[Federal Register Volume 84, Number 184 (Monday, September 23, 2019)]
[Proposed Rules]
[Pages 49691-49699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20510]



[[Page 49691]]

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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 103

RIN 3142-AA15


Jurisdiction--Nonemployee Status of University and College 
Students Working in Connection With Their Studies

AGENCY: National Labor Relations Board.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: 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.

DATES: 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.

ADDRESSES: 
    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.

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).

SUPPLEMENTARY INFORMATION: 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.

I. Background

    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.\1\ In

[[Page 49692]]

applying 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,'' \2\ and that, accordingly, ``principles developed for use 
in the industrial setting cannot be `imposed blindly on the academic 
world.' ''' \3\
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    \1\ 1 Leg. Hist. 318 (NLRA 1935). See also American Ship 
Building Co. v. NLRB, 380 U.S. 300, 316 (1965) (stating that a 
purpose of the Act is ``to redress the perceived imbalance of 
economic power between labor and management''); 1 Leg. Hist. 15 
(NLRA 1935) (remarks of Sen. Wagner, 78 Cong. Rec. 3443 (Mar. 1, 
1934)).
    \2\ NLRB v. Yeshiva University, 444 U.S. 672, 680 (citing 
Adelphi University, 195 NLRB 639, 648 (1972)).
    \3\ Id. at 681 (quoting Syracuse University, 204 NLRB 641, 643 
(1973)).
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    The Board first asserted jurisdiction over private colleges and 
universities in Cornell Univ., 183 NLRB 329 (1970).\4\ 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.
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    \4\ Subsequent to issuance of the decision in Cornell, the Board 
engaged in notice and comment rulemaking to establish the 
discretionary minimum jurisdictional standard for colleges and 
universities. Based on comments in response to a notice of proposed 
rulemaking, 35 FR 11270, the Board issued a final rule, codified as 
29 CFR 103.1, setting a gross annual revenue of $1 million as the 
minimum standard. 35 FR 18370.
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    For over 25 years, the Board adhered to the Leland Stanford 
principle.\5\ 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.
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    \5\ In St. Clare's Hospital, 229 NLRB 1000 (1977), and Cedars-
Sinai Medical Center, 223 NLRB 251 (1976), the Board reaffirmed its 
treatment of students who ``perform services at their educational 
institutions [that] are directly related to their educational 
program'' and stated that the Board ``has universally excluded 
students from units which include nonstudent employees, and in 
addition has denied them the right to be represented separately.'' 
St. Clare's Hospital, 229 NLRB at 1002. The Board emphasized the 
rationale that such students are ``serving primarily as students and 
not primarily as employees . . . [and] the mutual interests of the 
students and the educational institution in the services being 
rendered are predominately academic rather than economic in 
nature.'' Id. The Board later overruled St. Clare's Hospital and 
Cedars-Sinai in Boston Medical Center, 330 NLRB 152 (1999), and 
asserted jurisdiction over the interns, residents, and fellows who 
had already completed their formal studies and received their 
academic degrees. The Board in Boston Medical Center did not address 
the status of graduate assistants who have not received their 
academic degrees.
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    Four years later, the Board in Brown University, 342 NLRB 483 
(2004), reconsidered and overruled NYU,\6\ 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.
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    \6\ The Brown University Board ``express[ed] no opinion'' 
regarding Boston Medical Center, supra. 342 NLRB at 483 fn. 4.
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    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

[[Page 49693]]

constitute ``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'' \7\ 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.'' \8\ 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.
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    \7\ Id., slip op. at 4 & fn. 32 (quoting Sure-Tan, Inc. v. NLRB, 
467 U.S. at 891).
    \8\ Id., slip op. at 4 & fn. 33 (quoting Town & Country 
Electric, 516 U.S. at 90 (internal quotations omitted)).
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    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.\9\
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    \9\ The Columbia Board also summarily overruled San Francisco 
Art Institute, 226 NLRB 1251 (1976), as incompatible with the 
holding that student employees were entitled under Section 2(3) to 
engage in collective bargaining. 364 NLRB No. 90, slip op. at 24 fn. 
130. The Board in San Francisco Art Institute had held that it would 
not effectuate the policies of the Act to direct an election in a 
unit consisting only of student janitors. Without expressly deciding 
the status of the student janitors under Sec. 2(3), the Board 
reasoned that this unit would not be appropriate for purposes of 
collective bargaining because of the ``the very tenuous secondary 
interest that these students have in their part-time employment.'' 
Id. at 1252. In reaching this conclusion, the Board was influenced 
by the ``brief nature of the students' employment tenure, by the 
nature of compensation for some of the students, and by the fact 
that students are concerned primarily with their studies rather than 
with their part-time employment,'' as well as the concern that 
``owing to the rapid turnover that regularly and naturally occurs 
among student janitors, it is quite possible that by the time an 
election were conducted and the results certified the composition of 
the unit would have changed substantially.'' Id.
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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.\10\ 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).
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    \10\ The students at issue in Brown University were graduate 
student assistants. The proposed rule contemplates both graduate and 
undergraduate student assistants.
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    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.] 
\11\
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    \11\ See also NLRB v. Yeshiva University, 444 U.S. at 689 (1980) 
(in finding the faculty of Yeshiva University to be ``managerial 
employees'' outside the Act's coverage, observing that ``the analogy 
of the university to industry need not, and indeed cannot, be 
complete'').

    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'').

[[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 
. . .'').\12\ In fact, performing such services is often a prerequisite 
to obtaining the student's degree.
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    \12\ See also The Leland Stanford Junior University, 214 NLRB at 
623 (research assistants that ``are seeking to advance their own 
academic standing and are engaging in research as a means of 
achieving that advancement'' do not constitute statutory employees).
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    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.\13\ 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.
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    \13\ See also Sweezy v. State of New Hampshire, 354 U.S. 234, 
263 (1957) (Frankfurter, J, concurring) (Academic freedom includes 
the right of a university ``to determine for itself on academic 
grounds who may teach, what may be taught, how it shall be taught, 
and who may be admitted to study.'') (citation omitted).
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    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,\14\ 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.\15\
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    \14\ Cornell University, supra.
    \15\ See fn. 4, supra.
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    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

[[Page 49695]]

multiple 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,\16\ 
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.\17\ 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.
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    \16\ 364 NLRB No. 90 (2016).
    \17\ See Colleen Flaherty, A TA Union Contract, 2 Years Later, 
Inside Higher Ed, Sept. 5, 2018, available at https://www.insidehighered.com/news/2018/09/05/brandeis-grad-students-win-significant-gains-union-contract-even-trump (noting substantial 
economic gains in newly-negotiated contract for student employees at 
Brandeis); David Ludwig, Why Graduate Students of America Are 
Uniting, The Atlantic, Apr. 15, 2015, available at https://www.theatlantic.com/education/archive/2015/04/graduate-students-of-the-world-unite/390261/; Rachel Bernstein, Ivy League Graduate 
Students Push for Unionization, Science, Apr. 28, 2015, available at 
https://www.sciencemag.org/careers/2015/04/ivy-league-graduate-students-push-unionization (``Graduate students' concerns include 
inadequate health insurance, high prices for dependent coverage on 
student health insurance policies, and insufficient child care and 
family leave support.''); Daniel Moattar, How Graduate Unions Are 
Winning--and Scaring the Hell out of Bosses--in the Trump Era, In 
These Times, Nov. 29, 2018, available at https://inthesetimes.com/working/entry/21602/graduate_student_unions_trump_nlrb_columbia_brown (according to 
labor law professor and advocate Risa Lieberwitz, ``More and more, 
we see the growth in the ranks of administrators, the shrinking of 
the ranks of tenured- and tenure-track faculty, and a lot of the 
shifting of the work of faculty to TAs [teaching assistants] and RAs 
[research assistants][,]'' making graduate students and adjuncts ``a 
body of very low-wage employees.'').
---------------------------------------------------------------------------

    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,\18\ 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\19\--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.
---------------------------------------------------------------------------

    \18\ 332 NLRB 1205 (2000).
    \19\ As scholars have pointed out, the Brown University decision 
offered ``no empirical support'' for its claims even though the 
``assertions are empirically testable.'' Catherine L. Fisk & Deborah 
C. Malamud, The NLRB in Administrative Exile: Problems with Its 
Structure and Function and Suggestions for Reform, 58 Duke L. J. 
2013, 2076-2077 (2009).
---------------------------------------------------------------------------

A.

    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.'' \20\ There are no such reasons, and there never have been.\21\
---------------------------------------------------------------------------

    \20\ 364 NLRB No. 90, slip op. at 1-2 (emphasis in original), 
citing National Labor Relations Act, Sec. 1, 29 U.S.C. 151, and Sec. 
2(3), 29 U.S.C. 152(3).
    \21\ Rather than acknowledge the uphill challenge that the Act's 
language and policy present, the majority notes that the Sec. 2(3) 
definition of ``employee'' ``neither expressly includes nor 
excludes'' student employees, suggesting that the absence of a 
specific exclusion allows the Board to exclude any category of 
workers not specifically included. That notion--that whatever 
Congress may have said, the Board is free to narrow the coverage of 
the Act--is simply wrong, as the Supreme Court's decisions make 
clear. See NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 91, 94 
(1995) (``[B]road, literal interpretation of the word `employee' is 
consistent with several of the Act's purposes, such as protecting 
the right of employees to organize for mutual aid without employer 
interference . . .; and encouraging and protecting the collective-
bargaining process. And, insofar as one can infer purpose from 
congressional reports and floor statements, those sources too are 
consistent with the Board's broad interpretation of the word. It is 
fairly easy to find statements to the effect that an `employee' 
simply means someone who works for another for hire, and includes 
every man on a payroll . . . . [W]hen Congress uses the term 
`employee' in a statute that does not define the term, courts 
interpreting the statute must infer, unless the statute otherwise 
dictates, that Congress means to incorporate the established meaning 
of that term.''); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891-92 
(1984) (``Since undocumented aliens are not among the few groups of 
workers expressly exempted by Congress, they plainly come within the 
broad statutory definition of `employee.' ''). See generally Andrus 
v. Glover Const. Co., 446 U.S. 608, 616-17 (1980) (``Where Congress 
explicitly enumerates certain exceptions to a general prohibition, 
additional exceptions are not to be implied, in the absence of 
evidence of a contrary legislative intent.'').
---------------------------------------------------------------------------

    Recycling a made-up distinction, the majority argues that only 
employees

[[Page 49696]]

whose relationship with their employer is ``primarily economic'' (as 
opposed to ``primarily educational'') should be covered.\22\ 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.\23\ 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.\24\ 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.'' \25\
---------------------------------------------------------------------------

    \22\ The majority points to the fact that the Board has reached 
``conflicting conclusions'' on whether the Act should be read to 
include student employees as a self-reinforcing basis to assume that 
there are multiple valid interpretations thereof. As I have 
discussed herein and as Columbia goes to great lengths to address, 
the legal analysis in Brown and earlier decisions, finding that 
student employees are not statutory employees, cannot be reconciled 
with the language of the Act and with binding Supreme Court law. But 
even assuming that it were permissible for the Board to exercise its 
discretion to return to the pre-Columbia approach, any such shift 
would have to be reconciled with the real-world evidence that 
collective bargaining in this industry has proven both feasible and 
successful.
    \23\ Columbia University, supra, 364 NLRB No. 90, slip op. at 5-
6. See Town & Country Electric, supra, 516 U.S. at 88, 95 (chief 
purpose of union salts was to organize and form a union, not to 
benefit economically, yet they were nonetheless employees); Seattle 
Opera Assn., 331 NLRB 1072, 1073 (2000) (while auxiliary choristers 
received nonmonetary benefit in the form of personal satisfaction at 
their involvement in the opera, their relationship had features of 
common-law employment and therefore they were statutory employees), 
enfd. 292 F.3d 757 (D.C. Cir. 2002).
     The lone case where the Supreme Court has excluded a class of 
common-law employees who were not among the Act's enumerated 
exceptions offers no support for the majority's effort here. In 
endorsing the exclusion of managerial employees, Bell Aerospace sets 
a high bar. The recognized exception for managerial employees was 
firmly rooted in specific, demonstrable legislative policies: The 
Court pointed to ``the House Report and the Senate Report,'' both of 
which ``voiced concern over the Board's broad reading of the term 
`employee' to include those clearly within the managerial 
hierarchy,'' as well as ``legislative history strongly suggesting'' 
that managerial employees were ``regarded as so clearly outside the 
Act that no specific exclusionary provision was thought necessary.'' 
NLRB v. Bell Aerospace Co., 416 U.S. 267, 281, 283 (1974) (internal 
quotations and brackets omitted); see also Sure-Tan, supra, 467 U.S. 
at 892-93 (looking for identifiable statutory text or policies 
concerning coverage of undocumented workers under the Act and 
further examining, to the extent any policies exist, whether there 
would be any specific conflict).
    The majority also cites NLRB v. Yeshiva University, 444 U.S. 672 
(1980) for the proposition that the Act recognizes the absence of 
``pyramidal hierarchies'' in an educational setting that might make 
the application of the Act inapt. But there the Court was referring 
very specifically to the collective ``faculty governance'' that had 
historically characterized relationships between the faculty at 
issue in Yeshiva, and their employer. Indeed, it was in light of 
this particular shared control that the Court analyzed the question 
of whether faculty members could be deemed managerial employees. The 
case said nothing at all concerning student employees, who obviously 
are not in the same position as faculty members and who plainly are 
in a hierarchical relationship to the university.
    \24\ 364 NLRB No. 90, slip op. at 6-12.
    \25\ Id. at 12. As the Columbia Board pointed out, to support 
any argument that student employees should not be covered by the 
Act, there must be both identifiable congressional policies that 
coverage would implicate and empirical data that coverage would harm 
those policies--elements that are both absent from the majority's 
proposal. See id. at 7-12. Indeed, there is no logical basis to 
presume, as the majority does here in the absence of data, that 
covering student employees will affect any academic concerns. The 
Columbia Board correctly observed that ``[d]efining the precise 
contours of what is a mandatory subject or bargaining for student 
assistants is a task that the Board can and should address case by 
case.'' Id. at 8 (footnote omitted). Where a question arises whether 
bargaining rights might infringe on academic matters, an ``employer 
is always free to persuade a union that it cannot bargain over 
matters in the manner suggested by the union because of these 
restrictions. But that is part of the bargaining process: The 
parties can identify and confront any issues of academic freedom as 
they would any other issue in collective bargaining . . . . If the 
parties cannot resolve their differences through bargaining, they 
are free to seek resolution of the issues by resort to [the Board's] 
processes, and [the Board] will address them [by, for example, 
delineating between what is a mandatory or permissive subject of 
bargaining] at the appropriate time.'' Boston Med. Ctr. Corp., 330 
NLRB 152, 164 (1999).
---------------------------------------------------------------------------

B.

    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.\26\ 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.
---------------------------------------------------------------------------

    \26\ See Columbia, 364 NLRB No. 90, slip op. at 9 (``Recent data 
show that more than 64,000 graduate student employees are organized 
at 28 institutions of higher education, a development that began at 
the University of Wisconsin at Madison in 1969 and that now 
encompasses universities in California, Florida, Illinois, Iowa, 
Massachusetts, Michigan, Oregon, Pennsylvania, and Washington.'').
---------------------------------------------------------------------------

    In the private sector, there are at least five executed collective 
bargaining agreements between student employee unions and universities: 
New York University (NYU),\27\ The New School,\28\ American 
University,\29\ Tufts University,\30\ and Brandeis University.\31\ 
Several other schools are currently in negotiations for an 
agreement.\32\ 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\

[[Page 49697]]

The striking thing about these contracts is the focus on traditional 
subjects of collective bargaining, such as compensation, leave time, 
and health care.
---------------------------------------------------------------------------

    \27\ Available at https://makingabetternyu.org/app/uploads/GSOCNYU_2015contract_searchable.pdf.
    \28\ Available at https://sensuaw.org/app/uploads/2019/01/SENS-UAW-CBA-_Executed_01232019.pdf.
    \29\ Available at https://www.american.edu/provost/academicaffairs/graduate_student_employees/upload/au-graduate-employees-cba.pdf.
    \30\ Available at https://as.tufts.edu/sites/default/files/2018-2023-GSAS-CBA-Signed.pdf.
    \31\ Available at https://www.brandeis.edu/humanresources/CollectiveBargainingAgreement/documents/Brandeis-Graduate-Assistant-CBA.pdf.
    \32\ Shera S. Avi-Yonah and Molly C. McCafferty, Grad 
Unionization Movement Sees Successes Nationwide As Harvard Begins 
Bargaining, The Harvard Crimson, Nov. 27, 2018, available at https://www.thecrimson.com/article/2018/11/27/union-efforts-peer-institutions/ (student employee unions recognized and bargaining 
underway at Harvard, Georgetown, Brown, Columbia Universities). 
Notably, where there has been majority support for student employee 
unions but universities have refused to bargain, this has typically 
resulted in continuing demonstrations and other forms of student 
pressure to achieve bargaining. See Lee Harris, Graduate Student 
Workers Across Chicago Ramp Up Unionization Efforts, The Chicago 
Maroon, Apr. 26, 2019, available at https://www.chicagomaroon.com/article/2019/4/26/graduate-student-unions-loyola-arrests-northwestern-uchicago-gsu/ (at University of Chicago and Loyola 
University Chicago, students have had pro-union votes but 
universities have declined to recognize them, leading to 
demonstrations, sit-ins, and even arrests).
    \33\ The majority claims that the economic progress by student 
employees has been achieved largely through voluntary recognition 
and mechanisms outside the Board procedures. The evidence suggests, 
however, that the Board's establishment of legal procedures for 
recognition and bargaining has played an outsized role. In fact, 
since Columbia issued, student-employee unions have won numerous 
NLRB-supervised elections, including at Columbia, The New School, 
Brandeis, Tufts, the University of Chicago, Loyola University 
Chicago, Boston College, and American University. NLRB elections at 
these schools involved a combined approximate number of 10,000 
eligible voters per the NLRB's own tally sheets, leading to six 
Board certifications of representative and at least four contracts. 
At the University of Chicago and Boston College--as well as in 
several units at Yale, which involved multiple, smaller academic 
units--the unions prevailed, but withdrew their petitions after the 
universities appealed the results, out of concern that they would be 
used by the Board as a vehicle to reverse Columbia. See Colleen 
Flaherty, Realities of Trump-Era NLRB, Inside Higher Ed, Feb. 15, 
2018, available at https://www.insidehighered.com/news/2018/02/15/blow-graduate-student-union-movement-private-campuses-three-would-be-unions-withdraw; Jingyi Cui, Will grad students ever get their 
union?, Yale Daily News, Feb. 15, 2018, available at https://yaledailynews.com/blog/2018/02/15/will-grad-students-ever-get-their- 
union/. Elsewhere, the change in Board law that required bargaining 
with a student-employee union was a likely impetus for voluntary 
recognition: Harvard, Georgetown, and Brown all agreed to recognize 
unions based on non-NLRB elections--after Columbia issued. See, 
e.g., News From Brown, Brown University, graduate student organizers 
finalize terms for Nov. 14-19 unionization vote, Nov. 8, 2018, 
available at https://www.brown.edu/news/2018-11-08/election.
---------------------------------------------------------------------------

    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.'' \34\ 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.
---------------------------------------------------------------------------

    \34\ The majority also asserts that student employees' 
``principal time commitment is focused on their coursework and 
studies. But what portion of their time is spent working for the 
universities makes no difference to whether they should be treated 
as statutory employees. That student employees are seeking union 
representation and pursuing collective bargaining should tell the 
Board all it needs to know: Their work and their working conditions 
matter to them.
    The majority asserts that student-employee compensation is not 
directly tied to the time spent at tasks and that compensation is 
more akin to financial aid. But salaried employees are covered by 
the Act, just as hourly or piece-rate employees are. Nor does the 
nature of compensation matter, so long as it is compensation for 
work.
---------------------------------------------------------------------------

    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.\35\ 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.'' \36\
---------------------------------------------------------------------------

    \35\ See Columbia., supra, 364 NLRB No. 90, slip op, at 15, 16 
(student employees at Columbia may work 20 hours a week and may 
teach undergraduate ``core curriculum,'' indicating a role ``akin to 
that of faculty'' and involving routine elements of educating 
undergraduates). See also Ben Kesslen, The latest campus battle: 
Graduate students are fighting to unionize, NBC News, June 8, 2019, 
available at https://www.nbcnews.com/news/us-news/latest-campus-battle-graduate-students-are-fighting-unionize-n1015141 (``At some 
universities, more than 15 percent of courses list graduate students 
as primary instructors and some undergraduates spend half of their 
instruction hours with graduate teaching assistants.'').
    \36\ Brown University, supra, 342 NLRB at 494 (dissenting 
opinion of Member Liebman and Member Walsh).
---------------------------------------------------------------------------

    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.\37\ 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:
---------------------------------------------------------------------------

    \37\ Relatedly, the Brandeis agreement management rights clause 
provides, inter alia, that management shall:
    Exercise sole authority on all decisions involving academic 
matters, including:
    (a) Any judgments concerning academic programing, including (i) 
courses, curriculum and instruction; (ii) content of courses, 
instructional materials, the nature and form of assignments required 
including examinations and other work; (iii) methods of instruction; 
(iv) class size; (v) grading policies and practices; and (vi) 
academic calendars and holidays;
    (b) the development and execution of policies, procedures, rule 
and regulations regarding the Graduate Assistants' status as 
students, including but not limited to all questions of academic 
standing and intellectual integrity; and
    (c) any evaluations and determinations of Graduate Assistants 
progress as students, including but not limited to the completion of 
degree requirements.
    The Tufts and NYU agreements contain similar language. 
Meanwhile, at Harvard, the University has insisted that negotiations 
only cover employment issues and not academic matters. See Harvard 
Univ. Office of the Provost, FAQs about Graduate Student 
Unionization, available at https://provost.harvard.edu/unionization-faqs (``To the extent that policies and benefits are tied to the 
educational relationship between the University and its students, 
rather than an employment relationship, they would not be mandatory 
subjects of bargaining under the NLRA. For example, grades and grade 
appeals would not be topics of negotiations because they 
fundamentally involve the assessment of students as students, not as 
employees.''). Similarly, the Columbia bargaining framework states: 
``The GWC-UAW and CPW-UAW agree that any collective bargaining 
agreement to be negotiated with Columbia must not infringe upon the 
integrity of Columbia's academic decision-making or Columbia's 
exclusive right to manage the institution consistent with its 
educational and research mission.'' See Columbia Framework 
Agreement, available at https://columbiagradunion.org/app/uploads/FrameworkAgreement20181119.pdf. Such management rights provisions, 
defining management control over academic prerogatives, are common 
in the public sector as well. See Columbia, supra, 364 NLRB No. 90, 
slip op. at 9.

    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.\38\
---------------------------------------------------------------------------

    \38\ See also Teresa Kroeger et al., The state of graduate 
student employee unions, Economic Policy Inst., Jan. 11, 2018, 
available at https://www.epi.org/publication/graduate-student-employee-unions/ (noting massive amounts of debt grad student must 
occur and that this is driving unionization efforts).
---------------------------------------------------------------------------

    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.\39\ To the extent 
that agreements

[[Page 49698]]

have 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.\40\ 
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?'' \41\ 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.\42\
---------------------------------------------------------------------------

    \39\ See Georgetown Alliance of Graduate Employees, Contract 
Working Groups, available at http://www.wearegage.org/issues; Brown 
University Graduate Student Employees, Opening Statements for 
Bargaining, available at https://brownsugse.com/2019/04/08/read-sugses-opening-statement-for-the-first-day-of-bargaining/.
    \40\ See GWC-UAW, Overview of Initial Bargaining proposals, 
available at https://columbiagradunion.org/app/uploads/InitialBargainingGoals_highlights.pdf.
    \41\ Harvard Graduate Student Union, Bargaining Updates, 
available at http://harvardgradunion.org/members/bargaining-updates/.
    \42\ Bargaining at Georgetown University illustrates how student 
employees share a serious and timely concern with workers across the 
country: There, remedies for discrimination and harassment were also 
a major issue at bargaining. The union's website noted that: ``In 
our bargaining survey last spring, 1 in 5 grad workers reported that 
they had experienced discrimination or harassment in the workplace. 
Less than half of respondents said that they had reported the 
incidents and only 44 percent of those who reported it felt the 
university had responded appropriately.'' Georgetown Alliance of 
Graduate Employees, Bargaining Updates, July 24, 2019, available at 
http://www.wearegage.org/news.
---------------------------------------------------------------------------

    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.'' \43\ 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.'' \44\
---------------------------------------------------------------------------

    \43\ Shera S. Avi-Yonah and Molly C. McCafferty, Experts Say 
Harvard's Union Bargaining Terms Differ From Typical Labor Contract, 
The Harvard Crimson, May 4, 2018, available at https://www.thecrimson.com/article/2018/5/4/academic-versus-labor-bargaining-parameters/.
    \44\ Id. (quoting University of Oregon Professor Gordon Lafer).
---------------------------------------------------------------------------

    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.\45\ 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.'' \46\ 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.\47\
---------------------------------------------------------------------------

    \45\ See, e.g., Colleen Flaherty, Grad Students' `Fight for 
$15', Inside Higher Ed, Oct. 26, 2018, available at https://www.insidehighered.com/news/2018/10/26/graduate-student-assistants-campuses-across-us-are-pushing-15-hour-what-they-call.
    \46\ Columbia, supra, slip op. at 12 (quoting David Ludwig, Why 
Graduate Students of America Are Uniting, The Atlantic, supra).
    \47\ See Kesslen, The latest campus battle: Graduate students 
are fighting to unionize, supra (``Almost one-third of doctoral 
students at the University of Chicago cited financial challenges as 
a roadblock to academic success, and seven percent reported running 
out of food without the ability to buy more . . . .'').
---------------------------------------------------------------------------

    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.\48\ 
Relatedly, University of Chicago students struck because the university 
refused to honor their vote to unionize.\49\ Further, when schools have 
withheld voluntary recognition in light of the prospect of the Board 
reversing Columbia, this strategy has provoked further unrest.\50\ 
Representation elections and collective bargaining under the Board's 
supervision is the far better alternative.
---------------------------------------------------------------------------

    \48\ See Beryl Lieff Benderly, The push for graduate student 
unions signals a deep structural shift in academia, Science, June 6, 
2018, available at https://www.sciencemag.org/careers/2018/06/push-graduate-student-unions-signals-deep-structural-shift-academia.
    \49\ See Dawn Rhodes, `We wanted a union then, and we deserved a 
union then': University of Chicago grad student workers go on 
strike, Chicago Tribune, June 4, 2019, available at https://www.chicagotribune.com/news/breaking/ct-met-university-of-chicago-graduate-student-strike-20190604-story.html.
    \50\ See Kate McGee, Chicago Graduate Student Unions Face 
Roadblocks to Unionization, NPR, Apr. 10, 2019, available at https://www.npr.org/local/309/2019/04/10/711906242/chicago-graduate-student-unions-face-roadblocks-to-unionization.
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C.

    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.\51\
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    \51\ The majority is ``offen[ded]'' that I characterize today's 
proposal as one that will reverse progress made by student employees 
with respect to their working conditions. The majority insists that 
the question here is simply whether the Board is statutorily 
permitted to exercise jurisdiction over student employees. Insofar 
as the Board has discretion to exclude student employees from 
coverage--despite the existence of a common-law employment 
relationship with their university and the lack of any basis in the 
Act's text for such an exclusion--then the Board surely must 
consider the successful adjustment of purely workplace issues 
through the peaceful process of collective bargaining as a factor 
weighing in favor of asserting jurisdiction. The majority's failure 
to do so betrays at least an indifference to the achievements of 
student-employee bargaining, if not an outright desire to reverse 
them.
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* * * * *

[[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.

List of Subjects in 29 CFR Part 103

    Colleges and universities, Health facilities, Joint-employer 
standard, Labor management relations, Military personnel, Music, 
Sports.

    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

0
1. The authority citation for part 103 continues to read as follows:

    Authority:  29 U.S.C. 156, in accordance with the procedure set 
forth in 5 U.S.C. 553.

0
2. Revise Sec.  103.1 to read as follows:


Sec.  103.1  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.

    Dated: September 18, 2019.
Roxanne Rothschild,
Executive Secretary.
[FR Doc. 2019-20510 Filed 9-20-19; 8:45 am]
 BILLING CODE 7545-01-P