NLRB Gives Students Right to Unionize

Undergraduate and graduate teaching assistants now have the right to organize and engage in collective bargaining, following the National Labor Relations Board’s (NLRB) Columbia University ruling on August 23, 2016. For most of its history, the NLRB held that university graduate teaching assistants could not be considered “employees,” which meant that they did not have the right to organize. Although the NLRB briefly took the opposite view (from 2000 to 2004), in its Brown University decision it returned to its longstanding position that graduate students were not eligible to organize. In recent years, the NLRB has hinted that it may overturn Brown University and reinstate graduate teaching assistants’ rights to organize. In Columbia University, the NLRB did just that and more. Private higher education institutions should take note.

The Context and Rationale

In 1974, the NLRB decided that graduate research assistants were not eligible to organize because they were not considered employees. It reasoned that they were primarily students who were not controlled in the way employers control their employees. However, in its Boston Medical Center ruling in 1999, the NLRB found that a narrow class of graduate students—interns and other student employees at a teaching hospital—were employees, and could organize. In so doing, it relied on language in the National Labor Relations Act (NLRA) which states: “The term "employee" shall include any employee . . . unless [the NLRA] explicitly states otherwise . . . .” The NLRB interpreted this language to mean that the NLRA uses a broad, common-law definition of employee. The NLRB also analyzed whether treating the students as employees created such a policy problem that it should decline to exercise its jurisdiction, but in the end determined that it did not and implemented the broad interpretation.

In 2000, the Board used this same analysis (finding that students were common law employees and that policy concerns did not justify declining jurisdiction) to extend a right to organize to most graduate assistants in New York University. Just four years later, Brown University reversed that decision by finding exactly the opposite. The Brown University decision found that the NLRA definition of employee was narrower than the common law definition, and graduate assistants were not employees because their relationship with the school was not primarily economic. It found that labor policy actually precluded extending jurisdiction to cover graduate assistants.

The New Decision

Now, in Columbia University, the NLRB has flipped the same analysis again. The NLRB held that the common law definition of employee is the correct standard. It admitted that it could still refuse to extend jurisdiction for policy reasons (noting that it had done so just last year in a well-publicized case involving Northwestern University football players), but found that that asserting jurisdiction over student assistants promotes the goals of federal labor policy.

It is an oversimplification to call the NLRB’s rulings on this issue a “swinging pendulum.” While the NLRB has repeatedly used the same rationale to rule on this general issue, each decision has applied its holding in new ways. This time, not only graduate students were at issue—the decision explicitly applies to undergraduate assistants. Additionally, the Columbia University decision removed an exception that had existed under New York University for graduate students whose work is funded by external grants (rather than from the school). For the first time, those students are now employees and eligible for organizing.

The Bottom Line

• Public higher education institutions will not be directly affected by Columbia University, because the NLRB has no jurisdiction over government entities. It can grant students the right to organize only at private institutions.
• Private higher education institutions should reevaluate their human resources and labor relations approaches to student employees in light of the Columbia University decision. It is important for these institutions to formulate policies now in an effort to minimize the risk that student employees will seek to organize.
• Higher education institutions may benefit from a supervisory audit. Another recent change to labor law allows union organizing in smaller pockets of a larger organization. Student employees could attempt to organize an individual school or department within a larger institution. A supervisory audit can help an institution understand the varying needs throughout its organization and better tailor its approach.