Unionization Comes to the Learning Factory: The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia– GWC, UAW. Case 02–RC–143012 (August 23, 2016)

Once upon a time, the University was a well ordered enterprise for knowledge production and dissemination.  But it has fractured and been reconstituted along corporate lines as education has become a commodity and the university a factory for the production and deployment of revenue and influence. The two categories--faculty and students--have also fractured.  Faculty have been divided into distinct classes whose politics has substantially eroded both shared governance and the effective protection of academic freedom.   But students have fractured as well.  Where once students were the objects of knowledge dissemination, they are now broken into at least three categories.  The first are the traditional consumer of the university's educational commodity. The other two are deeply transformative.  The first are the student athlete--who provide a valuable source of revenue to the university as a corporate owner of talent exploited in markets for sports entertainment.  The second are student consumers who are also  employed in the knowledge production and dissemination business of the university--the research and teaching assistants who perform much of the lower status research and teaching at the university.  In this capacity they serve simultaneously as a consumer of product (leading to the award of a degree) and as a factor in the production of knowledge or of teaching revenue to the university. 

It should come as no surprise, then, that as the university in transformed into a business, its productive forces would seek the protection of law to enhance their positions as employees or otherwise as holders of valuable commodities (teaching and knowledge) that are inputs in the production of university revenues. For students, protection against exploitation and bargaining for the protection of their interests have taken the form of efforts to unionize--efforts that have been vigorously resisted by the university (as they might by any other business enterprise).   In the efforts to unionize student athletes see here, here, here and here. Indeed, with the 2015 decision of the National Labor Relations Board dismissing efforts of student athletes to forma  union, the idea of the dual status of students within the university--as consumers and as labor--appeared to be rejected.

But the efforts of graduate and undergraduate students to unionize appears to have succeeded where the student athletes failed.  In August 2016, the "National Labor Relations Board issued a 3-1 decision in Columbia University that student assistants working at private colleges and universities are statutory employees covered by the National Labor Relations Act." (NLRB Press  Release). The NLRB holding on Columbia University was clear:

Thus, we hold today that student assistants who have a common-law employment relationship with their university are statutory employees under the Act. We will apply that standard to student assistants, including assistants engaged in research funded by external grants. Applying the new standard to the facts here, consistent with the Board’s established approach in representation cases, we conclude (1) that all of the petitioned-for student- assistant classifications consist of statutory employees; (2) that the petitioned-for bargaining unit (comprising graduate students, terminal Master’s degree students, and undergraduate students) is an appropriate unit; and (3) that none of the petitioned-for classifications consists of temporary employees who may not be included in the unit. Accordingly, we reverse the decision of the Regional Director and remand the proceedings to the Regional Director for further appropriate action.

The issues are far from a stable resolution.  Universities and their lobby will no doubt work the back rooms of legislatures, and the courts have yet to speak.  But it has become increasingly difficult for the university enterprise to run a business--athletic and knowledge based--without the obligation to recognize the character  and identity of its labor force. The fact that students might simultaneously serve in two capacities--as consumers of university products and as the labor used to produce that product--must be recognized and embraced. There are lessons as well here for faculty, especially as the university effectively dismantles shared governance and threatens academic freedom. 

The Press Release issued by the National Labor Relations Board follows along with links to the decision and the documents of the parties.  The decision--The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia– GWC, UAW. Case 02–RC–143012 (August 23, 2016) can be accessed HERE. 

Board: Student Assistants Covered by the NLRA


Office of Public Affairs
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www.nlrb.gov

August 23, 2016


3-1 Columbia Decision Overrules Brown University

Washington, D.C. — The National Labor Relations Board issued a 3-1 decision in Columbia University that student assistants working at private colleges and universities are statutory employees covered by the National Labor Relations Act. The Graduate Workers of Columbia-GWC, UAW filed an election petition seeking to represent both graduate and undergraduate teaching assistants, along with graduate and departmental research assistants at the university in December 2014. The majority reversed Brown University (342 NLRB 483) saying it “deprived an entire category of workers of the protections of the Act without a convincing justification.”

For 45 years, the National Labor Relations Board has exercised jurisdiction over private, nonprofit universities such as Columbia. In that time, the Board has had frequent cause to apply the Act to faculty in the university setting, which has been upheld by the Supreme Court.

Federal courts have made clear that the authority to define the term “employee” rests primarily with the Board absent an exception enumerated within the National Labor Relations Act. The Act contains no clear language prohibiting student assistants from its coverage. The majority found no compelling reason to exclude student assistants from the protections of the Act.

Chairman Mark Gaston Pearce was joined by Members Kent Y. Hirozawa and Lauren McFerran in the majority opinion. Member Philip A. Miscimarra dissented in the case.

The decision reverses the case dismissal by the Regional Director and remands the case to the Agency’s Region 2 Office in Manhattan for further action.

__________

COLUMBIA UNIVERSITY

Case Number: 02-RC-143012
Location: NEW YORK, NY
Date Filed: 12/17/2014
Region Assigned: Region 02, New York, New York
Status: Open


Docket Activity

Date Document Issued/Filed By
08/23/2016 Board Decision NLRB - Board

04/01/2016 Amicus Brief Amicus
03/23/2016 ES Office Letter NLRB - Board
03/18/2016 Letter To ES Office Charged Party / Respondent
03/14/2016 Post-Hearing Brief to Board Petitioner
03/14/2016 Post-Hearing Brief to Board Employer
03/01/2016 Post-Hearing Brief to RD Amicus
03/01/2016 Post-Hearing Brief to RD Amicus
02/29/2016 Post-Hearing Brief to Board Employer
02/29/2016 Amicus Brief Amicus
02/29/2016 Post-Hearing Brief to RD Amicus
02/29/2016 Amicus Brief Amicus
02/29/2016 Post-Hearing Brief to Board Petitioner

02/29/2016 Amicus Brief Amicus
02/29/2016 Amicus Brief Amicus
02/29/2016 Amicus Brief Amicus
02/29/2016 Amicus Brief Amicus
02/29/2016 Amicus Brief Amicus
02/26/2016 Amicus Brief Amicus
02/26/2016 Amicus Brief Amicus
02/26/2016 Amicus Brief Amicus
02/26/2016 Amicus Brief Amicus

01/13/2016 Board Decision NLRB - Board
12/23/2015 Board Decision NLRB - Board

11/24/2015 Request for Review of RDs Decision and Order Employer
11/20/2015 Opposition to RFR of RDs Decision and Order Petitioner
11/20/2015 Opposition to RFR of RDs Decision and Order Employer
11/13/2015 Request for Review of RDs Decision and Order Employer
11/13/2015 Request for Review of RDs Decision and Order Petitioner
10/30/2015 RD Decision and Order NLRB - GC

06/24/2015 Post-Hearing Brief to RD Employer
06/24/2015 Post-Hearing Brief to RD Petitioner
06/16/2015 RD Order NLRB - GC
03/19/2015 RD Order to Reschedule Hearing NLRB - GC
03/19/2015 Notice of Hearing in Representation Case NLRB - GC

03/13/2015 Board Decision NLRB - Board
02/27/2015 Pre-Hearing Brief Employer
02/20/2015 RFR of Administrative Dismissal Petitioner
02/06/2015 RD Order NLRB - GC
01/12/2015 RD Order NLRB - GC 12/17/2014 Initial Letter to Employer in R case NLRB - GC
12/17/2014 Notice of Hearing in Representation Case NLRB - GC
12/17/2014 Signed RC Petition NLRB - GC