The National Labor Relations Board NLRB or Board has long been criticized for failing to consider empirical evidence when making decisions with broad policy implications. Reviewing the decision of the regional office, a panel of the Board 16 reversed and remanded the dismissal, holding that student assistants with a common law employment relationship to a university are covered by the NLRA as employees.
Next, the panel turned to empirical evidence and its own experience to support its jurisdiction over student assistants. With little by way of direct historical grounds on which to decide whether the Act could be applied appropriately to student assistants in a private university setting, the panel used the comparable experiences of students collectively bargaining at public universities and of faculty collectively bargaining at private universities as empirical and experiential evidence in favor of asserting jurisdiction in this case.
Member Philip Miscimarra dissented. Columbia University is a significant decision in terms of the potential substantive effects it will have on student employment at private universities across the country. Columbia University was a response to Brown University , which overtly rejected the need to consider empirical evidence, or any evidence at all. The majority in Brown University defended its decision to disregard empirical evidence by stating that its inquiry required only statutory interpretation and nothing else.
Two years after Fisk and Malamud published their recommendations, the Board explicitly invoked empirical evidence in Lamons Gasket. Columbia University appears to be part of a changing tide, in line with Lamons Gasket.
Columbia University cited recent data showing that more than 64, graduate student employees are organized at twenty-eight state universities. Because the Board did not explain its methodology, it missed an opportunity to legitimize its choices and instead invited counterevidence, which will arguably exist with regard to any difficult question. The Board should address this criticism directly in future decisions. The majority could have legitimized its choice and addressed the seeming arbitrariness of its consideration of evidence by discussing its methodology and limitations directly.
