GW University Resident Advisers Ruled Employees, Cleared to Unionize

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By Lawrence E. Dubé and Jaclyn Diaz

Resident advisers at George Washington University may vote to be represented by a labor union, an NLRB official decided April 21 in a ruling that could spur organizing efforts at private institutions across the U.S. ( George Washington Univ. , 2017 BL 131193, N.L.R.B. Reg’l Dir., No. 05-RC-188871, 4/21/17 ).

“I think there will be more interest by folks in other schools in light of this ruling,” Christopher Honey, a Service Employees International Local 500 spokesman, told Bloomberg BNA April 24. Local 500 filed the petition that prompted the NLRB action.

An attorney who filed an amicus brief in the case agrees. The number of advisers potentially affected by the George Washington decision “must be in the thousands,” said Joseph W. Ambash of Fisher & Phillips LLP in Boston, who represented a dozen organizations supporting GWU.

Acting NLRB Regional Director Sean R. Marshall said the case was controlled by the board’s 2016 decision in Columbia University, in which the board permitted graduate assistants at Columbia to unionize.

Marshall said that like Columbia’s students GWU’s resident advisers “have a common law employment relationship with the Employer because they: (1) perform services for the Employer; (2) are subject to the Employer’s control; and (3) perform these services in return for payment.”

The RAs’ student status and their academic relationship to the university does not preclude finding them to be employees under the law, Marshall said. He directed an election on union representation, which will be held May 3.

Dispute Over Resident Advisers

GWU and several college and university associations argued that the advisers, who are undergraduate students, are not employees under the National Labor Relations Act. But Marshall said the advisers provide valuable service to the university and its student body. The university, in turn, gives each of its 110 advisers a $2,500 annual stipend and a housing benefit worth $12,665 per year.

Local 500 argued the advisers are covered by the NLRB’s jurisdiction, and the acting regional director agreed.

The advisers are expected to spend about 20 hours per week advising and assisting other college students, Marshall said. He rejected GWU’s contention that such service is simply part of the advisers’ educational experience. The university and its resident advisers have agreed to exchange important work for significant economic benefits, he said.

“Employment experiences can simultaneously be educational or part of one’s personal development,” Marshall said, “yet they nonetheless retain an indispensable economic core.”

University Pays and Controls Advisers

George Washington requires all undergraduate students to live in on-campus housing until their senior year. The university has about 7,400 students in 26 residence halls on two campuses in Washington, D.C.

Each year the university hires resident advisers, or RAs, for the coming school year. RAs, who must be students in good standing, are screened, interviewed and selected by groups of current and former RAs, as well as area coordinators who each manage up to six residence halls, Marshall found.

Students who seek to return for a second or third year are considered in light of their past performance, including evaluations by university residence directors.

After completing a two-week training program, new advisers are responsible during the school year for conducting residence hall programs, reporting policy violations and student concerns to university officials, and for making plans for interacting with each student. They also conduct “hall hours” when the adviser is available to residents for questions or conversations.

The RAs are not required to work a set schedule or particular number of hours each week, but they are limited to one weekend or three days of “vacation” during the academic year, Marshall said.

The acting regional director noted the board declined to exercise jurisdiction over scholarship football players at Northwestern University, but he said that was because of the possible complications of collective bargaining by Northwestern in light of the school’s interscholastic competition and its relationship with the National Collegiate Athletic Association. There are no similar issues at GWU that would preclude NLRB coverage for the resident advisers, Marshall said.

Activity Expected at Other Schools

Honey called the ruling and others like it on graduate student workers “just common sense.” The student workers “are doing important work that helps the university run,” he said.

Ambash, who filed a brief for the Association of College & University Housing Officers–International and several other organizations, called Marshall’s ruling “unfortunate but not unexpected.”

Marshall followed the board’s Columbia ruling but disregarded its policy implications, Ambash told Bloomberg BNA.

Marshall’s ruling on GWU raises the question of what student-worker relationships at private universities are not covered by the NLRA, Ambash told Bloomberg BNA April 24.

Columbia was “not a very sensible” resolution of questions about work and its connection to a university-student relationship, Ambash said. Hopefully, when a new complement of NLRB members gets a chance, they will overrule Columbia, he said.

Students ‘Look More Like Employees’

César F. Rosado Marzán, an associate professor at Chicago-Kent College of Law, has a different perspective. The professor told Bloomberg BNA April 24 that he agrees with the GW decision.

“Universities are functioning more as if they were businesses,” he said, and student workers now “look more like employees.”

Rosado Marzán said he doesn’t think the decision should scare universities. “I just don’t see the problem,” he said.

“After two years of organizing, this ruling marks a national precedent. No other private university has gotten this far in unionizing its RAs, a victory in itself,” organizers of the union movement, the GW RA Support Network, said on their Facebook page.

If the resident advisers at George Washington vote to unionize, they’ll join RAs at at least one other public university, the University of Massachusetts Amherst, who already have union representation, the Support Network said.

However, the Massachusetts RAs are covered by state law, not the NLRA, and the George Washington decision has not yet been tested before the full NLRB.

University Will Await Balloting, Then Consider Options

GWU intends to cooperate with the NLRB process, but the school said it does not agree with the decision.

“The university continues to believe that the NLRB’s union election process should not be applied to students in our residential life program, which is an integral part of the educational experience of our undergraduate students,” GWU said in a statement provided to Bloomberg BNA April 24.

“We will continue to share our views with resident advisers as this process moves forward,” the university said, adding that it is reserving the right to seek review of the decision after the May 3 election.

Local 500 attorney Steve Schwartz in Gaithersburg, Md., represented the union. Jonathan C. Fritts of Morgan, Lewis & Bockius in Washington and Lorenzo R. Cabantog in the firm’s Boston office represented George Washington University.

To contact the reporters on this story: Lawrence E. Dubé in Washington at ldube@bna.com; Jaclyn Diaz at jDiaz@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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