University Student Assistants Are Employees Covered by the NLRA and Entitled to Unionize: NLRB

In Columbia University, the National Labor Relations Board (NLRB) held that student assistants who have a common law employment relationship with a private university are employees covered by the National Labor Relations Act (NLRA) and are entitled to unionize.

Practical Law Labor & Employment

On August 23, 2016, in Columbia University, the panel (Board) heading the NLRB's judicial functions reversed its previous holding in Brown University. The Board held that student assistants who have a common law employment relationship with a private university are employees within the meaning of Section 2(3) of the NLRA and are entitled to unionize. The Board applied its holding to Columbia University and found that each of the student assistant classifications included in the proposed bargaining unit consist of statutory employees, the proposed bargaining unit is appropriate, and none of the student assistant classifications consist of temporary employees. (364 N.L.R.B. No. 90 (Aug. 23, 2016).)

 

Background

The Board has reversed its position several times on the issue of whether student assistants at private universities are covered by the NLRA:

  • In 1974, in Leland Stanford Junior University, the Board held that externally-funded student research assistants were not statutory employees (214 N.L.R.B. 621 (1974)).

  • In 2000, in New York University, the Board held that student assistants were employees within the meaning of Section 2(3) of the NLRA, but left undisturbed its holding from Leland Stanford Junior University that externally-funded student research assistants were not statutory employees (332 N.L.R.B. 1205 (2000)).

  • In 2004, in Brown University, the Board reversed its holding from New York University. The Board held student assistants were not employees within the meaning of Section 2(3) of the NLRA because they:

    • performed services at a university in connection with their studies; and

    • had a predominantly educational, rather than economic, relationship with their university.

    (342 N.L.R.B. 483 (2004).)

On December 23, 2015, in Columbia University, a majority of the Board (Chairman Pearce and Members Hirozawa and McFerran) granted a union's petition for review seeking reconsideration of Brown University. The Board invited the parties and amici to file briefs on whether the Board should modify or overrule Brown University and other related issues (see Legal Update, NLRB Again Invites Briefs on Whether Graduate Student Assistants Should be Employees Under the NLRA ( www.practicallaw.com/w-001-3390) ).

 

Outcome

A majority of the Board (Chairman Pearce and Members Hirozawa and McFerran) overruled Brown University and held that student assistants who have a common law employment relationship with a private university are employees within the meaning of Section 2(3) of the NLRA. The majority reasoned that:

  • Section 2(3) defines the term "employee" broadly, subject to specific exceptions. None of the exceptions apply to student assistants. (29 U.S.C. § 152(3).)

  • The Board applies common law agency doctrine to determine whether workers are covered by Section 2(3). Compensation and control are sufficient to establish that an employment relationship exists for purposes of the NLRA. (NLRB v. Town & Country Electric, 516 U.S. 85, 94-95 (1995).) If an employment relationship exists, the Board should not exclude workers from coverage absent compelling policy considerations.

  • Federal labor policy encourages collective bargaining and protects employees' freedom to choose a bargaining representative (29 U.S.C. § 151). Allowing student assistants to bargain collectively promotes that policy.

  • The Brown University Board erred by:

    • focusing on whether the relationship between student assistants and a private university was primarily educational or economic in nature; and

    • concluding that collective bargaining by student assistants did not advance the purposes and policies of the NLRA without examining relevant empirical evidence.

  • Empirical evidence suggests that extending bargaining rights to student assistants at private universities would not seriously interfere with higher education. The Board examined collective bargaining in the context of:

    • student assistants enrolled in public universities;

    • non-managerial faculty members employed by private universities; and

    • the bargaining unit of graduate assistants that New York University voluntarily recognized after the Brown University decision.

  • Collective bargaining by student assistants does not implicate First Amendment academic freedoms.

The majority applying its holding to Columbia University found that:

  • Each student assistant classification included in the proposed bargaining unit consisted of statutory employees. The proposed bargaining unit included undergraduate, terminal Master's degree, and Ph.D. students employed as both student teaching assistants and externally-funded student research assistants. The majority overruled Leland Stanford Junior University to the extent it held that externally-funded student research assistants who had a common-law employment relationship with a private university were not employees under the NLRA.

  • The proposed bargaining unit was appropriate because the employees included in the bargaining unit:

    • consisted of a readily identifiable grouping of employees; and

    • shared a community of interest, despite some differences in types of work performed and levels of compensation.

  • None of the student assistant classifications consisted of temporary employees who could not be included in the bargaining unit. The majority reasoned that undergraduate and terminal Master's degree students could engage in meaningful bargaining even though they were employed for an average of only two semesters.

The Board remanded the case to the Regional Director to establish an appropriate voting eligibility formula.

In dissent, Member Miscimarra argued that:

  • Brown University was correctly decided.

  • The majority did not adequately consider the unique context of higher education.

  • The majority ignored other federal statutes and regulations that conflict with current Board law if applied to student assistants.

  • The availability of economic weapons, such as strikes and lockouts, will prove harmful to the educational progress of student assistants.

  • The time-consuming nature of Board processes and procedures is incompatible with the short tenure of most student assistants.

  • Characterizing externally-funded student research assistants as statutory employees reverses long-standing Board precedent.

Member Miscimarra also disagreed with the majority's application of its holding to Columbia University.

 

Practical Implications

In Columbia University, the Board overturned Brown University and held that student assistants who had a common law employment relationship with a private university were employees covered by the NLRA. The decision not only marked a return to the Board's short-lived holding from New York University, but also extended bargaining rights to externally-funded student research assistants. Externally-funded student research assistants had been considered outside the scope of the NLRA since the 1970s.

The Board paid special attention to the collective bargaining relationship between New York University and the bargaining unit of graduate students that the university voluntarily recognized after the Brown University decision. It is likely that future collective bargaining agreements covering student assistants at private universities will be modeled on the contract currently in place at New York University. For a summary the major terms of that collective bargaining agreement, see What's Market, New York University and International Union, UAW and Local 2110, UAW Collective Bargaining Agreement Summary.

 
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