NLRB Offers Lesson for Student Teaching Assistants


The calendar is about to turn to September, when most students are returning to school, especially those at colleges. At Columbia University, a page has turned for student teaching assistants, who will start the academic year knowing that they are considered university employees.

The National Labor Relations Board, in a 3-1 ruling Aug. 23, said that student teaching assistants working at private colleges and universities are statutory employees covered by the National Labor Relations Act and may unionize.  The decision stems from a petition filed in December 2014 by the Graduate Workers of Columbia-GWC, United Automobile Workers seeking to represent graduate and undergraduate teaching assistants, along with graduate and departmental research assistants at the university. 

The ruling was a major U-turn for the NLRB because it reversed the 2004 decision in Brown University, which the board said “deprived an entire category of workers of the protections of the act without a convincing justification.”  Under federal law, graduate student assistants were not employees, the NLRB said at the time. “The result leaves graduate students outside the act’s protection and without recourse to its mechanisms for resolving labor disputes,” it said.

A decade later, the board changed its stance. “For 45 years, the National Labor Relations Board has exercised jurisdiction over private, nonprofit universities such as Columbia. In that time, the board has had frequent cause to apply the act to faculty in the university setting, which has been upheld by the Supreme Court,” the board said in a news release on the Aug. 23 decision. “Federal courts have made clear that the authority to define the term “employee” rests primarily with the Board absent an exception enumerated within the National Labor Relations Act. The act contains no clear language prohibiting student assistants from its coverage. The majority found no compelling reason to exclude student assistants from the protections of the act.”

The move by the NLRB runs somewhat counter to its decision a year ago, when it unanimously dismissed a union's petition to represent football players at Northwestern University. The ruling ended a yearlong effort by the College Athletes Players Association that prompted a debate over the legal rights of college athletes (Northwestern Univ., 362 N.L.R.B. No. 167, 8/17/15). Without determining whether the football players were employees under the NLRA, the board said it would be difficult for the players association to bargain with Northwestern about standards set by athletic conferences and organizations. Collective bargaining under those circumstances would not promote uniformity and stability in labor relations, the board said in dismissing the case.

The dissenting board member in Columbia, Philip A. Miscimarra, said that for “students enrolled in a college or university, their instruction-related positions do not turn the academic institution they attend into something that can fairly be characterized as a workplace.” He said 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,” he said in his dissent.

The majority opinion said otherwise: “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.

Other colleges may heed that opinion. Within days of the ruling in Columbia, Yale University graduate teaching assistants petitioned the NLRB for union representation elections covering assistants in 10 academic departments.  Yale’s local 33  union at Yale, which is affiliated with the labor union UNITE HERE, said it wants elections under the NLRB’s 2011 Specialty Healthcare decision to certify Local 33-UNITE HERE as the local’s union. 

To make an educated guess, the NLRB move leaves open the gates to further attempts at unionization at the collegiate level.

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