NLRB May Let Teaching Assistants Organize

By Allen Smith Nov 6, 2015
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Teaching and research assistants may be young and also students, but make no mistake about it, they view themselves as employees who should have the right to unionize. And now they have a powerful ally—the National Labor Relations Board (NLRB).

Despite criticism on Capitol Hill that it is too activist, the NLRB has announced it will review whether teaching and research assistants at private institutions for higher education are employees covered by the National Labor Relations Act (NLRA).

Most board observers assume that the NLRB will overrule existing board law and decide that teaching assistants are employees who may unionize.

A 2004 NLRB decision (Brown University, 342 NLRB 483) found that graduate student teaching assistants, research assistants and proctors are not covered by the act.

Undaunted by this precedent, a unit of student teachers and research assistants at The New School in New York City petitioned on Dec. 17, 2014, to organize. Relying on Brown University, an NLRB regional director ruled on July 30, 2015, that the graduate students were not employees within the meaning of the NLRA.

But in an Oct. 21, 2015, order, the NLRB granted review of the regional director’s decision.

Brown in Jeopardy

“Nearly every observer who follows the board believes it is likely that Brown will be overturned,” said Daniel Johns, an attorney with Ballard Spahr in Philadelphia.

While three board members approved review of the regional director’s ruling, Board Member Philip Miscimarra dissented. Except for a brief period from 2000 to 2004 following a 2000 board decision that graduate student assistants are employees, “the prevailing view for more than 40 years has been that graduate student assistants are not statutory employees,” he asserted.

Miscimarra added that the functions performed and benefits received by graduate student assistants at The New School “are closely related to the education of the student assistants and to the school’s academic mission.”

Michael Lotito, an attorney with Littler in San Francisco, agreed that the board’s announcement means the board is likely to reverse Brown.

“It means graduate students who teach [and assist in research] will be eligible to be unionized, expanding the potential pool of people who ‘qualify’ for collective bargaining,” Lotito added. “This, combined with adjunct faculty organizing, makes colleges and universities hotbeds for organizing.”

Julie Kushner, director of UAW (United Auto Workers Union) Region 9A in Farmington, Conn., which is seeking to organize The NewSchool teaching assistants, said that the board’s announcement was not a surprise, but that the UAW was “still very excited.” She called the announcement “a real positive step for workers. We always thought Brown was bad law. It was a very political decision.”

The NLRB is often accused of issuing political decisions, as it is split along partisan lines, and has flip-flopped on some issues depending on which political party has control of the board. Now that the Democrats have control of the board, they likely will overturn Brown, which was issued by a Republican-controlled board.

The UAW has more than 390,000 active members and 600,000 retired members in virtually every sector of the economy. The union has 703 retiree chapters, and 750 local unions.

The graduate student workers at The New School want to organize for reasons that may sound familiar to those in labor relations, Kushner noted. Such issues include concerns about the cost of health care, how much they are paid and whether there are grievance procedures in place, plus the desire to obtain collective bargaining rights in writing, she mentioned.

The fact that teaching assistants are mostly young people does not mean they aren’t employees, she noted. They teach, conduct research and do administrative duties—all of which would be considered work in any other setting.

She added that graduate assistants at many public universities already have the right to organize. The NLRA does not cover government employees, but some of them have greater rights under state law than federal law.

Josephine Parr, director of communications for The New School, released the following statement: “Our graduate teaching and research assistants are an important and valued part of The New School community, and we appreciate the NLRB’s continued, careful examination of the complex issues involved in this matter.”

Preparations for More Organizing

In response to the board’s indication that it will be reviewing the Brown decision, colleges and universities need to prepare for the possibility of organizing among teaching assistants, Lotito indicated.

He suggested institutions of higher education do the following:

  • Evaluate vulnerabilities to union organizing.
  • Train managers.
  • Repeatedly state to employees the value the college offers without the need to have to pay union dues.

Johns predicted that “given the ‘ambush’ election rule and the board’s recent microunit decisions, unions will have a relatively easy time organizing graduate students, and colleges will have little time to run a counter-campaign once a petition is filed. Colleges need to be thinking about these issues in advance of the filing of a petition and [a college should be] distributing its message about why a union is not in the interest of its students on an ongoing basis. If they wait until a petition [for a union election] is filed, it likely will be too late.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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