President Biden has promised to be the most pro-union president, and his administration has paved the way for labor organizing on college and university campuses. Over the years, the National Labor Relations Board (NLRB) has waffled on whether graduate students have the right to organize under the National Labor Relations Act (Act). Under the Trump administration, the NLRB failed to reverse the most recent precedent on the issue, Columbia University, 364 NLRB No. 90 (2016), which provides that student workers are included within the Act’s definition of an “employee.” As a result of this current precedent, labor organizing among graduate students has gained significant momentum in recent years and, most notably, within the last year. Importantly, that legal precedent not only allows graduate students to organize, but also appreciably implicates organizing rights among undergraduate student workers.
GC Memo 21-08: Organizing rights of undergraduate student workers
The NLRB’s General Counsel, Jennifer Abruzzo, and Chairman, Lauran McFerran, both appointed to their positions by President Biden, have been unwavering in their support of labor organizing rights among student workers. For example, in March 2021, following the NLRB’s withdrawal of a proposed rule which would have overruled the Columbia University decision, Chairman McFerran endorsed student workers’ rights to organize, tweeting that “[i]n Columbia University, the Board correctly held that student employees are workers deserving the full protection of our labor laws. The withdrawal of this proposed rule will ensure that student workers can continue to join together to pursue better wages and working conditions.” Shortly thereafter, in September 2021, the General Counsel issued a memorandum, GC Memo 21-08, which proclaimed that certain athletes at academic institutions are employees within the definition of the Act and therefore have collective bargaining and other labor rights. Significantly, that Memorandum also laid the groundwork for undergraduate students to form labor unions, allow students to engage in concerted activity, including strikes, without retaliation, and require universities to bargain with student labor unions.
Among other things, the September 29, 2021 Memorandum reinstates an Obama Administration Memorandum, GC Memo 17-01, which states that “students performing non-academic university work are clearly covered by the NLRA . . . .” GC Memo 17-01 also lists a number of roles that undergraduate students perform for universities, including “maintenance or cafeteria workers, lifeguards, campus tour guides, or administrative assistances in the campus financial aid or alumni affairs offices.” Importantly, in a footnote in the September 2021 Memorandum, the General Counsel expressly states that she will pursue misclassification cases involving “student assistants, medical interns and non-academic student employees who are led to believe that they are not entitled to the Act’s protections . . . .” By virtue of this language, the General Counsel has undoubtedly opened the door for labor organizing among all undergraduate student workers, thereby putting colleges and universities on notice that an uptick in student organizing efforts could be down the pike.
Recent developments in undergraduate student organizing
The NLRB General Counsel’s Memorandum comes on the heels of an increasing trend in organizing efforts among undergraduate student workers at colleges and universities across the nation. For example, residence life workers at UMass Amherst have been unionized for several years; Grinnell College has a represented unit of student dining hall workers; at Hamilton College, student tour guides voted to unionize in October 2021 and the College commenced bargaining with the Union. Other student groups, including resident advisors and student ambassadors, followed by filing numerous petitions to unionize, which have since been withdrawn; and Kenyon College has a petition pending to organize all undergraduate work-study students. In March 2022, students who work in dining services at Dartmouth College voted unanimously for union representation and residence life workers at Wesleyan University won voluntary union recognition. When asked about the issue at a recent event, NLRB General Counsel Abruzzo responded very simply that “student workers are workers” and that the Act’s definition of an employee does not exclude students. It is likely only a matter of time before other undergraduate students follow suit.
Implications and takeaways
Recognition of student workers as employees under the Act has broad implications for academic institutions. If student workers select a bargaining representative, the Act requires that the institution deal exclusively with that labor organization with respect to any and all mandatory subjects of bargaining (wages, hours, and conditions of employment). Also, academic institutions would be unable to modify any policies or processes that even impact a mandatory subject without first giving the union notice and an opportunity to bargain. It is expected that this trend of student organizing will not only result in more petitions for recognition being filed, but an increase in litigation and filing of unfair labor practice charges is also likely to follow.
Another important consideration is that the Act provides employees with the right to strike, meaning that, as “employees” under the Act, undergraduate student workers have a legally- protected right to strike. During 2021, some of the largest strikes across the country in any industry involved academic institutions — 3,000 student workers at Columbia University; 2,200 student workers at New York University, and 2,000 student workers at Harvard University. Numerous other academic institutions also saw strikes involving represented and unrepresented graduate and undergraduate student workers.
Student organizing is a very real possibility that carries with it very real implications for colleges and universities. Colleges and universities should understand what union recognition and bargaining means for their institutions. Further, as “employers,” colleges and universities should remain cognizant of the root causes of union organizing. Specifically, unions in a very basic sense are a means of communication. For example, student workers may turn to a union as a means of “having a voice” on issues such as pandemic response, matters of social justice, and other issues related to wages, hours, and working conditions. Irrespective of their position on whether students may or should be represented, colleges and universities may wish to create and develop avenues for open and effective communication with their student workers. While many colleges and universities have implemented measures and mechanisms to solicit and incorporate student input and feedback on such issues, union organizing may signal that those measures are either absent or ineffective.
The National Labor Relations Act is a unique area of the law with very particular rules around communications with student workers. With or without a union, communication is important, and colleges and universities should consider the Act when developing avenues for open, effective, and direct communication with students. Further, it is also critical that colleges and universities understand how to recognize when a demand for recognition has been made, what it means to have a union, how to communicate about unions, and the potential pitfalls of union organizing, including the fact that it is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their right to organize. Finally, employers should consider monitoring this issue, training supervisors on labor laws, and seeking competent legal counsel when necessary.
Natale V. DiNatale is a partner in Robinson+Cole’s Labor and Employment Group and Education Law Group as well as chair of the firm’s Labor Relations Group. He counsels employers on all facets of employment law and has devoted his practice almost exclusively to management-side labor relations in the private sector.
Emily A. Zaklukiewicz focuses her practice on counseling private sector employers in all areas of labor and employment law and defending employers in federal and state court and before administrative agencies. She is an associate in Robinson+Cole’s Labor, Employment, Benefits + Immigration Group.
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