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August 24, 2016 Client Alert

Teaching Assistants at Private Universities May Unionize Under the National Labor Relations Act

On August 23, 2016, in Columbia University, the National Labor Relations Board (NLRB) extended collective bargaining rights to teaching assistants at private universities, allowing them to collectively negotiate with their university employers regarding terms and conditions of employment. The NLRB overruled its 2004 Brown University decision, which denied teaching assistants the right to unionize because they were found to be primarily students with an educational, not economic, relationship to their university. Unlike private universities, teaching assistants at public universities are protected by state labor laws, not the National Labor Relations Act (NLRA).

In a 3-1 Board decision, the Graduate Workers of Columbia-GWC, UAW, which currently represents more than 35,000 graduate workers at 45 campuses, won the right to represent both graduate and undergraduate teaching assistants, as well as graduate research assistants. According to a statement released by UAW, “[a]t Columbia, graduate workers also help bring in nearly $1 billion annually in grants and contracts. . . . at the same time, graduate workers face constant insecurity and unpredictability of working conditions – growing teaching loads, late pay, unreliable health benefits and sexual harassment, with little meaningful recourse.”

In Columbia University, the Board took an expansive view of the NLRA’s protections and ruled that student assistants who are common-law employees are covered by the NLRA and have the right to unionize. The Board explained that “[e]ven when [the payment of compensation] may seem comparatively slight, relative to other aspects of the relationship between worker and employer, the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship for purposes of the [NLRA].”

This decision relied, in part, upon recent survey-based research indicating that academic freedom and faculty-student relationships would not suffer with unionization, as well as examples of public universities successfully negotiating with teaching assistants while maintaining their dual roles as educator and employer. As noted by the Board, some public universities have included language in their graduate-assistant collective bargaining agreements giving management rights concerning courses, course content, course assignments, exams, class size, and grading policies. The Board emphasized the need for a “compelling” reason—in theory or in practice—to rule against providing teaching assistants with such rights and the lack of any evidence that unionization would “seriously” interfere with higher education.

Columbia University’s argument that certain classifications of teaching assistants (e.g., master’s and undergraduate assistants) were temporary employees rather than common-law employees was rejected because finite tenure alone cannot be a basis on which to deny bargaining rights. Many of the teaching assistants averaged only about two (not necessarily continuous) semesters of work. The key consideration for the Board is whether and to what extent teaching assistants’ tenure affects their community of interest with the bargaining unit or their ability to engage in meaningful bargaining.

While we anticipate that this decision will be appealed, private universities should consider evaluating whether their various classifications of teaching assistants qualify as employees under common law.

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