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By Michael Rose
Aug. 23 — Columbia University graduate research and teaching assistants can be considered employees under federal labor law and are eligible to vote on union representation by a United Auto Workers affiliate, the National Labor Relations Board said Aug. 23 ( Columbia Univ. , 2016 BL 273040, 364 N.L.R.B. No. 90, 8/23/16 ).
The NLRB’s widely expected 3-1 decision reverses a 2004 ruling in which the board said graduate assistants at private universities were primarily students and exempt from the National Labor Relations Act. That ruling, involving graduate assistants at Brown University, “deprived an entire category of workers of the protections of the Act without a convincing justification,” the board said.
The decision will make it much easier for graduate assistants at private universities to form unions, and a number of unions already have started organizing campaigns. The ruling has the potential to significantly change the nature of U.S. labor relations in higher education, attorneys and union representatives told Bloomberg BNA.
For example, the Service Employees International Union, which has been successful in organizing adjunct faculty at many U.S. universities, said graduate student workers are “launching a massive drive” to organize in the wake of the Columbia decision.
“Colleges and universities that used to provide a pathway to the American Dream are now becoming a road to poverty for students who find themselves saddled with debt and graduate workers and faculty who are unable to support their families on low pay,” SEIU President Mary Kay Henry said in a statement.
“Restoring the rights of graduate workers is a critical step in ensuring that those on the front-lines of teaching and researching at colleges and universities have a voice in improving higher education for all of us,” she said.
“We are excited we have finally reached this important milestone and look forward to a speedy, fair election so we can demonstrate our majority support, and get into bargaining as soon as possible,” Olga Brudastova, a research assistant in Columbia’s Department of Civil Engineering and Engineering Mechanics, said in a statement released by the UAW.
“We instruct classes, grade papers for thousands of students and push the boundaries of research and the arts, but despite these contributions and more, Columbia administrators have stood in the way of our rights,” she said. “By standing together, graduate workers have already won major, university-wide improvements, and with a union, we’ll be able to secure those improvements and make Columbia do even better.”
Randi Weingarten, president of the American Federation of Teachers, said in a statement that “graduate workers are the glue that holds higher education institutions together—without their labor, classes wouldn’t get taught, exams wouldn’t get graded and office hours wouldn’t be held.”
“The evidence considered by the board clearly showed that far from being detrimental, collective representation enhances the professor-graduate employee relationship so important to academic success,” Weingarten said.
Both the SEIU and the AFT filed amicus briefs supporting the UAW’s petition in the Columbia case.
In a statement responding to the decision, Columbia spokeswoman Caroline Adelman said the university “disagrees with this outcome because we believe the academic relationship students have with faculty members and departments as part of their studies is not the same as between employer and employee.”
“First and foremost, students serving as research or teaching assistants come to Columbia to gain knowledge and expertise, and we believe there are legitimate concerns about the impact of involving a non-academic third-party in this scholarly training,” Adelman said. “Whatever the outcome, we will continue our ongoing efforts to make Columbia a place where all students can achieve the highest levels of both intellectual accomplishment and personal fulfillment.”
NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran wrote the majority opinion.
“There is no compelling reason—in theory or in practice—to conclude that collective bargaining by student assistants cannot be viable or that it would seriously interfere with higher education,” the board said.
Member Philip A. Miscimarra dissented, saying he would maintain the standard set out in the 2004 decision and that applying the NLRA to student assistants in a university setting is “ill-advised.” Doing so disregards “everything that is unique about the situation of college and university students,” Miscimarra said.
“My colleagues disregard what hangs in the balance when a student’s efforts to attain an undergraduate or graduate degree are governed by the risks and uncertainties of collective bargaining and the potential resort to economic weapons by students and universities,” he wrote.
In reaching its conclusion that the NLRA should apply to student assistants, the board said there had been little evidence that collective bargaining among student assistants at private universities “would be detrimental to the educational process.”
Arguments put forth by Columbia that bargaining by student assistants at a university would be harmful “are dubious on their own terms,” the board majority said.
“Our skepticism is based on the historic flexibility of collective bargaining as a practice and its viability at public universities where graduate student assistants are represented by labor unions and among faculty members at private universities,” the board said.
The board remanded the case to an NLRB regional director for further action. Julie Kushner, UAW Region 9A director, told Bloomberg BNA the union hopes that a representation election will take place in the next few months. Region 9A includes New York City.
“We’re so excited about this decision,” Kushner said. “I’m really pleased that the board was very global in its approach to this, and determined that all the classifications [of student assistants] were eligible for unionization and protections under the law.”
Kushner estimated that a bargaining unit of graduate employees at Columbia would include some 3,000 workers. The union filed petitions for representation elections among graduate assistants at Columbia and the New School in December 2014.
The board agreed that the bargaining unit petitioned for by the UAW is appropriate, rejecting Columbia’s arguments that any bargaining unit must exclude master’s and undergraduate students, and other student assistants whose work is temporary in nature.
The unit includes “all student employees who provide instructional services, including graduate and undergraduate” teaching assistants as well as graduate research assistants, including those in grant-funded positions.
Furthermore, Kushner said, the union expects the decision to withstand “any challenge in courts,” because to bring an appeal, Columbia would have to refuse to bargain with the UAW, should the student employees vote for representation.
“They would have to break the law to take this to the courts,” Kushner said. “I think it’s very hard for a university to take that step.”
“Our message to private universities is that it’s time to recognize the rights of these workers,” Kushner said. “They’ve stood up for more than a decade fighting for their rights. No more delay.”
Joseph Ambash, an attorney at Fisher & Phillips in Boston who represented Brown in the 2004 case and filed an amicus brief in the Columbia case on behalf of a number of Ivy League universities and other elite schools, told Bloomberg BNA that the decision is “breathtaking” in its scope.
“With the stroke of a pen, the NLRB transformed our nation’s colleges and universities from educational institutions into workplaces,” Ambash said. “What’s particularly stunning is the sweep of the board’s decision” and its inclusion of student employees other than Ph.D. candidates in the bargaining unit, he said.
Ambash said the NLRB’s definition of employee to include student assistants is “simplistic.”
“The board certainly opened the door for unions to organize students,” Ambash said. “But the board majority really swept under the carpet the nuances and complexities that go along with it.”
Ambash added that he likely will help his university clients to “evaluate what impact it could have on that particular campus.” He also said he will advise those clients to be prepared with communications plans to answer questions about the decision, especially because it coincides with the beginning of a new school year.
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Text of the decision is at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_COLUMBIA_UNIVERSITY_364_NLRB_No_90_2016_BL_27.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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