erred when it "frame[d] the issue of statutory coverage not in terms of the existence of an employment relationship, but rather on whether some other relationship between the employee and the employer is the primary one – a standard neither derived from the statutory text of Section 2(3) nor from the fundamental policy of the Act." The NLRB rejected the Brown Board's focus on whether student assistants have a primarily educational or economic relationship with their college. According to the NLRB, a student assistant may have both an educational and economic relationship with the college.

After concluding that the text of the Act supported the conclusion that student assistants are covered under the Act, the NLRB assessed whether there were any compelling statutory or policy considerations that require an exception. The Board addressed three considerations: the goals of federal labor policy; whether applying the Act to student assistants would infringe on First Amendment freedoms; and whether experiences of collective bargaining in other university settings support applying the Act to student assistants.

The NLRB found that none of these three considerations supported excluding student assistants from the Act. First, the Board concluded that including student assistants as employees promoted the goals of federal labor policy, including the encouraging collective bargaining and protecting workers' freedom to choose for or against collective bargaining. Next, the Board found that applying the Act to student assistants would not infringe on First Amendment academic freedom – including the right to speak freely in the classroom and other academic decisions – because applying the Act to student assistants would not address the content of speech. Finally, the Board reviewed the experiences of private universities bargaining with faculty as well as those of public universities that collectively bargain with student assistants. (Public universities are subject to state labor law, not the Act.) In the Board's view, the evidence established that universities can and do navigate the "delicate topics near the intersection of the university's dual role as educator and employer," and that collective bargaining does not harm the educational process.

In sum, the NLRB concluded that "there is no compelling reason – in theory or in practice – to conclude that collective bargaining by student assistants cannot be viable or that it would seriously interfere with higher education." The Board explained that "affording student assistants the right to engage in collective bargaining will further policies of the Act, without engendering any cognizable, countervailing harm to private higher education."

Student Assistants at Columbia

The NLRB then reviewed the specific facts of the graduate and undergraduate teaching assistants and graduate research assistants at Columbia; applied the common law test for employees; and concluded that all groups of students assistants were employees.

As for the graduate and undergraduate teaching assistants (including teaching fellows, preceptors, and readers/graders), the Board concluded that Columbia directs and oversees their teaching activities. The Board further concluded that they receive compensation in the form of financial awards and stipends. As a result, the Board concluded that teaching assistants met the common law test for employment.

As for student research assistants, the Board concluded that they conduct research to advance the assistants' doctoral theses and to meet research goals of grants to Columbia. The research assistants work under the direction of their departments to ensure that grant specifications are met. The research assistants receive financial aid through the external research grants. Given this relationship, the Board concluded that student research assistants are employees. In so ruling, the NLRB expressly overruled its 1974 decision in Leland Stanford Junior University, in which the Board concluded that externally funded university research assistants were not statutory employees under the Act.

The NLRB concluded that the petitioned-for unit was appropriate for collective bargaining because they shared a sufficient community of interests. The Board rejected Columbia's argument that the differences in pay, benefits, duties, and remunerative interests showed an absence of community of interest. The Board further concluded that none of the petitioned-for classifications contain "temporary employees" who must be excluded from the unit.

Board Member Philip Miscimarra dissented. As an initial matter, he distinguished graduate work from regular employment on the grounds that full-time enrollment in a university is a significant financial investment, with years of debt and no guarantee of graduation. He explained that "for students enrolled in a college or university, their instruction-related positions do not turn the academic institution they attend into something that can fairly be characterized as a 'workplace.'"

He highlighted that potential problems exists when the protections of the Act are extended to graduate students, including that fact that a variety of economic weapons were available to both student assistants and universities. These economic weapons include strikes by student assistants, lockouts and potential loss of academic credit. The use of these economic weapons, he noted, could have "devastating consequences" for students.

Miscimarra further warned of the potential results of the Board's decision. He stated, "[p]arents take heed: if you send your teenage sons and daughters to college, the Board's majority decision today will affect their 'college experience' in the following ways." He then listed a variety of practical concerns related to recent controversial Board decisions that invalidated workplace rules promoting civility; invalidated rules barring profanity and abuse; and protected employees who engaged in "outrageous" conduct when confronting supervisors and who direct expletives to a supervisors on social media postings. In short, according to Miscimarra, the Board should have followed Brown and concluded that student assistants are not employees under the Act.

The case was remanded to the NLRB regional director for further proceedings to address certain voter eligibility issues.

Conclusion

By overruling Brown and Leland Stanford, the Board opens the door to unionization efforts by student assistants. Colleges should evaluate their positions on the potential unionization of student assistants and other groups of employees on campus; develop comprehensive approaches to addressing union and other employee-relations matters; and ensure that administrators understand a college's rights and responsibilities under the NLRA. This is particularly important given the NLRB's recent expansion of employee rights, including the Board's many pro-employee rulings on what it means to engage in protected concerted activity in the workplace and the Board's increased scrutiny of workplace policies. In short, this latest pro-labor decision from the Board underscores the need for colleges to focus on the various labor issues on campuses, including the new potential for student assistant organizing.

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.

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