Efforts to unionize students at private universities are gaining momentum. The National Labor Relations Board (NLRB) has agreed to reconsider whether graduate students at private nonprofit colleges and universities should be treated as employees under the National Labor Relations Act. The case, New School, Case No. 02- RC-143009, involves a United Auto Workers petition to organize graduate students at New York’s New School and marks the NLRB’s latest attempt to revisit, and potentially overturn, its decision in Brown University, 342 NLRB 483 (2004). In its Brown ruling, the NLRB determined that Brown University’s graduate students could not unionize. The NLRB’s decision to review this important issue has led many to believe that a change is in the works, and private colleges and universities need to be prepared for the implications of this decision.
In Brown, the NLRB held that graduate students performing teaching and research services are not “employees” within the meaning of Section 2(3) of the National Labor Relations Act, because their relationship with the university was primarily educational. The NLRB concluded that graduate student assistants are primarily “students” rather than “employees,” because they are admitted into, rather than hired by, their universities, and because supervised teaching and research are integral components of their academic development. Accordingly, they do not need to be treated as employees for purposes of collective bargaining under Section 2(3) of the act. It should be noted that public universities are governed by state labor laws, and many states permit union formation and collective bargaining for graduate teaching assistants.
The road to reconsideration of the Brown decision has been anything but direct, and it has often been difficult to comprehend the NLRB’s evolving position on the issue. For example, as recently as Aug. 17, 2015, the NLRB unanimously declined to assert jurisdiction over whether football players at Northwestern University may form a union. The NLRB did not rule on whether the players are employees under the act, but made it a point to distinguish student athletes from graduate student workers, stating that “scholarship players do not fit into any analytical framework that the board has used in cases involving other types of students or athletes. … In this regard, the scholarship players bear little resemblance to the graduate student assistants or student janitors and cafeteria workers whose employee status the board has considered in other cases.” The NLRB’s refusal to take action in the Northwestern matter has led many to believe that it required a case involving graduate students, like New School, to overturn the Brown ruling.
The implications of employee recognition for graduate students, and perhaps other students, will likely have a broad impact on the relationship between students and their universities should the NLRB overturn Brown. Here are a few considerations as the board revisits this important issue:
The NLRB’s decision to revisit Brown is a long-time coming. The NLRB has long considered graduate students outside the scope of the National Labor Relations Act, save for a brief period from 2000 to 2004. However, the NLRB also considered a potential Brown reversal when it asked for amicus briefs in 2012, regarding a petition for graduate assistants at New York University. Before the NLRB could issue a ruling, the NYU administration opted to voluntarily recognize a UAW affiliate for the graduate assistants, agreeing to a representation election that bypassed the NLRB. Graduate assistants at NYU voted in favor of union representation and to ratify a collective bargaining agreement, and NYU remains the only private university in the nation whose graduate assistants have exclusive representation and a labor contract.
Other private universities will follow suit. Should the NLRB reverse its decision in Brown, the nation’s private higher education institutions can expect a dramatic increase in the efforts of unions to represent their graduate students involved in teaching, research and perhaps other higher education areas. Beyond New School, graduate students from other private universities have partnered with the UAW to push for union recognition, including students at Columbia University and Harvard College. On Oct.15, 2015, students at Harvard, Yale, Columbia, Cornell and other prominent universities throughout the U.S. launched a national day of action to promote graduate worker unions.
Teaching and research assistants may be covered employees under employment laws. The U.S. Department of Labor has taken the position that graduate assistants who perform teaching and research related to their course of study are considered students, rather than employees. However, if the NLRB rules that graduate teaching and research assistants are employees under the National Labor Relations Act, private colleges and universities may need to take other steps to ensure that these students receive the benefits of other employment laws, such as the Fair Labor Standards Act. This will certainly involve closer scrutiny of graduate student stipends.
It remains to be seen whether the NLRB will reverse Brown in the coming year, and if so, ultimately how far it will be extended. Of course, all this concern could go away with a new presidential administration and a different National Labor Relations Board. Regardless of the outcome of New School, it is important that private institutions prepare for a future in which graduate students seek, and potentially receive, collective bargaining and union rights.
David Felper is a partner and Anthony J. Dragga is an associate at the law firm of Bowditch & Dewey, LLP, where they are both members of the firm’s Labor and Employment and Higher Education Groups.