NLRB Changes Course, Rules that Student Assistants at Private Universities Have Right to Unionize

Posted by on Sep 2, 2016 in NLRB

The National Labor Relations Board (“NLRB” or the “Board”) recently ruled in a 3-1 decision that student assistants at private colleges and universities “who have a common-law employment relationship with their university” are “employees” under the National Labor Relations Act (the “Act”), 29 U.S.C. § 151 et seq. As a result, the decision, Trustees of Columbia University in the City of New York and Graduate Workers of Columbia-GWC, UAW, provides those qualifying student assistants at private colleges and universities, which are generally subject to NLRB jurisdiction, with the right to organize and collectively bargain with their university employers.

The Board specifically found in the Trustees of Columbia University decision, issued on August 23, 2016, that Columbia University’s “Instructional Officers” (including Teaching Fellows at the graduate level, Teaching Assistants at the graduate and/or master’s level, Preceptors at the graduate level, Readers/Graders at the master’s level, and Course Assistants) and “Research Officers” (i.e., research assistants) fell into the category of “employees” under the Act. Furthermore, the Board determined that a student assistant bargaining unit consisting of “graduate students, terminal Master’s degree students, and undergraduate students,” which was requested by the petitioner, was appropriate. Moreover, none of the student assistant categories at issue in the case were temporary employees that were excluded from coverage under the Act.

The Trustees of Columbia University decision, issued on August 23, 2016, reverses the Board’s decision in Brown University and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW AFL-CIO, 342 N.L.R.B. 483 (2004), which held that student assistants were not employees under the Act and therefore did not have the right to unionize.  In determining that the student assistants were not employees, the Brown University decision had found that student assistants were not primarily employees but instead had an “educational relationship” with the employer.

In examining its Brown University decision, the Board determined that it erred in that decision by focusing “on whether some other relationship between the employee and the employer is the primary one . . . .”  Focusing on the existence of another relationship in addition to the employment relationship, the Board found, was not supported by the Act.[1] In looking at the broad language of the Act, the Board stated:

“It seems clear to us, then, that the Act’s text supports the conclusion that student assistants who are common-law employees are covered by the Act, unless compelling statutory and policy considerations require an exception.”

In addressing the arguments raised against a finding that the student assistants are employees, the Board observed that federal labor policy is generally encouraging of collective bargaining, and that allowing student assistants to choose whether to unionize would further the purpose of the Act.  The Board also noted that just because there may be issues particular to employment in an academic setting, such issues do not prevent the application of the Act to student assistants, contrary to the Board’s findings in the Brown University decision. Moreover, permitting student assistants to unionize would not infringe upon academic freedom because the parties could resolve these issues through collective bargaining, and there are limits, defined by the Board, on what constitutes the mandatory subject of bargaining. Additionally, noted the Board, evidence that student assistant unionization is harmful to the educational process and student-faculty relationship is dubious at best, and bargaining between student assistant unions and universities has been occurring at public universities without resulting in significant harm.

The Board also rejected the contention that student assistants should not be permitted to unionize because “student assistants have finite terms and because the academic world may experience a fast pace of development in fields of study,” and the Board may take a relatively long period to time to make a determination on a dispute. On these issues, the Board stated: “The alternative—to deny coverage because of effect of procedural delays— would seem to countenance the denial of the Act’s overage to large groups of employees whose tenures are short or industries where there is a rapid pace of change.”

 “Finding “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,” and that there are no conflicting federal statutes, the Board determined that “[a]ccordingly, we overrule Brown University and hold that student assistants who have a common-law employment relationship with their university are statutory employees entitled to the protections of the Act.”

The case was remanded to the regional director to take appropriate action per the Board’s decision that the petitioning student assistants group qualified as employees and could move to organize under the Act. It should be noted that the parties may appeal this decision to the U.S. Court of Appeals.

In light of this decision, private colleges and universities employing student assistants covered by the Act should be aware that student assistants may be soon engaging in formal organizing efforts. As a result, these colleges and universities may need to be prepared to quickly respond to such efforts. We suggest that those entities consult with a labor attorney to determine their rights and obligations with respect to student assistant union activities.

Read the Trustees of Columbia University decision here at: https://assets.documentcloud.org/documents/3033549/Columbia-NLRB.pdf.

[1] Section 2(3) of the Act, 29 U.S.C. § 152(3), states: The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment . . . or by any other person who is not an employer as herein defined.
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Supreme Court Holds That Where Violation of First Amendment Rights at Issue, Employer Perception Rules

Posted by on May 12, 2016 in Retaliation, Supreme Court, Wrongful Termination

In a decision that may be particularly timely in this heated election season, the United States Supreme Court recently considered the issue of whether an employee who was demoted because the employer mistakenly believed he participated in political activity can file a lawsuit against the employer under 42 U.S.C. § 1983 for deprivation of his First Amendment rights under the U.S. Constitution. The facts of this case took place right here in our region in Paterson, New Jersey.

In Heffernan v. City of Paterson, 136 S.Ct. 1412 (2016), a police officer went to a political campaign site to pick up a lawn sign for a mayoral candidate, who was a friend of his, on behalf of his bedridden mother. The police officer had no involvement in the candidate’s campaign. The officer’s supervisor and the chief of police had been appointed by the candidate’s opponent, the incumbent mayor. His fellow officers spotted the officer at the campaign site, and word got back to his supervisors about it. The officer was demoted the very next day for his “over involvement” in the campaign of the mayoral candidate.

The officer filed a lawsuit under 42 U.S.C. § 1983 (which provides a cause of action for violations of constitutional rights) alleging that he was unlawfully demoted “because he had engaged in conduct that (on [the employer’s] mistaken view of the facts) constituted protected speech.” The Court observed, citing to Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980), that “[w]ith a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.” However, the officer in this instance had just picked up a sign for his mother and was not actually engaging in political activity or supporting the candidate.

The question before Court in Heffernan was whether it is the employee’s actions, or instead the employer’s motivation in an employment decision, that determines whether an employee was deprived of a constitutional right. Put another way, does the analysis of whether the employee’s constitutional rights were violated by an employment decision focus on the employee’s conduct in engaging in protected activity, or is it instead focused on whether the employer believed (even mistakenly) that the employee was doing so?

The Court held in a 6-2 decision that whether the employee’s right was violated is determined by the employer’s motivation in the employment decision. In its decision, the Court looked to Waters v. Churchill, 511 U.S. 661 (1994), in which an employer terminated an employee when the employer believed the employee had engaged in speech that was not protected by the First Amendment, even though the employee’s speech was in fact protected. In Waters, the Court held that the employer did not violate the employee’s constitutional rights if it “(1) had reasonably believed that the employee’s conversation had involved personal matters, not matters of public concern, and (2) had dismissed the employee because of that mistaken belief.” The Court in Heffernan noted that the Waters decision focused on the perception of the employer, not the actions of the employee. The Court then stated:

“In Waters, the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander.”

Notably, the Court also addressed whether its decision would increase the burden placed on employers to defend against claims, and held that a ruling that creates liability for an employer for a factual mistake does not place an increased burden on an employer. After all, the Court held, the employee still shoulders a heavy burden of showing the employer’s motive.

The case was then sent back to the lower court, who will hear, among other issues, if the employment decision was based on a policy prohibiting all officers from engagement in “overt involvement in any political campaign,” and if that policy was constitutional.

In light of the Heffernan decision, employers should be aware that they may not be able to defend adverse employment decisions where the employee’s engagement in protected speech is at issue merely by asserting that the employee was not actually engaged in protected speech. Their mistaken view will not relieve them of potential liability. Employers may wish to tread carefully when making an adverse employment decision and ensure that their investigatory procedure clearly documents that a decision was made as a result of unprotected speech by an employee or other just cause. As always, we advise that employers consult with an employment attorney prior to making adverse employment decisions.

The full text of the Heffernan decision can be found at: http://www.supremecourt.gov/opinions/15pdf/14-1280_k5fl.pdf.

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