NLRB’s Graduate-Assistant Ruling: Bad News for Administrators and Students

September 07, 2016

Nicole Bengiveno, The New York Times, Redux
Grad students who work at Columbia U. will be allowed to unionize.

The National Labor Relations Board’s recent decision regarding graduate students at Columbia University has been lauded by labor unions and graduate assistants at private institutions as a clear endorsement of their perception of themselves as workers, not students. Academic administrators, however, have little to applaud about the board’s decision, which will have a profound and unfortunate effect on private higher education as we know it.

For decades, the NLRB held that students who perform services related to their educational programs have a primarily educational, not economic, relationship with their institutions. Then, in 2000, the Democratic-dominated board ruled that certain graduate assistants at New York University were employees within the meaning of the National Labor Relations Act.

Four years later, the Republican-dominated board reversed the NYU decision in a case involving Brown University, holding that because student assistants had a primarily educational relationship with their institutions, they were not considered employees within the meaning of the federal law.

The Columbia decision, issued on August 23 by a vote of 3 to 1 by the Democratic-dominated board, changed the landscape of higher education once again by broadly ruling that any student assistant at any private college who qualifies as a "common-law employee" is covered by the NLRA. The standard for determining common-law status is that the student must simply provide services for the institution, under its control, for compensation.

The sweep of that decision is breathtaking, encompassing undergraduates, master’s students, and Ph.D. candidates. And it foreshadows even greater intrusion into the academic setting, because its language is broad enough to cover virtually any student activity for which the student receives a stipend or honorarium and provides "services" to the institution, under its control. It will not be long before scholarship athletes, orchestras that receive stipends for performing at university concerts, and other student groups claim the right to organize because they are "common-law employees" under the board’s blanket definition.

Last year the NLRB declined to assert jurisdiction in a case brought by football players at Northwestern University, without deciding if they were employees. It left the door open for consideration of the status of student-athletes (and others) in future cases. Now the Columbia case has opened the door much wider.

It won't be long before scholarship athletes, student orchestras, and other student groups claim the right to organize.
This decision poses a clear threat to the academic freedom of private institutions because it will force them to engage in bargaining about core academic decisions that have no legitimate place at the bargaining table. It will transform unionized institutions into NLRB-regulated workplaces based on guidelines forged on the factory floor, not in the academy. A few examples will illustrate the threat:

  • Unionized students will be entitled to strike, to be locked out, and to be permanently replaced during strikes. The board ignored the Supreme Court’s 1980 recognition in NLRB v Yeshiva University that "the principles developed for use in the industrial setting cannot be ‘imposed blindly on the academic world.’ "
  • The scope of bargaining between students and universities remains undefined. Will "workload" issues such as how many papers teaching assistants have to grade in a course, or how many sections they have to teach, be subject to bargaining? Will uniform financial aid for graduate students, regardless of their activities in any given semester, now be subject to bargaining as wages because they serve as assistants in some semesters?
  • The NLRB simply said that it would decide those and related questions in unfair-labor-practice proceedings "on a case-by-case basis," a process that will take years — long after the students involved in the dispute will have left their institutions.

  • The board rejected the argument that students who are awarded teaching and research assistantships as part of their degree requirements should not be treated as employees. Many institutions provide extensive financial aid to graduate students in the form of stipends, tuition remission, and health insurance, among other benefits. Ignoring the essential fact that serving an assistantship is typically a curricular requirement, the NLRB held that because the stipends specify that the student must periodically serve an assistantship to retain the stipend, the stipend is a "wage," and the student is therefore a "common-law employee."

This holding applies, for example, to research assistants whose very purpose in obtaining the doctorate is to spend time in the lab performing research leading to an original dissertation. The consequence is that institutions whose research assistants become unionized will have to bargain about such issues as how many hours students spend doing research, whether they should receive overtime, what projects they can be assigned to, and whether their course of research can be modified.

No NLRB decision has ever required institutions to bargain about the essence of students’ curriculum. The result, for the first time in history, will be that doctoral candidates at unionized institutions whose programs principally involve research (typically in the hard sciences) will now have to join a union or pay an agency fee in order to get a Ph.D.

As the dissent pointed out, the rules of the NLRB will now be applicable to all colleges that have student assistants, regardless of whether they are unionized. This means that the NLRB can strike down standard campus rules and policies on such subjects as civility and respect, because the board has repeatedly held that such rules violate the law in the private sector. They are deemed illegal because "employees" may construe them as restricting their right to engage in insulting and demeaning behavior toward their employer or their supervisors relating to work issues.

We will now see unfair labor-practice charges filed by individual, nonunionized students claiming that some act of academic discipline for violation of common-sense rules was unlawful and must be rescinded because the student was acting in her capacity as a teaching or research assistant while complaining about a faculty member or a work-related policy at the institution.

These concerns identify real-life issues that college administrators must be prepared to confront. And they must be prepared to confront them quickly and decisively. Once a union organizing drive starts, the administration has only a few days to decide its position and respond to the NLRB. Failure to address these issues well in advance will put many institutions at a decided disadvantage.

Joseph W. Ambash is a lawyer who represented Brown University in the 2004 NLRB decision on student assistants. He filed an amicus brief on behalf of Ivy League universities, Stanford, and MIT in the Columbia case.