NLRB Counsel Issues Memo on Labor Practices at Universities

The National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects a wide range of activities by employees related to organizing for collective bargaining and other purposes. Whether or not a particular individual is an “employee” within the meaning of the NLRA is a critically important component of determining whether the statute applies. This has been a contentious issue on college and university campuses around the country in recent years. The National Labor Relations Board (NLRB) has issued several opinions affecting people who work, or who perform services that resemble “work,” for colleges and universities, including faculty members, student assistants, and scholarship athletes. A memorandum issued by the NLRB General Counsel in late January, identified as GC 17-01, offers new guidance in light of three of these decisions. While the memorandum does not have the force of law, it could have an impact on future decisions by both the NLRB and the courts.

Employees have the right to “self-organization” under the NLRA, which includes forming or joining labor unions and engaging in “concerted activities” aimed at collective bargaining or “other mutual aid or protection.” 29 U.S.C. § 157. The plain language of the statute indicates that employers are only obligated to respect this right for “employees.” The NLRA’s basic definition of “employee” as “any employee…not…limited to the employees of a particular employer” is not very helpful. Id. at § 152(3). The statute identifies specific exclusions from the definition of “employee,” such as agricultural laborers and independent contractors, but it offers little guidance otherwise. The task of identifying who falls under the statute’s definition has mostly fallen to the NLRB, and the university environment has shown the difficulty of defining the term.

The first case cited by the NLRB counsel involved the board’s jurisdiction over private colleges and universities that identify themselves as religious in nature. Pacific Lutheran University, 361 NLRB No. 157 (Dec. 16, 2014). The U.S. Supreme Court had determined that church-operated schools were not subject to the NLRB’s jurisdiction in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). The Pacific Lutheran decision modified the NLRB’s earlier interpretation of the Supreme Court ruling, finding that the school must establish that “First Amendment religious rights…are even implicated” before claiming a religious exemption. Pacific Lutheran at 6.

Student assistants at colleges and universities are employees within the meaning of the NLRA, according to the decision in Columbia University, 364 NLRB No. 90 (August 23, 2016). As a result, they are eligible to unionize and to assert claims for unfair labor practices. The NLRB found that student assistants resembled “employees” in almost every conceivable way, receiving pay for their work and facing discipline for failing to fulfill their duties. The decisions dealt specifically with graduate students, but the counsel’s memo suggested that it could apply to undergraduates as well.

The final case discussed by the NLRB counsel, Northwestern University, 362 NLRB No. 167 (Aug. 17, 2015), may become the most well-known, since it involves collegiate athletics. The NLRB declined to find that it had jurisdiction over a group of college athletes, but it did not reach the issue of whether or not they were “employees.” The general counsel concluded that scholarship football players in NCAA Division I programs are employees within the meaning of the NLRA, with the right to organize.

If you need to speak to a civil rights attorney in New Jersey or New York about a dispute with an employer or prospective employer, contact the Resnick Law Group online, at 973-781-1204, or at (646) 867-7997.

More Blog Posts:

Court Rules Against “Persuader Rule” Regarding Union Organizing Rights, The New Jersey Employment Law Firm Blog, February 26, 2017

NLRB Rules in Favor of Employees Disciplined for In-Store Protest, The New Jersey Employment Law Firm Blog, December 16, 2016

Employer’s Social Media Policy Found to Violate Federal Labor Law by NLRB, The New Jersey Employment Law Firm Blog, September 29, 2016

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