A New Type of Student Union - the NLRB’s decision in Columbia University

Spencer Fane LLP - Courtney Powell

In its August 23, 2016 decision in Columbia Univ., 364 N.L.R.B. No. 90 (2016), the National Labor Relations Board (the “Board”) ruled that graduate students working as teaching and research assistants at private universities qualify as employees for collective bargaining purposes under the National Labor Relations Act (“NLRA”) and thereby paved the way for graduate students to join or form unions. 

Depending on the size of the academic institution, the unionization of graduate employees could pose not only a significant financial burden but also a disruption to the completion of academic programs. This type of student union may be one that not all campuses are ready for.

The decision by the Board overturns a 2004 NLRB decision, Brown University, 342 NLRB 483 (2004), which stripped the collective bargaining rights from graduate student employees at private universities. The 2004 decision found that collective bargaining would undermine a graduate education, which often required teaching and research as part of its curriculum. The Board had previously granted collective bargaining rights to graduate employees by a unanimous decision in 2000.

Facing workplace problems similar to other unrepresented employee groups, graduate students believed unions to be a solution to their concerns, which the students claimed included 60 – 70 hour workweeks without overtime, weekend hours without compensation, and little to no holiday leave. Universities, however, viewed the attempts to unionize as an assault on their ability to set educational requirements for the completion of graduate programs.

The universities have repeatedly argued that teaching is a requirement of many graduate student programs. Failure to secure a teaching or research position can spell the end to a graduate program. However, the graduate student is functioning as an employee – teaching classes, maintaining office hours and fulfilling requirements often set by the universities. Quite simply, were these people graduate students or graduate student employees?

The Board framed the question as simply whether students who perform services at private universities in connection with their studies are statutory employees within the meaning of Section 23(c) of the NLRB. The Board overturned the Brown University’s holding that graduate assistants cannot be employees because their primary relationship with the university is educational, not economic. Brown University, 342 NLRB at 487. The Board noted that while the Supreme Court has found that parties may bargain concerning any subject, “Congress has limited the mandate or duty to bargain to matters of ‘wages, hours, and other terms and conditions of employment.’” First National Maintenance Corp. v. NLRB, 452 US 666, 674-675. Hence, the Board reasoned, bargaining concerning work hours and wages would not impact a university’s right to establish requirements for graduate programs.

So what now? It is clear that, under the current Board, bargaining rights will be protected, if not expanded. For now, private universities throughout the country must make good faith efforts to bargain with their graduate students if the graduate students elect a union as their exclusive bargaining representative. Many private universities have engaged in steps to discourage the unionization of its employees, informing students that unionization could lead to a decline in working conditions and impede the academic process. Other universities, anticipating the decision, began engaging in negotiations with their graduate employees prior to the decision. 

However, the Board’s Columbia University decision will likely be appealed and subject to judicial review. Employers that are affected by this decision should continue to monitor the appellate activity on this case and consider contacting legal counsel to determine the best course of action going forward for their particular institution.

Original