New School Year Brings New Bargaining Units—NLRB Rules That Student Teaching Assistants Can Unionize

For higher education institutions, the end of summer is typically focused on the details and challenges of beginning a new school year. However, courtesy of the National Labor Relations Board (NLRB or Board), private higher education institutions now have something else to consider—the potential that student teaching assistants can now organize into unions for collective bargaining purposes. In a landmark decision issued last week, the NLRB ruled that graduate and undergraduate teaching assistants at private higher education institutions have the right to unionize. By a 3 to 1 vote in Columbia University, 364 NLRB No. 90 (Aug. 23, 2016), the Board majority overturned Brown University, 342 NLRB 483 (2004), in holding that student teaching assistants qualify as employees under the National Labor Relations Act (NLRA).

While the Board is known to flip-flop on divisive issues based on its partisan makeup, no topic better demonstrates this than the Board’s ever-changing position on the status of student teaching assistants. Indeed, Columbia University is the Board’s third go at the issue in the last 20 years. The Board first directly addressed the status of student teaching assistants in New York University, 332 NLRB 1205 (2000), (NYU). There, the Board reasoned that the broad statutory language of Section 2(3) of the NLRA (i.e., “the term employee shall include any employee”); the lack of any exclusion for graduate assistants in the statute; and the fact that the assistants qualified as “common law” employees (i.e., they were compensated for services performed at the direction and control of NYU), led to the conclusion that the university’s graduate assistants, although students, were also employees for purposes of the NLRA.

Approximately four years later the Board reached the opposite conclusion in Brown University. In overturning NYU, the majority in Brown University reasoned that the NLRA was “designed to cover economic relationships,” and that the university’s relationship with its graduate assistants was “primarily educational.” It went on to note that a change in emphasis from quality education to various collective bargaining issues would prove detrimental to both labor and educational policies.

Last week, and more than a decade after Brown University, the Board majority in Columbia University flatly rejected the reasoning of Brown University, stating that it “deprived an entire category of workers of protections of the [NLRA].” It went on to readopt the reasoning of NYU, and further held that the protections of the NLRA applied to all student teaching assistants—including undergraduates and those student teaching assistants engaged in research funded by external grants. 

Under Columbia University, numerous new bargaining units, including micro-units, of student teaching assistants may soon develop at private universities across the county. In addition, and as dissenting Board Member Miscamara noted, the Board’s decision will likely lead to universities and student teaching assistants utilizing various economic weapons against one another—including strikes, lockouts, and potential replacement. There are sure to be issues relating to how these tools are utilized in the academic setting and the way in which they impact students’ educational outcomes.

It is likely that the Board majority's decision in Columbia University will be challenged in the Court of Appeals. In the meantime, private universities should consider reviewing and potentially revising any student teaching assistant employment policies to ensure their compliance with the NLRA (e.g., social media, electronic communications policies). In addition, private higher education institutions should consider training supervisory employees to help address potential union organizing while avoiding violations of the law.

If you have questions about the Board’s decision, please contact Steve Kruzel at (414) 277-5645/steven.kruzel@quarles.com, David B. Kern at (414) 277-5653/david.kern@quarles.com, Michael Aldana at (414) 277-5151/michael.aldana@quarles.com, or your Quarles & Brady attorney.