Earlier this month, we posted about a Regional Director’s dismissal of 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.  The UAW has filed a request for review in that case which is currently pending before National Labor Relations Board (NLRB).  In a related matter involving a different educational institution, the NLRB is now considering whether to modify or overrule eleven-year old precedent holding that graduate students performing work related to their studies for educational institutions at which they are enrolled are not employees under the National Labor Relations Act (NLRA).

This matter stems from a petition also filed by the UAW in December 2014 seeking to represent a unit of students providing teaching and research-related services to The New School, a New York not-for-profit corporation which operates institutions for higher education in New York, New York.  The Regional Director administratively dismissed the petition in February 2015, finding that it sought an election among graduate students who could not be considered employees under the Act pursuant to the Board’s decision in Brown University, 342 NLRB 483 (2004).  In Brown, the NLRB held that graduate students enrolled at educational institutions who also performed work related to their studies were not “employees” under the NLRA because their relationship with the school was predominantly academic rather than economic.

In March 2015, the Board granted the UAW’s request for review and remanded the case to the Regional Director for hearing. After a hearing, the Regional Director dismissed the petition in July 2015, again concluding:

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.

The UAW again filed a request for review and urged the Board to overrule Brown, stating “The time has come to squarely overrule a decision that has no basis in the statute, precedent, logic, or experience.”  In October 2015, the Board granted the request for review in a 3-1 decision, finding that “it raises substantial issues warranting review.”

On November 18, 2015, both parties submitted briefs on review.  The New School’s brief defends Brown as sound law and argues that there is no reasoned justification to modify or overrule the Brown decision:

[T]he sole reason for the creation of these graduate assistant positions is, and was, to assist the graduate students in the attainment of their degree while at the same time providing them with a form of financial aid. Any effort to modify Brown is therefore necessarily misplaced, and flies in the face of the undisputed intent of The New School to assist students by both creating and fostering the growth of these graduate assistant positions.

The UAW’s brief again asked the Board to overrule Brown:

The Brown decision cannot be reconciled with the statute or precedent.  The assumptions upon which that decision is based are contradicted by experience and by academic studies.  The decision reflects a fundamental hostility to the process of collectively bargaining, speculating that bargaining will cause damage to relationships where there is no evidence or logic to support such fears.

The Board’s characterization of this case as raising “substantial issues warranting review” suggests that the Brown decision will be under scrutiny and will likely be modified or overruled.  If the Board chooses to overrule Brown, this case will be yet another example of the NLRB expanding its reach.