The National Labor Relations Board (NLRB or Board) has ruled that graduate teaching assistants, i.e. graduate students who provide instruction and assist faculty with research as part of their own post-graduate education are “employees” within the meaning of the National Labor Relations Act (NLRA or Act), and thus have the right to join unions and engage in collective bargaining with the universities and colleges where they study.

For those who follow the Board, the 3-1 decision in Columbia University, 364 NLRB No. 90 (2016) should come as no surprise. This past January, following a Regional Director’s Decision dismissing the representation petition filed by Graduate Workers of Columbia-GWC, UAW, (UAW or Union) because she found that under Board law, the graduate teaching assistants and research assistants the union sought to represent, were not employees as that term has been defined under the Act, but rather were students.

The Board Asked Four Questions

After the Regional Director issued her decision, the Union requested review by the Board and asked the Board to overrule its earlier holdings concerning graduate students and researchers such as those in the petitioned for unit. On January 13, 2016, the Board issued a Notice and Invitation to File Briefs, indicating that the Board would consider the Union’s appeal and that it would consider the Union’s argument that the Board should overrule its 2004 decision in Brown University, 342 NLRB 483, in which it had found graduate teaching assistants and research assistants were students and not employees under the Act. The Board invited interested parties to offer their views on the following questions:

1. Should the Board modify or overrule Brown University, 342 NLRB 483 (2004), which held that graduate student assistants who perform services at a university in connection with their studies are not statutory employees within the meaning of Section 2(3) of the National Labor Relations Act?

2. If the Board modifies or overrules Brown University, supra, what should be the standard for determining whether graduate student assistants engaged in research are statutory employees, including graduate student assistants engaged in research funded by external grants? See New York University, 332 NLRB 1205, 1209 fn. 10 (2000) (relying on Leland Stanford Junior University, 214 NLRB 621 (1974)).

3. If the Board concludes that graduate student assistants, terminal masters degree students and undergraduate students are statutory employees, would a unit composed of all these classifications be appropriate?

4. If the Board concludes that graduate student assistants, terminal masters degree students and undergraduate students are statutory employees, what standard should the Board apply to determine whether they constitute temporary employees?

The very fact that the Board was asking these questions was seen at the time as a strong indication that it would reject Brown and find a way to reclassify graduate teaching assistants as employees. Notably, two years ago, when the Board considered the Steelworkers effort to organize and represent student athletes who played football for Northwestern University on scholarships, the Board found the scholarship students to be “employees” but declined to exercise what it said was its jurisdiction that would have permitted it to conduct an election and require collective bargaining on what it characterized as considerations of public policy.

The NLRB Has Overruled Brown – The Answers to the Four Questions

The decision reverses and rejects the Board’s 2004 decision in Brown University, 342 NLRB 483, which the majority characterizes as “a sharply divided decision.” In Brown, the Board found that “graduate assistants who perform services at a university in connection with their studies are not statutory employees under the National Labor Relations Act.”

In jettisoning Brown, the majority concluded that the Board majority in that case “failed to acknowledge that the Act does not speak directly to the issue posed here, which calls on the Board to interpret the language of the statute in light of its policies.” The majority noted that “the Brown University decision, in turn, deprived an entire category of workers of the protection of the Act, without a convincing justification in either the statutory language of the Act or the policies of the Act.”

A quick read of the majority opinion and the dissent of Member Miscimarra suggest however that what the majority actually meant was that in the absence of express statutory language covering graduate students and research assistants, the majority felt comfortable substituting their views for those of the Brown majority, with whom they disagreed.  Columbia answers the four questions in the following way:

1. The Board has overruled Brown and held that graduate teaching assistants and research assistants will now be considered to be statutory employees entitled to all of the Act’s protections.

2. The Board will treat graduate research assistants as employees. Their positions will be examined under a traditional community of interest standard.

3. The Board will apply its traditional community of interest standards in determining what are appropriate units for bargaining.

4. While teaching assistants’ relationships with the University “are ‘temporar” in the sense that they are employed for short, finite periods of time averaging about two (not necessarily consecutive) semesters of work,” the Board nonetheless concluded that “all the employees in the unit, which we find to be appropriate, serve finite terms,” but that such finite terms alone cannot be a basis on which to deny bargaining rights.” Thus the Board rejects the argument that the limited duration of the teaching and research assistants means they should not be allowed to vote in representation elections.

Member Miscimarra Notes Real Risks In the Majority’s Approach

In addition to explaining why he believes as a matter of law and statutory construction why he believes the majority got it wrong and that the Brown majority was correct, Member Philip Miscimarra in his lengthy dissent points out a number of important policy considerations that the majority ignored, any and all of which can have profound negative consequences not only for the universities affected by this decision, but also for the students that they educate, both undergraduate and those the majority has now chosen to treat as statutory employees.

They include the following:

• The Financial Investment Associated With a University Education, and the Mistake of Making Academic Success Subservient to the Risks and Uncertainties of Collective Bargaining and the Potential Resort to Economic Weapons.

  • Strikes

  • Lockouts

  • Loss, Suspension or Delay of Academic Credit

  • Suspension of Tuition Waivers

  • Potential Replacement of Striking Teaching and Research Assistants

  • Loss of Tuition Previously Paid

  • Misconduct, Potential Discharge, Academic Suspension/Expulsion Disputes

• The many reasons that the “Board’s Processes and Procedures Are Incompatible With Applying the Act to University Student Assistants.”

What Columbia Means Going Forward

While the immediate impact of the decision is that the NLRB will now conduct a representation election in a unit of “All student employees who provide instructional services, including graduate and undergraduate Teaching Assistants (Teaching Assistants, Teaching Fellows, Preceptors, Course Assistants, Readers and Graders): All Graduate Research Assistants (including those compensated through Training Grants) and All Departmental Research Assistants,” to allow them to vote on representation by the UAW, the decision raises troubling questions both within academia and elsewhere and should be seen as part of a broader trend by the Board’s majority appointed by President Obama, to jump start collective bargaining and union organizing and bring unions into settings where until now they have not been found.

As we have previously reported, the NLRB has been broadly examining the nature of the employer-employee relationship, not only in the context of joint employment and co-employment but also in new areas of the gig economy, where unions and employees are arguing that workers traditionally recognized to be independent contractors have been “misclassified” and that such misclassification is in and of itself an unfair labor practice.