NLRB Invites Briefs on Whether Graduate Student Assistants Should be Employees Covered by the NLRA | Practical Law

NLRB Invites Briefs on Whether Graduate Student Assistants Should be Employees Covered by the NLRA | Practical Law

On June 22, 2012, a divided National Labor Relations Board (NLRB) released an Order and a Notice and Invitation to File Briefs in the consolidated cases of New York University and Polytechnic Institute of New York University, to aid the NLRB while it reconsiders Brown University. The NLRB invited amicus briefs on the question of whether it should modify or overrule the holding that graduate student assistants are not statutory employees under Section 2(3) of the National Labor Relations Act (NLRA) because they have a primarily educational, not economic, relationship with their university.

NLRB Invites Briefs on Whether Graduate Student Assistants Should be Employees Covered by the NLRA

by PLC Labor & Employment
Published on 26 Jun 2012 • USA (National/Federal)
On June 22, 2012, a divided National Labor Relations Board (NLRB) released an Order and a Notice and Invitation to File Briefs in the consolidated cases of New York University and Polytechnic Institute of New York University, to aid the NLRB while it reconsiders Brown University. The NLRB invited amicus briefs on the question of whether it should modify or overrule the holding that graduate student assistants are not statutory employees under Section 2(3) of the National Labor Relations Act (NLRA) because they have a primarily educational, not economic, relationship with their university.
On June 22, 2012, the three members (Chairman Pearce and Members Block and Griffin) of the four member panel (Board) in charge of the NLRB's union election process released an Order granting review of an NLRB regional director's second dismissal of a petition for a union election involving graduate student assistants at New York University to reconsider Brown University, 342 N.L.R.B. 483 (2004). In Brown University, the Board found that graduate student assistants are not employees under Section 2(3) of the NLRA because they:
  • Perform services at a university in connection with their studies.
  • Have a predominantly academic, rather than economic, relationship with their school.
The Board issued an Order granting review in a similar proceeding, Polytechnic Institute of New York University, Case 29-RC-12054, and a Notice and Invitation to File Briefs inviting parties in both proceedings and other interested parties to brief answers to four questions:
  • Should the Board modify or overrule Brown University, which held that graduate student assistants who perform services at a university in connection with their studies are not statutory employees within the meaning of Section 2(3) of the NLRA, because they have a primarily educational, not economic, relationship with their university?
  • If the Board does modify or overrule Brown University, should the Board continue to find that graduate student assistants engaged in research funded by external grants are not statutory employees, in part because they do not perform a service for the university?
  • If the Board were to conclude that graduate student assistants may be statutory employees, under what circumstances, if any, would a separate bargaining unit of graduate student assistants be appropriate under the NLRA?
  • If the Board were to conclude that graduate student assistants may be statutory employees, what standard should the Board apply to determine:
    • whether such assistants constitute temporary employees; and
    • what the appropriate bargaining unit placement of assistants determined to be temporary employees should be?
The Board majority's questions suggest that graduate student assistants will once again be considered employees covered by the NLRA after being excluded for 34 of the past 38 years since the issue was first decided (compare Leland Stanford Junior Univ., 214 N.L.R.B. 621 (1974) and Brown Univ. with N.Y. Univ., 332 N.L.R.B. 1205 (2000)). The Board majority granted review and will reconsider Brown University, finding, in line with its earlier remand of the petition in New York University (N.Y. Univ., 356 N.L.R.B. slip op. 7 (2010)), that there are:
  • Compelling reasons for reconsideration of Brown University.
  • Factual and legal questions regarding the status of graduate students who provided research assistance funded by external grants.
  • Significant unit placement issues.
In his dissent, Member Hayes stated that:
  • It is readily apparent that there is no factual basis for granting review.
  • The regional director correctly applied Brown University to dismiss the petition once again.
Member Hayes also expressed concern that the Board would change the law in this area for the third time in 12 years, which would undermine both:
  • The predictability inherent in the rule of law.
  • The Board’s credibility.
Briefs, which must not exceed 50 pages in length, should be electronically filed using the NLRB E-Filing system. Briefs must be filed by July 23, 2012.

Board Documents