In what some are characterizing as a final effort to shape the landscape of unionization at private colleges and universities during the Obama administration, the NLRB granted the United Auto Workers’ request to review an NLRB’s Regional Director's two-time dismissal of the union’s petition seeking to organize graduate students at The New School in New York City. The decision has generated discussion around the broader topic of whether the NLRB will use the review of The New School case to reverse its position on unionization at private colleges and universities.  

In administratively dismissing the representation petition in the first instance, the Regional Director found that representation was not merited under the Board's long standing precedent articulated in Brown University, 342 NLRB 483 (2004), which held that graduate teaching assistants were primarily students and not employees under the National Labor Relations Act.   After the case was remanded for hearing, the Regional Director again dismissed the petition, reasoning that he was constrained by Brown and that based upon the entire record, including seven days of hearing, the facts were insufficient to render the graduate students "employees" within the meaning of Section 2(3) of the NLRA.  

The United Auto Workers exercised their right to request review, urging that “[s]ince 2010, this Board has granted review six times, in five cases, finding ‘compelling reasons’ to reconsider Brown…The time has come to squarely overrule a decision that has no basis in the statute, precedent, logic, or experience.”  On October 21, 2015, in a 3-1 decision, the NLRB granted that request.  Board Member Philip Miscimarra dissented from the order, writing that the “sole basis relied upon by the Petition is its desire to have the Board overrule Brown University.” 

As we have discussed in previous alerts, the Board may be signaling its willingness to reconsider Brown:

• Revitalized National Labor Relations Board Sets an Aggressive Course
• NLRB Continues Focus on Universities, Will Revisit Graduate Students’ Right to Organize
• NYU Agrees to Recognize Graduate Student Organizing Rights
• At Year’s End, Pending NLRB Decisions Weigh Heavily on Higher Education

Reversing Brown could have significant consequences for private institutions with graduate programs. Higher education will be watching the New School case closely, and we will report on further developments.