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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NLRB Dismisses Northwestern University Football Players’ Union Election Petition

Posted by on Aug 19, 2015 in NLRB, School Law

By: Felicity S. Hanks, Esq. (fhanks@hillwallack.com)

In January 2014, football players at Northwestern University (“Northwestern”) filed a historic union election petition with the National Labor Relations Board (“NLRB”) seeking to unionize and claiming that they were university employees. We blogged about it last year and much has happened since that post, culminating in a surprising NLRB decision issued this month.

NLRB Regional Director Peter Sung Ohr acted on the players’ petition on March 26, 2014, and ruled that the football players were “employees” of Northwestern, primarily due to the football program’s commercial activity and profitability, in addition to the extraordinary levels of control that Northwestern and its coaches had over the players’ lives.[1] Northwestern appealed the decision to the NLRB. For the last several months, players, the NCAA, colleges, and labor practitioners alike have been awaiting the NLRB’s decision with interest, but some sport enthusiasts and labor watchers might say that the NLRB swallowed its whistle on this one.

In a unanimous decision, the NLRB declined to assert jurisdiction over the case and dismissed the football players’ petition.[2] In doing so, the NLRB avoided addressing the merits of Director Ohr’s decision concerning the players’ status as employees. The NLRB held that that exercising jurisdiction over this case would not promote labor stability due to the nature of the NCAA Division I Football Bowl Subdivision (“FBS”) in which Northwestern University participates. The majority of the schools in the FBS, unlike Northwestern, are public institutions not subject to the National Labor Relations Act (“NLRA”), and therefore a substantive decision on the players’ petition would create an unwanted piecemeal treatment of players within the league.

Importantly, by declining to exercise jurisdiction, the NLRB did not decide whether student-athletes in general, or at Northwestern in particular, have the ability to unionize as employees under the NLRA. The decision does not preclude student athletes at other institutions from attempting to organize under the NLRA or state-specific public employer labor relations laws. It is likely that the issue of athletes as employees will come up again in the not-so-distant future. As the question of whether one is an employee is so fact specific it is typically a case-by-case basis as to whether a class of individuals may be deemed employees. After this decision, however, we now know that if faced with this issue in the future, the NLRB will not limit its inquiry into the specific institution, but will consider implications on the league as a whole.

This article is for informational purposes only and does not constitute legal advice or a legal opinion. All employers should seek legal counsel when addressing matters related to its employees or unionization efforts.

[1] The Regional Director’s 3/26/14 decision can be accessed at: https://www.nlrb.gov/news-outreach/news-story/nlrb-director-region-13-issues-decision-northwestern-university-athletes

[2] The NLRB 8/17/15 decision can be accessed at: https://www.nlrb.gov/news-outreach/news-story/board-unanimously-decides-decline-jurisdiction-northwestern-case

 

 

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NLRB Decision Opens Door to Unionization of Private University and College Faculty

Posted by on Feb 18, 2015 in NLRB

By: Felicity S. Hanks, Esq.

At the end of last year the National Labor Relations Board (“NLRB”) issued a decision in Pacific Lutheran University and Service Employees International Union, Local 925, 361 NLRB No. 157 (December 2014), in which it revisited and revised the standard for deciding the managerial status of private university and college faculty members.[1] As a result, private schools are likely to see an increase in efforts to unionize faculty.

As a general matter, any group of employees may self-organize, form or join with a labor union for the purpose of collective bargaining or to engage in activities for the mutual aid or protection of the group. Certain supervisors and persons in managerial positions do not fall within the definition of “employee” under the National Labor Relations Act (“NLRA”). As managerial employees are tasked with policy and decision-making authorities, a supervisor’s membership in an employee bargaining group would be inappropriate. Accordingly, in many instances where employees seek to unionize, a threshold issue is which individuals are part of the proposed group and which, if any, supervisory employees may be excluded.

For thirty years, the NLRB and federal courts have primarily followed a standard set forth in the 1980 case NLRB v. Yeshiva University, 444 U.S. 672 (1980). The Yeshiva Court held that managerial employees in a university setting are those who “formulate and effectuate management policies by expressing and making operating the decisions of their employer. Yeshiva, 444 U.S. at 682. The Yeshiva decision, however, was analyzed with the understanding that a private university, unlike standard industry, operated pursuant to a system of “collegial decision-making,” where the professional expertise of the faculty was necessary to the formulation and implementation of academic policy. Id. at 680. Therefore, the Yeshiva standard recognized heightened managerial and operational duties of university faculty than is present in the modern-day model.

The NLRB in Pacific Lutheran explained that since 1980, the trend has shown that colleges and universities are being run more like corporations. Schools have moved away from the model where faculty are involved in management, and have increasingly centered management control within the administration. Several factors, including the increase in part-time, contingent and non-tenured faculty support this change in school governance. According to the NLRB, this movement has made the Yeshiva standard ripe for revision.

In revamping the standard, the NLRB formulated a two-prong test and set forth several factors to be considered under each prong. The goal of the test is to determine whether the faculty actually exercise control or make effective recommendations over areas of policy that effect the university as a whole, not just their department or classes; the analogy being akin to a determination of whether corporate employees exercise control over the product produced by the company, the terms by which the product is offered, or the customers served.

The first step of the test is to review the faculty’s decision-making in five identified areas: academic programs, enrollment management, finances, academic policy and personnel policy and decisions. NLRB weighs the first three factors as “primary” factors which is consistent with the acknowledgment of and analogy of what is important to determining managerial status in a private industrial or corporate setting. The last two factors, the “secondary” areas of decision making, hold less weight.

The second step in the test is to determine whether the decision-making that the faculty engages in is (1) pursuant to actual, rather than paper, authority, and (2) results in effective recommendations to the administration that are “almost always followed.” NLRB will also consider where in the university structure the faculty at issue stands, e.g. are they tenure eligible, contingent, etc., as temporary, part-time, or non-tenure eligible faculty are naturally limited in their ability to effect university policy.

Under the Pacific Lutheran test, not only does a faculty member have to actually engage in decision making over the university’s programming, the student enrollment, and the tuition, but the faculty’s role in those decisions must be authorized and their recommendations must be “almost always” accepted by the administration. In addition, even if a faculty member does engage in such administrative, university-wide policy making, it may still be difficult for any non-tenured or contingent faculty members to satisfy the test, as their status alone is likely to tip the scales to the non-managerial side. As this standard has been set out by the NLRB, it appears that, only a small number of faculty members who are engaged in management-level functions in the university would be likely to satisfy the Pacific Lutheran test.

Notably, the facts in Pacific Lutheran concerned contingent faculty members who were not tenure eligible, were not permitted to sit on faculty standing committees, had a limited voice in faculty or university governance or university-wide academic programing. Therefore it was easy for the NLRB to find that the faculty at issue were not managerial, under the new or the Yeshiva standard, and thus could be included in the proposed employee bargaining unit.

Because the facts were as they were, the Pacific Lutheran decision is likely to be just the first in numerous labor board and court decisions reviewing and seeking to apply this new standard. Through those decisions, the standard may be defeated or redefined. Nevertheless, as it now stands, the Pacific Lutheran standard is more comprehensive and sets a higher bar for finding a managerial employee than the Yeshiva test did. It will make it more difficult for universities and colleges to have faculty members excluded from unionization efforts, and in turn increase the appeal of union organizing in those schools.

We recommend that all affected entities take note of this new standard and seek legal guidance and advice in reviewing the duties and authorities of faculty members that may no longer be considered managerial. Hill Wallack LLP’s Labor and Employment and School Law attorneys have vast experience in counseling school entities in all areas of labor relations, including defending school clients before national and state labor boards.

[1] The decision also reviewed the standard used by the NLRB to determine whether a religious university is subject to the National Labor Relations Act, which will not be addressed in this client alert.

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CNN Deemed Joint-Employer of Contracted Workers

Posted by on Sep 29, 2014 in NLRB

By Felicity S. Hanks, Esq. (fhanks@hillwallack.com

On September 15, 2014 CNN became yet another company that has come out on the losing end of the employer-employee worker classification dispute.  The National Labor Relations Board held that CNN unlawfully engaged in anti-union animus when it terminated its contract with unionized subcontractor Team Video Service (TVS), which provided electrical equipment operators for the network.  In cancelling the TVS contract, CNN would not bargain with the TVS labor union, insourced the electrical technician work, and hired only non-union workers to fill those positions.

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Courts Pin Back NLRB Rulemaking

Posted by on Jul 12, 2013 in NLRB

By: Deniz S. Uzel, Summer Associate (duzel@hillwallack.com and Susan L. Swatski, Esq. (sswatski@hillwallack.com

On June 14, 2013, the Fourth Circuit Court struck down the National Labor Relations Board’s rule that would have required six million private employers to hang posters about workers’ right to unionize or to face penalties for anti-union bias for refusing. The court noted that even the National Mobilization Against Sweatshops, a worker-advocacy group, admitted that very few workers learn about their rights through postings. The NLRB has rarely engaged in rulemaking in its seventy-seven years of existence, but the Fourth Circuit’s ruling makes clear that when it does, it may be acting outside of its legal authority. The Court explained that the part of the National Labor Relations Act that gives the Board power to issue rules, Section 6, does not allow the issuance of this type of rule because the NLRB is supposed to be a reactive agency. Accordingly, the court found that the posting rule is outside of the bounds of the law.

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NLRB: Discharging Non-Union Employee’s for Facebook Posts Violated NLRA

Posted by on Jan 2, 2013 in NLRB

By: Susan L. Swatski, Esq. (sswatski@hillwallack.com / link to bio)

In Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012), the NLRB released its first decision to examine protected, concerted activity involving Facebook. By a 3-1 vote, the Board held that the non-union employer committed an unfair labor practice by discharging five employees for responding to another employee’s criticism of their work performance on Facebook. The majority of the Board found that comments posted on Facebook are protected in the same manner and to the same extent as comments made at the “water cooler.” “Although the employees’ mode of communicating their workplace concerns might be novel,” the Board concluded this activity was for “mutual aid or protection” within the meaning of Section 7 of the National Labor Relations Act (“NLRA”). The discharged employees received full reinstatement and backpay.

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