Thursday, October 28, 2010

Graduate Students and the NLRB

On Monday, the National Labor Relations Board (NLRB) issued an order (available here) signalling a shift in how it will handle Graduate Students under the National Labor Relations Act (NLRA). The issue is whether grad students qualify as "employees" under the NLRA, 29 U.S.C. § 152(3) (aka “Section 2(3)”), which would make them eligible for collective bargaining rights.  This latest salvo in the back-and-forth between the NLRB and... well, the NLRB shifts back toward counting the grad students as employees.

In this latest case, NYU and GSOC/UAW, petitioner sought to represent a unit of grad students at NYU.  The Regional Director dismissed the petition without conducting a hearing because grad students are not "employees" under the NLRB's 2004 decision in Brown University, 342 NLRB 483. The NLRB reviewed the dismissal and remanded for a new hearing with the subtle hint that they "believe there are compelling reasons for reconsideration of the decision in Brown University."

In Brown, the NLRB "declare[d] the federal law to be that graduate student assistants are not employees within the meaning of Section 2(3) of the Act." This
was itself a shift, overruling the NLRB's 2000 decision in another NYU matter, New York University, 332 NLRB 1205. In Brown, however, the NLRB noted "25 years of untroubled experience under pre-NYU standards" with graduate students being treated as students and not employees.

Are you getting a feel for the back and forth yet? The NLRB's order from Monday does not expressly reverse Brown, but it's tough to see it as anything other than the writing on the wall.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.