Columbia University decision latest NLRB victory for unions

August 24, 2016 - by: Tammy Binford 0 COMMENTS

Colombia university campus groundsThe National Labor Relations Board’s (NLRB) ruling that graduate student assistants at private colleges and universities are entitled to unionize is the latest Board action seen as a boon to union interests.

In a 3-1 decision issued on August 23, the Board ruled that graduate assistants at Columbia University are employees as well as students and may therefore be represented by a union. The ruling overturns the 2004 Brown University decision that determined that students working as teaching and research assistants should be considered students, not employees.

Although the case doesn’t directly affect employers other than private colleges and universities, it builds on union victories such as the NLRB’s new rule shortening the time employers have to counter union campaigns, dubbed the “quickie election” rule by its detractors.

Charles H. Kaplan, a member of Sills Cummis & Gross P.C. in New York City, says the Board’s three-member majority—Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran—reasoned that just because graduate assistants are students doesn’t mean they are not employees as well.

Member Philip A. Miscimarra, the lone Republican on the Board, dissented, saying that in enacting the National Labor Relations Act (NLRA), Congress didn’t intend that the Act and collective bargaining “would be the means by which students and their families might attempt to exercise control over” the “extraordinary expense” of higher education.

Kaplan says an eventual court challenge over the Columbia University ruling is likely.

The Columbia University ruling overturns the Brown University decision, which found that graduate student assistants weren’t employees within the meaning of Section 2(3) of the NLRA. The new decision “clears the way for the organization of doctoral candidates, graduate students, and undergraduates who work as teaching or research assistants at private colleges and universities,” according to Paul J. Sweeney, an attorney with Coughlin & Gerhart, LLP in Binghamton, New York. He adds that student assistants at public universities aren’t subject to the NLRA but have long been able to unionize under various state laws.

The Board’s majority opinion says the unionization of graduate students at public higher education institutions began in 1969 at the University of Wisconsin at Madison and “now encompasses universities in California, Florida, Illinois, Iowa, Massachusetts, Michigan, Oregon, Pennsylvania, and Washington.”

Significance of decision

As to what the Columbia University decision means to employers that aren’t private colleges and universities, Sweeney says it “represents a continuation of the erosion of decades-old NLRB precedent.”

“Given that the bargaining unit may include doctoral candidates and undergraduates alike, the decision further eviscerates the requirement that a bargaining unit have a ‘community of interest,’” Sweeney says. “Similar to NLRB decisions allowing for the organization of microunits, the Columbia University decision allows for the organization of student-employees who may not share any common economic interests with other employees or who may be truly ‘temporary’ workers normally excluded from inclusion in a bargaining unit.”

Organizing graduate assistants and adjunct faculty has been “a major goal of the academic labor movement” in recent years, Kaplan says. In a number of private universities, unions can’t organize professors because many of them play a management role in the schools and therefore aren’t eligible for union membership, but graduate assistants and adjunct faculty present no such impediment.

In July, Columbia University announced a pay increase for its graduate assistants, but both Kaplan and Sweeney say that may not be enough to prevent unionization. Student assistants might think a collective voice can get them an even better deal and therefore vote to unionize, Kaplan says. Sweeney points out that a transient bargaining unit made up of students with a high student debt load may think better working conditions or more tuition relief could come from belonging to a union.

Sweeney also says teaching and research assistants at other private universities, particularly larger schools, will seek to organize for the same reasons the Columbia University student-employees cite.

“As such, and given the NLRB’s ‘quickie election’ rules, prudent private colleges and universities should consider mounting educational campaigns prior to the onset of organizational efforts by unions or interested students and making contingent plans to prevent disruptions during the academic year,” Sweeney says. “Moreover, these same employers should be wary of taking any actions against teaching and research assistants [that] union organizers will claim amount to an unfair labor practice.”

Sweeney advises private colleges and universities to consult with labor counsel in light of the new NLRB decision.

History of decisions

The NLRB’s new decision isn’t the first to say graduate assistants should be able to unionize. A timeline prepared by Inside Higher Ed cites a 2000 NLRB decision in which grad students at New York University (NYU) were deemed eligible to unionize. In 2002, NYU became the first private university to recognize a union.

In its 2004 Brown University decision, the Board reversed its 2000 ruling in New York University. That led NYU to withdraw recognition of the union. Then, teaching assistants went on strike to get NYU to restore recognition, but that effort failed. The Brown University ruling held up under other challenges until the August 23 Columbia University decision.

About Tammy Binford:
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications. In addition, she writes for HR Hero Line and Diversity Insight, two of the ezines and blogs found on HRHero.com.
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