Jurisdiction-Nonemployee Status of University and College Students Working in Connection With Their Studies
| Citation | 84 FR 49691 |
| Published date | 23 September 2019 |
| Record Number | 2019-20510 |
| Court | National Labor Relations Board |
Federal Register, Volume 84 Issue 184 (Monday, September 23, 2019)
[Federal Register Volume 84, Number 184 (Monday, September 23, 2019)]
[Proposed Rules]
[Pages 49691-49699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20510]
[[Page 49691]]
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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.
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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
[[Page 49692]]
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\
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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 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)).
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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.
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\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.
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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.
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\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.
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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.
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\6\ The Brown University Board ``express[ed] no opinion''
regarding Boston Medical Center, supra. 342 NLRB at 483 fn. 4.
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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
[[Page 49693]]
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.
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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)).
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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\
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\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.
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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).
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\10\ The students at issue in Brown University were graduate
student assistants. The proposed rule contemplates both graduate and
undergraduate student assistants.
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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\
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\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'').
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'').
[[Page 49694]]
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.
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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).
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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.
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\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).
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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\
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\14\ Cornell University, supra.
\15\ See fn. 4, supra.
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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
[[Page 49695]]
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.
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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.'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.'').
---------------------------------------------------------------------------
Recycling a made-up distinction, the majority argues that only
employees
[[Page 49696]]
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\
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\22\ 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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.'').
---------------------------------------------------------------------------
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\
[[Page 49697]]
The striking thing about these contracts is the focus on traditional
subjects of collective bargaining, such as compensation, leave time,
and health care.
---------------------------------------------------------------------------
\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 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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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:
---------------------------------------------------------------------------
\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.
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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
[[Page 49698]]
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\
---------------------------------------------------------------------------
\39\ See Georgetown Alliance of Graduate Employees, Contract
Working Groups, available at http://www.wearegage.org/issues; Brown
University Graduate Student Employees, Opening Statements 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://columbiagradunion.org/app/uploads/InitialBargainingGoals_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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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 . . . .'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
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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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\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.
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[[Page 49699]]
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
0
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.
0
2. Revise Sec. 103.1 to read as follows:
Sec. 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
