By Ronald Miller, J.D. Applying a new standard that student assistants who have a common-law employment relationship with their university are statutory employees under the NLRA, a divided four-member panel of the NLRB, in a 3-1 decision, found that student assistants at Columbia University were statutory employees. In so ruling, the Board overruled its decision in Brown University where graduate student assistants were found not to be employees within the meaning of NLRA, Section 2(3). The Brown University decision, said the Board, deprived an entire category of workers of the protections of the Act without a convincing justification in either the statutory language or the policies of the Act. Member Miscimarra dissented (The Trustees of Columbia University in the City of New York, August 23, 2016). The Board’s starting point in determining whether student assistants are covered by the Act is the broad language of Section 2(3), which provides in relevant part that "[t]he term ‘employee’ shall include any employee," subject to certain exceptions—none of which address students employed by their universities. The Brown University Board held that graduate assistants cannot be statutory employees because they "are primarily students and have a primarily educational, not economic, relationship with their university." The current Board disagreed. Rather, it concluded that it has the statutory authority to treat student assistants as statutory employees where they perform work, at the direction of the university, for which they are compensated. Statutory coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the Act does not reach. Statutory employees. The threshold question here was whether students who performed services at a university in connection with their studies were statutory employees within the meaning of Section 2(3). A union of graduate workers sought to represent both graduate and undergraduate teaching assistants, as well as graduate research assistants, at Columbia University. A regional director applied Brown University, and dismissed the complaint. On December 23, 2015, the Board granted review of the case and invited briefs. For more than 45 years, the Board has exercised jurisdiction over private, nonprofit universities. The Board reviewed precedent prior to Brown University, in which it found that graduate assistants should be excluded from a bargaining unit of university faculty because they did not share a community of interest; and later finding that research assistants were "primarily students" and thus not statutory employees. However, those decisions did not address whether the student assistants were statutory employees. Employment relationship. Here, the Board adopted the approach that where student assistants have an employment relationship with their university under the common law test, as in this case, this relationship is sufficient to establish that the student assistants are Section 2(3) employees for all statutory purposes. The Board noted that none of the exceptions enumerated in Section 2(3) addresses students generally, student assistants in particular, or private university employees of any sort. While the NLRA does not offer a definition of the term "employee" itself, the Board noted that it is well established that when Congress uses the term "employee" in a statute that does not define the term, courts interpreting the statute must infer that Congress means to incorporate the "common law agency doctrine." According to the Board, the fundamental error of Brown University was to frame the issue of statutory coverage not in terms of the existence of an employment relationship, but rather on whether some other relationship between the employee and the employer was the primary one—a standard neither derived from the statutory text of Section 2(3) nor from the fundamental policy of the Act. Thus, in this case, the Board rejected Brown University’s focus on whether student assistants have a "primarily educational" employment relationship with their universities. Labor policy. Federal labor policy is to "encourage the practice and procedure of collective bargaining," and to protect workers’ "full freedom" to express a choice for or against collective bargaining representation. Permitting student assistants to choose whether they wish to engage in collective bargaining would further the Act’s policies. Thus, the Board concluded that asserting jurisdiction over student assistants promotes the goals of federal labor policy. Moreover, applying the NLRA to student assistants would not infringe upon First Amendment academic freedom. Applying the revised Section 2(3) analysis, the Board concluded that the petitioned-for student assistant classifications comprised statutory employees. It noted that the university directed and oversaw student assistants’ teaching activities. They received compensation in exchange for providing instructional services to the university. Thus, there was undoubtedly a significant economic component to the relationship between universities, like Columbia, and their student assistants. Further, with respect to research assistants, the Board concluded that where the university exerts the requisite control over the research assistant’s work, and specific work was performed as a condition of receiving the financial award, a research assistant was properly treated as an employee under the Act. Additionally, the student assistants in the petitioned-for unit shared a community of interest making it appropriate for collective bargaining purposes. Dissent. Member Miscimarra filed a separate dissenting opinion in which he disagreed with the Board’s decision to apply the NLRA to college and university student assistants, and agreed with the majority’s reasoning in Brown University. The Brown University Board majority stated that the "fundamental premise of the Act" was "to cover economic relationships," and the majority recognized "the simple, undisputed fact that all the petitioned-for individuals were students and must first be enrolled at Brown" before they could be graduate assistants. Thus, imposing collective bargaining would have a deleterious impact on overall educational decisions by the . . . faculty and administration. Miscimarra argued that the Board has a responsibility to acknowledge the enormous complexity, demands, and benefits associated with every student’s potential graduation from a college and university. Thus, he urged that the Board should find that the relationship between Columbia and the student assistants in the petitioned-for unit was primarily educational, and that student assistants are not employees under Section 2(3) of the Act.
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