The rulemaking priorities of the National Labor Relations Board (“NLRB” or “Board”) have been released, signaling what Board Chairman John F. Ring described as “the Board majority’s strong interest in continued rulemaking.” The announcement was contained in the Unified Agenda of Federal Regulatory and Deregulatory Actions, published by the Office of Management and Budget’s Office of Information and Regulatory Affairs.

Issues Identified by the Board for Further Rulemaking

The Board majority has identified the following as areas in which it intends to engage in additional rulemaking:

  • The Board’s current representation-case procedures.
  • The Board’s current standards for blocking charges, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry.
  • The standard for determining whether students who perform services at private colleges or universities in connection with their studies [including student athletes on a scholarship] are “employees” within the meaning of Section 2(3) of the National Labor Relations Act (29 U.S.C. Sec. 153(3)).
  • Standards for access to an employer’s private property.

The Board noted that, in addition to these areas, it is “proceeding with its rulemaking regarding the joint-employer standard.”

Notably, each of the identified issues is one that the current Board majority has identified as an area in which it questions Obama-era Board rulemaking (in the case of representation case and election procedures) or Board decisions that have been seen as advancing the agenda of organized labor and its supporters.

The Board’s Representation Election Rules

One of the Obama Board’s most controversial actions was its own exercise in rulemaking, which resulted in the 2015 implementation of expedited election rules that not only reduced the average time between the filing of a representation petition and the holding of a vote from approximately 45 days to something in the 25-day range, but also limited employer rights to resolve legal issues at a pre-election hearing and increased union rights to information about employees at an earlier stage.

In December 2107, the then-new Republican majority announced that it was seeking comment from interested parties concerning the impact of the changes in the representation case rules that took effect two years earlier. Specifically, the Board posed three question in its Request for Comments:

  • Should the 2014 Election Rule be retained without change?
  • Should the 2014 Election Rule be retained with modifications? (If so, what should be modified?)
  • Should the 2014 Election Rule be rescinded? (If so, should the Board revert to the Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Election Regulations? If the Board should make changes to the prior Election Regulations, what should be changed?)

In explaining its decision to issue the Request for Comments, the Board majority made clear that it is seeking the views of all interested parties, including labor and management, those in government and the Board’s General Counsel. The Board has also made clear that while it is possible that it may engage in rulemaking to further amend the election rules and procedures, it may maintain the 2014 Election Rules without change, noting that “the Board merely poses three questions, two of which contemplate the possible retention of the 2014 Election Rule.”

While the Board has not yet released the results of its Request for Comments, it is likely that they will be reflected in any new proposed rulemaking in connection with the processing of representation petitions and the holding of elections.

The “Blocking Charge Rule”

The Blocking Charge Rule, which holds that in many circumstances the Board will not conduct a representation election while there are pending unfair labor practice (“ULP”) charges, is another area in which members of the current Board majority indicated an interest in changing and is also identified in the Rulemaking Agenda.

Under the Board’s 2014 Amended Election Rules, the NLRB holds that, when a ULP charge is filed during the pendency of a representation petition, the Board will not conduct the election if the party that has filed the charge—typically the petitioning union or, in the case of a decertification petition, the incumbent union facing a vote to decertify it as the representative—asks that the election be deferred until after the charges are resolved, provided that the charges allege actions by the employer that the union claims prevent or interfere with a fair election. Many observers believe that such blocking charges are used tactically by unions that are concerned that they will face defeat at the polls.

Section 103.20 of the final rule requires that a party wishing to block processing of the petition must file a request to block and simultaneously file a written offer of proof in support of its unfair labor practice charge. If the Region believes the charge precludes a question concerning representation and no request is filed, the Region may ask the Charging Party if they wish to request to block. If so, the Charging Party should be informed that they must file a request to block and an offer of proof, including the names of witnesses who will testify in support of the charge and a summary of each witness’s anticipated testimony. In addition, the Charging Party must promptly make the witnesses available to the Region.

In December 2017, in two decisions, one unpublished, Board Members Kaplan and Emanuel, who both participated in the Rulemaking Agenda, indicated that they believed that the Board should reexamine the Blocking Charge Rule.

The Board Intends to Engage in Rulemaking on the Issue of Whether Graduate Teaching Assistants Are Employees for Purposes of the Act

Another legacy of the Obama Board that the Rulemaking Agenda indicates is likely to be reversed is the Board’s holding in Columbia University that graduate teaching assistants and research assistants are employees under the National Labor Relations Act (“Act”), with the rights to organize and engage in collective bargaining.

In deciding Columbia University, the Board jettisoned its 2004 decision in Brown University in which graduate teaching assistants were held not to be employees for purposes of the Act. The Columbia University majority concluded that the Brown University majority “failed to acknowledge that the Act does not speak directly to the issue posed here, which calls on the Board to interpret the language of the statute in light of its policies.” The Columbia University majority noted that “the Brown University decision, in turn, deprived an entire category of workers of the protection of the Act, without a convincing justification in either the statutory language of the Act or the policies of the Act.”

The Agenda Suggests the Board Will Likely Increase Its Use of Its Rulemaking Authority

Commenting on the Rulemaking Agenda, Chairman Ring noted, “Addressing these important topics through rulemaking allows the Board to consider and issue guidance in a clear and more comprehensive manner.”

As we reported, earlier this week the National Labor Relations Board (“NLRB” or “Board”) decided that it would not exercise jurisdiction with respect to the representation petition filed by the College Athlete Players Association seeking to represent the scholarship members of the Northwestern University football team.  The Board did not answer the question of whether it considered the team members to be employees of the university and explained that for policy reasons it was not answering the critical questions at this time.  It did however make clear that it might well do so in the future and that it very well could find players on scholarship to be employees who have the right to negotiate with the university as their employer.

Since then, the United Steelworkers of America which is the union behind the College Athlete Players Association has made clear that this is only the first play in what it promises will be an ongoing effort to change the way student athletes are treated under the NCAA rules.  As reported by the New York Times, the Steelworkers goal is for student athletes to be recognized as employees of the universities for whom they “play” and to secure for them collective bargaining rights. Steelworkers President Leo F. Gerard said yesterday that “the USW remains as committed as ever to the idea that scholarship athletes deserve the same rights and protections afforded to other Americans.”

He also made clear that from his union’s perspective that although the campaign to have student athletes recognized as employees with bargaining rights may well be a long one but that the Steelworkers are in it for the duration.  “Maybe it won’t happen in 2015,” he said, “But before today’s athletes send their children to college, every college scholarship football player and every college scholarship basketball player will be a proud union member and no longer exploited on their jobs.”

Ramogi Hama, President of the College Athlete Players Association and John Adam, the lawyer for the Association in the Board proceedings, spoke of lobbying and lawsuits as tools the Association plans to use in its fight to secure bargaining rights.  They compared this effort to the challenges to the reserve clause in baseball that culminated in the Curt Flood case and opened the era of free agency in major league baseball.

Clearly the stakes are huge and the battle is nowhere near resolved.  If the Steelworkers and the College Athlete Players Association have their way, college sports in this country may well be unrecognizable in the near future.

The National Labor Relations Board (“NLRB” or “Board”) has ruled in a unanimous decision that it is dismissing the petition filed by the College Athlete Players Association for an election declaring Northwestern University football team members who receive grant-in-aid scholarships are “employees” within the meaning of the National Labor Relations Act (“Act”).  The Board explained that it had concluded that “asserting jurisdiction in this case would not promote stability in labor relations.”  The Board made clear however that it might well assert jurisdiction in a future case involving grant-in-aid scholarship players.

The Players Association’s Petition

It has been over a year (March 26, 2014) since the Regional Director of the Chicago Region of the NLRB found that football players at Northwestern University who receive grant-in-aid scholarships were “employees” within the meaning of the National Labor Relations Act (“Act”) and therefore could be represented by a union. Northwestern argued that these players were student athletes and were therefore not eligible to vote. The Regional Director directed an election which took place last year.  The ballots were impounded pending the outcome of an appeal to the Board.

In a surprising Decision (pdf), the five member panel of the Board unanimously held that it would not take jurisdiction over the case and dismissed the union’s Petition.  As a result, the ballots will be destroyed since the decision is not appealable.

The Board’s Decision Not To Assert Jurisdiction

The Board based its ruling on the unique nature of this case stating that  its decision is primarily premised on the nature of the sports league (the NCAA Division 1 Football Bowl Subdivision) and the substantial  control exercised by the league over the individual teams,   it would not promote  stability in labor relations to assert jurisdiction in this case.   The Board looked to its experience in professional sports, where it noted it had not directed elections on a single team basis but rather on a league wide basis. It also noted at length that Northwestern, a member of the Big Ten Conference, was the only private university in the conference, that the rest of the schools in the conference were public universities and therefore, that even if their football players were deemed to be employees, the other teams would be outside the Board’s statutory jurisdiction since they would be public employees.

Northwestern is a private university over which the Board has jurisdiction. Its football team is part of the NCAA which has about 125 schools.  Only 17 of those schools are private schools. Northwestern was also in the Big Ten Conference and was the only private school in that league. The other schools in the leagues are public institutions over which the Board has no jurisdiction. Because the NCAA and the Big Ten have the authority to enforce its rules over all of their members, the Board concluded that it would be difficult to create any degree of stability in labor relations or competition in the conference as constituted since it could not assert jurisdiction over Northwestern’s state school competitors.

In reaching its decision, the Board made it very clear that it’s the scope of its decision was limited—e.g. it only applied to grant-in-aid scholarship players; it was not deciding whether or not these players were employees or students; that it was only dealing with Northwestern which was in a unique conference with public and private universities; and that its decision “did not preclude a reconsideration of this issue in the future”. The Board was also influenced by the fact that Northwestern had made significant changes in the terms and conditions of these players and that the NCAA had been encouraged to make significant reforms which “may result in changes to the circumstance of scholarship players that influenced.”

What This Means

While the Board did not decide whether the scholarship players were students or employees, it did distinguish the main case relied on by Northwestern and the many other universities that submitted amicus briefs to argue that these players were student athletes and not employees,  In Brown University, 342 NLRB 483 (2004), the Board found that graduate student assistants were not employees.  In fact, many observers had expected that the Board would use the Northwestern University decision as an opportunity to reverse its holding in Brown University and return to the short-lived decision in New York University (pdf) and once again hold that graduate teaching assistants are employees for purposes of the Act. The Board, in a footnote, noted that “with the potential exception of students seeking undergraduate degrees in physical education—the football activities they engage in are unrelated to their course of study or educational programs.”  This may be an indication of the Board’s position on this issue if the right case comes before them to reverse Brown.

Given the enormous ramifications in so many areas, if the Board had allowed these players to unionize, both the leagues and Northwestern, as well as the innumerable private schools and other individuals that have been waiting for this decision, have already expressed great relief over this ruling by the Board.  However, since the Board went out of its way to emphasize the narrow scope of its decision, the issues in in the case are far from over.


By Steven M. Swirsky and Adam C. Abrahms

The Regional Director for the NLRB’s Chicago Region has found that football players at Northwestern University who receive scholarships are “employees” for purposes of the National Labor Relations Act.  Some of the football players blindsided the University, NCAA and college athletics by filing a petition to be represented by the College Athlete Players Association (CAPA), a putative union funded and supported by the United Steelworkers union. As only “employees” are covered by the National Labor Relations Act, finding them to be employees was necessary before the a representation vote could be held.

The Decision, while finding walk-ones and non-scholarship players not to be employees, found the University to be the common law  employer of team members who are on scholarship and have eligibility remaining are able to vote in an NLRB election to decide whether they want the CAPA  to be their bargaining representative and represent them with in collective bargaining with the University.  The parties’ post-hearing briefs, summarizing the facts and law each side argues are available.

The decision has the potential to totally upend college sports at private colleges and universities across the country.  While the Regional Director’s decision is an important step in the legal process it is by no means the last word on the issue, The University will almost certainly request review of the decision by the NLRB in Washington, DC.

If the Board agrees with the Regional Director, the vote takes place and CAPA wins the election and is certified as the players’ bargaining agent, Northwestern would be able to have the ruling considered by the US Court of Appeals by refusing to bargain. The Court, and this could be either the Seventh Circuit in Chicago of the DC Circuit in Washington, would review the law and the facts and decide whether the NLRB was right or wrong in finding that the relationship between the student-athletes and their university is an employment relationship or not.

Either way the consequence are not limited to either football or the National Labor Relations Act.  If team members are held to be employees for purposes of this law, the ball has been teed up as well as to whether they should also be considered employees for purposes of wage and hour laws, workers compensation law, benefits plans and a list as long as a football field.

An important takeaway from this case and the union’s efforts at Northwestern is that not only is labor more than willing to give it the old college try by throwing out the existing playbooks, but that it is looking at groups who employers have long taken for granted as being either unable or unwilling to organize.

On October 24, 2019, Senator Mike Lee (R-UT) introduced the Protecting American Jobs Act.  The bill, cosponsored by Senators Tom Cotton (R-AR), Rand Paul (R-KY), Marsha Blackburn (R-TN), Ted Cruz (R-TX), and Marco Rubio (R-FL), would significantly amend the National Labor Relations Act (“NLRA”) by removing much of the authority currently held by the National Labor Relations Board (“NLRB” or “Board”).

Under the NLRA, the Board’s General Counsel is responsible for investigating unfair labor practice (“ULP”) charges, issuing complaints regarding ULP charges, and prosecuting those ULP complaints before NLRB administrative law judges.  Senator Lee’s bill would strip the Board of the authority to prosecute and adjudicate labor disputes, and limit the NLRB to investigating such disputes.  Instead of prosecution and adjudication by the NLRB, Senator Lee’s bill would provide individuals with the right to bring civil actions in the United States district court where the labor violation occurred or, at the parties’ option, the United States District Court for the District of Columbia.  The authority to adjudicate labor disputes would remain with the district courts.

The Protecting American Jobs Act would also significantly curb the NLRB’s rulemaking authority concerning matters other than the internal functions of the Board.  Senator Lee’s bill would prohibit the NLRB from promulgating “rules or regulations that affect the substantive or procedural rights of any person, employer, employee, or labor organization, including rules and regulations concerning unfair labor practices and representation elections.”  The bill would implement conforming amendments to the NLRA and require the NLRB to rescind or revise its regulations as necessary to conform with the amendments.

The Protecting American Jobs Act was referred to the Committee on Health, Education, Labor, and Pensions, which is where similar bills Senator Lee introduced in 2014 and 2015 also landed.  Neither of the previous versions of the bill ever proceeded beyond committee assignment.

“For far too long the NLRB has acted as judge, jury, and executioner, for labor disputes in this country, Senator Lee commented after introducing the bill.  “The havoc they have wrought by upsetting decades of established labor law has cost countless jobs.  This common sense legislation would finally restore fairness and accountability to our nation’s labor laws.”

Passage of the Protecting American Jobs Act would significantly alter the role of the NLRB and the adjudication of labor disputes.  Without significant Republican gains in the 2020 elections, however, the prospect of Senator Lee’s bill ever becoming law is remote.  While such a sea change is unlikely, the labor landscape continues to shift under the current Board.

As covered in previous blog posts, the NLRB is engaged in, or planning to initiate, rulemaking on a number of issues, including the standard for determining joint-employer status, whether students fall within the definition of “employee” under Section 2(3) of the NLRA, and election protection rules concerning the Board’s blocking charge policy, voluntary recognition bar, and Section 9(a) recognition in the construction industry.

At the same time, the Board continues to issue decisions concerning a number of important labor law issues. (See our previous posts: January 28, June 18, October 8, October 15).  In the last year alone, NLRB decisions have resulted in significant changes to the legality of work rules, employers’ ability to implement unilateral changes, union solicitation on employer property, and the status of independent contractors.  If anything can be predicted, it’s that change at the Board is nearly certain to continue through the 2020 elections.

Peter B. Robb, the newly sworn in General Counsel of the National Labor Relations Board has issued a memorandum, Mandatory Submissions to Advice, GC Memo 18-02 (the “Mandatory Submissions Memo”), that offers clear information as to how he is likely to proceed in setting the agenda and priorities for the Office of the General Counsel which is “responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.” As we have previously noted, such Mandatory Submission memos offer a roadmap of the General Counsel’s priorities on cases and issues that he wants to get before the Board and often present a window into the General Counsel’s thinking about how he is likely to proceed.

“The Past Eight Years Have Seen Many Changes in Precedent”

In something of an understatement, reflecting on the activist Board of the Obama administration, the General Counsel observes that “the last eight years have seen many changes in precedent” from long standing Board holdings, “often with vigorous dissents.”   The Mandatory Submissions Memo identifies a number of the areas in which the Board moved in a more activist manner and identifies issues that the new General Counsel will seek to bring back before the Board.

All Cases Involving Significant Legal Issues Will Now Be Submitted to Advice

The Division of Advice, which is part of the Office of the General Counsel is charged with providing guidance to the Board’s Regional Offices “regarding difficult and novel issues arising in the processing of unfair labor practice charges, and coordinates the initiation and litigation of injunction proceedings in federal court under Section 10(j) and (l) of the National Labor Relations Act.”

Under the Memo, the General Counsel has directed that the following cases be submitted for guidance as cases “involving significant legal issues”:

  • “Cases that involve issues over the last eight years that overruled precedent and involved one or more dissents,”
  • “cases involving issues that the Board has not decided,” and
  • “any other cases that the Regional Offices “believe will be of importance to the General Counsel.”

While the Memo allows the Regional Offices to continue to issue complaints “where issuance is appropriate under current Board law,” the Memo directs the Regional Offices to seek guidance from Advice on how to present such issues to the Board in briefs to Administrative Law Judges and the Courts before filing, so that Advice can “provide appropriate guidance on how to present” or argue the issues.  In other words, Advice and the General Counsel may develop and pursue different legal theories and seek different outcomes and interpretations of the Act in such cases.

The General Counsel Will Not Be Re-Briefing Cases Already Before the Courts and the Board

Many of the most significant decisions of the Obama Board are already before the Supreme Court and the Courts of Appeal, either on applications by the Board for enforcement of its orders, or on requests by employers as respondents appealing from the Board’s decisions. These include cases like Browning-Ferris, the 2015 case in which the Board adopted a new and looser test for determining whether companies are joint employers, and Murphy Oil and D.R. Horton, in which the Board found that requiring employees to waive their rights to bring class claims in wage and hour and other lawsuits and to arbitrate rather than litigate in court, which are before the D.C. Circuit and the Supreme Court respectively.

According to the Mandatory Submissions Memo, “in order to avoid delay,” the General Counsel “will not be offering new views on cases pending in the courts, unless directed by the Board or courts.”

The Memo Identifies Specific Issues and Lines of Cases That Must be Submitted to Advice

The Mandatory Submissions Memo identifies a broad swath of recent Board precedents and topics that must be submitted to Advice, where there is a good chance the new General Counsel will ask the Board to return to pre-Obama Board interpretations of the Act and practices.  These include:

  • Joint –Employer – Browning-Ferris Industries’ holding that joint-employer relationships can be found based on “evidence of indirect or potential control over the working conditions of another employer’s employees.
  • Use of Employer’s Email Systems for Union Activity– The Mandatory Submission Memo calls for the submission to Advice of all cases involving claims based on Purple Communications’ holding that “employees have a presumptive right to use their employer’s email systems to engage in Section 7 activities. The Memo also explains that the new General Counsel is effectively overruling prior Advice Memoranda in which his predecessor noted his initiative “to extend Purple Communications to other [employer owned] electronic systems,” such as the internet, phones and instant messaging systems that employees regularly use in the course of their work.
  • Cases In Which Policies in Employee Handbooks Were Found to Interfere With Section 7 Rights – The Mandatory Submissions Memo indicates the General Counsel will likely be asking the Board to reexamine a broad range of holdings in which policies and conduct standards contained in handbooks and work rules were found to interfere with employees Section 7 rights, in many cases in non-union workplaces. These will include cases finding prohibiting “’disrespectful’ conduct,’ rules prohibiting the use of cameras and recording devices in the workplace, and policies concerning confidentiality in investigations.
  • Cases Involving the Standard For Determining Whether Employees Would Find a Work Rule or Policy to Unlawfully Interfere With Section 7 Rights – Which Board Member Miscimarra – One of the areas in which now NLRB Chairman Philip Miscimarra most frequently disagreed with his colleagues on the Obama Board was over the Board’s use of the Lutheran Heritage test, which he repeatedly described as a test that “defies common sense.” Look for the new General Counsel to ask the Board to adopt the standard which Chairman Miscimarra proposed in his now legendary dissent in William Beaumont Hospital.
  • Cases in Which The Obama Board Expanded the Definition of Concerted Activity For Mutual Aid and Protection In cases such as Fresh & Easy Neighborhood Market the Obama Board expanded the circumstances in which it would find an employee’s actions to be protected, holding that an employee’s actions involving a matter in which “only one employee had an immediate stake in the outcome to be protected.” Such cases must now be referred to Advice and it can be anticipated the General Counsel will ask the Board to reexamine.
  • Cases involving “Obscene, Vulgar or Other Highly Inappropriate Conduct”- The new General Counsel will be considering whether the Board went too far in holding in cases such as Pier Sixty, LLC that even where employees engaged in expletive-laden Facebook post – which hurled vulgar attacks at his manager, his manager’s mother and his family, the employee’s actions remained protected by the Act.

The Mandatory Submissions Memo also identifies each of the following as issues that must be submitted to Advice:

  • Work stoppages on employer premises;
  • The circumstances in which employers may restrict access to employer property at times when employees are off duty;
  • The recent expansion of Weingarten rights in the context of employer-mandated drug testing;
  • Employer obligations and rights with respect to wage increases during bargaining, where the increases are provided to unrepresented employees but not the employees whose wages and increases are being bargained;
  • Claims by unions that employers are successors by virtue of their hiring a predecessor’s employees as required by local laws;
  • The circumstances in which a new employer will be found to be a “perfectly clear successor” obligated to follow its predecessor’s terms and conditions rather than being free to set new terms and conditions for those it hires from a predecessor’s workforce;
  • Whether an employer must disclose and produce witness statements prior to arbitrations; and
  • Whether employers will be required to continue to honor contractual dues check off provisions after a collective bargaining agreement expires.

The New General Counsel Will Be Looking at Recent Expansions of Remedies

One of the hallmarks of General Counsel Richard Griffin Jr.’s term was an attempt by the General Counsel to expand the range of remedies that could be granted in cases where unfair labor practices were found to have occurred. This was done both through administrative action and through arguments presented before the Board.  Such expanded or enhanced remedies included requiring employers to pay unions’ bargaining expenses, providing front pay to discriminates, reimbursing employees for job search and other expenses that had never before been reimbursable under the Act.  These matters too will be subject to review by Advice under the Mandatory Submissions Memo.

Deferral To Arbitration

The Mandatory Submissions Memo states that General Counsel Memorandum 12-01, issued on January 20, 2012, which laid out new standards to be followed by the Regional Offices for determining whether the Board would defer to an arbitrator’s award, is to be withdrawn and no longer followed. The Board’s website in fact already confirms that this memo and the standards it contained were withdrawn as of December 1, 2017.  While the Mandatory Submissions Memo does not expressly say so, it appears that the Regional Offices will now once again follow the Board’s longstanding Collyer deferral standards.

Graduate Students as Employees

Also withdrawn is General Counsel Memorandum 17-01, which addressed the prior General Counsel’s position on the question of whether graduate students and certain student athletes on scholarships should be treated as employees under the Act, as well as the question of whether faculty at religious affiliated universities and colleges teaching secular subjects would be able to organize and enjoy other protections of the Act.

There is Much More To Come

The above are only some of the most interesting areas covered in the Mandatory Submissions Memo.  With just over one week remaining before the conclusion of Chairman Miscimarra’s term on December 16th, observers are expecting a large number of cases that have been briefed before and considered by the Board to be decided. No doubt the decisions of the Republican majority Board will offer further indication of the direction the Board and the General Counsel will likely pursue.

The National Labor Relations Board (NLRB or Board) has ruled that graduate teaching assistants, i.e. graduate students who provide instruction and assist faculty with research as part of their own post-graduate education are “employees” within the meaning of the National Labor Relations Act (NLRA or Act), and thus have the right to join unions and engage in collective bargaining with the universities and colleges where they study.

For those who follow the Board, the 3-1 decision in Columbia University in, 364 NLRB No. 90 (2016) should come as no surprise. This past January, following a Regional Director’s Decision dismissing the representation petition filed by Graduate Workers of Columbia-GWC, UAW, (UAW or Union) because she found that under Board law, the graduate teaching assistants and research assistants the union sought to represent, were not employees as that term has been defined under the Act, but rather were students.

The Board Asked Four Questions

After the Regional Director issued her decision, the Union requested review by the Board and asked the Board to overrule its earlier holdings concerning graduate students and researchers such as those in the petitioned for unit. On January 13, 2016, the Board issued a Notice and Invitation to File Briefs, indicating that the Board would consider the Union’s appeal and that it would consider the Union’s argument that the Board should overrule its 2004 decision in Brown University, 342 NLRB 483, in which it had found graduate teaching assistants and research assistants were students and not employees under the Act. The Board invited interested parties to offer their views on the following questions:

  1. Should the Board modify or overrule Brown University, 342 NLRB 483 (2004), which held that graduate student assistants who perform services at a university in connection with their studies are not statutory employees within the meaning of Section 2(3) of the National Labor Relations Act?
  2. If the Board modifies or overrules Brown University, supra, what should be the standard for determining whether graduate student assistants engaged in research are statutory employees, including graduate student assistants engaged in research funded by external grants? See New York University, 332 NLRB 1205, 1209 fn. 10 (2000) (relying on Leland Stanford Junior University, 214 NLRB 621 (1974)).
  3. If the Board concludes that graduate student assistants, terminal masters degree students and undergraduate students are statutory employees, would a unit composed of all these classifications be appropriate?
  4. If the Board concludes that graduate student assistants, terminal masters degree students and undergraduate students are statutory employees, what standard should the Board apply to determine whether they constitute temporary employees?

The very fact that the Board was asking these questions was seen at the time as a strong indication that it would reject Brown and find a way to reclassify graduate teaching assistants as employees. Notably, two years ago, when the Board considered the Steelworkers effort to organize and represent student athletes who played football for Northwestern University on scholarships, the Board found the scholarship students to be “employees” but declined to exercise what it said was its jurisdiction that would have permitted it to conduct an election and require collective bargaining on what it characterized as considerations of public policy.

The NLRB Has Overruled Brown – The Answers to the Four Questions

The decision reverses and rejects the Board’s 2004 decision in Brown University, 342 NLRB 483, which the majority characterizes as “a sharply divided decision.” In Brown, the Board found that “graduate assistants who perform services at a university in connection with their studies are not statutory employees under the National Labor Relations Act.”

In jettisoning Brown, the majority concluded that the Board majority in that case “failed to acknowledge that the Act does not speak directly to the issue posed here, which calls on the Board to interpret the language of the statute in light of its policies.” The majority noted that “the Brown University decision, in turn, deprived an entire category of workers of the protection of the Act, without a convincing justification in either the statutory language of the Act or the policies of the Act.”

A quick read of the majority opinion and the dissent of Member Miscimarra suggest however that what the majority actually meant was that in the absence of express statutory language covering graduate students and research assistants, the majority felt comfortable substituting their views for those of the Brown majority, with whom they disagreed.  Columbia answers the four questions in the following way:

  1. The Board has overruled Brown and held that graduate teaching assistants and research assistants will now be considered to be statutory employees entitled to all of the Act’s protections.
  2. The Board will treat graduate research assistants as employees. Their positions will be examined under a traditional community of interest standard.
  3. The Board will apply its traditional community of interest standards in determining what are appropriate units for bargaining.
  4. While teaching assistants’ relationships with the University “are ‘temporar” in the sense that they are employed for short, finite periods of time averaging about two (not necessarily consecutive) semesters of work,” the Board nonetheless concluded that “all the employees in the unit, which we find to be appropriate, serve finite terms,” but that such finite terms alone cannot be a basis on which to deny bargaining rights.” Thus the Board rejects the argument that the limited duration of the teaching and research assistants means they should not be allowed to vote in representation elections.

Member Miscimarra Notes Real Risks In the Majority’s Approach

In addition to explaining why he believes as a matter of law and statutory construction why he believes the majority got it wrong and that the Brown majority was correct, Member Philip Miscimarra in his lengthy dissent points out a number of important policy considerations that the majority ignored, any and all of which can have profound negative consequences not only for the universities affected by this decision, but also for the students that they educate, both undergraduate and those the majority has now chosen to treat as statutory employees.

They include the following:

  • The Financial Investment Associated With a University Education, and the Mistake of Making Academic Success Subservient to the Risks and Uncertainties of Collective Bargaining and the Potential Resort to Economic Weapons.
    • Strikes
    • Lockouts
    • Loss, Suspension or Delay of Academic Credit
    • Suspension of Tuition Waivers
    • Potential Replacement of Striking Teaching and Research Assistants
    • Loss of Tuition Previously Paid
    • Misconduct, Potential Discharge, Academic Suspension/Expulsion Disputes
  • The many reasons that the “Board’s Processes and Procedures Are Incompatible With Applying the Act to University Student Assistants.”

What Columbia Means Going Forward

While the immediate impact of the decision is that the NLRB will now conduct a representation election in a unit of “All student employees who provide instructional services, including graduate and undergraduate Teaching Assistants (Teaching Assistants, Teaching Fellows, Preceptors, Course Assistants, Readers and Graders): All Graduate Research Assistants (including those compensated through Training Grants) and All Departmental Research Assistants,” to allow them to vote on representation by the UAW, the decision raises troubling questions both within academia and elsewhere and should be seen as part of a broader trend by the Board’s majority appointed by President Obama, to jump start collective bargaining and union organizing and bring unions into settings where until now they have not been found.

As we have previously reported, the NLRB has been broadly examining the nature of the employer-employee relationship, not only in the context of joint employment and co-employment but also in new areas of the gig economy, where unions and employees are arguing that workers traditionally recognized to be independent contractors have been “misclassified” and that such misclassification is in and of itself an unfair labor practice.