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The N.L.R.B. is Permitting College Student Employees to Organize
By Arthur Katz, JD


The N.L.R.B. is Permitting College Student Employees to OrganizeIn a seminal 2004 opinion involving Brown University, the National Labor Relations Board ruled that (i) graduate student assistants were not “statutory employees” within the meaning of the National Labor Relations Act (the “Act”), since the relationship between the University and the student assistants was “primarily educational” and (ii) allowing graduate student assistants to organize would be detrimental to the educational process.  The Brown opinion also said that “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.”  Furthermore, “the goal of collective bargaining, promoting equality of bargaining power is largely foreign to higher education and that collective bargaining would unduly infringe upon traditional academic freedoms.”

In late August of this year, the NLRB (in a three to one vote), in a case involving Columbia University, issued a game-changing decision that overturned Brown in a lengthy, reasoned, written opinion (364 NLRB 60) and held that students who perform services at Columbia in connection with their studies are, in fact, statutory employees within the meaning of the Act and have the right to organize.  In overturning Brown, the NLRB characterized Brown as “having deprived an entire category of workers of the protection of the Act without a convincing justification in either the statutory language or the policies of the Act.”  “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 NLRB said that “the fundamental error” of Brown “was to frame the issue of statutory coverage not in terms of the existence of an employment relationship, but rather on whether some other relationship between the employee and the employer is the primary one” and that the allegations on which Brown is based “are almost entirely theoretical.”  The NLRB then continued and said that “collective bargaining and education occupy different institutional spheres.  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” and that, in the view of the NLRB, such roles do not present a serious conflict.

The NLRB then discussed whether permitting students to organize violated academic freedom, and pointed out that the U.S. Supreme Court has held that “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” and that no such effort is involved in the set of circumstances before the NLRB.

Lastly, the NLRB said that merely because student assistants may have short, finite terms of employment (such as an academic semester, or less) should not, in itself, be relevant when weighed against the denial of the Act’s coverage to large groups of employees.

Perhaps, the most succinct way to describe the NLRB’s holding is, in the NLRB’s own words – “where a university exerts the requisite control over the research assistant’s work, and specific work is performed as a condition of receiving the financial award, a research assistant is properly treated as an employee under the Act.”

The NLRB then held that its decision will permit not only research assistants, but teaching assistants and others, whether attending the university as a graduate student or as an undergraduate, and whether the student’s stipend or salary is being funded by the university, by a grant supervised by  the university, or by a third party contracting for work to be done by the university, to organize and that all of such students had the right to organize as a single group, since a “sufficient community of interest” existed.  “While Master’s and undergraduate assistants may, arguably, have different priorities from those of Ph.D, assistants, there are also overreaching common interests.”

The Columbia decision was not completely unexpected; however, the NLRB’s strong reversal of the 2004 Brown decision was.  Although the Columbia decision (and the reach of the Act) does not directly affect public universities, private universities are significantly affected.  The application of the Act to handbooks, rules, disciplinary proceedings and other aspects of university administration respecting employees is more immediate.  Moreover, because student teaching and research assistants, in their respective roles as such, are now considered as employees under the Act, the various decisions of the NLRB in extending rights to unorganized workers in a broad range of areas from social media policies to the sharing of personal information about others will now be applicable to students who are newly considered to be employees.

In a strong dissent to the Columbia decision by one NLRB member, a number of potential consequences of the decision are set forth, such as student assistants who go on strike may not only be forfeiting their monetary compensation during the strike period but, depending on the actions then taken by the student assistants or the university, their academic degrees could be jeopardized or delayed.  However, on balance, the Columbia decision is a step forward that has been too long in coming. # 

Arthur Katz is of Counsel to Otterbourg P.C.



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