Start Printed Page 49691
National Labor Relations Board.
Notice of proposed rulemaking; request for comments.
In order to more effectively administer the National Labor Relations Act (Act or NLRA) and to further the purposes of the Act, the National Labor Relations Board (the Board) proposes a regulation establishing that students who perform any services for compensation, including, but not limited to, teaching or research, at a private college or university in connection with their studies are not “employees” within the meaning of Section 2(3) of the Act. The Board believes that this proposed standard is consistent with the purposes and policies of the Act, which contemplates jurisdiction over economic relationships, not those that are primarily educational in nature. This rulemaking is intended to bring stability to an area of federal labor law in which the Board, through adjudication, has reversed its approach three times since 2000.
Comments regarding this proposed rule must be received by the Board on or before November 22, 2019. Comments replying to comments submitted during the initial comment period must be received by the Board on or before November 29, 2019. Reply comments should be limited to replying to comments previously filed by other parties. No late comments will be accepted.
Internet—Federal eRulemaking Portal. Electronic comments may be submitted through http://www.regulations.gov. Follow the instructions for submitting comments.
Delivery—Comments should be sent by mail or hand delivery to: Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001. Because of security precautions, the Board continues to experience delays in U.S. mail delivery. You should take this into consideration when preparing to meet the deadline for submitting comments. The Board encourages electronic filing. It is not necessary to send comments if they have been filed electronically with regulations.gov. If you send comments, the Board recommends that you confirm receipt of your delivered comments by contacting (202) 273-1940 (this is not a toll-free number). Individuals with hearing impairments may call 1-866-315-6572 (TTY/TDD).
Only comments submitted through http://www.regulations.gov, hand delivered, or mailed will be accepted; ex parte communications received by the Board will be made part of the rulemaking record and will be treated as comments only insofar as appropriate. Comments will be available for public inspection at http://www.regulations.gov and during normal business hours (8:30 a.m. to 5 p.m. EST) at the above address.
The Board will post, as soon as practicable, all comments received on http://www.regulations.gov without making any changes to the comments, including any personal information provided. The website http://www.regulations.gov is the Federal eRulemaking portal, and all comments posted there are available and accessible to the public. The Board requests that comments include full citations or internet links to any authority relied upon. The Board cautions commenters not to include personal information such as Social Security numbers, personal addresses, telephone numbers, and email addresses in their comments, as such submitted information will become viewable by the public via the http://www.regulations.gov website. It is the commenter's responsibility to safeguard his or her information. Comments submitted through http://www.regulations.gov will not include the commenter's email address unless the commenter chooses to include that information as part of his or her comment.
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FOR FURTHER INFORMATION CONTACT:
Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001, (202) 273-1940 (this is not a toll-free number), 1-866-315-6572 (TTY/TDD).
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The National Labor Relations Board is proposing a jurisdictional rule excluding undergraduate and graduate students who perform services for some form of financial compensation at a private college or university in connection with their studies from coverage as employees under Section 2(3) of the Act. This proposed rule will overrule extant precedent and return to the state of law as it existed from shortly after the Board first asserted jurisdiction over private colleges and universities in the early 1970s to 2000 and, with brief exceptions, for most of the time since then.
Under Section 2(3) of the Act, “the term `employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter [of the Act] explicitly states otherwise . . . .” This statutory definition of “employee” neither expressly includes nor excludes students who perform services at a private college or university in connection with their studies. Consequently, the Board is tasked with addressing the jurisdictional implications of asserting or denying statutory employee status for these students in light of the underlying purposes of the Act. The Supreme Court has made clear that “when reviewing the Board's [as opposed to a lower court's] interpretation of the term `employee' as it is used in the Act, we have repeatedly said that `[s]ince the task of defining the term employee is one that has been assigned primarily to the agency created by Congress to administer the Act, . .the Board's construction of that term is entitled to considerable deference . . . .' ” NLRB v. Town & Country Electric, 516 U.S. 85, 94 (1995) (emphasis in original) (quoting Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984) (internal quotation marks omitted) (citations omitted)). Thus, the Supreme Court “will uphold any interpretation [of `employee'] that is reasonably defensible.” Sure-Tan, supra at 891 (citations omitted).
In Section 1 of the Act, Congress found that the “strikes and other forms of industrial strife or unrest” that preceded the Act were caused by the “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership . . . .” In order to eliminate the burden on interstate commerce caused by this industrial unrest, Congress extended to employees the right “to organize and bargain collectively” with their employer, encouraging the “friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions . . . .” Id.
In Start Printed Page 49692applying this “central policy of the Act,” the Board has emphasized that “[t]he vision of a fundamentally economic relationship between employers and employees is inescapable.” WBAI Pacifica Foundation, 328 NLRB 1273, 1275 (1999). The Supreme Court has similarly observed that “[t]he Act was intended to accommodate the type of management-employee relations that prevail in the pyramidal hierarchies of private industry,” 
and that, accordingly, “principles developed for use in the industrial setting cannot be ‘imposed blindly on the academic world.’ '” 
The Board first asserted jurisdiction over private colleges and universities in Cornell Univ., 183 NLRB 329 (1970).
Shortly thereafter, in Adelphi University, 195 NLRB 639 (1972), the Board held that graduate student assistants are primarily students and should be excluded from a bargaining unit of regular faculty. The graduate students were working toward their advanced academic degrees, and the Board noted that “their employment depends entirely on their status as such.” Id. at 640. Further, the Board emphasized that graduate student assistants “are guided, instructed, assisted, and corrected in the performance of their assistantship duties by the regular faculty members to whom they are assigned.” Id. In The Leland Stanford Junior University, 214 NLRB 621, 623 (1974), the Board went further, holding that graduate student research assistants “are not employees within the meaning of Section 2(3) of the Act.” The Board found that the research assistants were not statutory employees because, like the graduate assistants in Adelphi University, supra, they were “primarily students.” Id. In support of this conclusion, the Board cited the following: (1) The research assistants were graduate students enrolled in the Stanford physics department as Ph.D. candidates; (2) they were required to perform research to obtain a degree; (3) they received academic credit for their research work; and (4) while they received a stipend from Stanford, funded by external sources, the amount was not dependent on the nature or intrinsic value of the services performed or the skill or function of the recipient, but instead was determined by the goal of providing the graduate students with financial support. Id. at 621-623. The Board distinguished the graduate student research assistants from employee “research associates” who were “not simultaneously students,” having already completed their graduate degrees. Id. at 623.
For over 25 years, the Board adhered to the Leland Stanford principle.
Then, in New York University, 332 NLRB 1205 (2000) (“NYU”), the Board reversed course and held for the first time that certain university graduate student assistants were statutory employees. The Board reviewed the statutory language of Section 2(3) and applied the common-law agency doctrine of the conventional master-servant relationship, which establishes that such a “relationship exists when a servant performs services for another, under the other's control or right of control, and in return for payment.” Id. at 1206 (citations omitted). The Board concluded that “ample evidence exists to find that graduate assistants plainly and literally fall within the meaning of `employee' as defined in Section 2(3)” and by the common law. Id. This interpretation was based on the breadth of the statutory language, the lack of any statutory exclusion for graduate student assistants, and the “uncontradicted and salient facts” establishing that the assistants in that case performed services under the control and direction of the university for which they were compensated. Id. The NYU Board also relied on Boston Medical Center, supra, to support its policy determination that collective bargaining was feasible in the university context. Id. However, citing Leland Stanford, supra, the Board concluded that certain externally-funded graduate and research student assistants did not “perform a service” for their university and therefore were not statutory employees. Id. at 1209 fn. 10.
Four years later, the Board in Brown University, 342 NLRB 483 (2004), reconsidered and overruled NYU,
holding that graduate student teaching assistants, research assistants, and proctors in the petitioned-for bargaining unit were not statutory employees. The Board reasserted the “principle . . . that graduate student assistants are primarily students and not statutory employees.” Id. (citing Leland Stanford, supra). Consistent with that principle, the Board found that “graduate student assistants, who perform services at a university in connection with their studies, have a predominately academic, rather than economic, relationship with their school” and therefore “[are] not employees within the intendment of the Act.” Id. In support of this conclusion, the Board cited the following: (1) The petitioned-for individuals were students; (2) their ability to serve as teaching assistants, research assistants, or proctors, and receipt of a stipend and tuition remission for doing so, depended on continued enrollment as a student; (3) their principal time commitment at Brown University was focused on obtaining a degree and, thus, being a student; and (4) the act of serving as a teaching assistant, research assistant, or proctor was part and parcel of the core elements of the Ph.D. degree, teaching and research. Id. at 488, 492.
In addition, as a policy matter, the Board determined that collective bargaining “would unduly infringe upon traditional academic freedoms.” Brown University, supra at 490. Specifically, the Board concluded that “[i]mposing collective bargaining [between graduate student assistants and private universities] would have a deleterious impact on overall educational decisions . . . includ[ing] broad academic issues involving class size, time, length, and location, as well as issues over graduate assistants' duties, hours, and stipends.” Id. The Board also found that the collective-bargaining obligation “would intrude upon decisions over who, what, and where to teach or research,” all of which Start Printed Page 49693constitute “the principal prerogatives of an educational institution.” Id.
A decade later, a Board majority in Columbia University, 364 NLRB No. 90 (2016), reconsidered and overruled Brown University. The Columbia decision, however, went much further than reinstating the statutory employee holding in NYU. Whereas NYU had applied exclusively to certain graduate student assistants and had acknowledged the continuing viability of Leland Stanford, supra, the Columbia decision overruled Leland Stanford and expanded Section 2(3) of the Act and the rationale of NYU to cover—for the first time since the Board asserted jurisdiction over colleges and universities—both externally-funded graduate research assistants and undergraduate university student assistants.
Specifically, the Board determined that an employment relationship can exist under the Act between a private college or university and its employee, even when the employee is simultaneously a student. The Board observed that “[s]tatutory coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the Act does not reach.” Id., slip op. at 2. Thus, an individual “may be both a student and an employee; a university may be both the student's educator and employer.” Id., slip op. at 7 (emphasis in original). Concluding that both Section 2(3) of the Act and the common law of agency support a finding of employee status, the Board cited the Supreme Court's observations that the breadth of the definition of “employee” in Section 2(3) is “striking” 
and “seems to reiterate the breadth of the ordinary dictionary definition of the term, a definition that includes any person who works for another in return for financial or other compensation.” 
Moreover, the Board stressed that Congress chose not to list student assistants among the Act's enumerated exclusions from the statutory definition of employee, which “is itself strong evidence of statutory coverage.” Id. (citing Sure-Tan, supra at 891-892). The Board concluded that university student assistants meet the common-law definition of employee establishing that an employee “relationship exists when a servant performs services for another, under the other's control or right of control, and in return for payment.” Id., slip op. at 3 (quoting NYU, 332 NLRB at 1206). Additionally, the Board explained that in past cases, the broad language in Section 2(3) had been interpreted to cover categories of workers that included paid union organizers (salts), undocumented workers, and confidential employees. Id., slip op. at 5.
The Columbia Board concluded that asserting jurisdiction over university student assistants who meet the common-law definition of employee furthers the Act's policies of encouraging collective bargaining and employees' freedom to express a choice for or against a bargaining representative. Id., slip op. at 6-7. Further, the Board rejected the “theoretical” claims in Brown University that classifying university student assistants as statutory employees and permitting them to bargain collectively would have a detrimental impact on the educational process, explaining, inter alia, that there is no empirical support for the proposition that collective bargaining cannot successfully coexist with a student-teacher relationship. Id., slip op. at 7.
II. The Proposed Rule
Under the proposed rule, students who perform services at a private college or university related to their studies will be held to be primarily students with a primarily educational, not economic, relationship with their university, and therefore not statutory employees. See Brown University, 342 NLRB at 487.
The Board believes, subject to potential revision in response to comments, that the proposed rule reflects an understanding of Section 2(3) that is more consistent with the overall purposes of the Act than are the majority opinions in NYU and Columbia University. Thus, the proposed rule is based on the view that the common-law definition of employee is not conclusive because the Act, and its policy promoting collective bargaining, “contemplates a primarily economic relationship between employer and employee, and provides a mechanism for resolving economic disputes that arise in that relationship.” Brevard Achievement Center, 342 NLRB 982, 984-985 (2004).
The Supreme Court has recognized the importance of these Congressional policies in determining whether individuals are statutory employees. For example, in NLRB v. Bell Aerospace Corp., 416 U.S. 267 (1974), the Court held that although managerial employees are not explicitly excluded from the definition of an employee in Section 2(3), they nevertheless fall outside the Act's coverage. As the Court explained:
[T]he Wagner Act was designed to protect ‘laborers’ and ‘workers,’ not vice presidents and others clearly within the managerial hierarchy. Extension of the Act to cover true ‘managerial employees’ would indeed be revolutionary, for it would eviscerate the traditional distinction between labor and management. If Congress intended a result so drastic, it is not unreasonable to expect that it would have said so expressly. [Id. at 284 fn. 13.] 
The Board has similarly held that individuals without a sufficient economic relationship to an employer are not statutory employees. See, e.g., Toering Electric Co., 351 NLRB 225, 228 (2007) (finding applicants for employment are not statutory employees if they lack a genuine interest in working for the employer as this is “not the economic relationship contemplated and protected by the Act”); Brevard Achievement Center, 342 NLRB at 984 (finding individuals with disabilities are not statutory employees if the relationship to their employer is “primarily rehabilitative” rather than “typically industrial”); WBAI Pacifica Foundation, 328 NLRB at 1275 (finding unpaid staff are not statutory employees as the Act contemplates “a fundamentally economic relationship between employers and employees”).Start Printed Page 49694
The holding in Brown University that the student teaching assistants and research assistants had a primarily educational, not economic, relationship with their school appears to fit comfortably with this line of decisions. For example, students who assist faculty members with teaching or research generally do so because those activities are vital to their education; they gain knowledge of their discipline and cultivate relationships with faculty. See Brown University, 342 NLRB at 489 (“[T]he role of teaching assistant and research assistant is integral to the education of the graduate student . . .”).
In fact, performing such services is often a prerequisite to obtaining the student's degree.
Another consideration is that students spend a limited amount of time performing these additional duties because their principal time commitment is focused on their coursework and studies. See id. at 488. Further, with regard to remuneration, students typically receive funding regardless of the amount of time they spend researching or teaching, and only during the period that they are enrolled as students. See id. at 488-489. Therefore these funds, which are provided to help pay the cost of students' education, are better viewed as financial aid than as “consideration for work.” Id.
Additionally, the goal of faculty in advancing their students' education differs from the interests of employers and employees engaged in collective bargaining, who “proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest.” Id. at 488 (quoting NLRB v. Insurance Agents, 361 U.S. 477, 488 (1960)). Faculty members educate, evaluate, and mentor students. Collective bargaining over those matters appears to be inappropriate given that faculty and students are engaged in an individualized learning experience.
Finally, a statutory construction of Section 2(3) consistent with the Board's “longstanding rule that it will not assert jurisdiction over relationships that are `primarily educational'” advances the important policy of protecting traditional academic freedoms. See Brown University, supra at 488, 490. These freedoms include both free speech rights in the classroom and several matters traditionally in the domain of academic decision-making, including those concerning course content and length; class size and location; who, what, and where to teach or research; university student assistants' educational and service responsibilities; and standards for advancement and graduation. Id. at 490.
Subjecting these important academic freedoms to traditional collective bargaining would necessarily and inappropriately involve the Board in the academic prerogatives of private colleges and universities as well as in the educational relationships between faculty members and students. See Brown University, supra at 492 (“[T]he broad power to bargain over all Section 8(d) subjects would, in the case of graduate student assistants, carry with it the power to intrude into areas that are at the heart of the educational process.”). Indeed, the nature of the general duty to bargain under the Act uniquely imperils the protection of academic freedoms.
As noted above, the proposed rule would exclude from Section 2(3)'s coverage of employees those students who perform any services in connection with their undergraduate or graduate studies at a private college or university, including, but not limited to, teaching or research assistance. However, the Board also invites comments on whether the rule should also apply to exclude from Section 2(3) coverage students employed by their own educational institution in a capacity unrelated to their course of study due to the “very tenuous secondary interest that these students have in their part-time employment.” San Francisco Art Institute, supra at 1252.
III. Validity and Desirability of Rulemaking
Section 6 of the Act provides that “[t]he Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by subchapter II of chapter 5 of Title 5 [the Administrative Procedure Act], such rules and regulations as may be necessary to carry out the provisions of this Act.” The Board interprets Section 6 as authorizing the proposed rules and invites comments on this issue. Although the Board historically has made most substantive policy determinations through case adjudication, the Board has, with Supreme Court approval, engaged in substantive rulemaking. American Hospital Assn. v. NLRB, 499 U.S. 606 (1991) (upholding Board's rulemaking on appropriate bargaining units in the healthcare industry); see also NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) (“[T]he choice between rulemaking and adjudication lies in the first instance within the Board's discretion.”). Indeed, although the Board first asserted statutory jurisdiction over private colleges and universities in case adjudication,
it subsequently established the discretionary minimum standard for asserting jurisdiction through notice and comment rulemaking, and the proposed rule excluding student assistants from the Act's coverage would be incorporated as an amendment to the jurisdictional standard set forth in 29 CFR 103.1.
The Board finds that informal notice-and-comment rulemaking is preferable to adjudication with respect to the industry-wide determination whether students who perform services in connection with their studies are “employees” within the meaning of Section 2(3) of the Act. The rulemaking process provides the opportunity for broader public input than in case adjudication and, consequently, for Board consideration of a record of any variations in student assistant and other academic work-related programs than might not exist in any single educational institution. It also does not depend on participation and argument by parties in a specific case, and it cannot be mooted by developments in a pending case. In this regard, we note that the student employee issue has been raised recently by requests for review in several cases pending before the Board, but in each of those cases the issue was mooted by withdrawal of the underlying representation petition. Finally, the Board believes that rulemaking will enable students, unions, and private colleges and universities to plan their affairs with greater predictability and certainty than has existed during the recent history of adjudicatory oscillation.
IV. Response to the Dissent
Our dissenting colleague is not surprisingly of the opinion that the Columbia University majority, of which she was a member, has made the only rational interpretation of a statutory provision that is silent on the issue of whether paid student assistants are employees under the Act. This is so in spite of the fact that different Boards composed of different members have on Start Printed Page 49695multiple occasions reached different and conflicting conclusions for varying reasons on that issue. Further, our colleague apparently believes that the finality that should be assigned to the Columbia majority decision justifies her departure from a frequently-voiced complaint that we are required and have failed to invite public input before overruling precedent.
We emphatically reject our colleague's offensive claim that we propose to reverse progress made by student employees with respect to improved working conditions “in the name of preserving higher education.” We do not aim in this process to reverse that progress. Our goal is simply to determine whether the Board has statutory jurisdiction over student employees in private colleges and universities. As our colleague surely knows, if we do not have jurisdiction, then we lack the authority to protect student employees' union and other concerted activities to secure or retain improved terms and conditions of employment, however worthy those activities may be. Of course, that is undisputedly the case with respect to the experiences at many public institutions of higher learning that our colleague cites as examples of how collective bargaining can work.
Moreover, while not determinative, we note that almost all of the progress our colleague refers to at private universities and colleges has been secured through voluntary collective bargaining and/or the use of traditional economic weapons without invoking the Board's jurisdiction. In fact, unions seeking to represent student employees at private universities have on numerous occasions since Columbia withdrawn election petitions. Through the notice and comment process we initiate today, we will have the opportunity to hear directly from those involved about their experiences and how they relate to the jurisdictional issue before us.
V. Dissenting View of Member Lauren McFerran
In the wake of the Board's 2016 Columbia University decision,
which held that students who work for their universities are protected by the National Labor Relations Act, student employees across the country have been seeking—and often winning—better working conditions: Better pay, better health insurance, better child care, and more.
Today, the majority proposes to reverse this progress, in the name of preserving higher education. While student employees clearly see themselves as workers, with workers' interests and workers' rights, the majority has effectively decided that they need protecting from themselves. I disagree.
There is no good basis—in law, in policy, or in fact—to take these workers' rights away. Instead, the majority revives tired old arguments rightly rejected by the Board in Columbia—and, even before that, in the Board's 2000 decision in New York University,
which first found student employees protected. Today's proposal—like the view of the dissenting Board member in Columbia and the position taken by the Board in its misguided Brown University decision
—reflects a deep misunderstanding of our statute, as interpreted by the Supreme Court, which broadly protects private-sector employees and which has no special exception for working students. At bottom, the majority relies on speculative claims about the harm collective bargaining supposedly will do to the students themselves, as well as to their universities. But those claims are not only unsupported, they are refuted by what has happened in the real world. The majority has chosen to address this issue via rulemaking, but in rulemaking empirical evidence must govern. The Brown University view, the Columbia dissenter's view, and the majority's view today, will all be put to a test that they cannot survive. There is no need to proceed this way, when the Board can and should adhere to the Columbia decision and affirm the right of student employees to engage in collective bargaining.
The Board's decision in Columbia (not to mention its earlier New York University decision) has already rebutted the legal premises the majority now relies on. As the Columbia Board explained, the “broad language” of the National Labor Relations Act—the Act covers “any employee,” subject to certain exceptions, “none of which address students employed by their universities”—coupled with the “unequivocal policy of the Act” to encourage collective bargaining, means that the Board should “extend statutory coverage to students working for universities . . . unless they are strong reasons not to do so.” 
There are no such reasons, and there never have been.
Recycling a made-up distinction, the majority argues that only employees Start Printed Page 49696whose relationship with their employer is “primarily economic” (as opposed to “primarily educational”) should be covered.
But as the Columbia Board explained, the Act clearly contemplates coverage of any common-law employment relationship; it does not care whether the employee and the employer also have some other non-economic relationship, beyond the reach of the Act.
The Columbia Board went on to explain why covering student employees promoted the goals of federal labor policy, why it did not infringe on First Amendment academic freedom, and why empirical evidence (as well as the Board's experience) demonstrated that coverage was appropriate.
As the Columbia Board correctly concluded, “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 empirical evidence relied on by the Columbia Board came from private-sector experience during the brief, prior period (2000-2004) when the Board had protected the rights of student employees and from experience in public universities, where collective bargaining by student employees has long been common.
Following Columbia, of course, student employees at private universities have exercised their labor-law rights, continuing to organize unions, win representation, and secure collective-bargaining agreements—all without any apparent damage to higher education. The majority ignores this development, although it must be aware of it—otherwise, the impetus for this entire project would be a mystery.
In the private sector, there are at least five executed collective bargaining agreements between student employee unions and universities: New York University (NYU),
The New School,
and Brandeis University.
Several other schools are currently in negotiations for an agreement.
Of the contracts that have been executed, all but the NYU agreement (which was negotiated pursuant to voluntary recognition) involved unions certified in Board elections after Columbia issued.33
Start Printed Page 49697The striking thing about these contracts is the focus on traditional subjects of collective bargaining, such as compensation, leave time, and health care.
Against the backdrop of these agreements, the majority's factual assertions—for which it offers no empirical evidence—ring especially hollow. The majority claims that student employees should not be allowed bargaining rights because, through their employment, they “gain knowledge of their discipline and cultivate relationships” and “assist faculty members . . . because those activities are vital to their education.” 
My colleagues also express concern that, in addition to harming the education of the graduate employees, allowing graduate employees to bargain will affect universities' academic prerogatives, such as directing the content, methods, and standards of education.
These assertions do not stand up to scrutiny. As the Columbia Board observed:
[C]ollective bargaining and education occupy different institutional spheres . . . . [A] graduate student maybe both a student and an employee; a university may both the student's educator and employer. By permitting the Board to define the scope of mandatory bargaining over “wages, hours, and other terms and conditions of employment,” the Act makes it entirely possible for these different roles to coexist—and for genuine academic freedom to be preserved.
364 NLRB No. 90, slip op. at 7 (emphasis in original), quoting Act, Sec. 8(d), 20 U.S.C. 158(d). The evidence demonstrates that student employees are organizing not to interfere with their educations, but to improve their working conditions and to provide for themselves and their families.
There is nothing illegitimate about that. As the Brown Board did before, today's majority “errs in seeing the academic world as somehow removed from the economic realm that labor law addresses—as if there were no room in the ivory tower for a sweatshop.” 
Unsurprisingly, then, evidence from contemporary bargaining shows that student employees are not trying to alter aspects of their own educational experience, nor to exert control over academic matters, but instead have focused on bread-and-butter issues—while accepting efforts to preserve universities' control over academic matters. The New School agreement, for example, included a broad management rights provision, which notes that “[m]anagement of the University is vested exclusively in the University” and in which the union “agrees that the University has the right to establish, plan, direct and control the University's missions, programs, objectives, activities, resources, and priorities,” including (among many other specified prerogatives) the right ” to determine or modify the number, qualifications, scheduling, responsibilities and assignment of ASWs [Academic Student Workers]” and the right “to exercise sole authority on all decisions involving academic matters.” Such a clause preserves a university's academic freedom and prerogatives.
It also sets a foundation for continuing mentorship and cultivation of the educational features of assistantships, by leaving evaluation and direction of academic work in control of the university. In fact, the Tufts agreement outright encourages such mentorship:
Supervisors shall provide regular feedback to Graduate Assistants on the work they perform, including advice, guidance, and support on how to improve their performance. Flexibility in such feedback is encouraged, so as to address the broad nature of work performed by Graduate Assistants and their individual needs.
Thus, while preserving the educational facets of the student employees' relationship to a university and its faculty, these recent collective-bargaining agreements instead focus on core economic issues that are faced by employees and employers everywhere.
Relatedly, in bargaining that is still underway at other schools, such as Columbia, Harvard, Brown, and Georgetown, it appears that bread-and-butter issues have also been at the fore.
To the extent that agreements Start Printed Page 49698have not been reached, it appears to be because of disagreement over such economic subjects. For example, at Columbia, traditional economic issues seem to predominate the union's bargaining agenda.
Meanwhile, at Harvard, issues directly involving financial well-being loomed large in the union's description of its bargaining experiences. At one point the bargaining team's update states: “With childcare costs $2,000/month, dependent insurance at $300/month, rent upwards of $2,000 for a one-bedroom apartment, how can student parents afford to work on this campus?” 
Even a cursory examination of the agreements and bargaining progress of student-employee unions leaves little doubt: The issues animating student employees' efforts are genuine concerns over their needs and interests as employees—issues that the Act is intended to allow employees to bargain over.
Notably, Harvard's administration has effectively acknowledged that bargaining over terms and conditions of employment can occur without affecting issues that a university feels are central to its academic mission. The University president noted, “We will be very adamant about differentiating between matters that are appropriate for academic decision making from matters that are concerns of a labor or employment situation.” 
Nor have student employees been pressing for influence on academic matters, in either the public or private sector. One labor law scholar pointed out that “[t]here is not a single case of an academic union insisting on bargaining over grades, letters of recommendation, awarding of honors, tenure criteria, what fields of specialization a department should concentrate in, admission criteria, or any other academic judgment.” 
While unsuccessfully attempting to demonstrate how collective bargaining will harm education, the majority neglects the economic features of the relationship between universities and student employees—and how strained economic circumstances among student employees have generated labor unrest.
As the Columbia Board observed, “[i]n the absence of access to the Act's representation procedures and in the face of rising financial pressures, [student employees] have been said to be `fervently lobbying their respective schools for better benefits and increased representation'—entirely the benefits that would flow with respect to economic aspects of the relationship.” 
Today's proposal seems to disregard the genuine difficulties faced—whether working long hours and juggling research and coursework, or struggling to afford health care and child care—by student employees, and the obvious fact that they might benefit by exercising their rights under the National Labor Relations Act. Indeed, financial insecurity can certainly be an obstacle to academic achievement—the main concern the majority purports to protect.
Ironically, after the Columbia Board successfully opened the Act's protection and procedures to student employees, today's proposal will raise the specter of renewed unrest on campus. That result is directly contrary to the Act's stabilizing purposes. The desire of student employees for union representation and for better working conditions will not go away simply because the Board has closed its doors. Instead, that desire will have no clear and appropriate outlet, especially in the face of universities' resistance. For example, when Columbia initially refused to bargain in the hopes of succeeding in a legal challenge, student demonstrations and unrest followed.
Relatedly, University of Chicago students struck because the university refused to honor their vote to unionize.
Further, when schools have withheld voluntary recognition in light of the prospect of the Board reversing Columbia, this strategy has provoked further unrest.
Representation elections and collective bargaining under the Board's supervision is the far better alternative.
In proposing to reverse the Columbia decision, the majority has shown little interest in the facts on the ground. But it is not too late for the Board to turn back. Perhaps robust public participation in the comment process will help create a rulemaking record that refutes, once and for all, the notion that the National Labor Relations Act cannot be appropriately and productively applied to student employees and their university employers. On that score, I urge my colleagues to hold public hearings on today's proposal, so that the Board can hear directly from the student employees affected by today's proposal. To strip away all labor-law rights from tens of thousands of student employees—including many who have already begun exercising those rights—would be a terrible mistake.
* * * * *
Start Printed Page 49699
As explained, the majority proposes to permanently exclude a class of employees from statutory coverage, in contravention of the law's language and its policies. There is no reason to revisit the Columbia decision, now on the books for over three years, particularly in the absence of any empirical evidence that any educational interests have been harmed in any way. To the contrary, student employees have already succeeded in bargaining with their universities for better working conditions, the very interests that spurred their organizing movement—just as the National Labor Relations Act encourages. Because the proposed rule has no plausible foundation, I must dissent.
VI. Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (“RFA”), 5 U.S.C. 601 et seq., requires agencies promulgating proposed rules to prepare an initial regulatory flexibility analysis and to develop alternatives, wherever possible, when drafting regulations that will have a significant impact on a substantial number of small entities. The focus of the RFA is to ensure that agencies “review rules to assess and take appropriate account of the potential impact on small businesses, small governmental jurisdictions, and small organizations, as provided by the [RFA].” E.O. 13272, Sec. 1, 67 FR 53461 (“Proper Consideration of Small Entities in Agency Rulemaking”). An agency is not required to prepare an initial regulatory flexibility analysis for a proposed rule if the Agency head certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b).
The Board concludes that the proposed rule will not affect a substantial number of small entities. In any event, the Board further concludes that the proposed rule will not have a significant economic impact on such small entities. Accordingly, the Agency Chairman has certified to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”) that the proposed amendments will not have a significant economic impact on a substantial number of small entities.
Paperwork Reduction Act
The NLRB is an agency within the meaning of the Paperwork Reduction Act (PRA), 44 U.S.C. 3502(1) and (5). This Act creates rules for agencies when they solicit a “collection of information.” 44 U.S.C. 3507. The PRA defines “collection of information” as “the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format.” 44 U.S.C. 3502(3)(A). The PRA only applies when such collections are “conducted or sponsored by those agencies.” 5 CFR 1320.4(a).
The proposed rule does not involve a collection of information within the meaning of the PRA. Outside of administrative proceedings (discussed below), the proposed rule does not require any entity to disclose information to the NLRB, other government agencies, third parties, or the public.
The only circumstance in which the proposed rule could be construed to involve disclosures of information to the Agency, third parties, or the public is during the course of Board administrative proceedings. However, the PRA provides that collections of information related to “an administrative action or investigation involving an agency against specific individuals or entities” are exempt from coverage. 44 U.S.C. 3518(c)(1)(B)(ii). A representation proceeding under Section 9 of the NLRA as well as an investigation into an unfair labor practice under Section 10 of the NLRA are administrative actions covered by this exemption. The Board's decisions in these proceedings are binding on and thereby alter the legal rights of the parties to the proceedings and thus are sufficiently “against” the specific parties to trigger this exemption.
For the foregoing reasons, the proposed rule does not contain information collection requirements that require approval by the Office of Management and Budget under the PRA.
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- Colleges and universities
- Health facilities
- Joint-employer standard
- Labor management relations
- Military personnel
For the reasons set forth in the preamble, the Board proposes to amend 29 CFR part 103 to read as follows.
PART 103—OTHER RULES
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1. The authority citation for part 103 continues to read as follows: End Amendment Part
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2. Revise § 103.1 to read as follows: End Amendment Part
Colleges and universities.
(a) The Board will assert its jurisdiction in any proceeding arising under Sections 8, 9, and 10 of the Act involving any private nonprofit college or university which has a gross annual revenue from all sources (excluding only contributions which, because of limitation by the grantor, are not available for use for operating expenses) of not less than $1 million.
(b) Students who perform any services, including, but not limited to, teaching or research assistance, at a private college or university in connection with their undergraduate or graduate studies are not employees within the meaning of Section 2(3) of the Act.
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Dated: September 18, 2019.
[FR Doc. 2019-20510 Filed 9-20-19; 8:45 am]
BILLING CODE 7545-01-P