On August 23rd, the National Labor Relations Board ruled that graduate students who work as teaching and research assistants at private institutions have a right to unionize. Hopefully, collective bargaining is coming to a university near you, bigger and better than ever.
The Board's 3-1 decision overturned a 2004 decision involving Brown University which held that graduate assistants cannot be considered statutory employees under the National Labor Relations Act. Their original argument in the Brown case went that, though these assistants work for the university, they "are primarily students and have a primarily educational, not economic, relationship with their university."
Now, the Board very reasonably disagrees. Understanding why they disagree sheds light on the possibilities borne of their groundbreaking change of thinking.
The definition of a statutory employee under the National Labor Relations Act, Section 2(3) reads, "The term 'employee' shall include any employee... unless the Act... explicitly states otherwise," before going on to list the exceptions, including domestic service workers, workers employed by parents or spouses, independent contractors, and more. Students are mentioned nowhere in the definition.
Therefore, the nature of the Act is not that employees can only unionize if their type of occupation is mentioned in the legislation. Rather, so long as they pass the common law agency test, "employees shall have the right to self-organizations, to form, join, or assist labor organizations, [and] to bargain collectively of their own choosing" unless they are explicitly barred from doing so. Indeed, as the Board held in their new decision, "The Brown University Board failed to acknowledge that the Act does not speak directly to the issue posed here... [their] 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."
Student employee attempts at unionization cannot be dismissed prima facie due to a definitional exclusion. Moreover, even if a student's relationship with a university is primarily educational, that does not preclude them from collective bargaining rights; the academic relationship does not invalidate or diminish the economic relationship. The Board writes that "the fact that a research assistant's work might advance his own educational interests as well as the University's interests is not a barrier to finding statutory-employee status." This quickly discards with the counterpoint that a student benefitting from pay or perks, like free housing for resident advisors or professional experience for writing preceptors, invalidates their claim to unionization.
The more pertinent question, says the Board, is not the varying weights of the different relationships between student employee and university, but whether the economic relationship itself passes the common law agency test. Though there is no one formula for this test, in a very basic sense, it is considering the level to which "the employer has the right to tell the employee what to do, how, when, and where to to the job." In essence, it is a test of control.
Additionally, the scope of the Board's decision isn't narrowed to graduate students. They go so far as to say that Ph.D Master's and undergraduate student assistants can also be included in collective bargaining, because their employment is "regularly recurring, with some carryover between semesters, and their individual tenures are neither negligible nor ad hoc."
In a broad lens, the ruling validates the legal approach of recognizing that there are a spectrum of employer-employee relationships on campus. These relationships fall on a continuum where unionization rights are decided by the outcome of a common law agency test. There will still be some student employees who will justifiably not fall under statutory employee status. A nominally time-consuming job that one works for two months could reasonably not pass the common law agency test. But there are many campus jobs that also certainly should pass the test, which require permanent living or working conditions or location, strict behavioral regulation, around-the-clock preparedness, significant training and experience, and high financial and personal costs were the employee to be terminated.
Students should heed this hopeful reminder of our rights as employees of a university. Collective bargaining is the bedrock of more equal, just communities, where the employee is provided the legal tools to ensure they are treated with dignity and respect. The idea that a university job is such a privilege that it comes with a price-tag of powerlessness is broken and corrupting at its core. Talk to your fellow employees. Contact local labor affiliates to see if you might qualify as an employee through the common law agency test. We have to permanently leave behind defeatist, exploitative notions of subservience in campus employment wherever we find them. We'll be better off for it.