Tuesday, August 23, 2016

NLRB Decides that Gradate Students can be Covered by NLRA

NLRBToday, the NLRB issued its long-awaited decision in Columbia University. As expected, the Board--in a 3-1 decision--reversed Brown University (which was just the latest in a number of cases flip-flopping on this issue) to conclude that graduate students can be "employees" under the NLRA, as long as they had a common-law employment relationship.  According to the NLRB's announcement:

 The National Labor Relations Board issued a 3-1 decision in Columbia University that student assistants working at private colleges and universities are statutory employees covered by the National Labor Relations Act. The Graduate Workers of Columbia-GWC, UAW filed an election petition seeking to represent both graduate and undergraduate teaching assistants, along with graduate and departmental research assistants at the university in December 2014. The majority reversed Brown University (342 NLRB 483) saying it “deprived an entire category of workers of the protections of the Act without a convincing justification.”

For 45 years, the National Labor Relations Board has exercised jurisdiction over private, nonprofit universities such as Columbia. In that time, the Board has had frequent cause to apply the Act to faculty in the university setting, which has been upheld by the Supreme Court.

Federal courts have made clear that the authority to define the term “employee” rests primarily with the Board absent an exception enumerated within the National Labor Relations Act. The Act contains no clear language prohibiting student assistants from its coverage. The majority found no compelling reason to exclude student assistants from the protections of the Act.

Chairman Mark Gaston Pearce was joined by Members Kent Y. Hirozawa and Lauren McFerran in the majority opinion. Member Philip A. Miscimarra dissented in the case.

Brown had focused on a test whether the grad students were primarily students or primarily employees and, to my mind, the most important aspect of Columbia was the NLRB's rejection of that test and return to the common-law test for employment. I had always thought that Brown's refusal to use the common-law test flew in the face of Supreme Court law.



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While the decision focuses on the representational and bargaining issues, it ignores some of the most challenging ULP implications of classifying GSAs as employees. Reading the decision three came to mind.

First, are graduate student councils now unlawful under 8(a)(2)? Looking at Harvard’s description of its Graduate Student Council as one example, it is difficult to see how this can continue in its present form (http://gsc.fas.harvard.edu/about) given that it certainly seems to be “dealing” with the employer.

Second, are university honor codes now subject to 8(a)(1) scrutiny? If GSAs are employees it is difficult to imagine that they would not be treated akin to employee handbooks. Looking at Washburn’s honor code that are 8(a)(1) issues everywhere. Rules against harassment, interfering with access to university programs and facilities, misrepresentation, “improper use” of university documents or records all seem to raise serious issues. Neither the majority nor the dissent discussed the implications on honor codes, the purpose the codes, and the effect of applying 8(a)(1) to them.

Third, how is 8(a)(3) to be applied? The 8(a)(3) issues are fairly obviously and largely ignored. Can the issuance of a less than satisfactory grade on the heels of an organizing campaign support an 8(a)(3) charge? If so, what would be the remedy? Can the Board order the employer to adjust the grade (as it would order an employer to adjust a discriminated against employee’s pay or position)? Will the Board need to look to Title IX for guidance?

There will be many follow up cases I suspect. And, much for those of us who student labor law to speak and write about. Happy to hear others’ thoughts.

Posted by: Joseph Mastrosimone | Aug 24, 2016 1:20:55 PM

All good questions--and I'd be curious if anyone has a sense how often they came up prior to Brown (when Stanford has the law), or the other times when the NLRB allowed grad students to be classified as employees.

Posted by: Jeff Hirsch | Aug 24, 2016 6:11:50 PM

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