The NLRB has issued a dramatic 2-1 ruling that calls into question the continued viability of the Board’s 2004 Brown University decision, in which it held that graduate student assistants are not statutory employees subject to the National Labor Relations Act. 

Earlier this year, the UAW filed a representation petition seeking to organize graduate and teaching assistants at NYU.  That petition was dismissed by the Board’s regional director, citing Brown.  On October 25th, the NLRB reversed this dismissal and remanded the case to the regional director for a full evidentiary hearing, in part to explore whether there are facts justifying the granting of collective bargaining rights to graduate students, irrespective of the Brown decision.  More significantly, however, the Board also stated that there are “compelling reasons for reconsideration of the decision in Brown University.”  Thus, there are two ways that the graduate students could obtain collective bargaining rights at NYU: first, if there is a determination that the facts at NYU are different than those outlined in Brown; and second, if the new Board directly overrules the Brown decision.

The latest Board ruling is signed by Democratic appointees Pearce and Becker.  Republican appointee Brian Hayes wrote a dissenting opinion, stating that the decision “merely serves to reinforce the views of the Board’s critics who charge that its view of the law is wholly partisan and thus changeable based on nothing more than changes in Board membership.”

The development of the factual record will undoubtedly take a considerable amount of time, as will the presentation of legal briefs by the parties.  At least fifteen organizations and universities submitted amicus curiae briefs in the Brown case.  One could expect a similar level of interest when the NLRB reviews the upcoming decision of the regional director.

This entry was written by Walter Hunter.