Wednesday, August 31, 2016

Did the NLRB do more harm than good by permitting teaching and research assistants to organize?

Last week, in Trustees of Columbia University [pdf], the National Labor Relations Board upended decades of precedent by holding that federal labor law covers graduate and undergraduate teaching assistants, and graduate research assistants. This case has received wide spread national coverage (such as here and here). It is academically and politically interesting, and worth your time to read even if your business doesn’t involve academia. Moreover, the Board’s willingness to so easily depart from such well established precedent should be troubling to all employers.

The aspect of the decision I want to focus on in Member Miscimarra’s dissent, specifically his argument that because of the NLRB’s recent super-expansion of the doctrine of protected concerted activity, this decision will harm the very students it intends to protect. 

  • Non-Confidential Investigations. If your son or daughter is sexually harassed by a student assistant and an investigation by the university ensues, the university will violate federal law (the NLRA) if it routinely asks other student-assistant witnesses to keep confidential what is discussed during the university’s investigation. 
  • Witness Statement Disclosure. In the above example, witness statements submitted by your son or daughter about sexual harassment by a student assistant must be disclosed to the union, unless (i) the university can prove that the statement’s submission was conditioned on confidentiality, and (ii) even then, the statement must be disclosed unless the university can prove that your son or daughter needs protection, or other circumstances outweigh the union’s need for the witness statement.
  • Invalidating Rules Promoting Civility. The university will be found to have violated the NLRA if it requires student assistants to maintain “harmonious interactions and relationships” with other students.
  • Invalidating Rules Barring Profanity and Abuse. The university cannot adopt a policy against “loud, abusive or foul language” or “false, vicious, profane or malicious statements” by student assistants.
  • Outrageous Conduct by Student Assistants. The university must permit student assistants to have angry confrontations with university officials in grievance discussions, and the student assistant cannot be lawfully disciplined or removed from his or her position even if he or she repeatedly screams, “I can say anything I want,” “I can swear if I want,” and “I can do anything I want, and you can’t stop me.”
  • Outrageous Social Media Postings by Student Assistants. If a student assistant objects to actions by a professor-supervisor named “Bob,” the university must permit the student to post a message on Facebook stating: “Bob is such a nasty mother fucker, don’t know how to talk to people. Fuck his mother and his entire fucking family.”
  • Disrespect and Profanity Directed to Faculty Supervisors. The university may not take action against a student assistant who screams at a professor-supervisor and calls him a “fucking crook,” a “fucking mother fucking” and an “asshole” when the student assistant is complaining about the treatment of student assistants.
The dissent concludes:
It is also a mistake to assume that today’s decision relates only to the creation of collective-bargaining rights. Our statute involves wide-ranging requirements and obligations.… Therefore, parents take heed: if you send your teenage sons or daughters to college, the Board majority’s decision today will affect their “college experience”…. 
The above examples constitute a small sampling of the unfortunate consequences that will predictably follow from the majority’s decision to apply our statute to student assistants at colleges and universities. The primary purpose of a university is to educate students, and the Board should not disregard that purpose in finding that student assistants are employees and therefore subject to all provisions of the NLRA.
I could not agree more.