The Vanishing (and Reappearing): NLRA Jurisdiction Over Higher Education Students and Faculty by - Neil Goldsmith, Lathrop GPM LLP - ABA Committee ...
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The Vanishing (and Reappearing): NLRA Jurisdiction Over
Higher Education Students and Faculty
by
Neil Goldsmith, Lathrop GPM LLP
ABA Committee on the Development of the Law Under the
National Labor Relations Act
2021 Midwinter Meeting
March 1-3, 2021Introduction 1
Jurisdictional issues related to students and religious educational institutions have been a
steady source of litigation before the National Labor Relations Board (“NLRB” or “Board”) and
the courts over the last few decades. Not surprisingly, like many issues at the NLRB, the Board
law on these issues has changed depending on the political party that holds the Presidency. This
ping-pong effect has led to both unions and institutions taking unique strategies knowing that
access to favorable case law and a favorable NLRB may be short-lived. This paper will discuss
the recent history and current state of two specific issues: (1) the higher education religious
exemption under the National Labor Relations Act (“NLRA” or the “Act”) and (2) the NLRA’s
jurisdiction over higher education students. The paper will also discuss what effect the election
of President Biden will have on these two issues moving forward, and what institutions will need
to do to respond to increased union activity.
NLRA Jurisdiction Over Religious Institutions
Over the years, some religiously-affiliated institutions have claimed a “religious
exemption” to coverage under the Act. The applicability of this religious exemption has varied,
and the Board has not only changed its position on this test multiple times, it has also, at times,
been at odds with federal appellate authority on this issue. The religious exemption first
appeared in NLRB v. Catholic Bishop of Chicago, where the U.S. Supreme Court held that the
NLRA did not apply to “church-operated schools” where courts would be required to “resolve
difficult and sensitive questions arising out of the guarantees of the First Amendment Religion
Clauses.” 2 Catholic Bishop, however, left some holes for the lower courts and the NLRB to fill
in. Specifically, what it means to be “church-operated” and whether the Board and the courts
1
The author wishes to thank Caitlin Miles Gehlen of Lathrop GPM LLP for her research and drafting assistance on
this paper.
2
440 U.S. 490, 507 (1979).
1would necessarily be required to wade into religious issues when deciding legal issues under the
NLRA.
The Obama Board Standard: Pacific Lutheran University
In 2014, the NLRB issued a controversial decision in Pacific Lutheran University. 3 In
that decision, the NLRB accepted jurisdiction over a group of adjunct professors at a religiously
affiliated university and established a new two-part test in determining whether or not an
institution or its faculty are exempt from coverage under the NLRA. Under the test, an
institution must first show “that it holds itself out as providing a religious educational
environment.” 4 If that prong of the test is met, “it must then show that it holds out the
petitioned-for faculty members as performing a religious function” by showing that they perform
“a specific role in creating or maintain[ing] the university’s religious educational environment.” 5
Applying its new test to the facts before it, the Board determined Pacific Lutheran did not
qualify for the religious exemption. Although the Board agreed that Pacific Lutheran held itself
out to the public as a religious organization, the Board found that the petitioned-for adjunct, non-
tenure faculty did not meet the second prong of the test. 6 In making this decision, the Board
pointed to the school’s lack of requirements that adjunct faculty engage in or perform religious
functions in its faculty handbook, in its employment agreements, or on its website. 7 The Board
also highlighted the fact the school did not consider an individual’s adherence to Lutheranism in
its hiring, promotion or evaluation decisions. 8
3
361 NLRB No. 157 (2014).
4
Id., slip op. at 1.
5
Id.
6
Id. at 5.
7
Id. at 13.
8
Id.
2Following Pacific Lutheran, in 2016, the NLRB made two additional decisions
addressing the NLRA exemption for religiously affiliated institutions. In St. Xavier University
and Seattle University, both schools argued they are exempt from coverage under the NLRA
because of their religious character. While the Board rejected this argument in both cases, it held
that Religious Studies faculty are exempt from coverage because they meet the second prong of
the Pacific Lutheran test. 9 This hollow “victory” for religious institutions only provided relief
for religious studies faculty and did not prohibit unionization efforts from other wall-to-wall
faculty units at religious institutions. 10 This left institutions to potentially grapple with faculty
unions and concerted protected activity in all other departments, while also creating a divide
between the “religious” and “non-religious” faculty. 11
In January of 2020, the U.S. Court of Appeals for the D.C. Circuit rejected Pacific
Lutheran. In Duquesne University v. NLRB, the court adopted the University’s argument that the
Board lacked jurisdiction over the University’s adjunct faculty’s unionization efforts because,
under Catholic Bishop, the NLRA “does not authorize the Board to exercise jurisdiction over
teachers in a church-operated school, no matter whether the school is ‘completely religious’ or
merely ‘religiously associated.’” 12 Therefore, according to the D.C. Circuit, the University’s
status as a Catholic institution that holds itself out to the public as a Catholic institution
exempted it from NLRA jurisdiction regardless of whether the petitioned-for faculty served to
support religious functions.
9
364 NLRB No. 84, slip op. at 1 (2016); 364 NLRB No. 85, slip op. at 1 (2016).
10
Mark Mathison & Neil Goldsmith, “Hey Teacher, Leave those [Teaching and Research Assistants] Alone!:
Unionizing Higher Ed: A Discussion of Columbia University, St. Xavier University, Seattle University, and other
Significant Developments in Higher Education,” Mid-Winter Meeting of the Committee on the Development of the
Law Under the NLRA, February 28, 2017, at p. 11.
11
Id.
12
947 F.3d 824, 829 (D.C. Cir. 2020).
3The Trump Board Standard: Bethany College
Following a rejection of Pacific Lutheran by the courts, the Board followed suit. In a
June 2020 decision, Bethany College, the Board concluded that the test it set out just a few years
earlier was “fatally flaw[ed]” because it required consideration of whether faculty members at
religiously affiliated institutions of higher learning are performing a specific religious function.13
To make such an assessment, the Board reasoned it would have to engage in an impermissibly
intrusive inquiry into an area safeguarded by the Religion Clauses of the First Amendment, “into
what does and what does not constitute a religious function.” 14
The Board then adopted a new test—or, rather, an old test established in 2002 by the D.C.
Circuit in University of Great Falls v. NLRB. 15 Under the Great Falls test, the Board will
decline to exercise jurisdiction over faculty at an institution that (a) “holds itself out to students,
faculty, and community as providing a religious educational environment”; (b) is “organized as a
nonprofit”; and (c) is “affiliated with, or owned, operated, or controlled, directly or indirectly, by
a recognized religious organization, or with an entity, membership of which is determined, at
least in part, with reference to religion.” 16
Under this test, the Board determined Bethany College to be exempt from the Board’s
jurisdiction because it met all three prongs of the Great Falls test. Specifically, the Board held
that (1) Bethany held itself out to the public as a religious educational environment through its
external marketing and internal policies and procedures, (2) was registered as a proper 501(c)(3)
organization, and (3) is owned and operated by the Central States Synod. 17
13
369 NLRB No. 98, slip op. at 5 (2020).
14
Id.
15
278 F.3d 1335 (D.C. Cir. 2002).
16
369 NLRB No. 98, slip op. at 10.
17
Id. at 6.
4The Future of the Religious Exemption
Although the Board is currently aligned with the D.C. Circuit on this issue, given the
recent change in administration, and the likely uptick in organizing activity at educational
institutions, this issue will continue to be litigated at the NLRB. It is difficult to predict how the
Board might rule on religious exemption challenges, particularly with new members. It appears,
however, that it would be difficult for the NLRB to justify returning to the Pacific Lutheran
standard, which was so soundly rejected by the D.C. Circuit. Instead of arguing to change the
standard, unions may simply attempt to distinguish prior precedent based on factual differences
pertaining to the institutions at issue. The religious character of every institution is different and
open to interpretation.
If the Board decides to revisit the religious exemption standard, it will likely fall
somewhere between Bethany and Pacific Lutheran. The problem with Bethany, critics say, is
that the standard is too easy to meet for institutions that have some sort of religious affiliation,
but where such affiliation does not affect the actual teaching and learning at the institution.
Conversely, the problem with Pacific Lutheran, critics say, is that it goes too far in trying to
determine just how “religious” an institution is. A middle ground approach may be for the Board
to apply a more stringent test to the “Does the institution hold itself out to the public as
religious?” question while staying away from the more problematic “Do the petitioned-for
employees perform a religious function?” question. In any event, the application of whatever
standard is adopted by the Board will be subject to scrutiny from advocates.
In order to prepare for increased organizing activity, institutions should begin thinking
about whether they want to invoke the religious exemption to avoid NLRB jurisdiction. This is
often part of a greater discussion regarding an institution’s views on unions in general and is not
5always dictated by legal precedent. If an institution seeks to raise the religious exemption in
response to an organizing campaign or ULP charge, it should pay close attention to the test and
start gathering evidence in support of the first prong, which requires it to “hold itself out to
students, faculty, and community as providing a religious educational environment.” This can be
accomplished through marketing materials, course requirements, faculty and student
requirements, and community affiliations.
NLRA Jurisdiction Over Students
The ping-pong effect is not solely limited to the religious exemption issue in higher
education, as the NLRB has reversed itself three times in the past twenty years on the issue of
whether students are covered by the Act. The Board enacted a major shift during the Obama-era
in Columbia University where the NLRB granted student assistants and student workers—in
addition to graduate students—the right to unionize and demand collective bargaining. 18 A
significant drop in unionization activity occurred during the Trump administration—an effort to
prevent a reversal of the Columbia decision. Sensing this shift, the NLRB sought a more
permanent impact and initiated the administrative rule making process. Below is a brief
summary of the history and current state of law on student unionization under both the 2016
Columbia decision and 2019 proposed rule.
Student Organizing Pre-Columbia 19
In its 2004 Brown University decision, the Board held that graduate students have a
predominately academic relationship with their institutions, rather than economic, and are
18
342 NLRB 483 (2004).
19
Although this paper discusses the more recent jurisprudence regarding graduate student unionizing, for a more in-
depth analysis of the history of graduate student unionizing efforts at private universities, see “Hey Teacher, Leave
those [Teaching and Research Assistants] Alone!”, n. 10, supra.; Neil Goldsmith & Kate Hendricks, “Bargaining
With Your Students: The Unionization of Student Assistants in the Aftermath of the NLRB’s Columbia University
Decision,” NACUANOTES, National Association of College and University Attorneys, July 21, 2017.
6therefore not “employees” as defined by the NLRA. 20 Brown reversed the Board’s 2000
decision in New York University, which had held graduate assistants are employees under the Act
because they “perform work or perform services for the employer under terms and conditions . . .
controlled by the employer.” 21 The Board in Brown instead reasoned that a graduate student’s
relationship to the institution contrasts with the typical employer-employee relationship and is
based on “a mutual interest in advancement of the student’s education” that would be negatively
impacted by introducing collective bargaining. 22
However, in 2016, the Board’s position on student coverage took a drastic shift in
Columbia University by granting student assistants at all levels the right to organize under the
Act. 23 Instead of applying the reasoning in Brown, the Board instead attacked the decision,
finding that it failed to properly analyze the term “employee” under the Act. The Board then
held that a student’s relationship with an institution can be both academic and economic when a
student performs work for and receives compensation from an institution. 24 The Board held that
this dual-relationship does not foreclose a finding that students are employees under the Act. 25
Significantly, in a shift from prior decision, the Board did not make any distinction between
different categories of graduate students or even between graduate and undergraduate students.
All student-employees would be covered by the Act.
The Board also dismissed the common argument raised by institutions themselves—that
collective bargaining “would improperly intrude into the educational process and would be
inconsistent with the purposes and policies of the Act.” 26 The Board focused on the large number
20
342 NLRB 483, slip op. at 1.
21
332 NLRB 1205, 1207 (2000).
22
342 NLRB 483, slip op. at 7.
23
364 NLRB 90 (2016).
24
Id., slip op. at 1-2.
25
Id., slip op. at 7.
26
Id., slip op. at 2.
7of successful unionization efforts of graduate students at public institutions where management
retained its rights in “course content, course assignments, exams, class size, grading policies, and
methods of instruction, as well as graduate students’ progress on their own degrees.” 27 The
Board also praised the collective bargaining relationship between New York University and its
graduate students, noting that their collective bargaining agreement was able to adapt familiar
subjects of private sector bargaining—like stipends, discipline and discharge, job postings, and
health insurance—to a university setting. 28
This reasoning was heavily criticized in the dissenting opinion of Member Miscrimarra.
The dissent identified both legal and practical problems with the majority’s reasoning. It
highlighted the lack of distinction between different categories of student assistants (such as
teaching assistants, research assistants, teaching fellows, course assistants, etc.), their level
(Ph.D., graduate, or undergraduate), or their academic disciplines. It also argued the
misapplication of the NLRA to higher education in general and highlighted the danger students
and institutions could pose to one another in the event of a contentious campaign. 29 Finally, it
expressed concerns over the impact the Board’s decision would have on other aspects of the
student-institution relationship and how it could significantly interfere with institutional efforts
to regulate student conduct. 30
Student Organizing Post-Columbia
Following the Board’s decision in Columbia, unions began organization efforts across the
country and many institutions opposed the efforts. Graduate student petitions were filed at
nearly 15 institutions, including Harvard University, Duke University, Yale University, Loyola
27
Id., slip op. at 9.
28
Id., slip. op. at 10.
29
Id., slip op. 29-30.
30
Id.
8University Chicago, and at American University. 31 Additionally, a petition was filed in 2017 at
the University of Chicago in an attempt to unionize all hourly paid student employees of the
University of Chicago Libraries—including undergraduate students. 32 However, the election of
Donald Trump resulted in many of these unions withdrawing their representation petitions out of
fear that the newly instilled Republican-controlled NLRB would take any opportunity to reverse
Columbia. 33
Despite the unofficial pause on traditional union organizing over the past few years,
unions and students have gotten creative in trying to meet their objectives outside of the NLRB
process. For example, some students have pushed schools to agree to have the American
Arbitration Association handle the union campaign and election process. 34 Others have gone
even further, pushing for card check and neutrality agreements that would avoid the typical
NLRB election process and potential litigation that comes with it. 35 Still others have tried to
form various campus committees and groups that institutions would recognize as providing
students the bargaining power they seek on key terms of employment without an official
collective bargaining relationship with the Union. 36
31
Colleen Flaherty, American U Grad Students Unionize, INSIDE HIGHER ED (April 11, 2017),
https://www.insidehighered.com/quicktakes/2017/04/11/american-u-grad-students-unionize (linking to similar
articles referencing efforts at the listed universities).
32
Nick Roll, Chicago Student Library Workers Vote to Unionize, INSIDE HIGHER ED (June 12, 2017),
https://www.insidehighered.com/quicktakes/2017/06/12/chicago-student-library-workers-vote-unionize.
33
Colleen Flaherty, The Realities of Trump-Era NLRB, INSIDE HIGHER ED,
https://www.insidehighered.com/news/2018/02/15/blow-graduate-student-union-movement-private-campuses-three-
would-be-unions-withdraw
34
Eric Choi, University, Grad Students Finalize Pre-Election Agreement for Unionization, THE BROWN DAILY
HERALD (July 2, 2018), https://www.browndailyherald.com/2018/07/02/university-grad-students-finalize-pre-
election-agreement-unionization/
35
Vimal Patel, Sparked by Covid-19, Undergraduate Organizing May be the Next Front in Campus Labor
Relations, THE CHRONICLE OF HIGHER EDUCATION (September 2, 2020), https://www.chronicle.com/article/sparked-
by-covid-19-undergraduate-organizing-may-be-the-next-front-in-campus-labor-relations?cid=gen_sign_in.
36
Id.
9The 2019 Proposed NLRB Rule
Without a case before it, the NLRB decided to utilize its ability to make change through
administrative rule making. In September 2019, the Board issued a proposed rule (the “Proposed
Rule”) that declares “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.” 37 The Proposed Rule states
that because students who perform services are “primarily students with a primarily educational,
not economic relationship with their university,” they cannot be considered statutory
employees. 38
The Board believes that such a rule would be consistent with the Act’s overall purpose
and “jurisdiction over economic relationships, not those that are primarily educational in
nature.” 39 In support of its reasoning, the Board cited past Supreme Court cases holding that the
NLRA’s intent and principles were “developed for use in the industrial setting” and “cannot be
‘imposed blindly on the academic world.’” 40 According to the Board, asserting jurisdiction over
“primarily educational” relationships could hinder freedoms typically associated with higher
education, such as freedom of speech and academic freedom.
The Board pointed to multiple unique characteristics of student workers in making its
determination. The Board first discussed how students engaging in paid services for an
institution are generally doing so because those services “are vital to their education” and are
designed to result in better understanding of their discipline and beneficial relationships with
37
84 FR 49691.
38
Id. at 11.
39
Id.
40
Id. at 5, citing NLRB v. Yeshiva University, 444 U.S. 672, 681 (1980).
10faculty. 41 In fact, often this paid service is a requirement of the individual student’s degree or
certification. The Board also highlighted how different a student worker’s “work hours” are
compared with a typical employee. Students only spend a limited amount of time performing
services for compensation due to their principle focus on their studies. Additionally, a student’s
compensation or funding is typically the same regardless of time spent actually performing work
or research and the student is only eligible for the compensation while enrolled as a student. The
Board also reasoned that a student’s compensation is actually designed to help with the cost of
education, making it more analogous to financial aid than an hourly wage or salary. 42 Finally, the
Board underscored the distinct differences between a faculty member’s goal in advancing their
student worker’s education from the interests of a typical employer and employee in collective
bargaining. 43
The Proposed Rule included a dissenting opinion from Member McFerran. McFerran
argued that the Proposed Rule would not only reverse the progress gained since the 2016
Columbia decision, but would effectively take the rights away from student workers. The dissent
emphatically disagreed that the opportunity to engage in collective bargaining would somehow
interfere with or hinder the student’s educational opportunities. 44 As evidence that bargaining in
the higher education context can be viable, the dissent pointed to five private universities who
have successfully executed agreements since 2016, and also to private institutions themselves
who have acknowledged that bargaining “feels central to [their] academic mission.” 45
The Board then opened the Proposed Rule to comments from the public. The NLRB
originally asked for feedback by October 2019 but ultimately extended until the end of February
41
Id. at 12-13.
42
Id. at 13.
43
Id.
44
Id. at 18.
45
Id. at 18, 28.
112020. Overall, the Board received 13,735 comments regarding the Proposed Rule. 46 Although
expected to publish the final rule by September 2020, no such rule has been made available to
the public.
The Future of Student Organizing
Like most things, the COVID-19 pandemic has also affected the status of union
organizing on campus. Many student workers, like other employees, found themselves out of
jobs after their campuses shut down. For those who were able to return, they did so among new
restrictions and requirements. These took place amongst an atmosphere on campus where
students’ general freedoms were more limited than ever due to COVID-19 restrictions. This
climate has led more student workers to think about their rights and whether collective
bargaining is the answer to their concerns. 47
Additionally, the election of President Biden essentially killed the Proposed Rule. In his
first few days on the job, President Biden took sweeping executive actions to reverse some of the
more employer-friendly policies and regulations of the Trump administration. On January 20,
2021, just hours after his inauguration, President Biden sent a memorandum to all agency heads
directing them to freeze all regulatory activity pending review by the new administration. That
same day, President Biden fired Peter Robb, the NLRB’s General Counsel appointed by
President Trump, and appointed Democratic member Lauren McFerran as Chair of the NLRB.
46
NLRB Final Rule Governing Employee-Status of Student Workers May Issue As Soon As September 2020, THE
NATIONAL LAW REVIEW (July 9, 2020), https://www.natlawreview.com/article/update-nlrb-final-rule-governing-
employee-status-student-workers-may-issue-soon.
47
Vimal Patel, Sparked by Covid-19, Undergraduate Organizing May be the Next Front in Campus Labor
Relations, THE CHRONICLE OF HIGHER EDUCATION (September 2, 2020), https://www.chronicle.com/article/sparked-
by-covid-19-undergraduate-organizing-may-be-the-next-front-in-campus-labor-relations?cid=gen_sign_in.
12Beyond the NLRB, President Biden has made it a priority to bring employee protections to a
broader array of workers, such as independent contractors. 48 Although he has not specifically
addressed the student unionization issue since taking office, given his stances on similar
employee issues, it is likely that he favors inclusion of students as employees who are covered
under the Act.
Because of the change in administration, the Rule has effectively been shelved before it
could be issued. That means Columbia remains good law, and as soon as the NLRB officially
flips to include a Democratic majority, institutions won’t find respite in taking their student cases
to the Board. That means unions will ramp up organizing activity and continue focusing its
efforts on students following the pause during the Trump administration. Although educational
institutions can still mount effective campaigns against unionization, challenging the employee
status of their students will not be one of the weapons in their arsenal.
One saving grace for institutions in this area is that the law on “micro-units” has changed
in their favor since unions began organizing students in the mid-2010s. Under the old Specialty
Healthcare standard, unions could—and did—seek to organize small bargaining units consisting
of only certain departments on campus. 49 Institutions were largely unable to challenge the
appropriateness of these units under the Board’s Specialty Healthcare decision, which required
them to show that employees in a larger unit “share an overwhelming community of interest with
those in the petitioned-for unit.” 50 However, in December 2017, the Board reversed Specialty
Healthcare and issued a new test regarding challenging the appropriate unit scope. The PCC
Structurals Test—which is still current law—requires the Board to allow these “micro units”
48
The Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions,
https://joebiden.com/empowerworkers/ (last visited February 15, 2021).
49
Colleen Flaherty, Yale Grad Students Unionize, INSIDE HIGHER ED (February 24, 2017),
https://www.insidehighered.com/quicktakes/2017/02/24/yale-grad-students-unionize
50
957 NLRB 934, 946 (2011).
13only when the petitioned-for employees “share a community of interest sufficiently distinct from
employees excluded from the proposed unit to warrant a separate appropriate unit.” 51 As long
as this remains good law, unions will need to be more careful in carving out specific student
groups, and institutions should be prepared to raise these challenges in the absence of a wall-to-
wall unit.
Conclusion
Unions and educational institutions are likely to see increased activity over the next few
years. Labor lawyers working in the higher education space should familiarize themselves with
the key decisions discussed above and work with their clients on appropriate strategies. They
should also stay abreast of any new developments given the recent change in administration.
Union organizing tactics continue to change and adjust rapidly, and institutions would be wise to
stay nimble and flexible to handle whatever new issues may arise.
51
365 NLRB No. 160, slip op. at 7 (2017).
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