United States: National Labor Relations Board Grants Student Assistants The Right To Unionize At Private Colleges And Universities

In a setback to private colleges and universities, the National Labor Relations Board ruled on August 23, 2016 that student assistants have unionization and collective bargaining rights under the National Labor Relations Act. In so ruling, the Board reversed its 2004 decision in Brown University, in which it held that graduate students are not employees under the NLRA, and therefore do not have unionization rights.The immediate effect of the new Columbia University holding is that graduate and undergraduate student assistants will be able to unionize. The far-reaching decision has the potential to transform the student assistant-university relationship, as well as the collegiate learning environment.

While graduate student unions are commonplace at many public colleges and universities (as students' unionization and collective bargaining rights at public institutions are governed by state law), the Columbia decision expands unionization and collective bargaining rights to student assistants at private colleges and universities, including to undergraduate student assistants and to student assistants who receive research funding from external grants.This decision – which fundamentally injects NLRA considerations into the relationship between student and university – has important implications for private colleges and universities and their employment of student assistants.

Legal Background

At its core, the question of whether student assistants have unionization and collective bargaining rights under the NLRA depends on whether such student assistants are "employees" under Section 2(3) of the NLRA.Section 2(3) of the NLRA broadly states that "[t]he term 'employee' shall include any employee.'" This lack of precision has spawned conflicting Board decisions and debate over whether student assistants are "employees" under the NLRA.

In 2000, the Board answered in the affirmative, holding that graduate teaching assistants at NYU were eligible for collective bargaining and could be considered employees. The NYU decision was based in part on the Board's finding that Section 2(3)'s broad definition of "employee" encompassed a relationship where "a servant performs services for another, under the other's control or right of control, and in return for payment."Since the undisputed facts in NYU established that the graduate assistants performed services under the control and direction of the university, for which they were compensated, they were "employees" under the NLRA and under common law definitions.

The Board's Brown decision in 2004, however, reversed the NYU decision, holding that graduate students could not be considered "employees" with unionization and collective bargaining rights because they were "primarily students and have a primarily educational, not economic relationship with their university." According to the Board in Brown, a prerequisite for statutory coverage is that the relationship is primarily economic in character, regardless of whether it would technically be considered an employment relationship under common law tests.In essence, the Brown Board found that graduate assistants could not simultaneously be students and employees; their status as students precluded them from also being employees within the meaning of the NLRA.

In the Brown decision, the Board propounded several broad policy reasons for why "student" and "employee" status were mutually exclusive as applied to graduate assistants:

  • The student-teacher relationship is based on mutual academic interests, in contrast to the conflicting economic interests that inform the employer-employee relationship;
  • The educational process is a personal one, in contrast to the group character of collective bargaining;
  • The goal of collective bargaining – promoting equality of bargaining power – is "largely foreign to higher education"; and
  • Collective bargaining would unduly infringe upon traditional academic freedoms.

Accordingly, "collective bargaining is not particularly well suited to educational decision-making and that any change in emphasis from quality education to economic concerns will prove detrimental to both labor and educational policies." The Board in Brown further relied on its "longstanding rule" that it should not exercise jurisdiction over relationships that are primarily educational.

The Columbia Decision Overrules Brown

In its 2016 Columbia decision, the Board reversed course again by explicitly overruling Brown and granting graduate assistants (among other potential classes of university employees, as explained below) collective bargaining and unionization rights under the NLRA.

The Columbia action began in December 2014 when the Graduate Workers of Columbia-GWC, UAW, petitioned the NLRB to represent a unit of graduate teaching and research assistants and undergraduate teaching assistants at Columbia University.The NLRB's Regional Director in New York rejected the petition, finding that the Brown ruling precluded the students from unionizing.

The NLRB then granted review of the Regional Director's decision and reversed the decision. In so ruling, the Board majority in Columbia rejected its earlier ruling in Brown that the NLRA's definition of "employee" was not meant to cover relationships that are primarily educational.Indeed, in Columbia the Board held, it "has 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 the employment relationship; it is not foreclosed by the existence of some other, additional relationship that the Act does not reach."Additionally, "the fact that a research assistant's work might advance his own educational interests as well as the university's interests is not a barrier to finding statutory-employee status."Said differently, the statuses of "employee" and "student" are no longer mutually exclusive; an individual may be both a student and an employee with rights under the NLRA.

The Board also rejected the policy-based concerns underlying the Brown decision.For one, it stated that the Brown Board's belief that imposing collective bargaining on the graduate student-university relationship would "improperly intrude into the educational process" was "unsupported by legal authority, by empirical evidence, or by the Board's actual experience."

As a result, students who have a common law employment relationship with their university are statutory employees under the Act. Importantly, the Board found that all of the student-assistants in the petitioned-for bargaining unit were "statutory employees" covered by the NLRA, which included graduate students, terminal Master's degree students, and undergraduate students, as well as assistants who were engaged in research funded by external grants.

Implications for Private Colleges and Universities

The Columbia decision could have wide-ranging consequences on the relationship between students and their respective universities.Several of these concerns were highlighted by Board Member Miscimarra's dissenting opinion in Columbia.At the heart of these potential consequences is the possibility that the NLRA will intrude into, and fundamentally alter, the relationship between students and universities solely because some students also hold teaching and research assistant positions in connection with their education.The Columbia decision also affects student assistants at both the graduate and undergraduate level, meaning that the effect of an impasse in labor negotiations could be fairly extensive.

As Member Miscimarra noted, the decision to attend college is the most important investment decision that most individuals will ever make. The contours of that decision may now be influenced by bargaining leverage, the potential resort to economic weapons, and the threat or infliction of economic injury by or against students and universities alike.

Moreover, as highlighted by Member Miscimarra, student-assistant strikes could hamper students' academic development in a number of potential ways:

  • Strikes or lockouts could potentially suspend all remuneration to teaching and research assistants;
  • Graduate assistants' service as teaching assistants are often tied to completion of their degree; if a student assistants were unable to work due to a strike or lockout, they may not be able to complete their degrees in a timely fashion;
  • A detrimental change in career opportunities and overall student welfare due to adverse budgetary impact from collective bargaining;
  • Student assistants on strike could be temporarily or permanently replaced, which could require the replaced students to pay full tuition (e.g., if their financial assistance was tied to their work as student assistants) and could impede students' abilities to fulfill degree requirements (e.g., if credit was based on work or research performed as a student assistant).

In addition to potential impacts on students' formal academic development, the Columbia ruling could also change the fundamental nature of the collegiate learning environment by, for example, permitting disrespectful and profane actions by students against faculty, raising questions as to the legality of rules promoting civility, and prohibiting "confidential" investigations into student conduct.

Employer Takeaways

While the Columbia decision gives students the right to unionize, it does not necessarily mean that students will exercise that right, and indeed students have previously rejected unionization efforts at several schools.Colleges and universities should work to ensure that their infrastructure, policies, and atmosphere support open communications between the administration and students so that students' concerns are heard and taken into account in university decisions.If students do attempt to unionize, colleges and universities should work with counsel to help establish the lines and boundaries of the parties' rights.

Finally, it is important to recognize that the Columbia decision could potentially be overruled by future Board decisions, as the Board's position on key issues can change.For example, the Board's stance may vary depending on the President who appointed it – the NYU decision was issued by a President Clinton-appointed Board, the Brown decision was issued by a President Bush-appointed Board, and the Columbia decision was issued by a President Obama-appointed Board.Additionally, it is unclear whether the Columbia decision will withstand judicial scrutiny – many commentators expect private colleges and universities to challenge the Columbia decision in federal courts, and it is entirely possible that certain federal courts will refuse to follow the Board's decision.

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.

In a setback to private colleges and universities, the National Labor Relations Board ruled on August 23, 2016 that student assistants have unionization and collective bargaining rights under the National Labor Relations Act. In so ruling, the Board reversed its 2004 decision in Brown University, in which it held that graduate students are not employees under the NLRA, and therefore do not have unionization rights.The immediate effect of the new Columbia University holding is that graduate and undergraduate student assistants will be able to unionize. The far-reaching decision has the potential to transform the student assistant-university relationship, as well as the collegiate learning environment.

While graduate student unions are commonplace at many public colleges and universities (as students' unionization and collective bargaining rights at public institutions are governed by state law), the Columbia decision expands unionization and collective bargaining rights to student assistants at private colleges and universities, including to undergraduate student assistants and to student assistants who receive research funding from external grants.This decision – which fundamentally injects NLRA considerations into the relationship between student and university – has important implications for private colleges and universities and their employment of student assistants.

Legal Background

At its core, the question of whether student assistants have unionization and collective bargaining rights under the NLRA depends on whether such student assistants are "employees" under Section 2(3) of the NLRA.Section 2(3) of the NLRA broadly states that "[t]he term 'employee' shall include any employee.'" This lack of precision has spawned conflicting Board decisions and debate over whether student assistants are "employees" under the NLRA.

In 2000, the Board answered in the affirmative, holding that graduate teaching assistants at NYU were eligible for collective bargaining and could be considered employees. The NYU decision was based in part on the Board's finding that Section 2(3)'s broad definition of "employee" encompassed a relationship where "a servant performs services for another, under the other's control or right of control, and in return for payment."Since the undisputed facts in NYU established that the graduate assistants performed services under the control and direction of the university, for which they were compensated, they were "employees" under the NLRA and under common law definitions.

The Board's Brown decision in 2004, however, reversed the NYU decision, holding that graduate students could not be considered "employees" with unionization and collective bargaining rights because they were "primarily students and have a primarily educational, not economic relationship with their university." According to the Board in Brown, a prerequisite for statutory coverage is that the relationship is primarily economic in character, regardless of whether it would technically be considered an employment relationship under common law tests.In essence, the Brown Board found that graduate assistants could not simultaneously be students and employees; their status as students precluded them from also being employees within the meaning of the NLRA.

In the Brown decision, the Board propounded several broad policy reasons for why "student" and "employee" status were mutually exclusive as applied to graduate assistants:

  • The student-teacher relationship is based on mutual academic interests, in contrast to the conflicting economic interests that inform the employer-employee relationship;
  • The educational process is a personal one, in contrast to the group character of collective bargaining;
  • The goal of collective bargaining – promoting equality of bargaining power – is "largely foreign to higher education"; and
  • Collective bargaining would unduly infringe upon traditional academic freedoms.

Accordingly, "collective bargaining is not particularly well suited to educational decision-making and that any change in emphasis from quality education to economic concerns will prove detrimental to both labor and educational policies." The Board in Brown further relied on its "longstanding rule" that it should not exercise jurisdiction over relationships that are primarily educational.

The Columbia Decision Overrules Brown

In its 2016 Columbia decision, the Board reversed course again by explicitly overruling Brown and granting graduate assistants (among other potential classes of university employees, as explained below) collective bargaining and unionization rights under the NLRA.

The Columbia action began in December 2014 when the Graduate Workers of Columbia-GWC, UAW, petitioned the NLRB to represent a unit of graduate teaching and research assistants and undergraduate teaching assistants at Columbia University.The NLRB's Regional Director in New York rejected the petition, finding that the Brown ruling precluded the students from unionizing.

The NLRB then granted review of the Regional Director's decision and reversed the decision. In so ruling, the Board majority in Columbia rejected its earlier ruling in Brown that the NLRA's definition of "employee" was not meant to cover relationships that are primarily educational.Indeed, in Columbia the Board held, it "has 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 the employment relationship; it is not foreclosed by the existence of some other, additional relationship that the Act does not reach."Additionally, "the fact that a research assistant's work might advance his own educational interests as well as the university's interests is not a barrier to finding statutory-employee status."Said differently, the statuses of "employee" and "student" are no longer mutually exclusive; an individual may be both a student and an employee with rights under the NLRA.

The Board also rejected the policy-based concerns underlying the Brown decision.For one, it stated that the Brown Board's belief that imposing collective bargaining on the graduate student-university relationship would "improperly intrude into the educational process" was "unsupported by legal authority, by empirical evidence, or by the Board's actual experience."

As a result, students who have a common law employment relationship with their university are statutory employees under the Act. Importantly, the Board found that all of the student-assistants in the petitioned-for bargaining unit were "statutory employees" covered by the NLRA, which included graduate students, terminal Master's degree students, and undergraduate students, as well as assistants who were engaged in research funded by external grants.

Implications for Private Colleges and Universities

The Columbia decision could have wide-ranging consequences on the relationship between students and their respective universities.Several of these concerns were highlighted by Board Member Miscimarra's dissenting opinion in Columbia.At the heart of these potential consequences is the possibility that the NLRA will intrude into, and fundamentally alter, the relationship between students and universities solely because some students also hold teaching and research assistant positions in connection with their education.The Columbia decision also affects student assistants at both the graduate and undergraduate level, meaning that the effect of an impasse in labor negotiations could be fairly extensive.

As Member Miscimarra noted, the decision to attend college is the most important investment decision that most individuals will ever make. The contours of that decision may now be influenced by bargaining leverage, the potential resort to economic weapons, and the threat or infliction of economic injury by or against students and universities alike.

Moreover, as highlighted by Member Miscimarra, student-assistant strikes could hamper students' academic development in a number of potential ways:

  • Strikes or lockouts could potentially suspend all remuneration to teaching and research assistants;
  • Graduate assistants' service as teaching assistants are often tied to completion of their degree; if a student assistants were unable to work due to a strike or lockout, they may not be able to complete their degrees in a timely fashion;
  • A detrimental change in career opportunities and overall student welfare due to adverse budgetary impact from collective bargaining;
  • Student assistants on strike could be temporarily or permanently replaced, which could require the replaced students to pay full tuition (e.g., if their financial assistance was tied to their work as student assistants) and could impede students' abilities to fulfill degree requirements (e.g., if credit was based on work or research performed as a student assistant).

In addition to potential impacts on students' formal academic development, the Columbia ruling could also change the fundamental nature of the collegiate learning environment by, for example, permitting disrespectful and profane actions by students against faculty, raising questions as to the legality of rules promoting civility, and prohibiting "confidential" investigations into student conduct.

Employer Takeaways

While the Columbia decision gives students the right to unionize, it does not necessarily mean that students will exercise that right, and indeed students have previously rejected unionization efforts at several schools.Colleges and universities should work to ensure that their infrastructure, policies, and atmosphere support open communications between the administration and students so that students' concerns are heard and taken into account in university decisions.If students do attempt to unionize, colleges and universities should work with counsel to help establish the lines and boundaries of the parties' rights.

Finally, it is important to recognize that the Columbia decision could potentially be overruled by future Board decisions, as the Board's position on key issues can change.For example, the Board's stance may vary depending on the President who appointed it – the NYU decision was issued by a President Clinton-appointed Board, the Brown decision was issued by a President Bush-appointed Board, and the Columbia decision was issued by a President Obama-appointed Board.Additionally, it is unclear whether the Columbia decision will withstand judicial scrutiny – many commentators expect private colleges and universities to challenge the Columbia decision in federal courts, and it is entirely possible that certain federal courts will refuse to follow the Board's decision.

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
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions