By Nelson Cary and George Stevens
Last week, the NLRB majority ruled that undergraduate and graduate students providing services as teaching or research assistants at private colleges and universitie
s could be “employees” of their school within the meaning of the National Labor Relations Act. Therefore, these students could collectively bargain with their school. The NLRB’s holding marks another chapter in the story of organizing rights in academia, which has seen the NLRB bounce between positions for the better part of three decades.
The saga begins in 1974, when the NLRB ruled that certain university research assistants were “primarily students” and thus could not unionize. This remained the law until 2000, when a divided NLRB overruled that decision, and held that graduate assistants were employees in a case involving New York University. But then, in 2004, the NLRB ruled in Brown University that the 2000 decision was wrongly decided, and returned to the rule that was first in effect in 1974, holding that a student assistant’s relationship with their university was primarily educational, not economic, in character.
In the most recent decision, the NLRB confronted a union representation petition from a group of undergraduate and graduate students at Columbia University working as either research or teaching assistants. The NLRB rejected the “primarily economic in character” test from Brown, instead holding that the common law test of agency is the correct way to determine whether an employment relationship exists under the NLRA. That test establishes that an employment “relationship exists when a servant performs services for another, under the other’s control or right of control, and in return for payment.”
The NLRB acknowledged that collective bargaining posed special problems in an educational setting, but found this was not enough to preclude coverage. It found no empirical evidence to support any concern that collective bargaining would restrict academic freedom or that it could harm the unique relationship between faculty and students. It similarly dismissed the concern that strikes and grievances over teaching workload and tuition waivers would delay—or even entirely derail—a student’s educational goals by noting that “labor disputes are a fact of economic life—and the Act is intended to address them.”
After overruling Brown, the NLRB turned its attention to the specific questions at issue: whether these undergraduate and graduate student teaching and research assistants at Columbia could vote to form a union. It asked three questions: (1) whether the students were common-law employees of the University, and therefore covered by the Act; (2) whether the petitioned-for unit could appropriately represent its members; and (3) if any exclusions applied.
First, the Board determined that the students were employees of the University under the common-law test with which it had overruled Brown. The students receive compensation for the services they provide the University and, at least to some degree, the University directs their work.
Second, the Board determined that all the students—graduate and undergraduate, teaching and research—shared a “community of interest” as all provide a supplemental educational service and work under the direction of the University despite differences in the length, nature, and level of various students’ situations.
Third, the Board specifically determined that the limited duration of students’ stay at the University did not exclude them from the Act’s coverage.
Member Miscimarra (R) dissented from the majority’s holding. He would have held consistent with Brown and found the student assistants had no right to organize.
This decision has widespread ramifications for private colleges and universities. The relationship between professors and students in an academic environment is now equivalent in the eyes of Federal labor law to that of management and employees in the workplace, despite the NLRB-acknowledged differences between the two settings. The decision spins the NLRB’s revolving door on this issue once again, exposing private colleges and universities to renewed union organizing activity in an entirely new group.
Moreover, the NLRB’s determination that the bargaining unit was appropriate deserves some attention. In prior decisions, the NLRB has applied Specialty Healthcare to find relatively narrow slices of an employer’s workforce to be an appropriate unit. In this case, however, the petitioned-for unit was extremely broad, grouping together a number of different types of student assistants, from different departments, with different educational backgrounds, and with differing financial relationships with the university. Yet, the NLRB found that the bargaining unit had the requisite “community of interest.” It will be interesting to see whether this decision impacts the question of micro-units in the future.