Columbia University, 364 NLRB No. 90 (August 23, 2016)

Echoing arguments made by the AAUP in an amicus brief,  the National Labor Relations Board held that student assistants working at private colleges and universities are statutory employees covered by the National Labor Relations Act. The 3–1 decision overrules a 2004 decision in Brown University, which had found that graduate assistants were not employees and therefore did not have statutory rights to unionize. In this case the AAUP filed an amicus brief with the Board arguing that extending collective bargaining rights to student employees promotes academic freedom and does not harm faculty-student mentoring relationships, and instead would reflect the reality that the student employees were performing the work of the university when fulfilling their duties. In reversing Brown, the majority said that the earlier decision “deprived an entire category of workers of the protections of the Act without a convincing justification.” The Board found that granting collective bargaining rights to student employees would not infringe on First Amendment academic freedom and, citing the AAUP amicus brief, would not seriously harm the ability of universities to function. The Board also relied on the AAUP amicus brief when it found that the duties of graduate assistants constituted work for the university and were not primarily educational.

This case arose when the United Autoworkers sought to organize student employees who provide instructional services, including graduate assistants, at Columbia University. In opposing the efforts to unionize, the University argued that graduate assistants are not “employees” under the National Labor Relations Act (NLRA) and therefore do not have statutory rights to choose whether to be represented by a union. In doing so the University relied on a 2004 decision by the Board in Brown University, 342 NLRB 483, which held that graduate student assistants who perform services at a university in connection with their studies are not statutory employees under the NLRA.

The NLRB Regional Director initially dismissed the election petition, without a factual hearing, finding that it sought an election among graduate students who are not employees pursuant to the Board's decision in Brown. The union appealed and the Board remanded the case for hearing so that evidence could be presented that would allow the Board to reconsider the Brown decision. A twelve-day hearing was held before an NLRB hearing officer in New York City. The Regional Director issued a decision on October 30, 2015, which included lengthy factual findings regarding the duties and compensation of graduate assistants at Columbia University. Nonetheless, the Regional Director dismissed the election petition, stating “I conclude that I am constrained by Brown, which holds that graduate assistants are not ‘employees’ within the meaning of Section 2(3) of the Act. Because the Petitioner seeks to represent individuals employed in classifications which fall within the term, ‘graduate assistants,’ Brown is controlling.”

The Union appealed to the National Labor Relations Board, and on December 23, 2015, the Board granted the request for review. On January 13, 2016, the Board issued a Notice and Invitation to File Briefs inviting amici parties to address one or more of four questions. Two of the questions directly addressed the Brown decision: “1) Should the Board modify or overrule Brown University, 342 NLRB 483 (2004), which held that graduate student assistants who perform services at a university in connection with their studies are not statutory employees within the meaning of Section 2(3) of the National Labor Relations Act? 2) If the Board modifies or overrules Brown University, supra, what should be the standard for determining whether graduate student assistants engaged in research are statutory employees, including graduate student assistants engaged in research funded by external grants? (See New York University, 332 NLRB 1205, 1209 fn. 10 (2000) (relying on Leland Stanford Junior University, 214 NLRB 621 (1974)).”

The AAUP decided to file an amicus brief in this case in keeping with its long history of support for the unionization of graduate assistants. The AAUP has previously filed numerous amicus briefs arguing that graduate assistants are employees with rights to unionize under the NLRA, has issued statements affirming the rights of graduate assistants to unionize, and has an active committee on graduate students and professional employees that represents the interests of graduate students.

The AAUP brief in this case addressed the two questions involving the Brown decision. The brief argued that graduate assistants, including those working on federal grant funded research, are employees with the right to unionize under the NLRA and it refuted the Brown decision’s speculative claims that collective bargaining would compromise academic freedom and the cooperative relationships between faculty mentors and their graduate student mentees.

The brief cited three reasons why graduate student assistants perform work in return for compensation and are thus employees under the Act. First, when graduate students work as teaching and research assistants, their work is similar to that performed by university faculty. Second, graduate students teach because they are paid, not because it is at the core of graduate education. Third, universities generally treat any stipend as payment for teaching or supporting the professor’s research, not as general financial support to enable the graduate student to attend class or conduct his or her own dissertation research.

In its decision, the Board held that graduate assistants, and other student teaching and research assistants, were employees with a right to unionize. In doing so the Board echoed arguments made by the AAUP and specifically cited the AAUP amicus brief. First the Board found, as AAUP had argued, that the unionization of graduate students would not infringe upon First Amendment academic freedom. The Board explained that “there is little, if any, basis here to conclude that treating employed graduate students as employees under the Act would raise serious constitutional questions, much less violate the First Amendment.” (Id. at 7.)

The Board next found that experience with graduate student unions, primarily in the public sector, had demonstrated that unionization did not seriously harm the ability of universities to function. The Board stated,

As AAUP notes in its amicus brief, many of its unionized faculty chapters’ collective-bargaining agreements expressly refer to and quote the AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure, which provides a framework that has proven mutually agreeable to many unions and universities. (Id. at 10, footnote 82.)

Therefore, the Board found that “there is no compelling reason—in theory or in practice—to conclude that collective bargaining by student assistants cannot be viable or that it would seriously interfere with higher education.” (Id. at 12.)

Finally, the Board also found that the duties of teaching assistants constituted work for the institutions. The Board noted that “teaching assistants frequently take on a role akin to that of faculty, the traditional purveyors of a university’s instructional output.” In doing so, the Board again cited to the AAUP’s amicus brief.

As the American Association of University Professors, an organization that represents professional faculty—the very careers that many graduate students aspire to—states in its brief, teaching abilities acquired through teaching assistantships are of relatively slight benefit in the attainment of a career in higher education. (Id. at 16, footnote 104.)