Labor Board Withdraws Proposed Ban on Student Workers Organizing at Private Colleges and Universities | Jackson Lewis CP


The National Labor Relations Board (NLRB) withdrew the rule he proposed in September 2019 to exclude student workers at private colleges and universities from coverage under the National Labor Relations Act (NLRA).

The proposed rule provided:

Students who render services, including but not limited to teaching or research assistance, at a private college or university as part of their undergraduate or graduate studies are not employees within the meaning of Article 2(3) of the [National Labor Relations] Act.

In his withdrawal noticethe NLRB said:

The Commission has decided to withdraw this rulemaking process based on its judgment regarding the most effective allocation of the Commission’s limited resources at this time. In light of the agencies’ competing priorities, the Board has decided to focus its time and resources on resolving ongoing cases.

Additionally, as Chairman Joe Biden will appoint the majority of the NLRB after member William Emanuel’s term expires in August 2021, the NLRB Columbia University, 364 NLRB No. 90 (2016), the ruling treating student workers as employees will continue to be the key precedent in efforts to organize graduate students, resident assistants, and other student workers.

Review of the NLRB’s treatment of working students

The NLRB has repeatedly changed its position on the status of student workers under the NLRA. The NLRB first asserted jurisdiction over private colleges and universities in Cornell University, 183 NLRB 329 (1970). Shortly after, in University of Adelphe, 195 NLRB 639 (1972), the NLRB ruled that graduate student assistants are primarily students and should be excluded from a bargaining unit of regular faculty. Later in Leland Stanford Junior University, 214 NLRB 621, 623 (1974), the NLRB went further, concluding that graduate student research assistants “are not employees within the meaning of section 2(3) of the Act”. She found that research assistants were not statutory employees because, like assistants who graduated from University of Adelphe, they were “mainly students”.

Until 2000, the NLRB maintained that student workers were not employees within the meaning of the NLRA. Then in New York University, 332 NLRB 1205 (2000), the NLRB backtracked and ruled for the first time that some college graduate student assistants were statutory employees. He stated: “[A]There is ample evidence to conclude that graduate assistants clearly and literally fall within the meaning of ’employee’ as defined in Article 2(3)”.

Just four years later, the NLRB returned to its previous position. He held in Brown University, 342 NLRB 483 (2004), that teaching assistants, research assistants and graduate student supervisors in the bargaining unit sought were not statutory employees. The NLRB held that “graduate student assistants, who provide services at a university as part of their studies, have a primarily academic rather than economic relationship with their school” and therefore, “[are] not employees within the meaning of the Act.

Twelve years later, the NLRB has again changed its position on the status of student workers. In Columbia University, the NLRB canceled brown university and determined that an employment relationship may exist under the NLRA between a private college or university and its employee, even when the employee is concurrently a student. The NLRB observed that “statutory coverage is permitted under an employment relationship; it is not foreclosed by the existence of another supplementary relation that the [NLRA] does not reach. Thus, the NLRB stated that an individual “can be both a student and an employee; a university can be both the educator and the employer of the student.

Colombia University is the current law on the status of working students as “employees” under the NLRA.

Consequences

A new wave of student organizations is expected. Some unions had withdrawn their petitions under the Trump administration, rather than risk the overthrow of the NLRB Columbia University. These unions could resume their efforts, which began before the 2016 presidential election but largely remained dormant after the inauguration of President Donald Trump.

After Columbia University, many schools have examined their relationship with student assistants. Some have noted significant variations in the treatment of student assistants in different disciplines and have begun to question whether such variations should continue. Others have revised their position on health insurance coverage, guaranteed benefits and student housing. Some schools have sought to create new lines of communication and opportunities for student assistants to interact with faculty and administrators. The COVID-19 pandemic has introduced another layer of complexity into these relationships.

As schools prepare for a return to a more traditional school setting in the fall, they may want to consider the following steps to address concerns student workers often raise and prepare for possible union organizing:

  • Review the policies, procedures and terms and conditions of the teaching, research and administrative duties of student assistants;
  • Review or consider implementing an internal process for student assistants to raise issues and the institution’s response to those issues; and
  • Train deans and other academic officials to ensure they understand the legal parameters of the NLRA.
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