Tuesday, September 20, 2016

Teachers’ Assistants Now Have the Right to Unionize

In another example of the Obama Administration’s support for unions, last month the National Labor Relations Board (NLRB) held that teachers’ assistants (TAs) have the right to unionize at private universities. The decision overturns a 2004 decision in which the NLRB held that TAs do not have this right. 

The NLRB is the government agency that oversees the National Labor Relations Act (NLRA). The NLRA gives employees the right to unionize. It is a violation of the NLRA for an employer to prevent employees from unionizing, or even to prevent employees from discussing unionization. 

In determining whether TAs have the right to unionize, the question has always been whether they are considered employees or merely students? In its 2004 decision, the NLRB held that TAs should be considered students and not employees. It held that, unlike the employer/employee relationship, in which the parties have a conflicting economic relationship, the professor/TA relationship is based on mutual academic interests. It also held that allowing students to unionize would infringe upon the parties’ academic freedoms, and that the academic process is a personal one, unlike the group character of unionization and collective bargaining. 

In its 2016 decision, the NLRB reversed itself on almost all of the key issues that led it to rule the way it did in 2004. It essentially rejected the logic of the 2004 decision that being a student and being an employee are mutually exclusive. Instead, it held that whether someone is considered an employee should not be determined by some other aspect of his or her relationship with the employer, like being a student. 

The NLRB held that its decision applies to all student assistants, including graduate student assistants, undergraduate student assistants, and assistants engaged in research funded by an external grant. 

It will be interesting to see whether there is a significant increase in unionization as a result of the NLRB’s decision. There are some reasons to think that there will not be. Most unions represent employees who have been and plan to stay in their jobs for significant periods of time. TAs, conversely, generally work in their position for the relatively short periods of time that they are students. 

Moreover, TAs do not work a full-time schedule like most unionized employees. They are often hired under ad-hoc, somewhat idiosyncratic circumstances based on the needs of the professor for whom they work, which would seemingly make it difficult to know who would be a member of a bargaining unit. 

In addition to practicing labor and employment law, Ancel Glink has a long history of involvement in school law matters. Contact us if you have a question pertaining to this issue or anything else involving schools.