Last week, the National Labor Relations Board (the “Board”) voted 3-1 to reconsider its decision in Brown University, 342 NLRB 483 (2004) that graduate teaching and research assistants are not employees under the National Labor Relations Act (the “Act”) and, therefore, not entitled to collective bargaining rights. Many predict that the current Board will reverse Brown, opening up the door to graduate student unionization among private non-profit institutions.
The opportunity for Board review of the Brown decision first arose back in 2011 when New York University graduate students appealed the denial of their petition for unionization. Ultimately, the NYU case never saw the light of day, as the parties settled the dispute. But, in December 2014, the United Auto Workers filed a representation petition seeking to unionize graduate teaching assistants at the New School in New York City. The regional director dismissed the petition, again citing Brown. And, so the Board had another hook to revisit whether graduate student TAs and RAs are truly students, or whether they are more akin to employees. On October 21, the Board issued its decision to reconsider Brown in The New School, Case No. 02-RC-143009.