NLRB allows student assistants to form union

NLRB allows student assistants to form union

Publication August 2016

In the much anticipated Columbia University decision, the NLRB (Board) reversed its most recent precedent and held that student teaching assistants at private colleges and universities are statutory employees under the National Labor Relations Act (Act), and may therefore vote to form a union.  This decision is a return to an earlier decision by the Board which overturned a decade-old standard of viewing student teaching assistants as students rather than a part of the teaching faculty.  This decision is sure to invite a rush of union organizing efforts at private universities and colleges across the country.

The Board’s decision in The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia-GWC, UAW (Columbia University), stems from a petition for election filed in December 2014 by the Graduate Workers of Columbia-GWC, UAW (Union), which sought to represent graduate and undergraduate student teaching and research assistants at the university.  After a requested hearing upon the petition, the Regional Director dismissed the petition for election on the basis that it sought an election among students who are not employees within the meaning of Section 2(3) of the Act.  The Union then sought review of the Regional Director’s decision by the Board.  The Board granted review of the decision to resolve the primary issue of whether student teaching assistants are statutory employees, as well as subsidiary issues if the classifications were found to be employees.

In a 3-1 decision with Board Member Philip Miscimarra dissenting, the Board held that student teaching assistants are statutory employees under the Act.  The Board also held that the petitioned for unit, which included graduate and undergraduate students, was an appropriate unit for bargaining and contained of no temporary employees.  The Board determined that the students performed work, at the direction of the university, for which they are compensated.  The students may therefore be treated as statutory employees despite the fact that they are also students at the university.  The Board held that statutory coverage is permitted by virtue of an employment relationship, and is not foreclosed by the existence of some other, additional relationship the Act does not reach. 

With this decision, the Board reversed its 2004 decision in Brown University, which held that a group of graduate student assistants were not employees within the meaning of the Act.  In that case, the Board reasoned that graduate student teaching assistants could not be statutory employees because they are primarily students, and they have a primarily educational, not economic, relationship with their university.  The Brown University decision, however, supplanted the 2000 Board decision of New York University which held graduate student teaching assistants to be employees based on the common law agency doctrine and the absence of any statutory exclusion for graduate student teaching assistants.   

The Board majority in Columbia University returns to the reasoning in New York University, and finds that the Board erred as to a matter of statutory interpretation in the Brown University  decision.  The Board notes that extending the Act to student teaching assistants would effectuate the purpose of the Act, and that collective bargaining between a university and its student teachers is feasible, though it poses some special issues.  In contrast, Board Member Miscimarra in his dissent views the extension of the Act to student teachers as causing uncertainty and complexity in the student-university relationship, as well as unintended risks associated with collective bargaining, such as resort to the economic weapons allowed under the Act.  According to Board Member Miscimarra, collective bargaining may allow student teachers to exercise control over the student-university relationship in areas such as tuition and graduation that Congress never intended for them to have.  Further, resort to the economic weapons allowed by statute may fundamentally change the relationship between university students and their professors and detract from the far more important goal of completing degree requirements.

Legal challenges to the Board’s return to the New York University decision are expected, and another flip-flop by the Board on this issue would not be surprising.  In the meantime, it is anticipated that students at other private universities and colleges in the Northeast and West Coast will follow suit and seek representation.  Therefore, it is advised that these institutions seek consultation with an experienced labor attorney to discuss the implications of a union organizing campaign on campus, and the procedures for collective bargaining should a union be elected.

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