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August 26, 2016

Columbia University Library. (Associated Press/John Minchillo)

In a 3-1 decision this week, the National Labor Relations Board ruled that teaching and research assistants at Columbia University are covered employees under the National Labor Relations Act, and therefore have the right to unionize. The Board’s decision, which overturns a 2004 ruling, will have major financial and academic implications for private institutions of higher education throughout the United States, with the potential to impact both the balance sheets and the curriculum of private colleges and universities nationwide.

Under prior federal precedent, the NLRB acknowledged that teaching and research assistants have a primarily educational, not economic, relationship with their university, in holding that graduate student assistants are primarily students and not statutory employees.

On Tuesday, the Board completely reversed course, holding that it has the “statutory authority to treat student assistants as statutory employees, where they perform work, at the direction of the university, for which they are compensated.” This broad definition over emphasizes the employment aspect of a student’s relationship with their university, without regard to its practical implications. Notably, nothing in the Board’s decision precludes undergraduate students who perform some kind of service for the university in exchange for compensation from seeking collective bargaining.

Related: Graduate Students Working At Private Universities Can Unionize  

In a statement released immediately following the Board’s ruling, the American Council on Higher Education emphasized the potential collateral damage of this landmark decision from a financial standpoint. “In an era where so many are worried about the costs of college, this is a big step in the wrong direction,” writes ACE Vice President and General Counsel, Peter McDonough. “This misguided decision turns all students into potential employees who could be organized, even undergraduate students in federal work-study positions. Such a development would decrease opportunities for campus jobs that help students, particularly those from low- and middle-income families, finance their education and drive up administrative costs.”

The academic implications of this decision may prove even more unwieldy. The collective bargaining rights granted to statutory employees under the National Labor Relations Act also permit and promote negotiation over the non-monetary aspects of employment, such as working conditions. By extension, under the Board’s decision, student employees could potentially bargain over the explicitly academic aspects of their relationship with their universities, including curriculums and graduation standards.

The Board’s decision creates an uncertain and potentially adversarial landscape for students and institutions alike. It prioritizes the employment relationship over the educational relationship between student and university, and runs the risk of fundamentally changing private higher education.

David M. Felper is a partner with the Massachusetts law firm Bowditch & Dewey, LLP and the Chair of the Firm's Labor & Employment and Higher Education practice. Anthony Dragga is an associate at the Firm.

Earlier: Amherst College: 1,900 Students, 850 Courses. What's Not To Like?

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