NLRB Recognizes Private University Student Assistants as Employees
Landmark decision regarding the rights of student assistants at private universities to unionize
On August 23, 2016, the National Labor Relations Board handed down a landmark decision regarding the rights of student assistants at private universities to unionize and collectively bargain. Specifically, the Board addressed whether students performing services at a private university in connection with their studies are statutory employees within meaning of Section 2(3) of the National Labor Relations Act. The petition in the case was filed by Graduate Workers of Columbia-GWC, UAW, which represents both Instructional Officers and Student Research Assistants at Columbia University.
In a 3-1 ruling, the Board held that student assistants at private universities with a common-law employment relationship with their university are statutory employees under the Act. The holding applies to graduate and undergraduate student teaching assistants, including those engaged in research funded by external grants. The Board noted that Columbia University directs and oversees the teaching activities of student teaching assistants, it possesses a significant interest in maintaining control over teaching assistants whose work advances the University’s key business operation of educating undergraduate students, and it has the ability to administer corrective counseling to or remove teaching assistants whose performance it deems inadequate. This is the essence of an employer-employee relationship.
The Board’s ruling overturns its previous, 2004 ruling in the Brown University case, in which the majority found graduate student assistants were not employees under Section 2(3) of the National Labor Relations Act. In overturning that precedent, the Board rejected the reasoning of the Brown majority, specifically finding that it was wrong of that Board to focus on whether student assistants have a “primarily educational” employment relationship with their universities. Instead, the Board stressed that the focus should be on the text of the Act, which defines “employee” to “include any employee,” subject to specifically enumerated exceptions, none of which addresses students, either in general or student assistants in particular, or any private university employees.
The Board also rejected concerns raised by the Brown majority that applying the Act to student assistants would impose upon First Amendment rights or cause other problems for universities. In support of its decision, the Board pointed out that graduate assistants at public universities in California, Florida, Illinois, Iowa, Massachusetts, Michigan, Oregon, Pennsylvania, and Washington have unionized and engaged in collective bargaining without major disruption to those universities. The Board held there to be “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.”
While the sole dissenting Board member vigorously criticized the majority’s holding, the decision is not unprecedented. In fact, as recently as 2000, in its decision in New York University, the Board held that a master-servant relationship existed “when a servant performs services for another, under the other’s control or right of control, and in return for payment,” and that ample evidence existed to find that graduate assistants fell within the meaning of an “employee” under Section 2(3).
As indicated above, the Board has changed its view on this subject several times in recent years, depending on the political tilt of the majority at a given time. It is unlikely that the Columbia University holding will be the last time that the Board weighs in on this issue. For the time being, however, this decision is a major victory for unions, specifically those representing student assistants at private universities.
 The Board acknowledged that student assistants at public universities are governed by state law and not the National Labor Relations Act, however it nonetheless found them to be fair comparators.