In its 2004 Brown University decision, the National Labor Relations Board (NLRB) held that graduate student teaching assistants were not employees because they were “primarily students” and their relationship with the University was educational rather than economic in nature. On August 23, 2016, the NLRB reversed course in its Columbia University decision and held that the unequivocal policy of the National Labor Relations Act is to “encourag[e] the practice and procedure of collective bargaining” and to “protect[ ] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.” Given this policy, coupled with the very broad statutory definitions of both “employee” and “employer,” the Board determined that it is appropriate to extend statutory coverage to students working for universities covered by the Act unless there are strong reasons not to do so. The Board was not persuaded by the Brown University Board’s self-described “fundamental belief that the imposition of collective bargaining on graduate students would improperly intrude into the educational process and would be inconsistent with the purposes and policies of the Act.” According to the Board in the Columbia University case, “[t]his ‘fundamental belief’ is unsupported by legal authority, by empirical evidence, or by the Board’s actual experience. Thus, we hold today that student assistants who have a common-law employment relationship with their university are statutory employees under the Act.”
Although the Board did state that there may be “strong reasons” not to extend the protection of the Act to students working for universities, it did not specify what those reasons might be. The Board did, however, reject Columbia’s arguments against recognizing their student workers as employees under the Act as detrimental to the pursuit of the school’s educational goals. The Board did not find compelling Columbia’s claims that collective bargaining leads to strikes, grievances over classroom assignments and eligibility criteria for assistantships. According to the Board, “labor disputes are a fact of economic life—and the Act is intended to address them.”
Importantly, in the Columbia University decision, the Board determined that a bargaining unit consisting of graduate and undergraduate teaching assistants is an appropriate unit for unionization. In other words, the Board determined that undergraduate teaching assistants fell within the broad definition of “employee” under the Act and in this case had a common-law employment relationship with the University. This determination greatly expands the potential “employees” at any private university that may now have the protection of the Act whether they unionize or not.
Perhaps referring back to its recent decision to decline jurisdiction over the grant-in-aid scholarship football players at Northwestern University, the Board did state, “[w]e do not hold that the Board is required to find workers to be statutory employees whenever they are common-law employees, but only that the Board may and should find here that student assistants are statutory employees.”