Jurisdiction-Nonemployee Status of University and College Students Working in Connection With Their Studies

 
CONTENT
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1
1 Leg. Hist. 318 (NLRA 1935). See also
American Ship Building Co. v. NLRB, 380 U.S. 300,
316 (1965) (stating that a purpose of the Act is ‘‘to
Continued
NATIONAL LABOR RELATIONS
BOARD
29 CFR Part 103
RIN 3142–AA15
Jurisdiction—Nonemployee Status of
University and College Students
Working in Connection With Their
Studies
AGENCY
: National Labor Relations
Board.
ACTION
: Notice of proposed rulemaking;
request for comments.
SUMMARY
: In order to more effectively
administer the National Labor Relations
Act (Act or NLRA) and to further the
purposes of the Act, the National Labor
Relations Board (the Board) proposes a
regulation establishing that students
who perform any services for
compensation, including, but not
limited to, teaching or research, at a
private college or university in
connection with their studies are not
‘‘employees’’ within the meaning of
Section 2(3) of the Act. The Board
believes that this proposed standard is
consistent with the purposes and
policies of the Act, which contemplates
jurisdiction over economic
relationships, not those that are
primarily educational in nature. This
rulemaking is intended to bring stability
to an area of federal labor law in which
the Board, through adjudication, has
reversed its approach three times since
2000.
DATES
: Comments regarding this
proposed rule must be received by the
Board on or before November 22, 2019.
Comments replying to comments
submitted during the initial comment
period must be received by the Board on
or before November 29, 2019. Reply
comments should be limited to replying
to comments previously filed by other
parties. No late comments will be
accepted.
ADDRESSES
:
Internet—Federal eRulemaking Portal.
Electronic comments may be submitted
through http://www.regulations.gov.
Follow the instructions for submitting
comments.
Delivery—Comments should be sent
by mail or hand delivery to: Roxanne
Rothschild, Executive Secretary,
National Labor Relations Board, 1015
Half Street SE, Washington, DC 20570–
0001. Because of security precautions,
the Board continues to experience
delays in U.S. mail delivery. You should
take this into consideration when
preparing to meet the deadline for
submitting comments. The Board
encourages electronic filing. It is not
necessary to send comments if they
have been filed electronically with
regulations.gov. If you send comments,
the Board recommends that you confirm
receipt of your delivered comments by
contacting (202) 273–1940 (this is not a
toll-free number). Individuals with
hearing impairments may call 1–866–
315–6572 (TTY/TDD).
Only comments submitted through
http://www.regulations.gov, hand
delivered, or mailed will be accepted; ex
parte communications received by the
Board will be made part of the
rulemaking record and will be treated as
comments only insofar as appropriate.
Comments will be available for public
inspection at http://
www.regulations.gov and during normal
business hours (8:30 a.m. to 5 p.m. EST)
at the above address.
The Board will post, as soon as
practicable, all comments received on
http://www.regulations.gov without
making any changes to the comments,
including any personal information
provided. The website http://
www.regulations.gov is the Federal
eRulemaking portal, and all comments
posted there are available and accessible
to the public. The Board requests that
comments include full citations or
internet links to any authority relied
upon. The Board cautions commenters
not to include personal information
such as Social Security numbers,
personal addresses, telephone numbers,
and email addresses in their comments,
as such submitted information will
become viewable by the public via the
http://www.regulations.gov website. It is
the commenter’s responsibility to
safeguard his or her information.
Comments submitted through http://
www.regulations.gov will not include
the commenter’s email address unless
the commenter chooses to include that
information as part of his or her
comment.
FOR FURTHER INFORMATION CONTACT
:
Roxanne Rothschild, Executive
Secretary, National Labor Relations
Board, 1015 Half Street SE, Washington,
DC 20570–0001, (202) 273–1940 (this is
not a toll-free number), 1–866–315–6572
(TTY/TDD).
SUPPLEMENTARY INFORMATION
: The
National Labor Relations Board is
proposing a jurisdictional rule
excluding undergraduate and graduate
students who perform services for some
form of financial compensation at a
private college or university in
connection with their studies from
coverage as employees under Section
2(3) of the Act. This proposed rule will
overrule extant precedent and return to
the state of law as it existed from shortly
after the Board first asserted jurisdiction
over private colleges and universities in
the early 1970s to 2000 and, with brief
exceptions, for most of the time since
then.
I. Background
Under Section 2(3) of the Act, ‘‘the
term ‘employee’ shall include any
employee, and shall not be limited to
the employees of a particular employer,
unless this subchapter [of the Act]
explicitly states otherwise . . . .’’ This
statutory definition of ‘‘employee’’
neither expressly includes nor excludes
students who perform services at a
private college or university in
connection with their studies.
Consequently, the Board is tasked with
addressing the jurisdictional
implications of asserting or denying
statutory employee status for these
students in light of the underlying
purposes of the Act. The Supreme Court
has made clear that ‘‘when reviewing
the Board’s [as opposed to a lower
court’s] interpretation of the term
‘employee’ as it is used in the Act, we
have repeatedly said that ‘[s]ince the
task of defining the term employee is
one that has been assigned primarily to
the agency created by Congress to
administer the Act, . .the Board’s
construction of that term is entitled to
considerable deference .... NLRB v.
Town & Country Electric, 516 U.S. 85,
94 (1995) (emphasis in original)
(quoting Sure-Tan, Inc. v. NLRB, 467
U.S. 883, 891 (1984) (internal quotation
marks omitted) (citations omitted)).
Thus, the Supreme Court ‘‘will uphold
any interpretation [of ‘employee’] that is
reasonably defensible.’’ Sure-Tan, supra
at 891 (citations omitted).
In Section 1 of the Act, Congress
found that the ‘‘strikes and other forms
of industrial strife or unrest’’ that
preceded the Act were caused by the
‘‘inequality of bargaining power
between employees who do not possess
full freedom of association or actual
liberty of contract, and employers who
are organized in the corporate or other
forms of ownership . . . .’’ In order to
eliminate the burden on interstate
commerce caused by this industrial
unrest, Congress extended to employees
the right ‘‘to organize and bargain
collectively’’ with their employer,
encouraging the ‘‘friendly adjustment of
industrial disputes arising out of
differences as to wages, hours, or other
working conditions . . . .’’ Id.
1
In
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redress the perceived imbalance of economic power
between labor and management’’); 1 Leg. Hist. 15
(NLRA 1935) (remarks of Sen. Wagner, 78 Cong.
Rec. 3443 (Mar. 1, 1934)).
2
NLRB v. Yeshiva University, 444 U.S. 672, 680
(citing Adelphi University, 195 NLRB 639, 648
(1972)).
3
Id. at 681 (quoting Syracuse University, 204
NLRB 641, 643 (1973)).
4
Subsequent to issuance of the decision in
Cornell, the Board engaged in notice and comment
rulemaking to establish the discretionary minimum
jurisdictional standard for colleges and universities.
Based on comments in response to a notice of
proposed rulemaking, 35 FR 11270, the Board
issued a final rule, codified as 29 CFR 103.1, setting
a gross annual revenue of $1 million as the
minimum standard. 35 FR 18370.
5
In St. Clare’s Hospital, 229 NLRB 1000 (1977),
and Cedars-Sinai Medical Center, 223 NLRB 251
(1976), the Board reaffirmed its treatment of
students who ‘‘perform services at their educational
institutions [that] are directly related to their
educational program’’ and stated that the Board
‘‘has universally excluded students from units
which include nonstudent employees, and in
addition has denied them the right to be
represented separately.’’ St. Clare’s Hospital, 229
NLRB at 1002. The Board emphasized the rationale
that such students are ‘‘serving primarily as
students and not primarily as employees . . . [and]
the mutual interests of the students and the
educational institution in the services being
rendered are predominately academic rather than
economic in nature.’’ Id. The Board later overruled
St. Clare’s Hospital and Cedars-Sinai in Boston
Medical Center, 330 NLRB 152 (1999), and asserted
jurisdiction over the interns, residents, and fellows
who had already completed their formal studies
and received their academic degrees. The Board in
Boston Medical Center did not address the status of
graduate assistants who have not received their
academic degrees.
6
The Brown University Board ‘‘express[ed] no
opinion’’ regarding Boston Medical Center, supra.
342 NLRB at 483 fn. 4.
applying this ‘‘central policy of the
Act,’’ the Board has emphasized that
‘‘[t]he vision of a fundamentally
economic relationship between
employers and employees is
inescapable.’’ WBAI Pacifica
Foundation, 328 NLRB 1273, 1275
(1999). The Supreme Court has similarly
observed that ‘‘[t]he Act was intended to
accommodate the type of management-
employee relations that prevail in the
pyramidal hierarchies of private
industry,’’
2
and that, accordingly,
‘‘principles developed for use in the
industrial setting cannot be ‘imposed
blindly on the academic world.’ ’’’
3
The Board first asserted jurisdiction
over private colleges and universities in
Cornell Univ., 183 NLRB 329 (1970).
4
Shortly thereafter, in Adelphi
University, 195 NLRB 639 (1972), the
Board held that graduate student
assistants are primarily students and
should be excluded from a bargaining
unit of regular faculty. The graduate
students were working toward their
advanced academic degrees, and the
Board noted that ‘‘their employment
depends entirely on their status as
such.’’ Id. at 640. Further, the Board
emphasized that graduate student
assistants ‘‘are guided, instructed,
assisted, and corrected in the
performance of their assistantship
duties by the regular faculty members to
whom they are assigned.’’ Id. In The
Leland Stanford Junior University, 214
NLRB 621, 623 (1974), the Board went
further, holding that graduate student
research assistants ‘‘are not employees
within the meaning of Section 2(3) of
the Act.’’ The Board found that the
research assistants were not statutory
employees because, like the graduate
assistants in Adelphi University, supra,
they were ‘‘primarily students.’’ Id. In
support of this conclusion, the Board
cited the following: (1) The research
assistants were graduate students
enrolled in the Stanford physics
department as Ph.D. candidates; (2) they
were required to perform research to
obtain a degree; (3) they received
academic credit for their research work;
and (4) while they received a stipend
from Stanford, funded by external
sources, the amount was not dependent
on the nature or intrinsic value of the
services performed or the skill or
function of the recipient, but instead
was determined by the goal of providing
the graduate students with financial
support. Id. at 621–623. The Board
distinguished the graduate student
research assistants from employee
‘‘research associates’’ who were ‘‘not
simultaneously students,’’ having
already completed their graduate
degrees. Id. at 623.
For over 25 years, the Board adhered
to the Leland Stanford principle.
5
Then,
in New York University, 332 NLRB 1205
(2000) (‘‘NYU’’), the Board reversed
course and held for the first time that
certain university graduate student
assistants were statutory employees.
The Board reviewed the statutory
language of Section 2(3) and applied the
common-law agency doctrine of the
conventional master-servant
relationship, which establishes that
such a ‘‘relationship exists when a
servant performs services for another,
under the other’s control or right of
control, and in return for payment.’’ Id.
at 1206 (citations omitted). The Board
concluded that ‘‘ample evidence exists
to find that graduate assistants plainly
and literally fall within the meaning of
‘employee’ as defined in Section 2(3)’’
and by the common law. Id. This
interpretation was based on the breadth
of the statutory language, the lack of any
statutory exclusion for graduate student
assistants, and the ‘‘uncontradicted and
salient facts’’ establishing that the
assistants in that case performed
services under the control and direction
of the university for which they were
compensated. Id. The NYU Board also
relied on Boston Medical Center, supra,
to support its policy determination that
collective bargaining was feasible in the
university context. Id. However, citing
Leland Stanford, supra, the Board
concluded that certain externally-
funded graduate and research student
assistants did not ‘‘perform a service’’
for their university and therefore were
not statutory employees. Id. at 1209 fn.
10.
Four years later, the Board in Brown
University, 342 NLRB 483 (2004),
reconsidered and overruled NYU,
6
holding that graduate student teaching
assistants, research assistants, and
proctors in the petitioned-for bargaining
unit were not statutory employees. The
Board reasserted the ‘‘principle . . . that
graduate student assistants are primarily
students and not statutory employees.’’
Id. (citing Leland Stanford, supra).
Consistent with that principle, the
Board found that ‘‘graduate student
assistants, who perform services at a
university in connection with their
studies, have a predominately academic,
rather than economic, relationship with
their school’’ and therefore ‘‘[are] not
employees within the intendment of the
Act.’’ Id. In support of this conclusion,
the Board cited the following: (1) The
petitioned-for individuals were
students; (2) their ability to serve as
teaching assistants, research assistants,
or proctors, and receipt of a stipend and
tuition remission for doing so,
depended on continued enrollment as a
student; (3) their principal time
commitment at Brown University was
focused on obtaining a degree and, thus,
being a student; and (4) the act of
serving as a teaching assistant, research
assistant, or proctor was part and parcel
of the core elements of the Ph.D. degree,
teaching and research. Id. at 488, 492.
In addition, as a policy matter, the
Board determined that collective
bargaining ‘‘would unduly infringe
upon traditional academic freedoms.’’
Brown University, supra at 490.
Specifically, the Board concluded that
‘‘[i]mposing collective bargaining
[between graduate student assistants
and private universities] would have a
deleterious impact on overall
educational decisions . . . includ[ing]
broad academic issues involving class
size, time, length, and location, as well
as issues over graduate assistants’
duties, hours, and stipends.’’ Id. The
Board also found that the collective-
bargaining obligation ‘‘would intrude
upon decisions over who, what, and
where to teach or research,’’ all of which
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7
Id., slip op. at 4 & fn. 32 (quoting Sure-Tan, Inc.
v. NLRB, 467 U.S. at 891).
8
Id., slip op. at 4 & fn. 33 (quoting Town &
Country Electric, 516 U.S. at 90 (internal quotations
omitted)).
9
The Columbia Board also summarily overruled
San Francisco Art Institute, 226 NLRB 1251 (1976),
as incompatible with the holding that student
employees were entitled under Section 2(3) to
engage in collective bargaining. 364 NLRB No. 90,
slip op. at 24 fn. 130. The Board in San Francisco
Art Institute had held that it would not effectuate
the policies of the Act to direct an election in a unit
consisting only of student janitors. Without
expressly deciding the status of the student janitors
under Sec. 2(3), the Board reasoned that this unit
would not be appropriate for purposes of collective
bargaining because of the ‘‘the very tenuous
secondary interest that these students have in their
part-time employment.’’ Id. at 1252. In reaching this
conclusion, the Board was influenced by the ‘‘brief
nature of the students’ employment tenure, by the
nature of compensation for some of the students,
and by the fact that students are concerned
primarily with their studies rather than with their
part-time employment,’’ as well as the concern that
‘‘owing to the rapid turnover that regularly and
naturally occurs among student janitors, it is quite
possible that by the time an election were
conducted and the results certified the composition
of the unit would have changed substantially.’’ Id.
10
The students at issue in Brown University were
graduate student assistants. The proposed rule
contemplates both graduate and undergraduate
student assistants.
11
See also NLRB v. Yeshiva University, 444 U.S.
at 689 (1980) (in finding the faculty of Yeshiva
University to be ‘‘managerial employees’’ outside
the Act’s coverage, observing that ‘‘the analogy of
the university to industry need not, and indeed
cannot, be complete’’).
constitute ‘‘the principal prerogatives of
an educational institution.’’ Id.
A decade later, a Board majority in
Columbia University, 364 NLRB No. 90
(2016), reconsidered and overruled
Brown University. The Columbia
decision, however, went much further
than reinstating the statutory employee
holding in NYU. Whereas NYU had
applied exclusively to certain graduate
student assistants and had
acknowledged the continuing viability
of Leland Stanford, supra, the Columbia
decision overruled Leland Stanford and
expanded Section 2(3) of the Act and
the rationale of NYU to cover—for the
first time since the Board asserted
jurisdiction over colleges and
universities—both externally-funded
graduate research assistants and
undergraduate university student
assistants.
Specifically, the Board determined
that an employment relationship can
exist under the Act between a private
college or university and its employee,
even when the employee is
simultaneously a student. The Board
observed that ‘‘[s]tatutory 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.’’ Id., slip op. at 2. Thus, an
individual ‘‘may be both a student and
an employee; a university may be both
the student’s educator and employer.’’
Id., slip op. at 7 (emphasis in original).
Concluding that both Section 2(3) of the
Act and the common law of agency
support a finding of employee status,
the Board cited the Supreme Court’s
observations that the breadth of the
definition of ‘‘employee’’ in Section 2(3)
is ‘‘striking’’
7
and ‘‘seems to reiterate
the breadth of the ordinary dictionary
definition of the term, a definition that
includes any person who works for
another in return for financial or other
compensation.’’
8
Moreover, the Board
stressed that Congress chose not to list
student assistants among the Act’s
enumerated exclusions from the
statutory definition of employee, which
‘‘is itself strong evidence of statutory
coverage.’’ Id. (citing Sure-Tan, supra at
891–892). The Board concluded that
university student assistants meet the
common-law definition of employee
establishing that an employee
‘‘relationship exists when a servant
performs services for another, under the
other’s control or right of control, and in
return for payment.’’ Id., slip op. at 3
(quoting NYU, 332 NLRB at 1206).
Additionally, the Board explained that
in past cases, the broad language in
Section 2(3) had been interpreted to
cover categories of workers that
included paid union organizers (salts),
undocumented workers, and
confidential employees. Id., slip op. at
5. The Columbia Board concluded that
asserting jurisdiction over university
student assistants who meet the
common-law definition of employee
furthers the Act’s policies of
encouraging collective bargaining and
employees’ freedom to express a choice
for or against a bargaining
representative. Id., slip op. at 6–7.
Further, the Board rejected the
‘‘theoretical’’ claims in Brown
University that classifying university
student assistants as statutory
employees and permitting them to
bargain collectively would have a
detrimental impact on the educational
process, explaining, inter alia, that there
is no empirical support for the
proposition that collective bargaining
cannot successfully coexist with a
student-teacher relationship. Id., slip
op. at 7.
9
II. The Proposed Rule
Under the proposed rule, students
who perform services at a private
college or university related to their
studies will be held to be primarily
students with a primarily educational,
not economic, relationship with their
university, and therefore not statutory
employees. See Brown University, 342
NLRB at 487.
10
The Board believes,
subject to potential revision in response
to comments, that the proposed rule
reflects an understanding of Section 2(3)
that is more consistent with the overall
purposes of the Act than are the
majority opinions in NYU and Columbia
University. Thus, the proposed rule is
based on the view that the common-law
definition of employee is not conclusive
because the Act, and its policy
promoting collective bargaining,
‘‘contemplates a primarily economic
relationship between employer and
employee, and provides a mechanism
for resolving economic disputes that
arise in that relationship.’’ Brevard
Achievement Center, 342 NLRB 982,
984–985 (2004).
The Supreme Court has recognized
the importance of these Congressional
policies in determining whether
individuals are statutory employees. For
example, in NLRB v. Bell Aerospace
Corp., 416 U.S. 267 (1974), the Court
held that although managerial
employees are not explicitly excluded
from the definition of an employee in
Section 2(3), they nevertheless fall
outside the Act’s coverage. As the Court
explained:
[T]he Wagner Act was designed to protect
‘laborers’ and ‘workers,’ not vice presidents
and others clearly within the managerial
hierarchy. Extension of the Act to cover true
‘managerial employees’ would indeed be
revolutionary, for it would eviscerate the
traditional distinction between labor and
management. If Congress intended a result so
drastic, it is not unreasonable to expect that
it would have said so expressly. [Id. at 284
fn. 13.]
11
The Board has similarly held that
individuals without a sufficient
economic relationship to an employer
are not statutory employees. See, e.g.,
Toering Electric Co., 351 NLRB 225, 228
(2007) (finding applicants for
employment are not statutory
employees if they lack a genuine
interest in working for the employer as
this is ‘‘not the economic relationship
contemplated and protected by the
Act’’); Brevard Achievement Center, 342
NLRB at 984 (finding individuals with
disabilities are not statutory employees
if the relationship to their employer is
‘‘primarily rehabilitative’’ rather than
‘‘typically industrial’’); WBAI Pacifica
Foundation, 328 NLRB at 1275 (finding
unpaid staff are not statutory employees
as the Act contemplates ‘‘a
fundamentally economic relationship
between employers and employees’’).
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12
See also The Leland Stanford Junior University,
214 NLRB at 623 (research assistants that ‘‘are
seeking to advance their own academic standing
and are engaging in research as a means of
achieving that advancement’’ do not constitute
statutory employees).
13
See also Sweezy v. State of New Hampshire,
354 U.S. 234, 263 (1957) (Frankfurter, J, concurring)
(Academic freedom includes the right of a
university ‘‘to determine for itself on academic
grounds who may teach, what may be taught, how
it shall be taught, and who may be admitted to
study.’’) (citation omitted).
14
Cornell University, supra.
15
See fn. 4, supra.
The holding in Brown University that
the student teaching assistants and
research assistants had a primarily
educational, not economic, relationship
with their school appears to fit
comfortably with this line of decisions.
For example, students who assist faculty
members with teaching or research
generally do so because those activities
are vital to their education; they gain
knowledge of their discipline and
cultivate relationships with faculty. See
Brown University, 342 NLRB at 489
(‘‘[T]he role of teaching assistant and
research assistant is integral to the
education of the graduate student
. . .’’).
12
In fact, performing such
services is often a prerequisite to
obtaining the student’s degree.
Another consideration is that students
spend a limited amount of time
performing these additional duties
because their principal time
commitment is focused on their
coursework and studies. See id. at 488.
Further, with regard to remuneration,
students typically receive funding
regardless of the amount of time they
spend researching or teaching, and only
during the period that they are enrolled
as students. See id. at 488–489.
Therefore these funds, which are
provided to help pay the cost of
students’ education, are better viewed as
financial aid than as ‘‘consideration for
work.’’ Id.
Additionally, the goal of faculty in
advancing their students’ education
differs from the interests of employers
and employees engaged in collective
bargaining, who ‘‘proceed from contrary
and to an extent antagonistic viewpoints
and concepts of self-interest.’’ Id. at 488
(quoting NLRB v. Insurance Agents, 361
U.S. 477, 488 (1960)). Faculty members
educate, evaluate, and mentor students.
Collective bargaining over those matters
appears to be inappropriate given that
faculty and students are engaged in an
individualized learning experience.
Finally, a statutory construction of
Section 2(3) consistent with the Board’s
‘‘longstanding rule that it will not assert
jurisdiction over relationships that are
‘primarily educational’’’ advances the
important policy of protecting
traditional academic freedoms. See
Brown University, supra at 488, 490.
These freedoms include both free
speech rights in the classroom and
several matters traditionally in the
domain of academic decision-making,
including those concerning course
content and length; class size and
location; who, what, and where to teach
or research; university student
assistants’ educational and service
responsibilities; and standards for
advancement and graduation. Id. at
490.
13
Subjecting these important
academic freedoms to traditional
collective bargaining would necessarily
and inappropriately involve the Board
in the academic prerogatives of private
colleges and universities as well as in
the educational relationships between
faculty members and students. See
Brown University, supra at 492 (‘‘[T]he
broad power to bargain over all Section
8(d) subjects would, in the case of
graduate student assistants, carry with it
the power to intrude into areas that are
at the heart of the educational
process.’’). Indeed, the nature of the
general duty to bargain under the Act
uniquely imperils the protection of
academic freedoms.
As noted above, the proposed rule
would exclude from Section 2(3)’s
coverage of employees those students
who perform any services in connection
with their undergraduate or graduate
studies at a private college or university,
including, but not limited to, teaching
or research assistance. However, the
Board also invites comments on
whether the rule should also apply to
exclude from Section 2(3) coverage
students employed by their own
educational institution in a capacity
unrelated to their course of study due to
the ‘‘very tenuous secondary interest
that these students have in their part-
time employment.’’ San Francisco Art
Institute, supra at 1252.
III. Validity and Desirability of
Rulemaking
Section 6 of the Act provides that
‘‘[t]he Board shall have authority from
time to time to make, amend, and
rescind, in the manner prescribed by
subchapter II of chapter 5 of Title 5 [the
Administrative Procedure Act], such
rules and regulations as may be
necessary to carry out the provisions of
this Act.’’ The Board interprets Section
6 as authorizing the proposed rules and
invites comments on this issue.
Although the Board historically has
made most substantive policy
determinations through case
adjudication, the Board has, with
Supreme Court approval, engaged in
substantive rulemaking. American
Hospital Assn. v. NLRB, 499 U.S. 606
(1991) (upholding Board’s rulemaking
on appropriate bargaining units in the
healthcare industry); see also NLRB v.
Bell Aerospace Co., 416 U.S. 267, 294
(1974) (‘‘[T]he choice between
rulemaking and adjudication lies in the
first instance within the Board’s
discretion.’’). Indeed, although the
Board first asserted statutory
jurisdiction over private colleges and
universities in case adjudication,
14
it
subsequently established the
discretionary minimum standard for
asserting jurisdiction through notice and
comment rulemaking, and the proposed
rule excluding student assistants from
the Act’s coverage would be
incorporated as an amendment to the
jurisdictional standard set forth in 29
CFR 103.1.
15
The Board finds that informal notice-
and-comment rulemaking is preferable
to adjudication with respect to the
industry-wide determination whether
students who perform services in
connection with their studies are
‘‘employees’’ within the meaning of
Section 2(3) of the Act. The rulemaking
process provides the opportunity for
broader public input than in case
adjudication and, consequently, for
Board consideration of a record of any
variations in student assistant and other
academic work-related programs than
might not exist in any single
educational institution. It also does not
depend on participation and argument
by parties in a specific case, and it
cannot be mooted by developments in a
pending case. In this regard, we note
that the student employee issue has
been raised recently by requests for
review in several cases pending before
the Board, but in each of those cases the
issue was mooted by withdrawal of the
underlying representation petition.
Finally, the Board believes that
rulemaking will enable students,
unions, and private colleges and
universities to plan their affairs with
greater predictability and certainty than
has existed during the recent history of
adjudicatory oscillation.
IV. Response to the Dissent
Our dissenting colleague is not
surprisingly of the opinion that the
Columbia University majority, of which
she was a member, has made the only
rational interpretation of a statutory
provision that is silent on the issue of
whether paid student assistants are
employees under the Act. This is so in
spite of the fact that different Boards
composed of different members have on
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16
364 NLRB No. 90 (2016).
17
See Colleen Flaherty, A TA Union Contract, 2
Years Later, Inside Higher Ed, Sept. 5, 2018,
available at https://www.insidehighered.com/news/
2018/09/05/brandeis-grad-students-win-significant-
gains-union-contract-even-trump (noting
substantial economic gains in newly-negotiated
contract for student employees at Brandeis); David
Ludwig, Why Graduate Students of America Are
Uniting, The Atlantic, Apr. 15, 2015, available at
https://www.theatlantic.com/education/archive/
2015/04/graduate-students-of-the-world-unite/
390261/; Rachel Bernstein, Ivy League Graduate
Students Push for Unionization, Science, Apr. 28,
2015, available at https://www.sciencemag.org/
careers/2015/04/ivy-league-graduate-students-push-
unionization (‘‘Graduate students’ concerns include
inadequate health insurance, high prices for
dependent coverage on student health insurance
policies, and insufficient child care and family
leave support.’’); Daniel Moattar, How Graduate
Unions Are Winning—and Scaring the Hell out of
Bosses—in the Trump Era, In These Times, Nov. 29,
2018, available at https://inthesetimes.com/
working/entry/21602/graduate_student_unions_
trump_nlrb_columbia_brown (according to labor
law professor and advocate Risa Lieberwitz, ‘‘More
and more, we see the growth in the ranks of
administrators, the shrinking of the ranks of
tenured- and tenure-track faculty, and a lot of the
shifting of the work of faculty to TAs [teaching
assistants] and RAs [research assistants][,]’’ making
graduate students and adjuncts ‘‘a body of very low-
wage employees.’’).
18
332 NLRB 1205 (2000).
19
As scholars have pointed out, the Brown
University decision offered ‘‘no empirical support’’
for its claims even though the ‘‘assertions are
empirically testable.’’ Catherine L. Fisk & Deborah
C. Malamud, The NLRB in Administrative Exile:
Problems with Its Structure and Function and
Suggestions for Reform, 58 Duke L. J. 2013, 2076–
2077 (2009).
20
364 NLRB No. 90, slip op. at 1–2 (emphasis in
original), citing National Labor Relations Act, Sec.
1, 29 U.S.C. 151, and Sec. 2(3), 29 U.S.C. 152(3).
21
Rather than acknowledge the uphill challenge
that the Act’s language and policy present, the
majority notes that the Sec. 2(3) definition of
‘‘employee’’ ‘‘neither expressly includes nor
excludes’’ student employees, suggesting that the
absence of a specific exclusion allows the Board to
exclude any category of workers not specifically
included. That notion—that whatever Congress may
have said, the Board is free to narrow the coverage
of the Act—is simply wrong, as the Supreme
Court’s decisions make clear. See NLRB v. Town &
Country Elec., Inc., 516 U.S. 85, 91, 94 (1995)
(‘‘[B]road, literal interpretation of the word
‘employee’ is consistent with several of the Act’s
purposes, such as protecting the right of employees
to organize for mutual aid without employer
interference . . .; and encouraging and protecting
the collective-bargaining process. And, insofar as
one can infer purpose from congressional reports
and floor statements, those sources too are
consistent with the Board’s broad interpretation of
the word. It is fairly easy to find statements to the
effect that an ‘employee’ simply means someone
who works for another for hire, and includes every
man on a payroll .... [W]hen Congress uses the
term ‘employee’ in a statute that does not define the
term, courts interpreting the statute must infer,
unless the statute otherwise dictates, that Congress
means to incorporate the established meaning of
that term.’’); Sure-Tan, Inc. v. NLRB, 467 U.S. 883,
891–92 (1984) (‘‘Since undocumented aliens are not
among the few groups of workers expressly
exempted by Congress, they plainly come within
the broad statutory definition of ‘employee.’’’). See
generally Andrus v. Glover Const. Co., 446 U.S. 608,
616–17 (1980) (‘‘Where Congress explicitly
enumerates certain exceptions to a general
prohibition, additional exceptions are not to be
implied, in the absence of evidence of a contrary
legislative intent.’’).
multiple occasions reached different
and conflicting conclusions for varying
reasons on that issue. Further, our
colleague apparently believes that the
finality that should be assigned to the
Columbia majority decision justifies her
departure from a frequently-voiced
complaint that we are required and have
failed to invite public input before
overruling precedent.
We emphatically reject our
colleague’s offensive claim that we
propose to reverse progress made by
student employees with respect to
improved working conditions ‘‘in the
name of preserving higher education.’’
We do not aim in this process to reverse
that progress. Our goal is simply to
determine whether the Board has
statutory jurisdiction over student
employees in private colleges and
universities. As our colleague surely
knows, if we do not have jurisdiction,
then we lack the authority to protect
student employees’ union and other
concerted activities to secure or retain
improved terms and conditions of
employment, however worthy those
activities may be. Of course, that is
undisputedly the case with respect to
the experiences at many public
institutions of higher learning that our
colleague cites as examples of how
collective bargaining can work.
Moreover, while not determinative,
we note that almost all of the progress
our colleague refers to at private
universities and colleges has been
secured through voluntary collective
bargaining and/or the use of traditional
economic weapons without invoking
the Board’s jurisdiction. In fact, unions
seeking to represent student employees
at private universities have on
numerous occasions since Columbia
withdrawn election petitions. Through
the notice and comment process we
initiate today, we will have the
opportunity to hear directly from those
involved about their experiences and
how they relate to the jurisdictional
issue before us.
V. Dissenting View of Member Lauren
McFerran
In the wake of the Board’s 2016
Columbia University decision,
16
which
held that students who work for their
universities are protected by the
National Labor Relations Act, student
employees across the country have been
seeking—and often winning—better
working conditions: Better pay, better
health insurance, better child care, and
more.
17
Today, the majority proposes to
reverse this progress, in the name of
preserving higher education. While
student employees clearly see
themselves as workers, with workers’
interests and workers’ rights, the
majority has effectively decided that
they need protecting from themselves. I
disagree.
There is no good basis—in law, in
policy, or in fact—to take these workers’
rights away. Instead, the majority
revives tired old arguments rightly
rejected by the Board in Columbia—and,
even before that, in the Board’s 2000
decision in New York University,
18
which first found student employees
protected. Today’s proposal—like the
view of the dissenting Board member in
Columbia and the position taken by the
Board in its misguided Brown University
decision
19
—reflects a deep
misunderstanding of our statute, as
interpreted by the Supreme Court,
which broadly protects private-sector
employees and which has no special
exception for working students. At
bottom, the majority relies on
speculative claims about the harm
collective bargaining supposedly will do
to the students themselves, as well as to
their universities. But those claims are
not only unsupported, they are refuted
by what has happened in the real world.
The majority has chosen to address this
issue via rulemaking, but in rulemaking
empirical evidence must govern. The
Brown University view, the Columbia
dissenter’s view, and the majority’s
view today, will all be put to a test that
they cannot survive. There is no need to
proceed this way, when the Board can
and should adhere to the Columbia
decision and affirm the right of student
employees to engage in collective
bargaining.
A.
The Board’s decision in Columbia
(not to mention its earlier New York
University decision) has already
rebutted the legal premises the majority
now relies on. As the Columbia Board
explained, the ‘‘broad language’’ of the
National Labor Relations Act—the Act
covers ‘‘any employee,’’ subject to
certain exceptions, ‘‘none of which
address students employed by their
universities’’—coupled with the
‘‘unequivocal policy of the Act’’ to
encourage collective bargaining, means
that the Board should ‘‘extend statutory
coverage to students working for
universities . . . unless they are strong
reasons not to do so.’’
20
There are no
such reasons, and there never have
been.
21
Recycling a made-up distinction, the
majority argues that only employees
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The majority points to the fact that the Board
has reached ‘‘conflicting conclusions’’ on whether
the Act should be read to include student
employees as a self-reinforcing basis to assume that
there are multiple valid interpretations thereof. As
I have discussed herein and as Columbia goes to
great lengths to address, the legal analysis in Brown
and earlier decisions, finding that student
employees are not statutory employees, cannot be
reconciled with the language of the Act and with
binding Supreme Court law. But even assuming that
it were permissible for the Board to exercise its
discretion to return to the pre-Columbia approach,
any such shift would have to be reconciled with the
real-world evidence that collective bargaining in
this industry has proven both feasible and
successful.
23
Columbia University, supra, 364 NLRB No. 90,
slip op. at 5–6. See Town & Country Electric, supra,
516 U.S. at 88, 95 (chief purpose of union salts was
to organize and form a union, not to benefit
economically, yet they were nonetheless
employees); Seattle Opera Assn., 331 NLRB 1072,
1073 (2000) (while auxiliary choristers received
nonmonetary benefit in the form of personal
satisfaction at their involvement in the opera, their
relationship had features of common-law
employment and therefore they were statutory
employees), enfd. 292 F.3d 757 (D.C. Cir. 2002).
The lone case where the Supreme Court has
excluded a class of common-law employees who
were not among the Act’s enumerated exceptions
offers no support for the majority’s effort here. In
endorsing the exclusion of managerial employees,
Bell Aerospace sets a high bar. The recognized
exception for managerial employees was firmly
rooted in specific, demonstrable legislative policies:
The Court pointed to ‘‘the House Report and the
Senate Report,’’ both of which ‘‘voiced concern over
the Board’s broad reading of the term ‘employee’ to
include those clearly within the managerial
hierarchy,’’ as well as ‘‘legislative history strongly
suggesting’’ that managerial employees were
‘‘regarded as so clearly outside the Act that no
specific exclusionary provision was thought
necessary.’’ NLRB v. Bell Aerospace Co., 416 U.S.
267, 281, 283 (1974) (internal quotations and
brackets omitted); see also Sure-Tan, supra, 467
U.S. at 892–93 (looking for identifiable statutory
text or policies concerning coverage of
undocumented workers under the Act and further
examining, to the extent any policies exist, whether
there would be any specific conflict).
The majority also cites NLRB v. Yeshiva
University, 444 U.S. 672 (1980) for the proposition
that the Act recognizes the absence of ‘‘pyramidal
hierarchies’’ in an educational setting that might
make the application of the Act inapt. But there the
Court was referring very specifically to the
collective ‘‘faculty governance’’ that had
historically characterized relationships between the
faculty at issue in Yeshiva, and their employer.
Indeed, it was in light of this particular shared
control that the Court analyzed the question of
whether faculty members could be deemed
managerial employees. The case said nothing at all
concerning student employees, who obviously are
not in the same position as faculty members and
who plainly are in a hierarchical relationship to the
university.
24
364 NLRB No. 90, slip op. at 6–12.
25
Id. at 12. As the Columbia Board pointed out,
to support any argument that student employees
should not be covered by the Act, there must be
both identifiable congressional policies that
coverage would implicate and empirical data that
coverage would harm those policies—elements that
are both absent from the majority’s proposal. See id.
at 7–12. Indeed, there is no logical basis to presume,
as the majority does here in the absence of data, that
covering student employees will affect any
academic concerns. The Columbia Board correctly
observed that ‘‘[d]efining the precise contours of
what is a mandatory subject or bargaining for
student assistants is a task that the Board can and
should address case by case.’’ Id. at 8 (footnote
omitted). Where a question arises whether
bargaining rights might infringe on academic
matters, an ‘‘employer is always free to persuade a
union that it cannot bargain over matters in the
manner suggested by the union because of these
restrictions. But that is part of the bargaining
process: The parties can identify and confront any
issues of academic freedom as they would any other
issue in collective bargaining .... If the parties
cannot resolve their differences through bargaining,
they are free to seek resolution of the issues by
resort to [the Board’s] processes, and [the Board]
will address them [by, for example, delineating
between what is a mandatory or permissive subject
of bargaining] at the appropriate time.’’ Boston Med.
Ctr. Corp., 330 NLRB 152, 164 (1999).
26
See Columbia, 364 NLRB No. 90, slip op. at 9
(‘‘Recent data show that more than 64,000 graduate
student employees are organized at 28 institutions
of higher education, a development that began at
the University of Wisconsin at Madison in 1969 and
that now encompasses universities in California,
Florida, Illinois, Iowa, Massachusetts, Michigan,
Oregon, Pennsylvania, and Washington.’’).
27
Available at https://makingabetternyu.org/app/
uploads/GSOCNYU_2015contract_searchable.pdf.
28
Available at https://sensuaw.org/app/uploads/
2019/01/SENS-UAW-CBA-_Executed_
01232019.pdf.
29
Available at https://www.american.edu/
provost/academicaffairs/graduate_student_
employees/upload/au-graduate-employees-cba.pdf.
30
Available at https://as.tufts.edu/sites/default/
files/2018-2023-GSAS-CBA-Signed.pdf.
31
Available at https://www.brandeis.edu/
humanresources/CollectiveBargainingAgreement/
documents/Brandeis-Graduate-Assistant-CBA.pdf.
32
Shera S. Avi-Yonah and Molly C. McCafferty,
Grad Unionization Movement Sees Successes
Nationwide As Harvard Begins Bargaining, The
Harvard Crimson, Nov. 27, 2018, available at
https://www.thecrimson.com/article/2018/11/27/
union-efforts-peer-institutions/ (student employee
unions recognized and bargaining underway at
Harvard, Georgetown, Brown, Columbia
Universities). Notably, where there has been
majority support for student employee unions but
universities have refused to bargain, this has
typically resulted in continuing demonstrations and
other forms of student pressure to achieve
bargaining. See Lee Harris, Graduate Student
Workers Across Chicago Ramp Up Unionization
Efforts, The Chicago Maroon, Apr. 26, 2019,
available at https://www.chicagomaroon.com/
article/2019/4/26/graduate-student-unions-loyola-
arrests-northwestern-uchicago-gsu/ (at University of
Chicago and Loyola University Chicago, students
have had pro-union votes but universities have
declined to recognize them, leading to
demonstrations, sit-ins, and even arrests).
33
The majority claims that the economic progress
by student employees has been achieved largely
through voluntary recognition and mechanisms
outside the Board procedures. The evidence
suggests, however, that the Board’s establishment of
legal procedures for recognition and bargaining has
played an outsized role. In fact, since Columbia
issued, student-employee unions have won
numerous NLRB-supervised elections, including at
Columbia, The New School, Brandeis, Tufts, the
University of Chicago, Loyola University Chicago,
Boston College, and American University. NLRB
elections at these schools involved a combined
approximate number of 10,000 eligible voters per
the NLRB’s own tally sheets, leading to six Board
certifications of representative and at least four
contracts. At the University of Chicago and Boston
College—as well as in several units at Yale, which
involved multiple, smaller academic units—the
unions prevailed, but withdrew their petitions after
the universities appealed the results, out of concern
that they would be used by the Board as a vehicle
to reverse Columbia. See Colleen Flaherty, Realities
of Trump-Era NLRB, Inside Higher Ed, Feb. 15,
2018, available at https://www.insidehighered.com/
news/2018/02/15/blow-graduate-student-union-
movement-private-campuses-three-would-be-
unions-withdraw; Jingyi Cui, Will grad students
whose relationship with their employer
is ‘‘primarily economic’’ (as opposed to
‘‘primarily educational’’) should be
covered.
22
But as the Columbia Board
explained, the Act clearly contemplates
coverage of any common-law
employment relationship; it does not
care whether the employee and the
employer also have some other non-
economic relationship, beyond the
reach of the Act.
23
The Columbia Board
went on to explain why covering
student employees promoted the goals
of federal labor policy, why it did not
infringe on First Amendment academic
freedom, and why empirical evidence
(as well as the Board’s experience)
demonstrated that coverage was
appropriate.
24
As the Columbia Board
correctly concluded, ‘‘there is no
compelling reason—in theory or in
practice—to conclude that collective
bargaining by student assistants cannot
be viable or that it would seriously
interfere with higher education.’’
25
B.
The empirical evidence relied on by
the Columbia Board came from private-
sector experience during the brief, prior
period (2000–2004) when the Board had
protected the rights of student
employees and from experience in
public universities, where collective
bargaining by student employees has
long been common.
26
Following
Columbia, of course, student employees
at private universities have exercised
their labor-law rights, continuing to
organize unions, win representation,
and secure collective-bargaining
agreements—all without any apparent
damage to higher education. The
majority ignores this development,
although it must be aware of it—
otherwise, the impetus for this entire
project would be a mystery.
In the private sector, there are at least
five executed collective bargaining
agreements between student employee
unions and universities: New York
University (NYU),
27
The New School,
28
American University,
29
Tufts
University,
30
and Brandeis University.
31
Several other schools are currently in
negotiations for an agreement.
32
Of the
contracts that have been executed, all
but the NYU agreement (which was
negotiated pursuant to voluntary
recognition) involved unions certified in
Board elections after Columbia issued.
33
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ever get their union?, Yale Daily News, Feb. 15,
2018, available at https://yaledailynews.com/blog/
2018/02/15/will-grad-students-ever-get-their-
union/. Elsewhere, the change in Board law that
required bargaining with a student-employee union
was a likely impetus for voluntary recognition:
Harvard, Georgetown, and Brown all agreed to
recognize unions based on non-NLRB elections—
after Columbia issued. See, e.g., News From Brown,
Brown University, graduate student organizers
finalize terms for Nov. 14–19 unionization vote,
Nov. 8, 2018, available at https://www.brown.edu/
news/2018-11-08/election.
34
The majority also asserts that student
employees’‘‘principal time commitment is focused
on their coursework and studies. But what portion
of their time is spent working for the universities
makes no difference to whether they should be
treated as statutory employees. That student
employees are seeking union representation and
pursuing collective bargaining should tell the Board
all it needs to know: Their work and their working
conditions matter to them.
The majority asserts that student-employee
compensation is not directly tied to the time spent
at tasks and that compensation is more akin to
financial aid. But salaried employees are covered by
the Act, just as hourly or piece-rate employees are.
Nor does the nature of compensation matter, so long
as it is compensation for work.
35
See Columbia., supra, 364 NLRB No. 90, slip
op, at 15, 16 (student employees at Columbia may
work 20 hours a week and may teach undergraduate
‘‘core curriculum,’’ indicating a role ‘‘akin to that
of faculty’’ and involving routine elements of
educating undergraduates). See also Ben Kesslen,
The latest campus battle: Graduate students are
fighting to unionize, NBC News, June 8, 2019,
available at https://www.nbcnews.com/news/us-
news/latest-campus-battle-graduate-students-are-
fighting-unionize-n1015141 (‘‘At some universities,
more than 15 percent of courses list graduate
students as primary instructors and some
undergraduates spend half of their instruction
hours with graduate teaching assistants.’’).
36
Brown University, supra, 342 NLRB at 494
(dissenting opinion of Member Liebman and
Member Walsh).
37
Relatedly, the Brandeis agreement management
rights clause provides, inter alia, that management
shall:
Exercise sole authority on all decisions involving
academic matters, including:
(a) Any judgments concerning academic
programing, including (i) courses, curriculum and
instruction; (ii) content of courses, instructional
materials, the nature and form of assignments
required including examinations and other work;
(iii) methods of instruction; (iv) class size; (v)
grading policies and practices; and (vi) academic
calendars and holidays;
(b) the development and execution of policies,
procedures, rule and regulations regarding the
Graduate Assistants’ status as students, including
but not limited to all questions of academic
standing and intellectual integrity; and
(c) any evaluations and determinations of
Graduate Assistants progress as students, including
but not limited to the completion of degree
requirements.
The Tufts and NYU agreements contain similar
language. Meanwhile, at Harvard, the University
has insisted that negotiations only cover
employment issues and not academic matters. See
Harvard Univ. Office of the Provost, FAQs about
Graduate Student Unionization, available at https://
provost.harvard.edu/unionization-faqs (‘‘To the
extent that policies and benefits are tied to the
educational relationship between the University
and its students, rather than an employment
relationship, they would not be mandatory subjects
of bargaining under the NLRA. For example, grades
and grade appeals would not be topics of
negotiations because they fundamentally involve
the assessment of students as students, not as
employees.’’). Similarly, the Columbia bargaining
framework states: ‘‘The GWC–UAW and CPW–
UAW agree that any collective bargaining
agreement to be negotiated with Columbia must not
infringe upon the integrity of Columbia’s academic
decision-making or Columbia’s exclusive right to
manage the institution consistent with its
educational and research mission.’’ See Columbia
Framework Agreement, available at https://
columbiagradunion.org/app/uploads/
FrameworkAgreement20181119.pdf. Such
management rights provisions, defining
management control over academic prerogatives,
are common in the public sector as well. See
Columbia, supra, 364 NLRB No. 90, slip op. at 9.
38
See also Teresa Kroeger et al., The state of
graduate student employee unions, Economic
Policy Inst., Jan. 11, 2018, available at https://
www.epi.org/publication/graduate-student-
employee-unions/ (noting massive amounts of debt
grad student must occur and that this is driving
unionization efforts).
39
See Georgetown Alliance of Graduate
Employees, Contract Working Groups, available at
http://www.wearegage.org/issues; Brown University
Graduate Student Employees, Opening Statements
Continued
The striking thing about these contracts
is the focus on traditional subjects of
collective bargaining, such as
compensation, leave time, and health
care.
Against the backdrop of these
agreements, the majority’s factual
assertions—for which it offers no
empirical evidence—ring especially
hollow. The majority claims that
student employees should not be
allowed bargaining rights because,
through their employment, they ‘‘gain
knowledge of their discipline and
cultivate relationships’’ and ‘‘assist
faculty members . . . because those
activities are vital to their education.’’
34
My colleagues also express concern that,
in addition to harming the education of
the graduate employees, allowing
graduate employees to bargain will
affect universities’ academic
prerogatives, such as directing the
content, methods, and standards of
education.
These assertions do not stand up to
scrutiny. As the Columbia Board
observed:
[C]ollective bargaining and education
occupy different institutional spheres ....
[A] graduate student maybe both a student
and an employee; a university may both the
student’s educator and employer. By
permitting the Board to define the scope of
mandatory bargaining over ‘‘wages, hours,
and other terms and conditions of
employment,’’ the Act makes it entirely
possible for these different roles to coexist—
and for genuine academic freedom to be
preserved.
364 NLRB No. 90, slip op. at 7
(emphasis in original), quoting Act, Sec.
8(d), 20 U.S.C. 158(d). The evidence
demonstrates that student employees
are organizing not to interfere with their
educations, but to improve their
working conditions and to provide for
themselves and their families.
35
There is
nothing illegitimate about that. As the
Brown Board did before, today’s
majority ‘‘errs in seeing the academic
world as somehow removed from the
economic realm that labor law
addresses—as if there were no room in
the ivory tower for a sweatshop.’’
36
Unsurprisingly, then, evidence from
contemporary bargaining shows that
student employees are not trying to alter
aspects of their own educational
experience, nor to exert control over
academic matters, but instead have
focused on bread-and-butter issues—
while accepting efforts to preserve
universities’ control over academic
matters. The New School agreement, for
example, included a broad management
rights provision, which notes that
‘‘[m]anagement of the University is
vested exclusively in the University’’
and in which the union ‘‘agrees that the
University has the right to establish,
plan, direct and control the University’s
missions, programs, objectives,
activities, resources, and priorities,’’
including (among many other specified
prerogatives) the right ’’ to determine or
modify the number, qualifications,
scheduling, responsibilities and
assignment of ASWs [Academic Student
Workers]’’ and the right ‘‘to exercise
sole authority on all decisions involving
academic matters.’’ Such a clause
preserves a university’s academic
freedom and prerogatives.
37
It also sets
a foundation for continuing mentorship
and cultivation of the educational
features of assistantships, by leaving
evaluation and direction of academic
work in control of the university. In fact,
the Tufts agreement outright encourages
such mentorship:
Supervisors shall provide regular feedback
to Graduate Assistants on the work they
perform, including advice, guidance, and
support on how to improve their
performance. Flexibility in such feedback is
encouraged, so as to address the broad nature
of work performed by Graduate Assistants
and their individual needs.
Thus, while preserving the
educational facets of the student
employees’ relationship to a university
and its faculty, these recent collective-
bargaining agreements instead focus on
core economic issues that are faced by
employees and employers
everywhere.
38
Relatedly, in bargaining that is still
underway at other schools, such as
Columbia, Harvard, Brown, and
Georgetown, it appears that bread-and-
butter issues have also been at the
fore.
39
To the extent that agreements
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for Bargaining, available at https://brownsugse.com/
2019/04/08/read-sugses-opening-statement-for-the-
first-day-of-bargaining/.
40
See GWC–UAW, Overview of Initial Bargaining
proposals, available at https://columbia
gradunion.org/app/uploads/InitialBargaining
Goals_highlights.pdf.
41
Harvard Graduate Student Union, Bargaining
Updates, available at http://harvardgradunion.org/
members/bargaining-updates/.
42
Bargaining at Georgetown University illustrates
how student employees share a serious and timely
concern with workers across the country: There,
remedies for discrimination and harassment were
also a major issue at bargaining. The union’s
website noted that: ‘‘In our bargaining survey last
spring, 1 in 5 grad workers reported that they had
experienced discrimination or harassment in the
workplace. Less than half of respondents said that
they had reported the incidents and only 44 percent
of those who reported it felt the university had
responded appropriately.’’ Georgetown Alliance of
Graduate Employees, Bargaining Updates, July 24,
2019, available at http://www.wearegage.org/news.
43
Shera S. Avi-Yonah and Molly C. McCafferty,
Experts Say Harvard’s Union Bargaining Terms
Differ From Typical Labor Contract, The Harvard
Crimson, May 4, 2018, available at https://
www.thecrimson.com/article/2018/5/4/academic-
versus-labor-bargaining-parameters/.
44
Id. (quoting University of Oregon Professor
Gordon Lafer).
45
See, e.g., Colleen Flaherty, Grad Students’
‘Fight for $15’, Inside Higher Ed, Oct. 26, 2018,
available at https://www.insidehighered.com/news/
2018/10/26/graduate-student-assistants-campuses-
across-us-are-pushing-15-hour-what-they-call.
46
Columbia, supra, slip op. at 12 (quoting David
Ludwig, Why Graduate Students of America Are
Uniting, The Atlantic, supra).
47
See Kesslen, The latest campus battle:
Graduate students are fighting to unionize, supra
(‘‘Almost one-third of doctoral students at the
University of Chicago cited financial challenges as
a roadblock to academic success, and seven percent
reported running out of food without the ability to
buy more . . . .’’).
48
See Beryl Lieff Benderly, The push for graduate
student unions signals a deep structural shift in
academia, Science, June 6, 2018, available at
https://www.sciencemag.org/careers/2018/06/push-
graduate-student-unions-signals-deep-structural-
shift-academia.
49
See Dawn Rhodes, ‘We wanted a union then,
and we deserved a union then’: University of
Chicago grad student workers go on strike, Chicago
Tribune, June 4, 2019, available at https://
www.chicagotribune.com/news/breaking/ct-met-
university-of-chicago-graduate-student-strike-
20190604-story.html.
50
See Kate McGee, Chicago Graduate Student
Unions Face Roadblocks to Unionization, NPR,
Apr. 10, 2019, available at https://www.npr.org/
local/309/2019/04/10/711906242/chicago-graduate-
student-unions-face-roadblocks-to-unionization.
51
The majority is ‘‘offen[ded]’’ that I characterize
today’s proposal as one that will reverse progress
made by student employees with respect to their
working conditions. The majority insists that the
question here is simply whether the Board is
statutorily permitted to exercise jurisdiction over
student employees. Insofar as the Board has
discretion to exclude student employees from
coverage—despite the existence of a common-law
employment relationship with their university and
the lack of any basis in the Act’s text for such an
exclusion—then the Board surely must consider the
successful adjustment of purely workplace issues
through the peaceful process of collective
bargaining as a factor weighing in favor of asserting
jurisdiction. The majority’s failure to do so betrays
at least an indifference to the achievements of
student-employee bargaining, if not an outright
desire to reverse them.
have not been reached, it appears to be
because of disagreement over such
economic subjects. For example, at
Columbia, traditional economic issues
seem to predominate the union’s
bargaining agenda.
40
Meanwhile, at
Harvard, issues directly involving
financial well-being loomed large in the
union’s description of its bargaining
experiences. At one point the bargaining
team’s update states: ‘‘With childcare
costs $2,000/month, dependent
insurance at $300/month, rent upwards
of $2,000 for a one-bedroom apartment,
how can student parents afford to work
on this campus?’’
41
Even a cursory
examination of the agreements and
bargaining progress of student-employee
unions leaves little doubt: The issues
animating student employees’ efforts are
genuine concerns over their needs and
interests as employees—issues that the
Act is intended to allow employees to
bargain over.
42
Notably, Harvard’s administration has
effectively acknowledged that
bargaining over terms and conditions of
employment can occur without affecting
issues that a university feels are central
to its academic mission. The University
president noted, ‘‘We will be very
adamant about differentiating between
matters that are appropriate for
academic decision making from matters
that are concerns of a labor or
employment situation.’’
43
Nor have
student employees been pressing for
influence on academic matters, in either
the public or private sector. One labor
law scholar pointed out that ‘‘[t]here is
not a single case of an academic union
insisting on bargaining over grades,
letters of recommendation, awarding of
honors, tenure criteria, what fields of
specialization a department should
concentrate in, admission criteria, or
any other academic judgment.’’
44
While unsuccessfully attempting to
demonstrate how collective bargaining
will harm education, the majority
neglects the economic features of the
relationship between universities and
student employees—and how strained
economic circumstances among student
employees have generated labor
unrest.
45
As the Columbia Board
observed, ‘‘[i]n the absence of access to
the Act’s representation procedures and
in the face of rising financial pressures,
[student employees] have been said to
be ‘fervently lobbying their respective
schools for better benefits and increased
representation’—entirely the benefits
that would flow with respect to
economic aspects of the relationship.’’
46
Today’s proposal seems to disregard the
genuine difficulties faced—whether
working long hours and juggling
research and coursework, or struggling
to afford health care and child care—by
student employees, and the obvious fact
that they might benefit by exercising
their rights under the National Labor
Relations Act. Indeed, financial
insecurity can certainly be an obstacle
to academic achievement—the main
concern the majority purports to
protect.
47
Ironically, after the Columbia Board
successfully opened the Act’s protection
and procedures to student employees,
today’s proposal will raise the specter of
renewed unrest on campus. That result
is directly contrary to the Act’s
stabilizing purposes. The desire of
student employees for union
representation and for better working
conditions will not go away simply
because the Board has closed its doors.
Instead, that desire will have no clear
and appropriate outlet, especially in the
face of universities’ resistance. For
example, when Columbia initially
refused to bargain in the hopes of
succeeding in a legal challenge, student
demonstrations and unrest followed.
48
Relatedly, University of Chicago
students struck because the university
refused to honor their vote to
unionize.
49
Further, when schools have
withheld voluntary recognition in light
of the prospect of the Board reversing
Columbia, this strategy has provoked
further unrest.
50
Representation
elections and collective bargaining
under the Board’s supervision is the far
better alternative.
C.
In proposing to reverse the Columbia
decision, the majority has shown little
interest in the facts on the ground. But
it is not too late for the Board to turn
back. Perhaps robust public
participation in the comment process
will help create a rulemaking record
that refutes, once and for all, the notion
that the National Labor Relations Act
cannot be appropriately and
productively applied to student
employees and their university
employers. On that score, I urge my
colleagues to hold public hearings on
today’s proposal, so that the Board can
hear directly from the student
employees affected by today’s proposal.
To strip away all labor-law rights from
tens of thousands of student
employees—including many who have
already begun exercising those rights—
would be a terrible mistake.
51
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As explained, the majority proposes
to permanently exclude a class of
employees from statutory coverage, in
contravention of the law’s language and
its policies. There is no reason to revisit
the Columbia decision, now on the
books for over three years, particularly
in the absence of any empirical
evidence that any educational interests
have been harmed in any way. To the
contrary, student employees have
already succeeded in bargaining with
their universities for better working
conditions, the very interests that
spurred their organizing movement—
just as the National Labor Relations Act
encourages. Because the proposed rule
has no plausible foundation, I must
dissent.
VI. Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(‘‘RFA’’), 5 U.S.C. 601 et seq., requires
agencies promulgating proposed rules to
prepare an initial regulatory flexibility
analysis and to develop alternatives,
wherever possible, when drafting
regulations that will have a significant
impact on a substantial number of small
entities. The focus of the RFA is to
ensure that agencies ‘‘review rules to
assess and take appropriate account of
the potential impact on small
businesses, small governmental
jurisdictions, and small organizations,
as provided by the [RFA].’’ E.O. 13272,
Sec. 1, 67 FR 53461 (‘‘Proper
Consideration of Small Entities in
Agency Rulemaking’’). An agency is not
required to prepare an initial regulatory
flexibility analysis for a proposed rule if
the Agency head certifies that the rule
will not, if promulgated, have a
significant economic impact on a
substantial number of small entities. 5
U.S.C. 605(b).
The Board concludes that the
proposed rule will not affect a
substantial number of small entities. In
any event, the Board further concludes
that the proposed rule will not have a
significant economic impact on such
small entities. Accordingly, the Agency
Chairman has certified to the Chief
Counsel for Advocacy of the Small
Business Administration (‘‘SBA’’) that
the proposed amendments will not have
a significant economic impact on a
substantial number of small entities.
Paperwork Reduction Act
The NLRB is an agency within the
meaning of the Paperwork Reduction
Act (PRA), 44 U.S.C. 3502(1) and (5).
This Act creates rules for agencies when
they solicit a ‘‘collection of
information.’’ 44 U.S.C. 3507. The PRA
defines ‘‘collection of information’’ as
‘‘the obtaining, causing to be obtained,
soliciting, or requiring the disclosure to
third parties or the public, of facts or
opinions by or for an agency, regardless
of form or format.’’ 44 U.S.C. 3502(3)(A).
The PRA only applies when such
collections are ‘‘conducted or sponsored
by those agencies.’’ 5 CFR 1320.4(a).
The proposed rule does not involve a
collection of information within the
meaning of the PRA. Outside of
administrative proceedings (discussed
below), the proposed rule does not
require any entity to disclose
information to the NLRB, other
government agencies, third parties, or
the public.
The only circumstance in which the
proposed rule could be construed to
involve disclosures of information to the
Agency, third parties, or the public is
during the course of Board
administrative proceedings. However,
the PRA provides that collections of
information related to ‘‘an
administrative action or investigation
involving an agency against specific
individuals or entities’’ are exempt from
coverage. 44 U.S.C. 3518(c)(1)(B)(ii). A
representation proceeding under
Section 9 of the NLRA as well as an
investigation into an unfair labor
practice under Section 10 of the NLRA
are administrative actions covered by
this exemption. The Board’s decisions
in these proceedings are binding on and
thereby alter the legal rights of the
parties to the proceedings and thus are
sufficiently ‘‘against’’ the specific
parties to trigger this exemption.
For the foregoing reasons, the
proposed rule does not contain
information collection requirements that
require approval by the Office of
Management and Budget under the
PRA.
List of Subjects in 29 CFR Part 103
Colleges and universities, Health
facilities, Joint-employer standard,
Labor management relations, Military
personnel, Music, Sports.
For the reasons set forth in the
preamble, the Board proposes to amend
29 CFR part 103 to read as follows.
PART 103—OTHER RULES
1. The authority citation for part 103
continues to read as follows:
Authority: 29 U.S.C. 156, in accordance
with the procedure set forth in 5 U.S.C. 553.
2. Revise § 103.1 to read as follows:
§ 103.1 Colleges and universities.
(a) The Board will assert its
jurisdiction in any proceeding arising
under Sections 8, 9, and 10 of the Act
involving any private nonprofit college
or university which has a gross annual
revenue from all sources (excluding
only contributions which, because of
limitation by the grantor, are not
available for use for operating expenses)
of not less than $1 million.
(b) Students who perform any
services, including, but not limited to,
teaching or research assistance, at a
private college or university in
connection with their undergraduate or
graduate studies are not employees
within the meaning of Section 2(3) of
the Act.
Dated: September 18, 2019.
Roxanne Rothschild,
Executive Secretary.
[FR Doc. 2019–20510 Filed 9–20–19; 8:45 am]
BILLING CODE 7545–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2019–0493; FRL–9999–98–
Region 9]
Air Plan Conditional Approval;
Arizona; Maricopa County
AGENCY
: Environmental Protection
Agency (EPA).
ACTION
: Proposed rule.
SUMMARY
: The Environmental Protection
Agency (EPA) is proposing to
conditionally approve revisions to the
Maricopa County Air Quality
Department (MCAQD or the County)
portion of the Arizona State
Implementation Plan (SIP). These
revisions concern emissions of volatile
organic compounds (VOCs) from
organic liquid and gasoline storage and
transfer operations. We are proposing to
conditionally approve local rules to
regulate these emission sources under
the Clean Air Act (CAA or the Act) and
conditionally approve the County’s
demonstration regarding Reasonably
Available Control Technology (RACT)
requirements for the 2008 8-hour ozone
National Ambient Air Quality Standards
(NAAQS) in the Phoenix-Mesa ozone
nonattainment area, with respect to
petroleum liquid storage and gasoline
transfer and transport. We are taking
comments on this proposal and plan to
follow with a final action.
DATES
: Any comments must arrive by
October 23, 2019.
ADDRESSES
: Submit your comments,
identified by Docket ID No. EPA–R09–
OAR–2019–0493 at https://
www.regulations.gov. For comments
submitted at Regulations.gov, follow the
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