Columbia University - NLRB
Facts: A group of Columbia University graduate students sought to join a union and collectively bargain with the University. Note, the students joined with the United Auto Workers to push for a union on campus.
Finding: The NLRB began its analysis with a nod to the fact that the primary question to be decided was whether graduate students who perform services at a university in connection with their studies are statutory employees within the meaning of the National Labor Relations Act ("Act"). In this instance, the Board pointed out that the Act does not offer a definition of "employee" itself, but "employee" has been broadly construed. The Board then turned to several prior decisions which had a direct impact on this analysis: a 1999 decision in Boston Medical Center which held that interns, residents, and clinical fellows at a teaching hospital were statutory employees entitled to engage in collective bargaining; a 2000 decision in NYU, that relied upon Boston Medical Center, in which the Board first held that certain university graduate assistants were statutory employees; as well as a 2004 Board decision in Brown University which overruled NYU and held that graduate assistants cannot be statutory employees because they "are primarily students and have a primarily education, not economic, relationship with their university."
In this decision, the Board disagreed with Brown University and held that graduate students can be treated as statutory employees under the Act, where they perform work, at the discretion of the university, for which they are compensated. The Board was unmoved by the argument that the imposition of collective bargaining on graduate students would improperly intrude into the educational process and be inconsistent with the purposes and policies of the Act. Instead, the Board ruled that there was no legal authority to support this slippery slope argument.
In this decision, the Board disagreed with Brown University and held that graduate students can be treated as statutory employees under the Act, where they perform work, at the discretion of the university, for which they are compensated. The Board was unmoved by the argument that the imposition of collective bargaining on graduate students would improperly intrude into the educational process and be inconsistent with the purposes and policies of the Act. Instead, the Board ruled that there was no legal authority to support this slippery slope argument.
Decision: In a 3 - 1 decision, the NLRB issued a ruling that reversed a prior Board ruling from 2004 and held that and graduate students employed by private universities are employees and therefore permitted to unionize.
The Takeaway: A week or so ago, I noted that with the end of Board Member Kent Hirozawa's term coming up shortly, several pro employee rulings from the NLRB were likely by the end of August. Well, wouldn't you know it, Board Member Hirozawa joined the majority that handed down a decision earlier this week which will potentially have a far reaching impact at private universities across the country. To the surprise of few, the NLRB found that a prior Board decision from 2004 (in which the NLRB had a more employer friendly tendency) was invalid as it "deprived an entire category of workers of the protection of the Act, without a convincing justification in either the statutory language or the policies of the Act." In essence, this decision means that any student who does either research or teaching at a
private university is considered an "employee" and therefore
entitled to join a union and collectively bargain. It goes without saying that this decision has the potential to add thousands of new members to the union ranks...something that would halt the declining number of union members in the country during the past few years.
After the NLRB's decision was handed down, Columbia University issued a statement in which it disagreed with the decision and left open the possibility of an appeal. Consider how far reaching this decision could go: Private universities could now be limited in choosing who teaches a particular class, salary costs could rise, strikes could become a common occurrence on campus, etc., etc. Given the potential negative impact this could have on private universities (and the fact that every Ivy League school opposed the Board's decision), it would surprise me if Columbia University did not ultimately choose to appeal the matter.
Date: August 23, 2016
Opinion: apps.nlrb.gov/link/document.aspx/09031d45821c20d4
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