The National Labor Relations Board (NLRB) has decided that graduate and undergraduate student teaching and research assistants who perform paid duties at private colleges and universities are employees with the right to form unions and negotiate collective bargaining agreements.
In a case deciding petitions filed by student assistants at Columbia University and at The New School, both located in Manhattan, the NLRB ruled on August 23, by a 3-1 vote, that in its view collective bargaining between a university and its students, and all the resultant union activities on campus, can co-exist in an educational setting.
In doing so in a 34-page decision, the Board rejected and overturned its own prior decision in a 2004 Bush-era case involving Brown University, like Columbia an Ivy League school. The Board went back to its earlier holding that student assistants were employees in a 2000 New York University case that had been overruled in the Brown case. Student teaching assistants at public colleges and universities have long had the right to unionize.
“We have decided to overrule Brown University,” the Board explained, “because, in our view, the Board erred as to a matter of statutory interpretation … [and] deprived an entire category of workers of the protections of the Act, without a convincing justification in either the statutory language or the policies” of the National Labor Relations Act (NLRA).
The NLRB has five Members appointed by the President to 5-year terms with Senate consent, and is responsible for conducting elections involving union representation and deciding cases that involve federal labor law. It often overrules its own decisions when the membership changes and a different political party controls the majority. At present one seat is vacant. The three Members who voted to overrule the Brown decision are all Democrats appointed by President Obama: Chairman Mark Gaston Pearce, Kent Y. Hirozawa, and Lauren McFerran.
“We are workers as well as students,” according to the student organizing group at Columbia, Graduate Workers of Columbia GWC, UAW. “The NLRB clearly recognizes the increasingly indispensable role we play in carrying out Columbia’s world-class research and teaching missions—we teach hundreds of classes and help bring in roughly $1 billion in research grants each year.” The student organization is affiliated with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL–CIO (UAW), which supported the litigation. The union welcomed the NLRB decision as a “landmark” and “sweeping”.
In interpreting who is an “employee” under Section 2(3) of the National Labor Relations Act, the Board followed the 1995 decision of NLRB v. Town & Country, in which a unanimous U.S. Supreme Court held that “The ordinary dictionary definition of ’employee’ includes any ‘person who works for another in return for financial or other compensation.” The NLRA itself broadly defines “employee” as “any individual employed by an employer.”
In opposing the students’ petition to the NLRB, Columbia argued that “the economic and inherently adversarial model of collective bargaining under the NLRA is not appropriate” for an educational setting. “The teaching and research performed by graduate student assistants at Columbia is an integral part of the academic program, and the relationship of those students with the university is primarily, if not entirely, educational.”
Board Member Philip A. Miscimarra, the only Republican Board member, wrote a dissenting opinion. He stated that for students enrolled in a college or university, “their instruction-related positions do not turn the academic institution they attend into something that can fairly be characterized as a ‘workplace.’ … I believe collective bargaining and, especially, the potential resort to economic weapons protected by our statute fundamentally change the relationship between university students, including student assistants, and their professors and academic institutions.”
Bringing union strikes and lockouts, and the permanent replacement of striking students, to private college campuses “will wreak havoc,” Miscimarra predicted.
Columbia, founded in 1754 and one of the nation’s oldest private institutions of higher education, has approximately 30,000 students including 8,500 undergraduates and 21,500 graduate students. The New School, founded in 1919, has 6,752 undergraduate students and 3,328 graduate students.
Unless the new NLRB ruling is invalidated by a court, or by Congress, the Columbia decision will impact all private colleges and universities throughout the United States. There are 1.7 million graduate students in the United States. A small fraction — about 2 percent — are represented by unions, nearly all of them at public universities, which are governed by state, instead of federal, labor laws.
No date has been set yet for an election to be conducted at Columbia so that eligible student assistants can vote on whether or not they wish to form a union.