In a decision issued on February 6, 2015 the Regional Director of the National Labor Relations Board, Region 2, dismissed a petition for union representation with The New School filed by a putative labor organization, Student Employees at The New School (SENS), which is affiliated with the UAW.

SENS filed its petition for recognition as the exclusive bargaining representative for a unit of graduate student assistants who serve as teaching assistants, teaching fellows, tutors, course assistants, research associates and research assistants at The New School, a private university in New York, New York. During the initial stages of the proceeding, SENS acknowledged that the NLRB’s decision in Brown University, 342 NLRB 483 (2004), which held that graduate assistants were not “employees” under the National Labor Relations Act, was the controlling precedent applicable to the proceeding. In Brown, the NLRB had held that graduate research and teaching assistants at private universities are primarily students rather than “employees” within the meaning of NLRA section 2(3). As such, graduate students at Brown University were held by the Board to have no statutory right to unionize or to enter into collective bargaining negotiations with Brown University. As also noted in Brown, the graduate students who were enrolled in a degree program were necessarily engaged in a course of study where research and/or a teaching assignment was concomitant with, or as a requirement for, the degree sought by the student.

In accordance with Brown, the Regional Director of Region 2 dismissed the petition filed by SENS, but on March 13, 2015 the Board reversed that order and directed that there be hearings before the Regional Director, as it held that there were “substantial issues warranting review.” Thereafter, upon the completion of those hearings, which were held in April and May 2015, the Regional Director issued a Supplemental Decision dismissing the petition once again, and held that the graduate students in the petitioned-for unit were “not employees.”

The petitioner thereafter requested review from the Board of that dismissal of the petition, and The New School has now opposed that request. Coincidentally, and perhaps of some significance, on August 15, 2015 the Board dismissed a petition for representation filed on behalf of the Northwestern University football player students, holding that it chose not to assert jurisdiction over those putative “unit members,” but without deciding whether the football players were “employees” under Section 2(3) of the National Labor Relations Act.

A petition is also currently pending before Region 2 which has been filed by a putative graduate student “union” at Columbia University, the procedural framework of which proceeding is virtually identical to that in The New School proceeding. Therefore, upon review of the Regional Director’s ultimate decision in that proceeding, the Board will then be presented with both proceedings, thereby posing the issue to the Board as to whether Brown should stand. That decision of the Board will also need to be measured against the recent holding in Northwestern, and whether the differences or similarities between and among those three proceedings will result in a different outcome from that in Northwestern.

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