In a matter that could have far-reaching implications for private universities throughout the US, the NLRB’s Regional Director for Region 2 dismissed a petition filed by graduate students of The New School in New York City, New York in which they sought to form a union in affiliation with the United Auto Workers (UAW).
In this petition, the graduate students claimed that they were employees of the University based on their research and teaching activities and that they, therefore, had the right to unionize and enter into collective bargaining agreements.
New School compared to Brown: is research a part of grad degrees?
In January 2015, the Regional Director, in considering the petition, issued an Order to Show Cause as to whether the students’ petition should be dismissed pursuant to the Board’s decision in Brown University, 342 N.L.R.B. 483 (2004).
In Brown, the Board held that graduate student assistants at private universities were not “employees” under the National Labor Relations Act (Act), overturning a prior Board’s decision in 2000 – New York University, 332 N.L.R.B. 1205 (2000).
The Board found that the graduate students at Brown University did not have the statutory right to unionize or to enter into collective bargaining negotiations with the University.
Instead, the Board noted that the graduate students were necessarily engaged in a course of study where research and/or teaching assignments were concomitant with, or a requirement for, the degrees sought.
Underpinning the Board’s holding was the fact that “the Act is designed to cover economic relationships,” not educational relationships.
The New School argued that Brown was controlling precedent regarding the issue of whether the graduate students were employees and, thus, required dismissal of the petition.
Further, The New School argued that the students failed to set forth any facts or applicable law that would distinguish these students from those in Brown.
Instead, The New School noted that that students’ argument was based on their contention that Brown should be overruled, which was inappropriate for consideration by the Regional Director.
In contrast, the graduate students from The New School argued that they were, in fact, employees because they performed services that generated income for the school.
In addition, the students argued that they were different from the graduate students in Brown because they were not guaranteed a financial aid package upon admission and because some students taught independently rather than serving as assistants.
New School hearing determined unneccessary
In dismissing the petition on February 6, 2015, the Regional Director acknowledged the students’ request to reconsider Brown, but noted that it would be improper to ignore the Board’s precedent.
The Regional Director further noted that a hearing was unnecessary at this stage as the Board may decide to remand the case, at which time a complete record could be made.
The dismissal of The New School petition follows closely on the heels of the dismissal of a petition filed against Columbia University.
In the Columbia case, the Regional Director also found that the graduate students who sought to unionize were students and not employees.
How does New School compare to Northwestern’s football players?
Of course, each of these decisions follow last year’s landmark decision in which the Regional Director for Region 13 (the Chicago area) found that the football players at Northwestern University were employees who were entitled to form a union.
There, the Regional Director found that Brown was inapplicable because the “players’ football-related duties [were] unrelated to their academic studies unlike the graduate assistants whose teaching and research duties were inextricably related to their graduate degree requirements.”
It is anticipated that The New School and Columbia petitions will be consolidated with the Northwestern petition currently before the Board.
Further, based on the current composition of the Board (the Board is currently composed of 3 “union-friendly” members out of 5), a reversal of Brown seems likely.
Such a result would trigger an unprecedented wave of union activity on campuses across the country and could fundamentally reshape the higher education landscape.
