On October 30, 2015, the Regional Director for Region 2 of the National Labor Relations Board dismissed a petition filed by an organizing committee of the United Auto Workers (UAW) seeking to represent various student assistants at Columbia University in New York.  In Columbia University, Case No. 02-RC-143012, the Union sought to represent a unit of

[a]ll student employees who provide instructional services, including graduate and undergraduate Teaching Assistants…; [a]ll Graduate Research Assistants… and [a]ll Departmental Research Assistants…

Earlier in the year, the Regional Director administratively dismissed the petition, based on the Board’s ruling in Brown University, 342 NLRB 483 (2004), holding that graduate student assistants are not “employees” under the NLRA.  The Board, however, granted the Union’s request for review and remanded the case to the Region for a hearing.  Following twelve (12) days of hearing, and full briefing, the Regional Director has once again ruled against the Union and dismissed the petition, relying on Brown:

I have considered the arguments presented by the parties. I conclude that I am constrained by Brown, which holds that graduate assistants are not “employees” within the meaning of Section 2(3) of the Act. Because the Petitioner seeks to represent individuals employed in classifications which fall within the term, “graduate assistants,” Brown is controlling, and therefore I am dismissing the petition.

This is far from the last we will hear of this issue, however.  This is the second time in recent days that Region 2 has twice dismissed a union petition seeking to represent student assistants.  On October 21, 2015, the Board granted a request for review in the other case, The New School, Case No. 02-RC-143009.  One should expect a request for review to be filed in this case as well, and it is very possible that the Board has been actively looking to overturn Brown to provide collective-bargaining rights to university student teaching assistants.

Until the novel New Y0rk University decision, 332 NLRB 1205 (2000), decades-old Board law held that these types of assistants were students and not “employees” within the meaning of the Act.  The Brown decision restored that long-standing precedent.  In connection with its 2014 consideration of the Northwestern University football players’ petition, the Board issued an invitation for amicus briefs which expressly asked:

Insofar as the Board’s decision in Brown University, 342 NLRB 483 (2004), may be applicable to this case, should the Board adhere to, modify, or overrule the test of employee status applied in that case, and if so, on what basis?

In dismissing the petition of the football players in that widely followed case, the Board specifically indicated that it took no position on whether or not Brown was correctly decided. These provide pretty clear signs that the issue is squarely in the Board’s sights.  Likewise, if it was not, there would be little reason to grant review of these recent RD decisions. The detailed decisions following remand and hearing in The New School and Columbia University cases thoroughly outline the manner in which the substantial evidence led the RD to conclude the graduate student assistants’ functions are closely related to their education and the school’s academic mission. These cases remain ones for all employers — but particularly those in higher education — to follow through early 2016.