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The NLRB Opens the Door to Union Organizing Among Teaching Assistants and Other Student Assistants at Private Colleges and Universities


August 24, 2016

By Christopher A. Johlie, Melissa D. Sobota, and Amy Moor Gaylord

In what will come as no surprise to even the most casual labor law observer, yesterday the National Labor Relations Board jettisoned established precedent and granted teaching assistants and other student assistants at private higher education institutions the right to organize.

In yesterday’s Columbia University decision, the NLRB overturned its 2004 Brown University decision and determined that student assistants who “perform work, at the direction of the university, for which they are compensated,” even those whose research is funded by external grants, are statutory employees and, as such, have the right to organize. According to the NLRB, “[s]tatutory coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the Act does not reach.” As a result, the NLRB determined that the United Auto Workers were entitled to move forward with an attempt to organize a bargaining unit comprised of all Columbia University graduate and undergraduate teaching assistants and graduate research assistants, a group that includes, among others, “preceptors, course assistants, readers and graders.”

After it determined that the student assistants were employees entitled to organize, the NLRB applied its “community of interest” test to constitute an appropriate bargaining unit. The Board made this finding despite the fact that the petitioned-for students were employed in different roles, performed different duties and responsibilities, and were paid differently throughout the university. The Board reiterated its position that in order for a unit to be appropriate, it merely needs to be “an appropriate unit” in which the employees share a community of interest. The Board found this to be an appropriate unit because it was a “readily identifiable grouping of employees” in that everyone is a student employee who provides instructional services and includes all research assistants. The Board also pointed out that the members all worked in similar settings (labs and classrooms) and served similar functions for the University with respect to its fulfillment of its teaching and research mission.

As he frequently does these days, Member Miscimarra dissented from the majority decision. He argued that the individuals sought to be organized were not employees as contemplated or defined by the National Labor Relations Act and even if they were, the petitioned-for unit was not an appropriate unit under NLRB precedent. Member Miscimarra chided the majority when he noted “that the Board resembles the ‘foolish repairman with one tool – a hammer – to whom every problem looks like a nail; we have one tool – collective bargaining – and thus every petitioning individual looks like someone’s ‘employee’.” Citing, Boston Medical Center Corp., 330 NLRB 152, 182 (1999) (Member Brame, dissenting).

Member Miscimarra found that collective bargaining would detract from the students’ goals of completing their degrees within the allotted time because, by giving these students the right to organize, it was also giving colleges and universities and the student unions economic weapons to be used against one another. Member Miscimarra noted that the Board’s processes and procedures were ill-equipped to deal with representation and unfair labor practice cases involving students and noted that the NLRB and Supreme Court have both previously recognized that “the lecture hall is not the factory floor, and the ‘industrial model cannot be imposed blindly on the academic world’.” Citing, Syracuse University, 204 NLRB 641, 643 (1973).

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