Wednesday, February 7, 2018

Organizing Update: Not So Fast – The NLRB Decision Permitting Student Employees To Organize May Be Overturned

Student employees at private universities have generally been excluded from organizing and forming a union. Until 2016, the National Labor Relations Board (“NLRB”) held that private university student employees were not considered “employees” under the National Labor Relations Act (“the Act”) because the relationship with their respective institutions is primarily educational in nature. In 2004, the NLRB decided Brown University and held such graduate assistants did not have the right to unionize under the Act because they had a predominantly academic, rather than employment, relationship with the university. That decision served as the central reason student employees at private universities were prevented from organizing.

But that all changed under President Obama’s administration. In Columbia University, a 2016 decision issued by the NLRB that was stacked with Obama appointees, the NLRB overruled that precedent and found student graduate assistants to be statutory employees, and therefore eligible to organize. The NLRB effectively reversed Brown University and held that graduate-student assistants at Columbia University were employees, and therefore, could vote on whether to form a union. At Columbia, the United Automobile Workers (“UAW”) union ultimately organized more than 2,000 graduate assistants. And, the 2016 Columbia University decision opened the door wide for student-employees to unionize. Under the new standard, any student found to be a common-law employee of a university will be an “employee” under the Act, with all of the rights that encompasses.

The issue, however, is far from settled. Columbia University is now refusing to bargain with the UAW. While there is no right to a direct appeal of NLRB decisions in representation cases, UAW may be forced to file an unfair labor practice which could then lead to a review of the NLRB’s prior decision permitting student employees to organize. Now that President Trump is in office and has filled the NLRB with management friendly members, it would be no surprise if the 2016 Columbia University decision is revisited and ultimately reversed.

This will be an interesting case to watch because the case has major, nationwide implications for private universities and colleges who utilize student employees. Notwithstanding, colleges and universities should not sit back and wait for a decision. Rather, colleges and universities should examine the types of positions student employees hold, determine a position on union organizing, and develop and implement a proactive strategy for union organizing. We will keep you apprised of any developments regarding student employee organizing. Please let us know if you have any questions or need assistance in developing a union organizing strategy.