Unmanageable Quagmire or Elegant Distinction?

On Aug. 23, the National Labor Relations Board issued its long-awaited decision in a case involving whether graduate teaching and research assistants at Columbia University could unionize, resulting in a significant decision that overruled existing precedent on the issue. In its ruling, a majority of the board concluded that student assistants employed by private institutions of higher education can be considered employees for the purposes of organizing and collective bargaining under the National Labor Relations Act. While the decision dealt with graduate assistants, the potential impact on each institution must be assessed on a case-by-case basis. The broad ruling has potential application to both undergraduate and graduate-level teaching and research assistants and thus may have substantial ramifications.

Tracing the history of NLRB precedent, which has changed course over the years, a majority of the board reduced the analysis to its essence: Do graduate assistants function as employees as that term is understood under the labor relations act? The difficulty has been that the act does not actually define the term “employee” in a useful or precise manner and simply applies to “any employee,” subject to certain specified exceptions. And while the definition of “employee” might seem to be universal, the board has applied several different tests to define the term.

For example, in a 2000 case involving graduate assistants at New York University, it used a common law agency test. The common law agency test employs the “doctrine of the conventional master-servant relationship,” which establishes that such a “relationship exists when a servant performs services for another, under the other’s control or right of control, and in return for payment.” The NYU board held that “ample evidence exists to find that graduate assistants plainly and literally fall within the meaning of ‘employee’ as defined in Section 2(3) and by the common law.” However, as one could imagine, the difficulty in applying the common law of agency test at institutions of higher education lies in determining whether the source of that control is primarily educational rather than economic.

Thus, in another case in 2004, the board applied an economic relationship test in order to determine whether graduate assistants and researchers at Brown were employees under the act. Concluding that graduate assistants had a “primarily educational” employment relationship with their universities, the board determined that the primary purposes of the relationship were not economic in nature.

The Columbia Decision

In the recent case, upon weighing the issue of what constitutes an employee, the current board concluded that it “has the statutory authority to treat student assistants as statutory employees, where they perform work, at the direction of the university, for which they are compensated. Statutory coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the act does not reach.”

With this deceptively simple analysis, and by overturning the economic relationship test used in the Brown ruling, the board disregarded the concurrent and requisite student relationship that these graduate assistants have with Columbia. By professing the legal fiction that the existence of this concurrent relationship effectively did not matter -- or would not affect collective bargaining -- the board was able to overlook the myriad of complexities that will be created by its decision and instead relied on its analysis that its decision would further the aims of the act.

Notably, the board dropped a footnote to explain any allegations of an inconsistency between its decision in the Columbia University case to characterize graduate students as employees in order to further the aims of the NLRA and its decision in the Northwestern University case, stating:

“In Northwestern University, 362 NLRB No. 167 (2015), we denied the protections of the act to certain college athletes -- without ruling on their employee status -- because, due to their situation within and governance by an athletic consortium dominated by public universities, we found that our extending coverage to them would not advance the purposes of the act. Here, conversely, we have no reason to believe that extending bargaining rights will not meaningfully advance the goals of the act.”

NLRB member Philip A. Miscimarra criticized that seemingly straightforward analysis in a lengthy dissent to the Columbia decision in which he concluded that the board should not have reduced it to straight employer-employee analysis, given the complexities of institutions of higher education compared to industrial workplaces and the dynamics of the student-university relationship. He raised concerns about the applicability of the NLRB’s policies and procedures, noting “the best interests of students, however, necessarily revolves around whether they obtain the education that costs so much in time and money and means so much to their future. The board has no expertise regarding these issues, and Congress did not adopt our statute to advance the best interests of college and university students.”

Although the decision may be appealed, given the recent ruling, many institutions have immediately begun to examine what life would look like if student assistants unionized. The public sector may prove instructive for this analysis.

Models for the Way Forward?

The NLRB noted that unionization of and “‘collective bargaining by graduate student employees is increasingly a fact of American university life.’ Recent data show that more than 64,000 graduate student employees are organized at 28 institutions of higher education ….”

That is because state public employee relations boards -- the equivalent to the NLRB for public institutions, which do not fall under the jurisdiction of the NLRB -- have characterized student assistants as employees for the purposes of unionizing and collective bargaining.

Citing the American Federation of Teachers’ amicus brief, the board noted that “the University of Illinois, Michigan State University and Wayne State University include language in their graduate-assistant collective-bargaining agreements giving management defined rights concerning courses, course content, course assignments, exams, class size, grading policies and methods of instruction, as well as graduate students’ progress on their own degrees … these agreements show that parties can and successfully have navigated delicate topics near the intersection of the university’s dual role as educator and employer.”

Indeed, if the decision stands, the delicate balance that such public universities have struck with regard to that dual role may prove to be the way forward, but it likely does not resolve all the open questions. One example is the yet-to-be-determined impact of an economic strike on a graduate student and their ability to complete their program in the anticipated time. Indeed, in his dissent, Miscimarra notes that “Columbia University and other parties have identified cases where bargaining by student assistants ‘has proven detrimental to the pursuit of the school’s educational goals,’ with ‘strikes and grievances over teaching workload and tuition waivers’ and ‘grievances over classroom assignments and eligibility criteria for assistantships ….’”

Time will tell whether the NLRB’s procedures are the appropriate venue for resolving the concerns of student assistants. In the meantime, given the success of Adjunct Action in organizing adjunct faculty, institutions would be well served to evaluate the current nature of their relationship with student assistants and determine whether the economic and procedural remedies available under the NLRA will further the educator-student relationship or substantially alter a fundamentally academic relationship. As noted in our amicus brief, very real concerns exist about the tension between “collective bargaining under the NLRA (for the protection of the individual worker through the power of the group)” and “the type of individualized educational decision making that is necessary to mentor, guide and evaluate graduate students on their academic paths. Not only are such decisions inappropriate in the collective bargaining context, the very nature of such an adversarial economic relationship could undermine the fundamentally academic nature of the relationship between faculty members and their graduate students.”

As recognized by the NLRB in the Brown decision, the danger of characterizing graduate student assistants as statutory employees under the act is that purely academic decisions could become the subject of collective bargaining, such as course length and content, standards for advancement and graduation, and administration of exams under the broad definition of items subject to collective bargaining. For example, negotiations over whether there must be just cause for discharging a graduate student assistant will be inseparable from negotiations regarding whether a faculty member can exercise his or her discretion to determine whether a graduate student is meeting the academic requirements to continue in the graduate program.

Such decisions regarding a graduate student’s progression toward their degree and their fulfillment of academic requirements are exactly the types that faculty members must have the discretion to make on an individualized basis while exercising due concern for a student’s academic progress and career -- without being hampered by the provisions of a collective bargaining agreement. In the Brown ruling, the board noted that “collective bargaining is not particularly well suited to educational decision making and … any change in emphasis from quality education to economic concerns will prove detrimental to both labor and educational policies.” (Italics added.)

Unfortunately, such complexities will have to be sorted out with current cohorts of student assistants serving as test cases. Perhaps that risk is outweighed by the harm of the current terms and conditions under which student assistants serve. Where people stand on that issue probably depends on their general views of unionization and the specific conditions of their institutions.