NLRB Ruling Opens the Door to Unionizing by Student Assistants in Private UniversitiesSeptember 1, 2016 – Alerts Labor and Employment Alert
In a groundbreaking decision, the National Labor Relations Board held on August 23, 2016, that graduate and undergraduate student teaching and research assistants at private universities are statutory employees under the National Labor Relations Act. The Board’s 34-page decision in Columbia University held that these student assistants have a common law employment relationship with the university and thus fall within the broad statutory language of Section 2(3) of the Act that “defines ‘employee’ to ‘include any employee,’ subject to certain specified exceptions” — none of which include student assistants. This decision will have significant repercussions on collective bargaining and unionization efforts across academia.
The Road to Columbia University
The decision in Columbia University overrules more than a decade of precedent that spawned from the decision in Brown University, 342 NLRB 483 (2004), in which the NLRB held that graduate student assistants were not “employees” within the meaning of the Act. Rather, the Board held that they were “primarily students and have a primarily educational, not economic, relationship with their university.” In that case, the Board overruled its earlier decision in New York University, 332 NLRB 1205 (2000), which held that certain graduate student assistants were employees under the Act. The Board in NYU, like the Board here, relied on the broad statutory language of Section 2(3) and common law principles to arrive at its decision.
The decision in Brown University was primarily concerned with the students’ educational process, noting how “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.’” In that earlier decision, the NLRB recognized that any “compensation” received by such students was in actuality financial aid or tuition assistance and not payment for wages earned from an employer. Thus, the Board in Brown University adhered to what it identified as the “underlying fundamental premise of the Act,” which was to afford statutory coverage to economic, not educational, relationships.
A Focus on the Economic — Not Educational — Relationship
In determining that student assistants are employees under the Act, Columbia University held that the decision in Brown University and its progeny “deprived 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 found that the Brown University decision did not give appropriate weight to the statutory language of the Act and erred by failing to simply focus on the existence of an employment relationship, and instead examining which relationship – employer/employee or student/teacher – was overriding. As a consequence, in Columbia University, the Board emphasized that “[s]tatutory 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.” The principal consideration announced in Columbia University is that “the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship for purposes of the act.”
The Board was unimpressed by the risks that collective bargaining, specifically the threat or use of strikes or lockouts, could bring to an educational setting. Strikes and lockouts, among other conduct, the Board held, are a common concern for parties across many covered industries and each party, including private universities and student assistants, is capable of assessing the risks associated with collective bargaining. In short, the possibility of these actions, according to the Board, is not enough reason to preclude student assistants from coverage under the Act because “labor disputes are a fact of economic life—and the Act is intended to address them.”
The Board also rejected the notion that affording student assistants the protections of the Act could negatively affect private universities’ standard rules and practices. By way of example, the Board stated that “[t]he Act’s provisions pertaining to document production and the boundaries of protected conduct are, and always have been, contextual.” Consequently, these potential issues did not trouble the Board because it “evaluates such claims in light of workplace standards and other relevant rules and practices.”
The Board was also not concerned with the potential infringement on academic freedom. The Board stated, “academic freedom, in the constitutional sense, involves freedom from government efforts ‘to control or direct the content of the speech engaged in by the university or those affiliated with it.’” Citing to precedent concerning faculty unionization, NLRB v. Yeshiva Univ., 444 U.S. 672 (1980), the Board held that “the Supreme Court has implicitly rejected the view that some undefined need to preserve academic freedom overrides [the] policies of the Act.” In the Board’s view, the economic relationship embodied between the student assistant and private university is the paramount consideration in evaluating whether these workers should be protected under the Act.
The Board found additional support for its seminal decision by looking at the collective bargaining history between public universities and student assistants from across the country. Though governed by state labor laws, the Board saw parallels between the unionization efforts observed in public universities nationwide in reaching the conclusion that private universities, too, should be encompassed within the Act. Unsurprisingly, the Board was quick to credit the benefits of collective bargaining and how manageable it will be in a private university setting if it has already been accomplished by more than 64,000 graduate student employees and 28 public institutions. The Board highlighted how these collective bargaining agreements “show that parties can and successfully have navigated delicate topics near the intersection of the university's dual role as educator and employer.”
Predictably, the Board glossed over the many examples of turmoil, strife, and disruption stemming from the introduction of collective bargaining at public universities. The Board summarily dismissed instances of strikes, lockouts, and grievances as normal occurrences that happen and should be expected during collective bargaining negotiations. The Board also rejected concerns over bargaining subjects frequently observed in the university context such as academic decisions, class size or exam formatting. The Board stated, perhaps naively, it is confident that “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.” However, seasoned traditional labor law practitioners are well aware that the opposite is often the case.
Dissent Warns of Dangerous Consequences
A very real consequence to this newly recognized right, as aptly noted by dissenting Board Member Philip A. Miscimarra, is that collective bargaining can be a dangerous game, especially when considering the fact that student assistants would not only be forfeiting monetary compensation if involved in a strike or lockout, but potentially their academic degree. To this end, Board Member Miscimarra stated, “my colleagues disregard what hangs in the balance when a student's efforts to attain an undergraduate or graduate degree are governed by the risks and uncertainties of collective bargaining and the potential resort to economic weapons by students and universities.” The dissent also raised a number of other notable considerations that could result from the majority decision. For example, whether university administration will be authorized to discipline students for egregious conduct directed at supervising faculty, whether university administration could prohibit outrageous social media posts by assistants, whether the Act will trump the Family Educational Rights and Privacy Act thereby requiring university administration to disclose confidential educational records, or whether university administration will be able to implement rules of conduct that promote civility without running afoul of the Act. These are a mere sampling of the complicated issues that arise from the Board’s majority decision.
Nevertheless, the Board was unconvinced by the drastic results that collective bargaining could have on student assistants, and instead, dismissed this concern as something all parties are subject to during the collective bargaining process. However, regardless of how well student assistants fit within the mold of Section 2(3) of the Act or how clearly their relationship with their private university mirrors the common law, this analysis is problematic because it too quickly dismisses the fact that students and universities will now have to balance two relationships – economic and academic – that will surely overlap and undoubtedly lead to administrative and educational problems. At this point, only time will tell how private universities and student assistants will work with one another at the bargaining table.
In the end, the Board concluded that Brown University acted “on little more than its own view of what was best for private universities.” This was, in the Board’s view, an unacceptable approach when the “language of Section 2(3) of the Act and common-law agency principles, the clear policy of the Act, and the relevant empirical evidence” point to treating student assistants as employees. Moving forward, it is evident that private universities will face tremendous labor pressures in the wake of Columbia University.
Moving Forward Post-Columbia University
The Board’s decision in Columbia University will undoubtedly have sweeping consequences throughout private universities across the country.
Many of these private institutions will have to become well versed with the law and policies promulgated under the Act, which, depending on the year (and administration), may change. Additionally, private universities will have to build working relationships with the many labor unions that will attempt to organize their student assistants while, at the same time, remaining cognizant of their own conduct during organizing campaigns to avoid liability for any unfair labor practices.
Notably, Columbia University also opens the door to unionization by undergraduate student assistants and is not limited to those at the graduate level. This turns all students into potential union members and takes private universities down the slippery slope of being less concerned with higher learning and more akin to a highly-charged, unionized workplace.
In addition to issues that may arise during collective bargaining, private universities (regardless of whether their student assistants are at-risk of unionization or not) must ensure that their current standards, policies, and procedures are lawful under the Act. For example, rules governing student assistant conduct in terms of professionalism, behavior, and confidentiality will now have to adhere to the incredibly broad standard that the Board has in place governing work rules. Private universities will also need to be mindful of other conduct a student assistant and/or union could allege as a violation under the Act and be prepared to defend these potential charges (e.g., threats, surveillance, discipline, bad faith bargaining). Thus, it is imperative that private universities take a proactive, rather than reactive, approach to this decision in order to avoid potential Board litigation down the road.
For more information about this Alert or if you have any questions or concerns, please contact Kenneth A. Rosenberg at 973.994.7510 or [email protected], Carlos A. Torrejon at 973.548.3312 or [email protected], or Asad Rizvi at 973.994.7817 or [email protected] or any member of Fox Rothschild’s Labor & Employment Department.
 Student assistants perform a service under the supervision, and at the direction, of their university and their university through the payment of wages, granting of stipends or research grants compensates them for that service.
 The NYU Board also relied on Boston Medical Center, 330 NLRB 152 (1999), which a year earlier held that house staff members (interns, residents and clinical fellows) at a teaching hospital were statutory employees under the Act.
 The Board also overruled its prior decision in The Leland Stanford Junior University, 214 NLRB 621 (1971), which held that research assistants are primarily students and not statutory employees under the Act. The Board in Columbia University held that even though research assistants are externally funded, they still have a common law relationship with the private university. According to the Board, the fact that the work done by research assistants benefits both them and the private university is an insufficient basis to deny them coverage under the Act.
 Columbia University has the right to appeal the Board’s decision to federal court.