According to the NLRB, if student assistants perform work, at the direction of a university, for which they are compensated, they have the right to join a union. The NLRB did not address the form or amount of compensation that is required before student assistants will be considered employees; however, the NLRB suggested the compensation must be more than “educational benefits.” This is consistent with the NLRB’s decision in Northwestern University that student athletes receiving grant-in-aid scholarships are not employees.
In an effort to exclude student assistants from the petitioned-for bargaining unit, Columbia University argued that temporary employees (some student assistants do not work longer than a single semester), as a matter of practice, are regularly excluded from the bargaining units. The NLRB agreed that as a matter of practice temporary employees are excluded from bargaining units, but the NLRB ruled that temporary employees still have the right to collectively bargain.
The next question in the analytical framework is which employees are eligible to vote in an election. The NLRB traditionally creates an “eligibility formula” to determine which employees may vote in a union election. For example, the eligibility formula for adjunct faculty members is based on a 1-4 ratio of workload compared to full-time faculty members. Instead of creating an eligibility formula for student assistants, the NLRB directed the case go back to the Regional Director to determine the appropriate eligibility rules. The NLRB signaled the eligibility formula may be a ratio of the time spent working as a student assistant compared to the academic career at the university.
Interestingly, the NLRB expressly considered the experience of public universities in reaching its decision. Public universities are governed by state labor laws, and student assistants in Oregon, Washington, California, Florida, Illinois, Iowa, Massachusetts, Michigan and Pennsylvania have the right to join a union. As a refresher, Oregon’s Employment Relations Board ruled graduate assistants are employees under Oregon’s Public Employee Collective Bargaining Act. Coalition of Graduate Employees, Local 6069, Case No. UC-04-12, 2013 WL 485140 (Jan. 4, 2013). As a result, the NLRB held that allowing student assistants to organize would not be detrimental to the pursuit of a private university’s educational goals because student assistants in some states have been organized for decades.
In light of the NLRB’s decision, private universities should expect to see a flurry of organizing activity within the ranks of student assistants as the new school year gets underway. There are a wide range of responses available to an employer when faced with an organizing campaign. Universities would be wise to develop a response strategy to organizing efforts before receiving a petition for an election.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2017 by Barran Liebman LLP.
Las Alertas electrónicas son escritas por abogados de Barran Liebman para sus clientes y amigos. Las Alertas no son proveídas como asesoramiento legal, sino solo como anuncios de leyes de empleo, leyes laborales y beneficios de empleo. Si esto ha sido remetido a usted y quisieras empezar a recibir las Alertas directamente, por favor mándanos un correo electrónico o llama a Traci Ray al 503-276-2115. Derechos de autor ©2017 por Barran Liebman LLP.