On August 23, 2016, the National Labor Relations Board (NLRB or “the Board”) ruled, in a 3-1 decision, that graduate assistants at Columbia University are “employees” under Section 2(3) of the National Labor Relations Act (“the Act”). The Board remanded the proceeding to the Regional Director to determine who is eligible to vote in the union election.
Graduate Students as Employees
The threshold question before the Board in The Trustees of Columbia University in the City of New York, Case 02-RC-143012 (“Columbia University”), was whether students who perform services at a private college or university in connection with their studies are statutory employees within the meaning of the Act. In finding that they are in fact employees, the Board overruled the longstanding decision in Brown University, 342 NLRB 483 (2004), and sided with the Brown dissenters and an earlier decision, New York University, 332 NLRB 1205 (2000).
The Brown University Board rejected New York University’s reliance on the existence of a common-law employment relationship between the graduate students and the university and instead relied on what it perceived to be a prerequisite to statutory coverage under the Act: a relationship that is primarily economic in character. Thus, the Brown University Board held that graduate student assistants could not be statutory employees because they were primarily students and had a primarily educational, not economic, relationship with their university. The Board found this logic to be unfounded, holding that “statutory coverage is permitted by virtue of an employment relationship, [and] is not foreclosed by the existence of some other, additional relationship that the Act does not reach.”
The Board’s starting point in making its contrary determination was the broad language of Section 2(d), which provides in relevant part that “[t]he term ‘employee’ shall include any employee,” subject to certain exceptions—none of which, the Board noted, address students employed by their universities. The Board found that this broad language, coupled with the policy of the Act to “encourag[e] the practice and procedure of collective bargaining and to “protect[ ] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing,” made it appropriate to extend statutory coverage to the students unless there was a strong reason not to do so. Such a reason, the Board concluded, does not exist.
The Board, citing to the previous approach taken by New York University, affirmed that in fact if student assistants have an employment relationship with their university under the common law test, which generally requires the employer to have the right to control the employee’s work, and that the work is performed in exchange for compensation, this relationship is sufficient to establish coverage under the Act.
In turn, the Board addressed the relevant policy considerations, which it concluded strongly favor statutory coverage. The Board found, contrary to theBrown University Board, that permitting student assistants to choose whether they wish to engage in collective bargaining would further the policies of the Act. The Board determined there was no reason that collective bargaining could not co-exist with the educational process, or that collective bargaining would pose a threat to academic freedom. In fact, the Board noted that applying the Act to student assistants would not infringe upon first amendment academic freedom, as that involves freedom from government efforts “to control or direct the content of the speech engaged in by the university,” which is far from the bargaining over terms and conditions of employment the employed graduate students desire. The Board closed the loop by emphasizing that historic collective bargaining by student assistants at public universities, albeit done pursuant to state law, demonstrates that it is viable.
Application of the Board’s Holding
The issue came before the Board after a Regional Director in Manhattan rejected a petition filed in December 2014 by Graduate Workers of Columbia-GWC, UAW, which sought to represent a bargaining unit that comprised graduate students, terminal master’s degree students and undergraduate students.
The Board, applying its aforementioned holding, concluded that all of the petitioned for student-assistant classifications consisted of statutory employees. With regards to the student assistants, the Board found that they were statutory employees. Specifically, the Board found the university directs and oversees their teaching activities, they are subject to corrective counseling or removal if they fail to adequately perform their duties and they receive compensation in exchange for the provision of services.
Student research assistants, however, posed a more complicated analysis in light of Board precedent. In contending that student research assistants have no common-law employment with the university, Columbia relied on The Leland Stanford Junior University, 214 NLRB 621 (1974), which determined that certain externally funded research assistants were not employees. In determining that those externally funded research assistants were not employees, the Leland Board focused in many respects on the absence of common-law features of employment (i.e., the assistants received external funding to cover their tuition while pursuing their own individual goals in a manner of their choosing and were not subject to discharge for failure to perform). However, theLeland decision also arguably suggested that the performance of a task that advanced a student’s personal educational goals could negate an employment relationship. Thus, the premise of Columbia’s argument concerning the status of its research assistants was that because the work of the student research assistants simultaneously served both their own educational interest and the interests of the university, they were not employees under theLeland standard. The Board found the Leland standard to be inconsistent with the instant approach and overruled it, alongside Brown University. Ultimately, the Board found that the student research assistants were in fact employees since the work they did was directed by Columbia and the funding they received was conditioned upon the performance of the work.
All Student Assistants Are an Appropriate Bargaining Unit
Columbia additionally maintained that the petitioned-for unit is inappropriate because it groups undergraduate and master’s degree student assistants together in the same unit with Ph.D. assistants. The Board in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011), held that a petitioned-for unit is not an appropriate unit if it excludes employees who have an “overwhelming community of interest” with those employees that the union seeks to represent. Columbia contended that there were dissimilarities, such as differences in the difficulty and independence of work assignments, as well as in the pay and benefits, among the categories of student assistants. The Board rejected this argument, holding that all of the students assistants in the petitioned-for unit are performing supplemental educational services and work under the direction of the university, with a shared desire to balance coursework and job responsibilities while mitigating the cost of being a student. Therefore, the Board ruled that the petitioned-for unit comprising all graduate, undergraduate and master’s degree student assistants is an appropriate unit.
Student Assistants Are Not Temporary Employees
Under Board law, temporary employees are not eligible to vote in union elections. Employees who are employed for one job only, or for a set duration, or who have no substantial expectancy of continued employment and are notified of this fact are excluded as temporary employees. The Board acknowledged that all of the employees in the unit serve terms of a finite duration and perform duties in semester increments. However, the Board said the fact that student assistants have employment of a finite duration is not dispositive and because the university’s employment of student assistants is “regularly recurring, with some carryover between semesters, and their individual tenures are neither negligible nor ad hoc,” they form a stable unit.
What This Means for Employers
The Columbia decision is the first ripple in the wave of movement by students at Ivy League schools and private institutions across the country. Private universities should anticipate a trend of petitions being filed by undergraduate and graduate students alike. In fact, less than one week after the Board issued its decision, graduate teachers at Yale University announced that they would be filing petitions with the Board seeking union recognition. Private universities should review their own relationships with their student assistants, both graduate and undergraduate, to determine potential risks and steps that can be taken to minimize students’ being classified as employees under federal labor law.
Private universities should also take note of the fact that the United States Department of Labor (“the Department”) recognizes that graduate students are not employees in certain capacities. Generally, the Department takes the position that graduate and undergraduate students who assist in research under a faculty member’s supervision are engaged in an educational relationship with the school and not an employment relationship. Thus, the Department will not bring a claim for overtime for such student assistants.
Given the aforementioned, an inherent conflict remains on this issue.