Student Assistants at Private Universities May Now Form Unions

On August 23, 2016, in a 3-1 decision overturning 45 years of precedent, the National Labor Relations Board ruled that students working at private universities as teaching and research assistants are statutory "employees" under the National Labor Relations Act and may form unions.

This decision stems from a labor dispute at Columbia University in New York, where a group of graduate students filed a petition for representation by the United Auto Workers union. The university challenged the petition on the grounds that the graduate students were not “employees” within the meaning of Section 2(3) of the Act.

Student Assistants Entitled to Full Panoply of Rights

In an extraordinary-but nonetheless unsurprising -decision, the three democratic members of the Board held that student assistants are entitled to the full panoply of rights provided by the Act. The lone republican member dissented. Student assistants at private universities now have the right to form unions and demand collective bargaining over their wages, benefits and other conditions of their employment. This decision overturns the Board’s 2004 Brown University decision where it found that graduate assistant students were not “employees” because they had a “predominately academic, rather than economic, relationship with their school.” Accordingly, the Board in Brown held that this “primarily educational” relationship was dissimilar to the employer-employee relationship in the workplace and that Congress did not intend for the Act to extend to the higher education system. The Board further noted in Brown that extending collective bargaining rights to teaching assistants could disrupt the educational experience for all students.

Overturning 2004 Decision

The current Board was not persuaded by the holdings in Brown. In this decision, the majority held that Brown “deprived an entire category of workers of the protections of the Act, without a convincing justification in either the statutory language or policies of the Act.” It further held that the Board “has the statutory authority to treat student assistants as statutory employees, where they perform work, at the direction of the university, for which they are compensated.”

The Board reached this decision on the grounds that an employment relationship existed between these students and the university and that statutory coverage “is not foreclosed by existence of some other, additional [educational] relationship that the Act does not reach.” Not only did the Board find that teaching assistants are statutory employees, it also Leadership Concerns continued found that research assistants fit within this definition. This specific holding overturns precedent dating back to Board’s 1972 Adelphi University decision. The Board here further found that the expansive scope of the bargaining unit was appropriate where it included bachelor’s, master’s, and Ph.D degree candidates alike. Finally, the majority decision downplayed any potential adverse effects that labor disputes could have on the educational experience of students, noting that “labor disputes are a fact of economic life” and “the Act is intended to address them.”

The Lone Dissent

In his dissent, Member Miscimarra criticized the majority’s decision and asserted that it could “wreck havoc” on students’ educations. He emphasized that the collective bargaining process would likely lead to the use of economic weapons such as strikes, lockouts and the elimination of student assistants. It is easy to envision a scenario where the negative effects of a collective bargaining dispute spill over into the lives of ordinary students, disrupting classes, exams or even the completion of their degrees.

The takeaway from this decision is that private universities across the nation must now face the very real possibility that their student assistants may attempt to unionize and soon. With the academic year just beginning for most schools, the threat of union organizing campaigns now looms large. This threat has not gone unnoticed with academic elites including Stanford University and Harvard University filing a joint amicus brief in this case arguing in favor of upholding the Brown decision. The universities warn that granting collective bargaining rights to students could lead to disruption and limit their control over course offerings, grading and curriculum and course assignments and scheduling. On Tuesday, this threat became reality.

A Victory for Labor Unions

The decision is a major victory for labor unions who have struggled to add members over the last decade. The Board’s decision provides unions with the opportunity to potentially add hundreds of thousands of new members from among the estimated 535,000 graduate students attending private institutions in the country. Union presence on campus is likely to increase this fall with unions targeting new potential members. For instance, the Service Employees International Union (SEIU) announced Tuesday that graduate students at several schools, including Duke, Northwestern and St. Louis University, “are launching a massive drive to build unions with SEIU.” SEIU reports that its “Faculty Forward” movement has “quickly grown to include more than 120,000 higher education employees.” Other unions will likely follow in its footsteps.

Preparing to Address Union Organizing Activity

It is important to note that this decision, and the Board’s jurisdiction, only extends to private institutions, such as Columbia University. While this precedent may not directly apply to public or state-owned institutions, many states have laws which model the Act and likewise permit public sector employees to form unions, negotiate with the employer, and, in some states, provide the right to strike. Moreover, the governing labor authorities in these states also follow the Board’s lead on labor decisions; consequently, rulings similar to the present decision may soon follow in these states. As a result of the Board’s decision, student assistants at private institutions, and possibly public institutions, have the right to form unions and seek collective bargaining under the Act. Time will tell the full impact this decision may have, but in the short-term, private institutions should develop and prepare a strategy for addressing union organizing activity.

About the Authors
Mark Carter is Labor Group Chair at Dinsmore & Shohl. He has a national labor practice and has testified before the United States Senate and The House of Representatives.

Samuel Long is a member of the Labor & Employment Department at Dinsmore & Shohl. He focuses his practice on counseling clients regarding labor issues.