On August 23, 2016, in a 3-to-1 decision, the National Labor Relations Board (“the Board”) overturned long-standing precedent to hold that student graduate teaching assistants are statutory employees under the National Labor Relations Act (“NLRA”). The decision, Columbia University, 364 NLRB No. 90, marks a significant change in United States labor law and raises several issues for how private colleges and universities can address a union campaign on their campuses.
In reaching this decision, the Board explicitly overruled existing precedent from Brown University. The Board criticized its decision in Brown University for focusing too heavily on the fact that graduate students had both an employment and educational relationship with their college or university. The Board in Columbia University, instead, created a new, bright-line rule that: “the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship for purposes of the Act,” regardless of whether another non-economic relationship existed between the parties. From that, the Board reasoned that the Act should cover graduate assistants “unless there are strong reasons not to do so.”
The Board found allowing student employees to unionize promoted the goals of federal labor policy without compromising academic freedom or raising serious concerns under the First Amendment. In reaching that conclusion, the Board relied on anecdotal evidence to conclude “no major disasters  have arisen because of [graduate-student] unions” in other settings and that “examples of collective bargaining in practice appear to demonstrate that economic and academic issues on campus can indeed be separated.” Moreover, the Board noted that there was no empirical evidence showing that collective bargaining would “harm mentoring relationships between faculty members and graduate students.”
The Board declined to address a number of concerns that Columbia University raised about how collective bargaining would play out, including whether student demands would interfere with academic decisions involving class size, time, length, location, and structuring exams. Instead of addressing these issues, the Board merely noted that, “the Board’s demarcation of what is a mandatory subject of bargaining for student assistants, and what is not, would ultimately resolve these potential problems.” In conclusion, the Board succinctly held:
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.
Applying its new standard to the facts of the case, the Board held that the graduate students at issue were common-law employees under the Act. According to the Board, Columbia University exercised sufficient control over the graduate assistants. Columbia University, for example, directed and oversaw the assistants’ teaching activities and the assistants were subject to corrective counseling or removal if they did not meet the University’s teaching standards.
The Board also highlighted the fact that the relationship between the parties was economic in nature. The Board, for example, noted that significant portions of the overall teaching duties conducted by universities are conducted through student assistants, and, “the delegation of the task of instructing undergraduates, one of a university’s most important revenue-producing activities, certainly suggests that the student assistants’ relationship to the University has a salient economic character.” Moreover, the Board found that the assistants received compensation in the form of either stipends or financial aid, sufficient to trigger an employment relationship.
In a strongly worded dissent, Member Miscimarra argued that the majority’s holding ignored the reality of the university setting and improperly elevated labor issues over countervailing non-employment factors. The dissent argued that the “paramount goal” for student assistants was to obtain a degree and that labor unrest could seriously undermine the educational experience.
The dissent raised a number of practical concerns – none of which the Board addressed. Among other things, the dissent questioned whether (and to what degree) the Board’s other precedents would play out in the university setting and how other federal laws (such as FERPA) would be impacted by the decision.