Academic journal article Harvard Law Review

Labor and Employment Law - National Labor Relations Act - NLRB Holds That Student Assistants at Private Colleges and Niversities Are Statutory Employees Covered by the NLRA

Academic journal article Harvard Law Review

Labor and Employment Law - National Labor Relations Act - NLRB Holds That Student Assistants at Private Colleges and Niversities Are Statutory Employees Covered by the NLRA

Article excerpt

LABOR AND EMPLOYMENT LAW--NATIONAL LABOR RELATIONS ACT-NLRB HOLDS THAT STUDENT ASSISTANTS AT PRIVATE COLLEGES AND UNIVERSITIES ARE STATUTORY EMPLOYEES COVERED BY THE NLRA.--The Trustees of Columbia University, 364 N.L.R.B. No. 90 (Aug. 23, 2016).

The National Labor Relations Board (NLRB or Board) has long been criticized for failing to consider empirical evidence when making decisions with broad policy implications. (1) One such decision was the NLRB's 2004 ruling in Brown University (2) that graduate student assistants were not employees under section 2(3) of the National Labor Relations Act (3) (NLRA or Act), thus denying student assistants the protections of the NLRA and the permission to bargain collectively. (4) Recently, in Trustees of Columbia University, (5) the Board overturned this precedent, holding that student assistants working at private colleges and universities are statutory employees covered by the Act. (6) Notably, Columbia University explicitly disavowed Brown University's failure to weigh empirical evidence (7) and underscored its own efforts to do so. (8) Although the NLRB should be applauded for its discussion of empirical evidence in Columbia University, its use of empirical evidence in this decision and others raises significant risks that, until acknowledged, undermine the Board's credibility.

On December 17, 2014, Graduate Workers of Columbia-GWC, UAW filed a petition seeking to form a union representing all student employees serving as instructors and research assistants at Columbia University (Columbia or University). (9) On January 12, 2015, the NLRB regional office issued an Order to Show Cause, asking why the petition at issue should not be administratively dismissed without a hearing based on the precedential authority of Brown University. (10) Petitioners argued that Brown University should be overruled and that, regardless, several facts distinguished the instant case. (11) The NLRB regional office, relying on Brown University, administratively dismissed the petition on February 6, 2015. (12) The Graduate Workers of Columbia petitioned for review of the dismissal.

On March 13, 2015, the NLRB granted the petition for review and remanded the case for a hearing. (13) Because Brown University held that graduate assistants--a term that encompasses individuals that the petitioner sought to represent--are not "employees" within the meaning of section 2(3) of the NLRA, the NLRB regional office concluded that Brown University's broad holding constrained its decision. (14) Therefore, the regional office dismissed the petition. (15) Petitioners then appealed to the NLRB.

Reviewing the decision of the regional office, a panel of the Board (16) reversed and remanded the dismissal, holding that student assistants with a common law employment relationship to a university are covered by the NLRA as employees. (17) The panel considered decades of Board precedent (18) on the issue of collective bargaining at private universities and overruled Brown University. (19) First, the panel held that the Brown University Board erred in its statutory interpretation of section 2(3) of the Act because student assistants are common law employees and because the Act does not require that an employment relationship must be primary over any other relationship that exists between the employer and the employee. (20) Therefore, any exception to coverage under the NLRA would require "compelling statutory and policy considerations." (21) Second, the panel concluded that statutory coverage of student assistants would promote, rather than upset, the goals of federal labor policy. (22) Rejecting the Brown University Board's idea that the panel has discretion to decide whether to extend collective bargaining rights or not, the Board found that the separate-but-overlapping concerns of education and employment do not preclude application of the NLRA. (23) Moreover, the panel held that student assistants' collective bargaining would not infringe upon First Amendment academic freedom. …

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