In what will come as no surprise to even the most casual labor law observer, last Friday an Acting Regional Director for the National Labor Relations Board created a new inroad for unions to organize undergraduate resident advisors on private college campuses.
In Friday’s George Washington University decision, an Acting Regional Director applied the standard established by the NLRB last year in Columbia University and found that undergraduate resident advisors were “employees” within the meaning of the National Labor Relations Act and eligible to organize.
Under this test, in order to determine “whether a common-law employment relationship exists, the Board examines whether the putative employees performs services for another, under the other’s control or right of control, and in return for payment.” The Acting Regional Director in George Washington University noted that the breadth of the NLRA’s definition of “employee” is “striking” and found that it applies to “any person who works for another in return for financial or other compensation.” The Acting Regional Director went on to hold that the “employer-employee relationship is demonstrated where the evidence shows each element of the three-part common law test is present, rather than by comparing the relative size of the parties’ economic, educational, or other non-economic relationship.” According to his analysis, student-employees, like resident advisors, may be covered by the NLRA by virtue of their employment relationship with their university-employer, and this coverage is not foreclosed by the existence of some other, additional relationship that the NLRA does not reach.
After applying the three-part test, the Acting Regional Director found that the resident advisors were “employees” for purposes of the NLRA because they (1) performed services for the University, (2) were subject to the University’s control, and (3) performed those services in return for payment.
The Acting Regional Director rejected the University’s argument that there were compelling policy reasons requiring the NLRB to exclude the resident advisors from coverage under the NLRA. The University maintained that the NLRB’s assertion of jurisdiction over these resident advisors would have “profound effects on the inherently educational nature” of their relationship with the University, and similar effects on “the deeply personal nature of the relationship” between the resident advisors and their fellow students.” The University also maintained that certifying the union as the resident advisors’ exclusive representative would “create constant conflicts” between its obligations to provide relevant information to the union and its obligation to protect the privacy of students who interact with the resident advisors. The Acting Regional Director summarily dismissed these points, finding that the potential conflicts identified by the University should be left to the parties or future NLRB cases for resolution.
The University now has a right to appeal this decision to the NLRB for a full panel review. While it is expected that the University will make this request, it is unclear when the NLRB will consider its merits and what the composition of the NLRB will be at that time. As we previously reported, there are currently two Democrats and one Republican on the NLRB, and there are two vacancies that can be filled by President Trump immediately. While not certain, we anticipate that a conservative NLRB majority, led by Member Miscimarra, who was recently nominated to be the permanent NLRB Chairman, will likely change course with these cases and overturn the Acting Regional Director’s decision in this case. In the interim, private colleges and universities should be prepared to respond to similar representation petitions filed by unions seeking to represent their resident advisors.