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Legal Updates

Universities Should Prepare For Likely Return Of Graduate Student Union Organizing

The National Labor Relations Board appears poised to restore the right of graduate student teaching and research assistants at private colleges and universities to organize and collectively bargain.

On October 21, 2015, the Board accepted review of a representation petition filed by graduate assistants at the New School in New York City. In the coming weeks, the Board is expected to grant review of a near-identical petition filed by graduate assistants at Columbia University. These petitions present the Board with an opportunity to reverse its current position, established in Brown University, 342 NLRB 483 (2004), that graduate assistants are not “employees” within the meaning of the National Labor Relations Act (the “Act”).

It is widely expected that the Board will reverse Brown, so much so that graduate students at many institutions have started to prepare for organizing campaigns and elections that could begin as early as the spring semester of 2016. For this reason, it is imperative that educators at private colleges and universities take immediate steps to prepare an appropriate plan of action in the event of an organizing drive.

Background

Historically, graduate students serving as teaching or research assistants at private colleges and universities were not considered employees under the Act and thus did not have the right to organize. In 2000, the Board reversed this precedent in New York University, 332 NLRB 1205 (2000), holding that graduate assistants should not be excluded from the protections of the Act. NYU was directed to hold an election, and in 2002 entered into a contract with students who had selected the United Autoworkers (“UAW”) as their representative. Following NYU, students at other private universities, including Brown University and Tufts University, filed petitions with the Board for representation elections.

These petitions were ultimately appealed to a more conservative Board, which in 2004 revisited the status of graduate assistants in Brown and reversed NYU. The Brown Board held that graduate assistants were not employees under the Act because they had a predominantly educational, rather than economic, relationship with Brown University. Following Brown, NYU withdrew recognition of its graduate assistant union in August 2005, when its contract with the UAW terminated.

Petitions were filed on behalf of graduate assistants at New York University and the Polytechnic Institute of New York University in 2010 and 2011, seeking to challenge Brown in light of a political shift in the composition of the Board following the 2008 presidential election. The Board accepted review of both petitions, with a three-member majority noting the existence of “compelling reasons for reconsideration of the decision in Brown University.” However, New York University and the UAW reached a voluntary resolution in November 2013, obviating the need for review by the Board.

Status Of Graduate Student Election Petitions

In December 2014, the UAW filed representation petitions on behalf of graduate assistants enrolled at the New School and Columbia University. The Regional Director for Region 2 of the NLRB dismissed both petitions, citing Brown as controlling precedent. The UAW sought review of the dismissal, and in March 2015, the Board unanimously reversed and reinstated both petitions, noting that they raised “substantial issues warranting review.”

On July 30, 2015, following hearings and briefing, the Regional Director entered findings of fact and again dismissed the New School petition, noting that she was “constrained by Brown.” The UAW sought review of the Regional Director’s decision, and on October 21, 2015, a three-member majority of the Board granted review.

On October 30, 2015, the Regional Director similarly dismissed the Columbia petition, again noting that Brown is controlling. The Board is expected to grant review of the Regional Director’s decision.

In addition to the strong likelihood that graduate assistants soon will be able to organize, educators should also be concerned about the Board’s rulings concerning the appropriate scope of student assistant bargaining units. At Columbia University, the UAW seeks to represent not only doctoral student assistants, but also terminal masters students and undergraduate students who serve in instructional or research appointments. The Regional Director did not decide this issue, but hinted that terminal masters and undergraduate assistants could be included in the bargaining unit should Brown be reversed.

Recommendations For Educators

Given the likelihood that the Board will overturn Brown and restore bargaining rights to graduate assistants, below are several recommendations for educators to consider in order to prepare themselves to respond appropriately to organizing activity on their campuses:

  • Be Aware Of The Potential For Organizing Activity.

Organizing activity and support for unionization on campuses is on the rise as the anticipated reversal of Brown grows near. The Coalition of Graduate Student Employee Unions, an umbrella organization that brings together labor unions and organizing leaders from campuses across the country, hosted a three-day conference in August 2015 featuring talks hosted by student organizing leaders from Columbia, Cornell University and the University of Chicago. On October 15, 2015, organizing leaders at private universities nationwide held demonstrations and other events to demonstrate solidarity and raise awareness for their cause.

It is critical for educators to now be aware of the potential for organizing activity by graduate assistants on their campuses. For institutions with unions currently representing adjunct faculty, administrative staff or service workers, organizing activity is very likely to come from the same union organizers. Faculty and staff are typically aware of activity within their respective departments or schools, and can serve as excellent sources of information.

Notably, much of the organizing activity on campuses takes place on social media platforms such as Twitter and Facebook, which are often the primary sources of news and content for students. Educators are free to review information on social media sites that are public, but must avoid engaging in unlawful surveillance. For example, joining a group to monitor its activities would likely violate the Act.

  • Communicate With Faculty And Staff About Organizing Activity.

Leaders at many institutions have already begun to outline strategies for responding to organizing activity. It is critical for administrators to communicate clearly and candidly with faculty and staff on this subject, while being cognizant that not all faculty and staff will oppose student assistant unionization, and some may even support it. An October 14, 2015 memorandum from Harvard University’s Graduate School of Arts and Sciences to its faculty regarding graduate assistant organizing efforts was promptly leaked to media outlets.

Accordingly, communications to faculty and staff must be crafted with knowledge that they could become public or become exhibits in an unfair labor practice hearing. These communications must instruct faculty that it is unlawful to threaten, discriminate or retaliate against students who engage in organizing activity, or to take any action to hinder or prohibit union activity during students’ free time. Institutions that fail to adopt clear guidelines risk being faced with an unfair labor practice charge. Communications to faculty and staff concerning this subject should be reviewed by legal counsel.

  • Review Policies Concerning Student And Non-Student Access To Campus Facilities.

As a general rule, students and non-students must be permitted to engage in organizing activity in any spaces to which those individuals would otherwise have access. In other words, an institution cannot lawfully prohibit a student from holding an organizing meeting in a space where students are allowed to meet on other topics; nor can it prohibit a non-student organizer from meeting with students in spaces where non-students are allowed to be.

However, institutions are permitted to enforce reasonable school policies which restrict student and non-student access to campus buildings or spaces. In past campaigns, institutions have been faced with organizers gaining access to academic buildings, classrooms, laboratories and dormitories to carry out campaign activities. Educators should review and be familiar with existing policies which govern access to campus buildings and spaces for students and non-students. Such policies should be reviewed by legal counsel to ensure their compliance with the Act.

  • Be Aware Of And Responsive To Student Concerns And Complaints.

Students who are satisfied with their academic life are less likely to support union representation. Educators should pay close attention to and address, whenever possible, issues and concerns raised by leaders of student government or other student organizations. Many institutions have created formalized student grievance procedures or other avenues by which students can raise concerns.

Ultimately, whatever process is utilized, students should feel as though their concerns are being addressed, not just heard and ignored. However, any new process or procedure must be introduced before the institution learns of organizing activity, and should first be reviewed by legal counsel.

Conclusion

Educators need to prepare for the prospect of graduate student organizing activity on their campuses in the very near future. Institutions that fail to plan for such activity and to communicate effectively with faculty and staff risk being the subject of an unfair labor practice charge, and at a distinct disadvantage during an organizing drive. This is especially true under the Act’s new election rules that permit an election to occur less than a month after a petition is filed. The best prepared institutions, of course, are also those most likely to prevail in the event of an election.

Facing an uncertain legal landscape and increasing scrutiny from union organizers, educators concerned by the prospect of union activity on their campus, or those who are uncertain about how to proceed in light of increasing activity, should contact trusted counsel for advice and guidance. Attorneys at our Firm have significant experience counseling schools on union avoidance, as well as advising clients with respect to bargaining unit issues unique to student assistants.