NLRB Rules Grad Students Are Employees, Can Unionize
Author: David B. Weisenfeld, XpertHR Legal Editor
August 25, 2016
The National Labor Relations Board (NLRB) has held that graduate students who work as teaching and research assistants are statutory employees under the National Labor Relations Act (NLRA). The NLRB's ruling, in a case filed by a group of Columbia University graduate students, clears the way for graduate assistants to unionize and collectively bargain for better working conditions.
The NLRB's decision overturns its 2004 Brown University ruling, which held that graduate assistants cannot be statutory employees because they are "primarily students and have a primarily educational, not economic, relationship with their university."
In rejecting the Brown ruling, the NLRB explained that a graduate student may be both a student and an employee. What's more, "a university may be both the student's educator and employer." The NLRB added that permitting student assistants to choose whether they wish to engage in collective bargaining - not prohibiting it - would further the NLRA's policies
Dan Johns, a labor and employment attorney with Ballard Spahr in Philadelphia, said there is no question the NLRB's pronouncement is significant. "You will see a period of huge growth in union organizing among graduate students around the country," said Johns. He pointed out that the grad students are now quasi-employees, quasi-students.
While the ruling is receiving widespread attention, Johns suggested there was nothing surprising about the result. Noting that a Republican administration controlled the NLRB at the time of the Brown decision, he said, "Everyone knew with this Board this was going to happen. Just like Dean Wormer in Animal House, the chances of not reversing Brown were about 0.00."
But last year, the NLRB rejected an attempt by Northwestern University football players to unionize. Johns noted that the issues are distinguishable because many of the biggest universities in sports are public and, therefore, not subject to the NLRB.
In dissent in the Columbia case, NLRB member Philip Miscimarra said that for students enrolled in a college or university, their instruction-related positions do not turn the academic institution they attend into something that can fairly be characterized as a "workplace." He also called the Board's processes and procedures "poorly suited to deal with representation and unfair labor practice cases involving students."
The Columbia students are seeking union representation with the United Auto Workers so they can have a say over issues involving their health insurance, compensation and the timeliness of their stipend payments.