NLRB Rules Graduate Students Are Employees with the Right to Unionize

On August 23, 2016, in Columbia University, 364 NLRB No. 90 (2016), the National Labor Relations Board (“NLRB”) ruled 3-1 that graduate students working as teacher assistants at private universities are employees with the right to unionize. The NLRB’s decision comes in response to the Graduate Workers of Columbia-GWC, United Autoworkers Union, filing a petition seeking to represent both graduate and undergraduate student assistants, as well as graduate research assistants. In its decision, the NLRB overruled its previous holding in Brown University, 342 NLRB 433 (2004), that students who taught or researched at a private university were not employees covered under Section 2(3) of the National Labor Relations Act (“NLRA”). In Brown, the NLRB reasoned that graduate assistants could not be employees under the NLRA because they primarily were students with an educational, not economic, relationship with their universities.

In Columbia University, however, the current NLRB disagreed with Brown, concluding:

[T]he Board has the statutory authority to treat student assistants as statutory employees, where they perform work, at the direction of the university, for which they are compensated. Statutory coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the Act does not reach.

The NLRB held Brown did not adequately consider the text of Section 2(3) of the NLRA in concluding the graduate assistants primarily were students.

Further, the NLRB held that asserting jurisdiction over the student assistants promotes the goals of federal labor policy because Section 7 of the NLRA encourages collective bargaining and protects workers’ full freedom to express their choice for or against collective bargaining representation. Rather than prohibiting outright student assistants from choosing whether they wish to engage in collective bargaining, permitting them the option to choose furthers the purpose of the NLRA. The NLRB held the Brown decision “deprived an entire category of workers of the protections of the Act, without a convincing justification in either the statutory language or the policies of the Act.”

As a result, Columbia graduate assistants, research assistants, and undergraduate assistants soon will vote on whether they want to be represented by the union. The NLRB’s decision is yet another example of its aggressive agenda to expand its jurisdiction and the reach of the NLRA. Private universities should prepare for possible unionization attempts of such individuals and act appropriately, including reviewing policies and procedures and having a plan in place to respond to organizing activity.

If you have a question, the St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.