Communicating with Student Employees

National Labor Relations Act Constraints on Speech

The United Auto Workers (UAW) filed a petition with the National Labor Relations Board (NLRB) seeking to represent all students who provide instructional and research services (both graduate and undergraduate) and referred to collectively in this memo as “student assistants."

The NLRB has now ruled that student assistants are employees who are entitled to form a union, and an election will be held shortly. The NLRB has rules about communication between supervisors and employees while an election is pending. Columbia faculty would likely be viewed as managerial employees and would need to follow legal restrictions not to interfere with the rights of student employees to engage in concerted activity or to organize to bargain collectively. Faculty in all likelihood would also be considered supervisors of student assistants whenever those students serve in such positions or when they have a reasonable expectation of doing so in the future. Accordingly, conduct by faculty “supervisors" or “managers” that violates the National Labor Relations Act (NLRA) would be attributable to the University, which might then be subject to unfair labor practice charges.

As a practical matter, this would mean that the rules that generally govern communication between “employees” and their managers and supervisors would need to be followed by faculty when addressing union-related issues with student assistants. This does not mean that faculty could not express their opinions about these issues. In general, the NLRA gives members of the faculty the right to express their opinion on these subjects as long as they do so in a manner that avoids what the NLRB or the courts would construe to be threats, interrogations, promises of benefits or surveillance. Indeed, they would remain free to do so as long as a few simple rules are followed.

Section 8(c) of the NLRA states:

The expression of any views, arguments or opinions or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of an unfair labor practice under any provision of this … [law], if such expression contains no threat of reprisal or force or promise or benefit.

Hence, the following expressions and/or conduct would not be permitted:

  • Threats to a student assistant on account of his or her union activities or sympathies—for example: threatening to give such a person a poor reference; refusing to have a student assistant as a teaching fellow on account of union sympathies; or otherwise threatening adverse consequences because of the person’s union activities or support.

    In addition, predictions of adverse consequences that are not based on objective fact are unlawful, e.g., “if there is a union, there will be fewer teaching fellow opportunities,” or “if there is a union, teaching fellows will become too costly.” In general, stating that certain negative consequences “will” result from unionization should be avoided.

    In contrast to statements that predict an adverse consequence using the word "will," it is lawful to say that selection of a union “could” or “may” have such effects. For example, it would be permissible for a faculty member to say that “unionization of student assistants could lead to changes in the way that teaching fellows are used"; that "negotiation of a collective bargaining agreement may result in rules and restrictions on teaching fellow usage"; that "departmental and individual decisions on these issues could likely be limited by across-the-board collectively bargained rules"; and that "given such restrictions, many faculty might find it necessary to re-evaluate their use of teaching fellows.”

    Similarly, a faculty member could say he or she believes that "it is likely that faculty-student relationships could change if teaching fellows were to be unionized, for a number of reasons", given that "faculty will have to treat their students as employees whom they supervise"; that "meetings between individual faculty and their teaching fellows may at times require the involvement of a 'union steward' as a third party"; that "grades and the results of other tests and evaluations could become the subject of a grievance or unfair labor practice charge"; and that "any claimed departure from contractual rules governing teaching fellows’ 'employment' could lead to a formal grievance and eventually arbitration before some outside party, pitting students and faculty against one another."
     
  • Interrogation of student assistants. Student assistants may not be interrogated about: their union sympathies; whether they signed a union authorization card; or how they plan to vote should an NLRB-conducted secret ballot election be held. But faculty may engage in conversations that do not constitute interrogation (i.e., conversations that are not started or interspersed with questions about union support or lack of it). Nor are faculty prevented from expressing their opinions about student unionization in a non-threatening fashion. For example, a faculty member who begins a conversation with a student by saying that he or she (the faculty member) would like to discuss issues about graduate student unionization and share his or her concerns with the student would not be engaging in “interrogation.”
     
  • Promises of favorable treatment as an inducement not to support the union. Under the reasoning of established NLRB law, the union is free to promise student assistants anything, because it does not have the ability to fulfill those promises. Promises made by a faculty manager or supervisor, however, are treated as made on behalf of the University, which does have the ability to fulfill them.
     
  • Surveillance of student assistants (or creating the impression that surveillance is taking place) in order to determine their sympathies for or against a union, for instance, a student may not be asked to attend a union meeting and report back on who was there or on what was discussed.

Outside these proscribed behaviors remains a broad area for the expression of opinion for and against regarding student assistant unionization and related issues. This dialogue is squarely protected from governmental interference by both the NLRA and the First Amendment, and is protected at the University level by long-standing Columbia policies governing the freedom of all members of the Columbia community to express their views on any and all subjects.