As many of you may have heard and as we discussed in our August E-Update, last week in The Trustees of Columbia University in the City of New York, the National Labor Relations Board reversed a twelve-year precedent in holding that student teaching and research assistants at private universities are statutory employees under the National Labor Relations Act and can therefore unionize.
There has been a flurry of employee-friendly decisions issued by the Labor Board in recent weeks to coincide with – not surprisingly – the conclusion of Member Hirozawa’s three-year term on August 27, 2016. This case, however, irks me more than most. The Majority stated that preventing graduate assistants the right to unionize “deprived an entire category of workers of the protections of the [NLRA] without a convincing jurisdiction” because, according to the Majority, “even when such an economic component 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 Act.” And yet, in 2004, the Labor Board reached a contrary conclusion – that graduate assistants are not statutory employees who have the right to unionize, because the Labor Board acknowledged that graduate assistants have a primarily academic, not economic, relationship with their universities. So what’s changed? That is a rhetorical question. Obviously, nothing has changed, but the make-up of the Labor Board and its current desire to expand the reach of the Act.
This case is a microcosm of the far-reaching liberal impact that the Obama administration has had on labor policy in this country. Think: (1) another recent overturn of a decade-long precedent by the Labor Board, in which it now finds that employees supplied by a staffing agency can be included in a single bargaining unit – and vote in an NLRB representation election – with an employer’s regular employees without the consent of both employers; (2) the Department of Labor’s new regulations that are set to take effect in December 2016 which will increase the salary and compensation levels needed for executive, administrative, and professional employees to be exempt – the explicitly stated purpose of which is to increase the number of workers who will now receive overtime pay; and (3) the DOL’s “persuader rule” which was set to greatly expand the need for employers and their labor relations consultants, including law firms, to file detailed public reports with respect to activities that “directly or indirectly” persuade employees about their rights to organize – the effect of which is to discourage employers from hiring such consultants and increase the chances of unionization. Safe to say, the Obama administration has left a lasting – and employee-friendly – impact on the nation’s labor policy.
Now, issues such as class size and subject matter of student assistant taught courses could become subjects of collective bargaining. It’s unclear how this will impact higher-education in the future, but private colleges and universities should prepare now. Given the Labor Board’s “quickie” election rules making it easier to organize in the workplace, colleges and universities should consider proactive union avoidance strategies before organizing drives begin. And employers in general should continue to expect the Labor Board to continue its rejection of prior, more rational precedents.