NLRB Seeks Briefs on Question of Graduate Students' Right to Organize

On January 13, 2016, the National Labor Relations Board issued a call for interested parties to file briefs addressing the Board’s current standard on whether graduate student assistants are “employees” under the National Labor Relations Act (NLRA).  

The Board’s current standard on graduate student assistants was adopted in Brown University, 342 NLRB 483, in 2004.  There, the Board reversed a prior, short-lived precedent and held that graduate students are not “employees” within meaning of the NLRA.  According to the Board, graduate student assistants “have a predominately academic, rather than economic, relationship with their school.”  This academic relationship is characterized by the “intensely personal” educational process that exists in a university setting.  In contrast to a more traditional employer-employee relationship, a graduate student and teacher’s relationship is one based on “mutual interest in the advancement of the student’s education.”  According to the Board in Brown University, collective bargaining in this environment could have a “deleterious impact” on the educational decisions that must be made by the university.

However, the Board appears poised to reverse its holding in Brown University.  The call for briefs follows the Board’s December 23, 2015, decision to grant review in the case of Columbia University, 02-RC-143012.  The graduate student assistants in Columbia University petitioned to be represented by the Graduate Workers of Columbia – GWC, UAW.  After the union appealed a Regional Director’s summary dismissal of the students’ petition based on Brown University, the Board reversed the dismissal and remanded the case for a hearing.  In October, the Regional Director again dismissed the petition based upon Brown University.  Following this second dismissal, both the union and the school sought the Board’s review, which was granted in December.

Interested amici may submit briefs on whether the Board should modify or overrule Brown University. The Board invites briefing on the following questions:

  • What standard should apply when determining whether graduate student assistants engaged in research are statutory employees;
  • May graduate student assistants, terminal masters degree students, and undergraduate students properly be combined in a single bargaining unit; and
  • Assuming the students are in fact employees, how should the Board determine whether they are “temporary” employees? 

Interested amici may file briefs through February 29, 2016. The parties have through March 14, 2016 to file their responsive briefs.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.