On August 23, the National Labor Relations Board ruled that graduate students who work as teaching or research assistants at private universities are employees with the right to unionize and collectively bargain. Its decision in Columbia University changes the landscape of higher education labor relations and provides many graduate students at private universities with more rights to determine the terms and conditions of their employment.
Flip Flopping on Grad Student Assistants
The NLRB’s approach to student assistants has shifted back and forth for nearly 50 years. It first considered the issue in a series of cases in the 1970s and concluded that the National Labor Relations Act did not include student assistants – as well as interns, residents, and clinical fellows (“house staff”) at private teaching hospitals – under its definition of “employee”. In a 1999 decision, Boston Medical Center, the Board partially reversed itself and held that house staff at private teaching hospitals were employees entitled to the full protections of the Act. The following year, the Board issued New York University, which expanded the definition of “employee” to include certain graduate student assistants. The Board reversed itself yet again four years later.
In the 2004 Brown University decision, the Board concluded that graduate assistants were not statutory employees because they were “primarily students” with “a primarily educational, not economic, relationship with their university.” However, that decision did not disturb the Boston Medical Center holding that applied to house staff at teaching hospitals. Thus, until this Tuesday, interns, residents, and clinical fellows at private teaching hospitals could unionize, but student teaching and research assistants could not. The Columbia University decision brings this discrepancy back into balance.
Educational Relationship Does Not Preclude an Economic Relationship
In Columbia University, the Board rejected the rationale underlying its predecessors’ decision in Brown University. It stated, “[t]he fundamental error of the Brown University Board was to frame the issue of statutory coverage not in terms of the existence of an employment relationship, but rather on whether some other relationship between the employee and the employer is the primary one – a standard neither derived from the statutory text . . . nor from the fundamental policy of the Act.” In reaching this conclusion, the Board relied heavily on the text of the Act, federal labor policy, and legal precedent that applies a broad definition of the term “employee”.
The Board’s analysis also dismissed the University and amici’s unsupported assertions that unionization would damage the educational process. The Board noted that over 64,000 graduate student employees at 28 public institutions are already unionized without detriment to the educational process, and that the same was true for house staff at private teaching hospitals.
Members Hirozawa and McFerran joined Chairman Pearce in the majority of the 3-1 decision, while Member Miscimarra dissented. Columbia University has not announced whether it plans on appealing the decision. Meanwhile, it will be interesting to see whether this decision leads the Board to revisit its 2015 decision not to assert jurisdiction over student athletes’ attempts to organize a union at Northwestern University.