NLRB Says That Student Assistants at Private Universities Are “Employees,” Can Unionize and Engage In Collective Bargaining

Aug 23, 2016

Tueth Keeney Attorney D. Shane Jones will moderate a free webinar on September 13, examining the impact of the decision and its effect on colleges and universities.

In a major decision that is expected to expand union activity at colleges and universities, the National Labor Relations Board on August 23 ruled that student assistants at private universities are “employees” for the purposes of the organizing and collective bargaining. The NLRB’s August 23 decision comes in the matter of Graduate Workers of Columbia ““ GWC, UAW v. The Trustees of Columbia University in the City of New York (Case No. 02-RC-143012). Tueth Keeney, through its involvement in the Higher Education Council of the Employment Law Alliance (ELA), had joined in an amicus brief filed earlier this year.

The employer in this case, Ivy League institution Columbia University, had argued that student assistants were not employees, and that treating them as such would be an improper change in the law from the NLRB’s own guiding precedent on the issue, Brown University, 342 NLRB 483 (2004). The amici had similarly argued that there was “no reasoned justification” for the NLRB to overrule the Brown University decision, and that in reversing its own 12-year-old decision to re-characterize student assistants as “employees,” the NLRB would undermine the “fundamentally academic” relationship between universities and their students.

The NLRB rejected the concerns of Columbia University and the amici and showed little regard for its own Brown University decision, which it characterized as having “deprived an entire category of workers of the protections of the Act, without a convincing justification in either the statutory language or the policies of the Act.” Board Member Philip A. Miscimarra ““ the lone dissenting vote in the 3-1 decision ““ penned a lengthy dissent in which he argued that Congress never intended the NLRA to apply to students and that the NLRB’s processes and procedures were an ill fit for the relationship between students and their academic institutions. For instance, Board Member Miscimarra noted that if student assistants were to unionize and have all the rights and remedies traditionally available to bargaining unit members, some proceedings arising out of employer-employee disputes, such as unfair labor practice charges (ULPs), might actually be in litigation longer than a graduate student’s academic program.

The NLRB’s decision may not be the last word on this issue ““ even in this case. Because issues remained regarding the appropriate voting eligibility formula, the NLRB remanded the Columbia University case to the NLRB Regional Director’s office for further proceedings. However, Columbia cannot appeal the NLRB’s decision regarding the newly-articulated “employee” status of its student assistants until after a union election.

In the meantime, the NLRB’s recent decision is expected to support labor organizing efforts on other college and university campuses nationally, perhaps opening up another front in labor organizing akin to the recent movement to organize adjunct faculty members. The decision will have the most direct effect on private institutions, which are subject to the National Labor Relations Act (NLRA). Public universities are governed by state labor law, rather than NLRA, and as a result are not directly impacted by the Columbia University decision. Some state laws, including the Illinois Educational Labor Relations Act, already allow for public university graduate students to be represented by labor unions. Even such public institutions may notice some effect from the Columbia decision, however, as it may lead to more widespread efforts by groups of student workers to organize across the country.

For more guidance on the possible impact of the Columbia University decision, register for the Employment Law Alliance’s free webinar from 2 p.m. ““ 3 p.m. (CDT) on Tuesday, September 13, 2016, “What the NLRB Ruling on Student Assistants Means for Private Colleges and Universities.” Tueth Keeney Attorney D. Shane Jones will moderate a panel of higher education and labor law attorneys from ELA law firms, discussing the impact of the decision.

D. Shane Jones  is a Tueth Keeney shareholder and practices in the areas of labor & employment law, education law, and higher education in Missouri and Illinois. Shane routinely advises and represents employers in all aspects of employment and labor law, including wage and hour matters, collective bargaining, the design and review of employee handbooks, drafting and enforcing no compete agreements, and investigating, disciplining and terminating employees.

Kameron W. Murphy  is a Tueth Keeney associate and a member of the firm’s Education Law and Labor & Employment practice areas. Kameron advises clients on labor relations, wage and hour issues, personnel policies, and in employee discipline and termination matters. He also represents Missouri and Illinois employers on labor law issues including union election campaigns, collective bargaining negotiations, grievance resolution and arbitration, and unfair labor practice proceedings.

The Employment Law Alliance is the world’s largest network of labor, employment and immigration lawyers. With specialists in more than 135 countries, all 50 states and each Canadian province, the ELA provides multi-state and multi-national companies with seamless and cost-effective services worldwide. The Higher Education Council of the Employment Law Alliance consists of firms and lawyers committed to serving institutions of higher education. Its attorneys provide national and worldwide support and advice on such issues as labor and employment, intellectual property, establishing out-of-state and overseas programs and campuses, regulatory compliance and immigration. The firms work together to ensure that client needs are met wherever, whenever.