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NLRB Again Invites Briefs on Whether Graduate Student Assistants Should be Employees Under the NLRA
Practical Law Legal Update w-001-3390 (Approx. 5 pages)
NLRB Again Invites Briefs on Whether Graduate Student Assistants Should be Employees Under the NLRA
by Practical Law Labor & Employment
| Published on 19 Jan 2016 • USA (National/Federal) |
The National Labor Relations Board (NLRB) has invited amicus briefs in Columbia University to reconsider whether graduate student assistants are employees within the meaning of Section 2(3) of the National Labor Relations Act (NLRA).
In 2004, in Brown University, the panel (Board) heading the NLRB's judicial functions held that graduate student assistants are not employees within the meaning of Section 2(3) of the NLRA because they:
- Perform services at a university in connection with their studies.
- Have a predominantly academic, rather than economic, relationship with their school.
Brown University reversed the Clinton-era Board's holding that graduate student assistants are employees within the meaning of Section 2(3) of the NLRA (New York University, 332 N.L.R.B. 1205 (2000)). For 38 of the past 42 years since the issue was first decided, the Board has not considered graduate student assistants to be employees covered under the NLRA (compare Leland Stanford Junior University, 214 N.L.R.B. 621 (1974) and Brown University, 342 N.L.R.B. 483 with New York University, 332 N.L.R.B. 1205 (2000)).
On December 23, 2015, in Columbia University, the majority of the Board (Chairman Pearce and Members Hirozawa and McFerran) granted a union's petition for review seeking reconsideration of Brown University and the Board unanimously granted the university's conditional petition for review challenging the NLRB regional director's application of Brown University and other bargaining unit determination cases. Member Miscimarra dissented from the decision on the union's petition for review, but concurred in the decision to grant the university's conditional petition for review. ( (Dec. 23, 2015).)
On January 13, 2016, the Board issued a Notice and Invitation to File Briefs setting a schedule for the parties and amici to file briefs. The Board invited the parties and amici to address the following questions:
- Should the Board modify or overrule Brown University, which held that graduate student assistants who perform services at a university in connection with their studies are not statutory employees within the meaning of Section 2(3) of the NLRA?
- If the Board modifies or overrules Brown University, what should be the standard for determining whether graduate student assistants engaged in research are statutory employees, including graduate student assistants engaged in research funded by external grants? See New York University, 332 N.L.R.B. at 1209 fn. 10 (relying on Leland Stanford Junior University, 214 N.L.R.B. 621 (1974)).
- If the Board concludes that graduate student assistants, terminal masters degree students and undergraduate students are statutory employees, would a unit composed of all these classifications be appropriate?
- If the Board concludes that graduate student assistants, terminal masters degree students and undergraduate students are statutory employees, what standard should the Board apply to determine whether they constitute temporary employees?( (Jan. 13, 2016).)
Parties and amici must file any briefs with the NLRB by February 29, 2016. Parties must file any responsive briefs by March 14, 2016. All briefs must be filed electronically using NLRB E-File.
This invitation is the second time in recent years that the Board has invited amicus briefs on overturning Brown University (see Board Grants Review, Invites Briefs on Question of Graduate Student Assistant Status in Two Cases, ; Legal Update, NLRB Invites Briefs on Whether Graduate Student Assistants Should be Employees Covered by the NLRA). The earlier order and invitation were invalidated by NLRB v. Noel Canning (134 S.Ct. 2550 (2014); see also Article, Expert Q&A on Noel Canning and Its Aftermath and Legal Update, Supreme Court Holds 2012 Recess Appointments to the NLRB Were Invalid, Effectively Invalidates 20-Months of NLRB Decisions).
The Parties involved in that 2012 case, the United Autoworkers Local 2110 (UAW) and New York University, ultimately agreed:
- To hold an election under the American Arbitration Association's auspices.
- On a collective bargaining agreement after the graduate students voted for UAW recognition (What's Market, New York University and International Union, UAW and Local 2110, UAW collective bargaining agreement).