Support through your toughest HR challenges: A network of 285,000 HR professionals.
Shawn Premer shows how doing the right thing for employees leads to positive business results.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Build competencies, establish credibility and advance your career—while earning PDCs—at SHRM Seminars in 12 cities across the U.S. this spring.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.
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).
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
“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:
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
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Please sign in as a SHRM member before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
Join SHRM's exclusive peer-to-peer social network
SHRM’s HR Vendor Directory contains over 3,200 companies