The Board’s decision in Columbia University (364 NLRB No. 90 (August 23, 2016)) demonstrates just how unplugged from reality the current National Labor Relations Board is. Reversing a position first taken by the Board in 1972 and held since, (except for a brief four year period), this Board held in Columbia University that a conglomerate of various kinds of graduate student instructors, fellows, proctors, graders, research assistants (including those on grants funded by outside sources) and course assistants (“graduate assistants”) are statutory employees entitled to the protection s of the National Labor Relations Act, including the right to be represented by a union and engage in collective bargaining.
The decision, said the Board, was a necessary interpretation of the language of the statute in light of its policy of encouraging collective bargaining. In doing so, the Board cloaked its agenda to increase membership in unions in the cloth of “statutory policy”. By dismissing the uniqueness of the relationship of graduate assistants to their universities as “not dispositive,” the Board injected concepts intended and developed for factories into the academic arena where the primary purpose for the “work” is to advance the graduate assistant’s personal education and achieve an academic degree as the gateway to becoming “employed.”
In the final analysis, the Board’s decision in Columbia University is political and philosophical. It is not driven by the law. It does not even flow naturally from the law, except that this Board, unlike prior Boards, says it does. For the sake of its agenda, this Board has again reversed the nuanced reasoning of nearly fifty years of precedent endorsed by the courts, including the Supreme Court.
Nowhere is this more obvious than in that portion of the decision that approves of the bargaining unit sought by the union as “appropriate.” While no university will be advantaged by the balkanization of its graduate assistants, there is very little in common between a research assistant being paid by a grant from an outside source and a course assistant. Yet, universities may be required to bargain a single contract that is relevant to and covers both. But that is not the most unrealistic and destructive part of the unit decision by the Board. That part is capsuled in the question of whether the individuals in one of the disparate classifications of “graduate assistants” will be represented by a union may be decided by the votes of those in another, more populous, classification who have vastly different motivations, issues and working conditions. Research assistants working on and controlled by a grant funded by an outside source may not want to or can be controlled by a union contract negotiated by those whose primary allegiance is to a majority with other interests.
The Columbia University decision was wrongly decided and now it is up to the appellate courts. Hopefully, they will re-tether our law to reality and conclude that the agenda of zealots must not be permitted to overturn established and contrary precedent applying the same law to the same facts.