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Grad-Student Unions One Year after Columbia University: More to Come or a Thing of the Past?

By Michael R. Bertoncini, Susan D. Friedfel, Monica H. Khetarpal and Philip B. Rosen
  • August 23, 2017

In August 2016, the National Labor Relations Board reversed longstanding precedent and ruled that students “who have a common-law employment relationship with their university are statutory employees under the [National Labor Relations] Act.” Columbia University, 364 NLRB No. 90 (Aug. 23, 2016). A year later, with President Donald Trump poised to seat a Republican-majority NLRB and with Philip Miscimarra, the author of the dissent in Columbia, now the NLRB Chairman, many expect the NLRB will reverse Columbia and hold that student assistants are not employees with a right to unionize under the NLRA.

Two questions remain: Will a reversal of Columbia be the panacea many expect? What can colleges and universities do to address the concerns of student assistants outside of a collective bargaining relationship?

What Happened in the First Year of Student-Assistant Organizing?

After a year with Columbia the law of the land, there is only one private college or university with a collective bargaining agreement with a graduate-student union. However, there was a flurry of organizing activity among both graduate students and undergraduate students during the 2016-2017 academic year. Unions have filed petitions with the NLRB seeking to represent graduate students at 13 private colleges and universities. In addition, at one university, a union filed a petition to represent a unit of undergraduate resident assistants. The NLRB’s Regional Director in Region 5 directed an election in this case, but the union withdrew its petition before the election.

Will a Reversal of Columbia Stop Student-Assistant Organizing Efforts?

Several schools that faced graduate student-assistant organizing campaigns currently have their cases at various stages of review before the NLRB. Therefore, it is possible that a Republican-majority NLRB will have an opportunity during the 2017-2018 academic year to reverse Columbia. But will such a reversal mark the end of student-assistant organizing? That seems unlikely in today’s higher education environment. A return to the NLRB’s prior position that student assistants are not employees under the NLRA will mean they have no right to form a union under the NLRA, but it will not prohibit private colleges and universities from voluntarily recognizing such unions.

The last time the NLRB changed its position on this issue was when it issued Brown University, 342 NLRB 42 (2004), reversing New York University, 332 NLRB 1205 (2000), and returning to its previous rule that student assistants were not statutory employees. Unlike 2004, today we are in the midst of aggressive union organizing among adjunct and contingent faculty. At least 35 private colleges and universities saw their adjunct faculty unionize between academic years 2013-2014 and 2015-2016, and the organizing continued throughout the 2016-2017 academic year. As this trend continues, student assistants interested in organizing have ready access to like-minded faculty and union representatives for advice and support. This increased union presence on campuses and the robust student activism following the November presidential election make it likely that student assistants will be prepared to mount sustained campaigns demanding voluntary recognition of their unions. While schools may lawfully refuse such demands, they must be cognizant of how their stakeholders will react to pressure.

What Can Schools Do Now?

Columbia has prompted many schools to take a closer look at their relationship with student assistants. Some have noted significant variations in the treatment of student assistants across different disciplines and begun to explore whether such variations should continue. Others have revisited their position on health insurance coverage, guaranteed stipends, and student housing. Some schools have looked to creating new lines of communication and opportunities for student assistants to interact with faculty and administrators.

There is no one-size-fits-all approach to improving relationships with student assistants, but steps that schools can take now, in addition to the actions discussed above, include:

  • Reviewing their policies, procedures, and the terms and conditions of student-assistant teaching, research, and administrative functions;
  • Reviewing or considering implementing an internal process for student assistants to raise issues of concern and for the institution’s response to those concerns; and
  • Training deans and other academic leaders to ensure they understand the legal parameters of the NLRA.

Please contact the Labor and Preventive Practices or Higher Education Industry Group about issues concerning the National Labor Relations Act and its application to student assistants.

©2017 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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