The NLRB is now one step closer to getting its long-awaited opportunity to reverse its 2004 Brown University decision, (pdf) in which it held that graduate student assistants are not statutory employees subject to the National Labor Relations Act. On June 16, 2011, the Acting Regional Director in Region 2 of the NLRB issued a decision dismissing the recent UAW representation petition that sought to represent graduate student assistants at NYU. Although the Region felt constrained to dismiss the petition based on the Brown case, the Region saw the writing on the wall and stated that if the NLRB reconsiders the employment status of graduate students, “a unit including all graduate students would be appropriate.”

On June 30, the UAW filed a request for review with the NLRB - a frontal assault urging the Board to reverse the Brown decision. NYU submitted a more limited conditional request for review – a challenge to the Region’s bargaining unit determinations for now, while leaving a more thorough discussion about Brown to its reply brief.

At least fifteen organizations and universities submitted amicus curiae briefs in the original Brown case. One could expect a similar level of interest when the NLRB reviews this case. There are many questions to be answered. If serving as a teaching assistant is simply a requirement of obtaining a degree, does that mean the graduate student assistant is not an employee? If the teaching assistant is covered as adjunct faculty in another collective bargaining agreement, does that change the equation? If a student receives stipends to conduct research, but the research is primarily in the furtherance of his or her dissertation, rather than for the benefit of the university, is he or she an employee? The Board’s decision in “NYU II” may well provide some answers to its perspective on these issues.

Photo credit: Joshua Hodge Photography