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Volume XI, Number 298


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Student Assistants Win Right to Unionize at Private Colleges and Universities

Reversing longstanding precedent, the National Labor Relations Board has ruled that students “who have a common-law employment relationship with their university are statutory employees under the [National Labor Relations] Act.” Columbia University, 364 NLRB No. 90 (Aug. 23, 2016).

The decision, highly anticipated by schools around the country, grants graduate and undergraduate students who qualify as “statutory employees” under the National Labor Relations Act the right to form unions and engage in collective bargaining. This is a fundamental change in the relationship of private colleges and universities with students who teach and perform other academic functions as part of their degree programs.

The NLRB’s decision does not directly affect public colleges and universities, which are not covered by the NLRA. However, as many states follow NLRB decisions when interpreting their labor laws, Columbia University also may affect public colleges and universities.

Previous Rule

The NLRA grants “employees” the right to organize and engage in collective bargaining with their employers.

Before 2000, for more than 25 years, the NLRB consistently held that student assistants whose degree programs include supervised teaching or research as an integral component of their academic development were not statutory employees within the meaning of the NLRA because they are primarily students who have a predominantly academic relationship with the school, rather than employees with a predominantly economic relationship.

Changing course, in 2000, the NLRB ruled in New York University, 332 NLRB 1205, that student assistants were employees within the meaning of the NLRA.

Four years later, in Brown University, 342 NLRB 42, the NLRB returned to its pre-New York University rule that student assistants were not statutory employees. This determination was rooted in the fundamental premise that the NLRA was enacted to cover only economic relationships between employers and employees, and not other, predominantly non-economic relationships.

Under Brown University, the NLRB found that student assistants are enrolled at their university as students; that they spend only a limited number of hours in their roles as teaching assistants, research assistants, or proctors, with their principal effort focused on obtaining a degree; and that the students’ services as student assistants is an educational component of their academic programs. Furthermore, the NLRB stated, since student assistants generally receive the same money as fellows who performed no work, the funds associated with the assistantships constituted student financial aid, not compensation for work performed. These factors, the NLRB said, showed student assistants have a predominantly non-economic relationship with their schools.

New Standard

The NLRB has changed federal labor policy significantly in ruling that student assistants may be treated as employees in Columbia University.

Noting that the NLRA’s definition of “employee” is broad, that there is no statutory language excluding student assistants, and that the NLRB “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,” a majority of the Board rejected Brown University’s conclusion that graduate assistants are primarily students in educational relationships. “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,” the Board said.

The NLRB declined to establish a bright-line ruling for all student assistants. “We do not hold that the Board is required to find workers to be statutory employees whenever they are common-law employees, but only that the Board may and should find here that student assistants are statutory employees,” it said.

In a key part of its decision, the NLRB rejected the assertion that the student-teacher relationship is incompatible with what the NLRB concluded is an employer-employee relation between compensated student assistants and their universities. The Board said, “In other words, a graduate student may be both a student and an employee; a university may be both the student’s educator and employer.”

The majority expressly rejected “dubious” arguments that collective bargaining by graduate students would harm the educational process. It pointed out that public universities with graduate student unions have not experienced significant disruptions in educational relations. Responding to what it characterized as “a few individual examples” of issues, such as strikes and “grievances over classroom assignments and eligibility criteria for assistantships,” the majority said “labor disputes are a fact of economic life — and the Act is intended to address them.”

The NLRB also rejected the argument that allowing student assistants to collectively bargain will violate universities’ First Amendment academic freedom rights. Applying a narrow definition of institutional academic freedom, saying it encompassed only “freedom from government efforts ‘to control or direct the content of the speech engaged in by the university or those affiliated with it,’” the Board concluded there is no evidence that “the ‘right to speak freely in the classroom’ … would be infringed by collective bargaining over ‘terms and conditions of employment’ for employed graduate students, as the Act envisions.”

Practical Implications

Student assistant organizing, particularly at the graduate student level, likely will increase as a result of Columbia University. Currently, only one private college or university in the country has a collective bargaining agreement covering student assistants. Unions have been eagerly anticipating this change in the NLRB’s approach to student assistant organizing and have been working with graduate students on many campuses across the country. Unions likely will point to recent organizing victories among adjunct faculty as they solicit support among students for union representation.

Private colleges and universities should consider carefully their position on unionization of student assistants and their stances in collective bargaining if a union is certified. Institutions will find the considerations are not the same for student assistants as they are for adjunct faculty: the teacher-student relationship is fundamentally different from the relationship between full-time and part-time colleagues. Faculty will have to treat student assistants as employees in the very same classroom and laboratory settings where they are simultaneously educating those students.

To a certain extent, as emphasized in the NLRB’s decision, private institutions may look to the experiences of public colleges and universities in those states that have allowed student assistants to unionize under state collective bargaining laws. Public institutions with student assistant unions have adjusted to their new reality.

There are limits to the parallels that can be drawn between the experiences to date of public institutions and what can be anticipated for private institutions. For example, many state labor laws governing the relationship between public institutions and student assistant unions make clear that certain academic matters are not subject to collective bargaining. However, there is no comparable limitation under the NLRA. Therefore, unions may argue that matters such as course assignments, the design of academic support packages, and academic freedom are subject to bargaining at private colleges and universities. Indeed, as the NLRB had noted in Brown University, and as the majority indirectly acknowledged in Columbia University, applying the NLRA to student assistants may subject fundamental academic matters (such as class size, time, length and location, classroom, and laboratory protocols, whether based on pedagogy, scientific research principles, or safety) to collective bargaining, as well as questions of who, what, and where graduate students will teach or research, which are among the core prerogatives of an educational institution.

The majority in Columbia University addressed these concerns by expressing confidence that these types of issues will be resolved in the collective bargaining process and noted that student assistant collective bargaining agreements at some public universities include negotiated provisions in which the university retained defined academic management rights over various academic decisions. The NLRB, however, does not also acknowledge that the perceived need for such clauses at some institutions inherently raises the possibility of protracted disputes over those same issues at other institutions.

Of course, more traditional aspects of the employment relationship, such as student assistant wages, hours, and benefits, will be subject to collective bargaining wherever student assistant unions are certified. Even if the NLRB ends up allowing certain limits on traditional academic decisions, such as those directly affecting classroom activities, however, gray areas likely will exist. For example, job descriptions, which are normally subject to collective bargaining, can have a major impact on academic operations if applied to student assistants.

At a time of tight finances for most colleges and universities, institutions with new student assistant unions should expect to face negotiation issues that will have a financial impact — such as pressures for increased stipends, expanded benefit program eligibility, and decreased teaching loads (requiring more graduate assistants). Institutions should consider how relations will be affected by an additional layer (such as arbitration) on existing academic grievance procedures already available to student assistants. For example, how will academic issues be distinguished from workplace issues, and how will the inevitable overlap be resolved?

The collective bargaining history between student assistant unions at public colleges and universities, as well as that at the one private university with a graduate student union, includes protracted negotiations and strikes and threats of strikes. Whatever arguments one may make about the academic versus economic relationship between the parties, experience shows that in collective bargaining, student assistant unions are willing to use the same labor action options employed by unions in other sectors. Colleges and universities facing student assistant collective bargaining efforts also may see differences and even rifts grow between different classes of students. For example, students and the elected union may debate whether students who do not have assistantships should be able to participate in union elections and decision-making on issues that could affect all students.

At its heart, the question of student assistant unionization involves relationships. Compared to the traditional employment collective bargaining setting, however, these relationships are more layered and complex. Unionized student assistants will become both employees and students, and outcomes of the collective bargaining process will affect the academic experiences of all other students with whom they interact. Therefore, colleges and universities must carefully assess their positions during union organizing drives and, as applicable, collective bargaining negotiations.

Steps schools can take now as they review the impact of the NLRB’s new decision include:

  • Determining a strategic approach to the issue, including the institution’s position if faced with student assistant organizing or a demand for union recognition;

  • Developing pro-active, short- and long-term contingency plans, taking into consideration the new NLRB decision, NLRA legal parameters, steps colleges and universities can take now, and additional anticipatory steps for the future;

  • Reviewing their policies, procedures, and the terms and conditions of student assistant teaching, research, and administrative functions;

  • Reviewing or considering implementing an internal process for student assistants to raise issues of concern and for the institution’s response to those concerns; and

  • Training deans and other academic leaders to ensure they understand the legal parameters of the NLRA.

Jackson Lewis P.C. © 2021National Law Review, Volume VI, Number 239

About this Author

Michael Bertoncini, Jackson Lewis, labor relations attorney, employment litigation lawyer, NLRB proceedings counsel, arbitration law

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, and employment law counseling and litigation.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with...

Thomas Dorer, Principal, Hartford, Title IX, College, Universities, Jackson Lewis Law Firm

Thomas Dorer is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. His practice focuses on representing colleges and universities in student and academic affairs and in workplace law matters, including preventive advice and counseling. Mr. Dorer serves as co-lead of Jackson Lewis’ Higher Education Industry Group.

Before arriving at Jackson Lewis, Mr. Dorer served as Vice President, General Counsel and Secretary at the University of Hartford, where he was responsible for the full scope of legal issues impacting higher education, including employment law, student...

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...