NLRB Reverses Itself in Back-to-Back Decisions Related to Jointly Employed Employees and Student Assistants’ Rights to Organize

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During the past few weeks, the National Labor Relations Board (NLRB) issued two significant decisions reversing prior Board law.  In Miller & Anderson, Inc., Case 05-RC-079249 (July 11, 2016), the NLRB dumped the more than a decade old precedent established by Oakwood Care Center, 343 NLRB 659 (2004), and decided that employer consent is not necessary for bargaining units that combine jointly employed and solely employed employees of a single user employer. 
Jointly employed employees are those who, for example, are supplied by a temporary staffing agency to work at an employer’s worksite.  Under Oakwood, employees of the “user” employer and the staffing agency employees who worked together could not be represented for purposes of collective bargaining in a single unit, even if they shared a community of interest with one another, unless they obtained their employers’ consent.  Under Miller, consent by the employers is no longer required, and the user employer has an obligation to bargain over all the employment terms of the employees it solely employs, and the obligation to bargain over its jointly employed employees’ terms and conditions when it possesses the authority to control them. 
 
In Trustees of Columbia University in the City of New York, Case 02-RC-143012 (Aug. 23, 2016), the NLRB similarly dumped more than ten years of precedent established by Brown Univ., 342 NLRB 483 (2004), and held that “student assistants who have a common-law employment relationship with their universities are statutory employees under the Act.”
In Brown, the NLRB held that graduate assistants cannot be statutory employees because they are “primarily students and have a primarily educational, not economic, relationship with their university.”  In its new decision, the NLRB dismissed any distinction between educational and economic relationships, and found that student assistants, including assistants engaged in research funded by external grants, had a common-law employment relationship with the university, and were therefore entitled to the protections of the Act, including the right to organize.
Both decisions reflect the NLRB’s ongoing efforts to expand the scope of the Act.  

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