NAICU Washington Update

NLRB Provides Expansive Ruling on Student Unionization

September 06, 2016

The National Labor Relations Board (NLRB) has explicitly overruled the precedent established in the Brown University case in 2004 that graduate student teaching assistants are not employees under the Fair Labor Standards Act (FSLA). In its ruling, the Board went even farther, and also overturned a precedent (Leland Stanford) in place since 1974 that graduate research assistants are not employees under the FLSA. And finally, the Board ruled that undergraduate students employed by their college or university are also employees eligible to form or join unions.

The key to the majority’s ruling is that anyone who is compensated for work done under the direction of an employer is an employee under the FLSA (except for some job titles that are specifically excluded by the statute). The fact that they are also students does not affect that employee status, according to the decision.

NAICU had joined ACE, AAU and several other associations in an amicus brief to the Board supporting Columbia’s position that its graduate students were not eligible for collective bargaining. The brief argued that reversing the existing precedents “will unsettle fundamental relationships in higher education in the U.S. and adversely impact the ways in which universities address basic issues in graduate student education… [and] intrude upon academic freedom and the relationship between university professors and their students.”

The next step will be an election at Columbia in which all the students in the proposed bargaining unit will be eligible to vote on whether they want to form a union. If a majority vote in favor of a union, Columbia must then decide either to enter contract negotiations with the new union, or refuse and begin a process of appeal first to the NLRB and then to the federal appellate courts. Even if Columbia decides to negotiate, unionization efforts are under way at about a dozen universities, and any of those institutions could decide not to negotiate and begin its own appeals process in the courts.

The possible inclusion of undergraduates in new unions opens up new and unfamiliar territory. While the brevity of their employment status would make it very difficult to organize an undergraduate-only union, the NLRB has now said they may be included in a primarily graduate student bargaining unit.

Two other factors are often mentioned in news reports and debates about graduate student unions: 1) some states allow students at public universities to form unions under state laws governing collective bargaining by public employees; and 2) few private institutions—most prominently New York University—have chosen not to resist graduate student unions and have negotiated contracts with them.

One more potential complication for institutions comes from a 2011 NLRB decision (Specialty Healthcare) that allows for very small bargaining units. It is possible that in the future institutions could face a union of Sociology Department teaching assistants affiliated with the U.A.W., another union of Chemistry Department research assistants represented by the A.F.T., and a History Department union connected to the Communication Workers adding to both the complexity and unpredictability of this ruling.

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