Colleges and Universities on Labor Board’s Hit Parade This Week

Darrell VanDeusen
Darrell VanDeusen

School is nearly back in session. But rather than be satisfied with some new pens and notebooks, the NLRB’s “back to school list” is huge.  First, there was announcement of the Board’s decision in Columbia University, 364 NLRB No. 90 (Aug. 23, 2016) that graduate students are employees and can form unions.    The Board’s 3-1 decision reversed a 2004 decision that held just the opposite.

Second, the Board released decisions in Seattle University, 364 NLRB No. 84 (Aug. 23, 2016) and Saint Xavier University, 364 NLRB No. 85 (Aug. 23, 2016), which hold that the Board has jurisdiction over faculty units at two Catholic universities, but that faculty who teach courses with religious content must be excluded from the units.  Assuming his frequent position as a dissenter, Member Miscimarra noted the pesky First Amendment issues involved here, which the Board first created with its 2014 decision in Pacific Lutheran University, 361 NLRB No. 157 (Dec. 16, 2014).

Columbia University

Union efforts to organize graduate students, teaching assistants and graduate research assistants has been going on for years.  The Board first considered the status of graduate student assistants in Adelphi University, 195 NLRB 639 (1972), holding that graduate assistants should be excluded from a bargaining unit of faculty members because they did not share a community of interest with faculty.  Adelphi did not address whether the student assistants were statutory employees, however.  Various subsequent decisions also skirted that issue but, regardless, did not permit grad students to organize.

That changed with New York University, 332 NLRB 1205 (2000) (NYU), when the Board held that certain university graduate assistants were statutory employees.   The victory was short lived, however, as the Board reversed direction four years later in Brown University, 342 NLRB 483 (2004).   In Brown, the Board found that graduate student assistants were not employees within the meaning of Section 2(3), holding that graduate assistants cannot be statutory employees because they “are primarily students and have a primarily educational, not economic, relationship with their university.”

In Columbia University, the Board says that it has jettisoned Brown, “not only because, in our view, the Board erred as to a matter of statutory interpretation, but also because of the nature and consequences of that error.  The Brown University Board failed to acknowledge that the Act does not speak directly to the issue posed here, which calls on the Board to interpret the language of the statute in light of its policies. The Brown University Board’s decision, in turn, deprived an entire category of workers of the protections of the Act, without a convincing justification in either the statutory language or the policies of the Act.”

The Board’s ruling is exceptionally broad:   the unit approved at Columbia is for “all student employees who provide instructional services, including graduate and undergraduate teaching assistants as well as graduate research assistants, including those in grant-funded positions.”  The implications here are staggering, including pay issues under the FLSA and the tax consequences ofscholarships and grants.  And, don’t forget, the DOL’s new regulations raising the salary basis for exempt employees takes effect on December 1, 2016, meaning these “student employees” maynot be entitled overtime for hours worked in excess of 40 per week..

Seattle University and Saint Xavier University

So, maybe the Columbia University decision is not so surprising and – depending on your point of view – maybe even the right one (that’s not my point of view, but still…).  The Board’s decisions in Seattle University and Saint Xavier University, however, should leave those who practice traditional labor law, and frankly even those who don’t, scratching their heads.

In Pacific Lutheran University, 361 N.L.R.B. No. 157 (2014), the Board held it would assert jurisdiction over a university that claims to be a religious employer unless (1) the institution holds itself out as providing a religious educational environment and (2) those who seek to unionize are performing a specific role in maintaining that environment.

Both Seattle University and Saint Xavier University are Catholic universities, so they met the first prong of Pacific Lutheran.  But the Board accepted the Regional Directors’ findings that the schools had not held out the faculty groups that sought to organize as performing specific religious functions.  Except for those faculty who do.

At Seattle University, the Board said non-tenure eligible faculty in the institution’s department of theology and religious studies and in its school of theology and ministry perform a “specific role in maintaining the university’s religious educational environment.” At Saint Xavier, the Board found part-time faculty in the department of religious studies perform the same role.

Looking to the Supreme Court’s decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the Board majority said that “[a]sserting Board jurisdiction over faculty members who teach courses in these subjects at a religiously affiliated university would give rise to the First Amendment concerns of excessive government entanglement.”

Member Miscimarra noted in his dissents here (he also dissented in Pacific Lutheran) that the NRLB’s consideration of and decision as to which faculty can and cannot organize at a religious institution — by looking at which faculty teach “religious” subjects and which teach “secular” subjects — BY ITSELF requires inquiry into the institution’s religious matters.  That intrusiveness alone by the government agency may run afoul of the First Amendment.

And, let’s consider the practical result here.  A union can organize SOME faculty, but not ALL faculty based on what is being taught.  How does that work when it comes to collective bargaining?  Other than the right not to pay dues, do you really think that the non-organized faculty are going to get a better deal, or a worse deal, than those faculty who are represented by the union?  If you do, you are likely mistaken.

With under seven percent of the U.S. private sector work force organized, the NLRB was viewed by many as a sleepy backwater where little occurred, with little relevance.  With the Obama administration’s appointments of Board members over the past eight years, however, the shift to an actively union friendly agency is palpable.  The Board’s views on social media, employee handbooks, and a host of other issues historically unrelated to Section 7 rights have become the NLRB’s road to relevance and its plan to assist in the resurgence of private sector organizing.

The old adage is that if all you have is a hammer, everything looks like a nail.  To the majority of the NLRB, the only tool in the bag is a (union made) hammer and every employer looks like a nail ready to be hit.



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