08/29/2016 08:50 am ET Updated Aug 30, 2017

Beyond Bargaining: Consequences Of NLRB's Graduate Students Decision

Mike Segar / Reuters

In its recent decision in Columbia University, the National Labor Relations Board by a 3-1 vote granted graduate student assistants at private universities the right to form labor unions and to collectively bargain. For all but a few short years, the NLRB had consistently held that degree-seeking graduate students were more student than worker and, thus, excluded from the National Labor Relations Act's coverage. In Columbia University, the Board returns to the short-lived national experiment of applying the Act to graduate students. The decision itself and the follow-on commentary have all focused on benefits that such bargaining can bring to these students turned employees. However, academia's ivory tower may soon be shaken not so much by collective bargaining, but by the application of the Act through the Board's unfair labor practice jurisdiction.

In order to grant bargaining rights to graduate students, the Board necessarily found them to be employees under the NLRA. While classifying these students as employees provides them with the right to organize and bargain, that definitional change will have serious consequences to the relationship between the university and the graduate students beyond the bargaining table. The Board's unfair labor practice jurisdiction and the lines of cases created by applying the Act to industrial workplaces is poised to drastically alter the relationship in at least three ways.

First, this definitional change likely just blew up university honor codes and other university policies regulating the conduct of students. Importing the NLRA to graduate students will require universities to avoid interfering with the graduate students' right under the Act to engage in "concerted activity" for "mutual aid or protection." The NLRB has, with increasing vigor, taken an expansive view of the effect of an employer's policies on that right. The Board has been quick to find even unenforced policies unlawful if they could be read by an employee in a way that chills that right. Thus, policies requiring "harmonious relationships" and that ban "disrespectful," "negative," "inappropriate," or "rude" conduct toward others at the company have been found to unlawfully interfere with the right to engage in protected concerted activity. In fact, the Board has tolerated some unprintable words and acts from employees in the name of the "rough and tumble of labor relations."

Universities' attempt to create "safe spaces" for their students and to create civil environments for discussion and debate are likely on the NLRA chopping block. As one example, Princeton University's Policy on "Respect for Others" is dead on arrival if it ever comes before the Board. Its policy banning "abusive or harassing behavior, verbal or physical, which demeans, intimidates, or injures another because of personal characteristics or beliefs or expression" would whither under Board scrutiny. Likewise, Princeton's statement that it "attaches great importance to mutual respect, and it deplores expressions of hatred directed against any individual or group" certainly conflicts with rights under the NLRA. If you doubt that conclusion, visit the next labor picket you see.

Second, this definitional change will require either the elimination or substantial alteration to graduate student councils. Converting graduate students into employees also brings the Act's prohibition against dominated labor organizations into the academic sphere. Under the Act, it is unlawful for an employer to interfere or dominate any labor organization. The term labor organization has never been limited to formal unions. Instead it covers "any organization of any kind" in which "employees participate" and which deals with the employer concerning grievances, disputes, wages, hours, etc. Mimicking the faculty governance structure which many graduate students hope to someday join, universities have established graduate student councils which represent graduate student concerns to the administration. Thus, for example. Harvard University's Graduate Student Council claims to represent through elected representatives "graduate students in academic, administrative and residential matters . . . with an increasing focus on lab and labor conditions." The website goes on to describe how the GSC meets with "administrators to address some of the most pressing issues graduate students face." Hopefully Harvard has a good labor lawyer on staff because, assuming that the university created and funds the GSC, Harvard is violating section 8(a)(2) of the NLRA by dominating a labor organization. Never mind that a GSC supports a university's academic mission by training the graduate students in the concepts of academic faculty governance, when the ivory tower meets the industrial National Labor Relations Act such pedagogical niceties are unlikely to survive.

Third, this definitional change is bound to intrude on the university's academic relationship with the graduate students. One of the cornerstone NLRA protections is the right to be free from discrimination based on union activities. Imagine a graduate student who is seeking to organize a union suddenly receives a poor grade in a course. Will that student be able to allege that the poor grade was in retaliation for his or her union activities? Will the Board review the grade and determine for itself whether it was the appropriate mark or if it was motivated in part by antiunion animus? And, if the Board were to get involved, would it order the university as a remedy to change the grade? While the Board's case load has been at historical lows, I cannot imagine it is overly excited about filling its docket with grade challenges.

Whether this trio of issues should have caused the Board to exercise its discretion to withhold employee status from the graduate students the way that it did from college athletes is open for debate. However, what should trouble both labor and management is that these three easily predictable problems informed no part of the Board's decision-making process, despite the years that the Board considered the matter. We should expect more of our expert administrative agencies like the NLRB. If we are going to invest so much authority into these unelected and unanswerable administrative bodies, changes in course should be about more than just about returning to a short-live case issued by the previous Board of your political ilk. Having failed to fully think through the consequences, there will be much clean-up along the way as the rules for regulating the employment relationship are now applied to the student-teacher relationship.

Mr. Mastrosimone is an Associate Professor of Law at Washburn University School of Law in Topeka, Kansas. He teaches labor law, employment law, and legal research and writing in Washburn's nationally ranked legal research and writing program. Prior to teaching, he was the Chief Legal Counsel for the Kansas Human Rights Commission, a Senior Legal Counsel to the Chairman of the National Labor Relations Board, and represented management in labor and employment disputes at two national law firms.