[authors: Amy Moor Gaylord, Neil Goldsmith, and Josh Meeuwse]

In what appears to be a continuing effort to revisit key labor decisions involving private colleges and universities, the National Labor Relations Board agreed to hear companion cases involving the rights of graduate students to join and form unions. This announcement comes on the heels of the Board’s invitation for interested parties to file amicus briefs addressing whether the NLRB should overturn its longstanding Yeshiva University case, which held that professors at private Universities are barred from unionizing, which we previously reported.

The companion cases to be decided by the NLRB involve the United Auto Workers’ (UAW) efforts to organize graduate students at New York University (NYU), Case 2-RC-23481; and the Polytechnic Institute of New York University, Case 29-RC-12054. The UAW’s representation petitions had been dismissed based on the NLRB’s 2004 holding in Brown University, which found that graduate students have a predominantly academic relationship with their school, and not an economic one. Thus, they were more appropriately labeled students instead of employees, and were barred from joining or forming a union. This decision reversed an earlier 2000 decision, where the Board held precisely the opposite.

In both cases, the NLRB’s Regional Directors noted that graduate students have a “dual relationship” that is both academic and economic. In one case, the Regional Director went so far as to state that such a relationship “does not necessarily preclude a finding of employee status.” Nonetheless, both Regional Directors felt constrained to follow Brown, and dismissed the petitions.

The NLRB granted the UAW’s petition for rehearing by a 3-1 vote, and formally invited interested parties to file amicus briefs addressing four questions, including whether the NLRB should modify or overrule its decision in Brown University, which held that graduate student assistants are generally not statutory employees, and the appropriate bargaining unit placement of graduate assistants.

In his dissent, Board Member Brian Hayes chastised the majority, claiming that the “asserted compelling reason for reconsidering Brown consists of nothing more than a change in the Board’s membership.” Hayes’ comments, a reference to the fact that the current NLRB is now controlled by Democratic appointees, in contrast to the 2004 NLRB, which was Republican-controlled, evidence the continued political battles that have marked this Board. Hayes was also critical of the majority’s effort to change the law for the third time in 12 years, something he believed would “undermine both the predictability inherent in the rule of law as well as the Board’s credibility.”

Given the invitation to file amicus briefs, it appears that the NLRB is poised to overrule Brown, and will attempt to define the parameters of organizing graduate students. Reversing Brown would have drastic consequences for private higher education institutions, opening the flood gates for unions to begin organizing graduate students. We will be sure to keep you informed on this and other significant developments involving labor issues in the higher education context as they occur.