By Nelson Cary and Bradley Gibson

The NLRB has granted review in two cases that address whether graduate student assistants seeking to be represented by a union are employees covered by the NLRA. Chairman Mark Pearce (D) and Members Richard Griffin (D) and Sharon Block (D) ruled in favor of granting review in the cases, while Member Brian Hayes (R) dissented. The NLRB also presented a number of issues for the interested parties to brief. Among those issues is whether the NLRB should modify or overrule its 2004 decision in Brown University, 342 N.L.R.B. 42 (2004). 


In Brown University, the NLRB held that graduate students were not statutory employees under the NLRA. The NLRB based its decision upon the determination that graduate students have primarily an educational, not economical, relationship with their university. The NLRB emphasized the fact that many of the graduate students performed research and taught as a requirement of their degrees, they were required to be enrolled as students at the university, and they received a set amount of stipend, independent of the hours they worked. Because of the nature of the relationship, the NLRB determined that treating graduate student assistants as employees would be inconsistent with the NLRA’s goal of addressing the conflict created by the “antagonistic” viewpoints of employees and employers. The NLRB noted that the educational relationship is based on the “mutual interest in the advancement of the student’s education,” rather than on concerns of wages, hours, and working conditions.


In so doing, the NLRB overturned its 2000 decision in New York University, 332 N.L.R.B. 1205 (2000), where it had held that graduate assistants were, in fact, employees under the NLRA. In that case, the NLRB relied on the broad common-law definition of “employee,” which is based upon the conventional master-servant relationship. That relationship exists when a servant performs services for another, under the other’s control or right of control, and in return for payment.  Because the graduate assistants fell within that definition, the NLRB held that they were employees under the NLRA.


Of course, New York University itself reversed decades-old precedent.  The NLRB had previously held, in Leland Stanford Junior University, 214 N.L.R.B. 621 (1974), that graduate assistants were not employees.  Thus, in granting review in the two cases — New York University, Case 2-RC-23481 and Polytechnic Institute of New York University, Case 29-RC-12054 — the NLRB has set up another opportunity to reverse course on this issue.  The result could be a return to the rule that was in effect from 2000 to 2004. 


In addition to the question of whether Brown University should be reversed, the NLRB also asked interested parties to submit briefs addressing the following issues:

  • If the NLRB modifies or overrules Brown University, should the NLRB 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 NLRB were to conclude that graduate student assistants may be statutory employees, in what circumstances, if any, would a separate bargaining unit for graduate student assistants be appropriate under the NLRA?
  • If the NLRB were to conclude that graduate student assistants may be statutory employees, what standard should the NLRB apply to determine (a) whether such assistants constitute temporary employees and (b) what the appropriate bargaining unit placement of assistants determined to be temporary employees should be?

Any interested parties must file briefs no later than July 23, 2012.