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Getting in Front of Student Concerns

November 18, 2016

By Karla Hignite

In August 2016, the National Labor Relations Board (NLRB) issued a 3-1 decision that gives graduate and undergraduate students who perform work at private institutions both the legal protection to unionize and also enjoy typical employee rights to engage in concerted activity to improve their working conditions. (See NLRB Grants Students Right to Unionize.) This decision has broad implications for private colleges and universities. In this article, Harry I. Johnson, III (harry.johnson@morganlewis.com), and Jonathan C. Fritts (jonathan.fritts@morganlewis.com), partners with the firm Morgan, Lewis & Bockius, discuss the broad legal implications of the NLRB decision for private colleges and universities and how leaders should respond.

For starters, what institutional leaders may experience resulting from the NLRB decision is somewhat difficult to specify because the implications will vary by institution, notes Johnson. What we do know is that this has opened the door for an expansive range of both rights for students and bargaining positions that student groups may take now that the NLRB has ruled that students can be employees under the National Labor Relations Act, adds Fritts. "In some sense we need to wait to see how this plays out. When the NLRB opened the door to organizing full-time contingent faculty in late 2014, there was a fair amount of upsurge in activity across the country. This could be similar to that, but every institution is different."

With this ruling, students essentially now have rights to express discontent with the terms of their services, the level and type of any financial aid, their level of engagement in research, their teaching assignments, and even with what appears in everyday handbooks or policies that apply to their conduct. All this and more is subject to challenge, says Fritts. "Until you see an organizing campaign actually take shape, it is nearly impossible to predict the full scope of such an effort."

POTENTIAL VERSUS REALITY

Unquestionably, there is a high degree of real concern among institutional leaders as they struggle with what organizing and bargaining activity might look like on their campuses, says Fritts. Serious assessment is needed regarding the level of discontent that may be present among students and the institution's overall relationship with students, adds Johnson. "The first question leaders must ask is how likely an organizing effort is on their campus and how sustainable the support would be for it."

Worth bearing in mind is that this is a population that turns over on a regular basis, notes Johnson. "Unlike other employees who may remain at your institution for 10 or 20 years or longer, the nature of a student population is that it turns over frequently, thereby making it a harder group to organize, and making any unionized activity less likely without some enduring core of support from students," notes Johnson. An uptick in student activism, whether in spoken dialogue or through social media, may provide some indication of the level of student interest and the students' particular concerns.

Fritts concurs. "While you frequently don't know what position a union might take on various issues until a petition for an election gets filed, many indicators may be available beforehand, and so paying attention to what student activism looks like will give you some idea of the potential impact to the institution." An institution's leaders should have an idea of what students want, which will help the institution predict the different issues that might be raised in collective bargaining, continues Fritts. "What are you doing right now, and how does this line up with the position students may take? It's also prudent to consider the top five or 10 issues a successful organizing drive might take up and the institution's position on those issues if they were subject to bargaining, adds Fritts.

POINT PERSON

After assessing how likely it is that your campus will be faced with a campaign, a second question is who should be the designated individual or individuals within the institution responsible for staying on top of student employment issues and concerns that might lead to an organizing effort, suggests Johnson. "This is a largely new world we are entering," notes Fritts. "Typically, there is no such thing as a student labor relations dean or administrator on campus and no formal effort within an institution's administration to stay on top of all this." When you lack a point person or a designated team, you increase the likelihood of dropping the ball, he adds. "Because institutions don't have a ready-made position for handling student labor relations, an institution's leadership must give proactive thought to establishing a lead role to take charge." Consider who among your internal stakeholders should be consulted, recognizing that these issues potentially impact a variety of areas across the institution, suggests Fritts.

Who should be responsible will vary by institution, depending in part on the nature of the campaign and the particular issues behind organizing efforts, says Johnson. While it would not be uncommon for human resources to take a lead role, student affairs and financial aid are also likely to be crucial players in this. "Once you have determined who in your institution is ultimately responsible for managing these issues, it is also highly desirable to reach out to counsel to help you think through the potential areas of student labor activity and a lawful and appropriate institutional response," adds Johnson.

RISKS AND CONSEQUENCES

How a bargaining unit of students is defined is up to the union coordinating the campaign, notes Johnson. While institutional leadership may have a position with regard to which groups should be included, the union's desires have significant weight as to what unit is ultimately deemed appropriate for bargaining activities. For instance, on some campuses an organizing effort might be limited to teaching assistants within a particular department or school who want greater control over the courses they are assigned. Or, the concerns may be more broad-based across various subgroups that band together. While institutional leaders can take steps to make changes in advance of organizing efforts, once a campaign has begun and you may then be faced with an actual collective bargaining obligation, any changes are subject to negotiation, says Johnson.

Bottom line: You want to avoid an adversarial process or tone that can change the relationship between students and the institution in a negative way, argues Fritts. "Regardless of whether organizing is taking place or is likely to take place, something institutional leaders should keep in mind is that with the NLRB decision, students designated as employees have new rights in terms of their conduct," notes Fritts.

The NLRB decision in Columbia University is not without risk or consequence for your students, cautions Johnson. As in any normal labor negotiation, if, at the end of the day, you can't reach agreement, you may be faced with a union strike to force the issue. In an academic environment, how might this adversely impact all parties, posits Johnson? "If student strikers are teaching assistants and their financial aid is dependent on them teaching, then going on strike obviously impacts them financially."

EMPLOYER OF CHOICE

Worth keeping in mind is that happy students typically won't be lining up to organize, says Fritts. Often the issues surrounding student discontent are known, whether it comes down to wanting a more generous financial aid package or more latitude to choose the courses students get to teach. "If institutional leaders are in touch with student concerns and generally know about any discontent, the question becomes one of how they will seek to address those concerns through the channels of communication that are in place."

How leaders frame this is important, adds Johnson. "The best way to think about this is what might be considered good employee engagement behavior, creating a positive workplace environment by making sure students feel connected, listening to and showing that you understand their concerns, and providing a mechanism for addressing those concerns." This requires a shift in mindset to consider students as employees and to essentially manage that relationship in a way that is empathetic to their workplace concerns, adds Johnson.

"Think in terms of striving to be an employer of choice for your students, even though that is an unusual way to think of the institution's relationship with its students," suggests Fritts. For instance, consider what that would look like for various groups of students such as your teaching assistants. "With regard to the Columbia University NLRB decision, inertia is your greatest danger. Being proactive is advised."

Karla Hignite, editorial consultant to NACUBO, is editor of NACUBO's HR Horizons; e-mail: karlahignite@msn.com