The National Labor Relations Board (“NLRB”) has just ruled that graduate and undergraduate students who work as teaching and research assistants at private universities are “employees” under the National Labor Relations Act and therefore can join or form labor unions.
Previously, the NLRB has ruled against such unions because they deemed the relationship between the schools and their teaching or research assistants to be “primarily educational, not economic.”
University Gets Schooled
The students seeking to be represented by a union at Columbia University included “graduate and undergraduate teaching assistants, . . graduate research assistants (including those compensated through training grants), and all Department research assistants.” The NLRB found that this bargaining unit was appropriate even though some of the students did not perform services for more than one semester. They ruled that the students’ tenure was “not so ephemeral as to vitiate their interest in bargaining over terms and conditions of employment.”
The NLRB was not persuaded by arguments that allowing student employees to unionize would impair the faculty-student relationship and diminish academic freedom, reasoning instead that “there is no compelling reason – in theory or in practice – to conclude that collective bargaining by student assistants cannot be viable or that it would seriously interfere with higher education.”
The NLRB very carefully distinguished this decision from their recent ruling preventing student athletes at Northwestern University from unionizing. They noted that they never actually ruled in that case whether the athletes formed an employment relationship with the university. Moreover, they highlighted that unlike the athletes, the teaching and research assistants are not “within and govern[ed] by an athletic consortium dominated by public universities”, namely the NCAA. Therefore, the two situations were not comparable.
Bottom Line Number 1
Columbia University is likely to appeal but if that appeal is not successful, private universities throughout the country can expect their new “student-employees” to receive calls very soon from union organizers looking to add to their ranks.
Next Case – Back Pay is More Than Just Back Pay
Meanwhile, an Administrative Law Judge for the NLRB has ruled that back pay is not a sufficient remedy for wrongfully terminated employees. From now on, they will also be entitled to reasonable search-for-work and interim employment expenses even where such expenses exceed the amount that the individual actually earns in substitute employment.
Employees claiming illegal termination under the National Labor Relations Act are required (as they are under many other federal and state laws) to look for other work in order to minimize the impact of their illegal termination. Obviously, this can entail a fair amount of expense as these individuals may incur job-seeking assistance, transportation costs and perhaps even relocation expenses to secure and begin new employment.
Making Employee Whole-er
Previously, those expenses could only be recovered in a legal proceeding up to the amount of whatever earnings the individual received from their new work, and they received nothing at all if their search for interim employment had been unsuccessful. Now, all of these expenses will be reimbursed after successful litigation, even if the job search was not fruitful.
In explaining their decision, the NLRB offered this example:
Juana Perez worked at a remote location earning $1,000 per month prior to her unlawful discharge. During the month following her discharge, Perez spent $500 travelling to different locations looking for work. Perez could only find interim employment in another state that paid $750 per month. Perez moved to the new state to be closer to her new job and was also required to obtain training for her new position, costing her $5,000 and $500, respectively. Under the Board’s traditional approach, Perez would receive compensation for only $1,500 of her $6,000 total expenses, far less than make-whole relief.
Bottom Line Number 2
Losing an NLRB case is never a welcome occurrence, and the cost of doing so just got a little pricier. Be sure to count job-seeking expenses into the equation when considering the potential exposure of a termination case.