The National Labor Relations Board, in a decision reflective of the change in Board makeup under the Obama administration, has found that graduate students at New York University deserve a full hearing on their organizing efforts.

 

The NLRB also stated in its decision on Monday that there are "compelling reasons" to reconsider Brown University—a 2004 Board decision, issued under the Bush administration, that graduate students were not statutory employees of the university and thus not permitted to unionize. As a result, the decision this week likely portends an uptick in organizing on campuses across the country and should spur universities to be proactive in this arena.

 

In New York University, the Board reversed the decision of an NLRB Regional Director, who had relied on Brown in dismissing the petition for union representation by NYU graduate teaching and research assistants. It held, 2-1, that without an evidentiary record, it could not assess the accuracy of NYU’s position and sent the case back to the Regional Director. 

 

The Board focused on three (3) main issues:

 

  • NYU’s statement that it had reclassified many graduate teaching assistants as adjunct faculty, making them covered employees under the National Labor Relations Act and so eligible for the adjunct faculty unit

  • NYU’s statement that some graduate research assistants were funded by external sources and thus not employees of the university

  • The union’s position that Brown University was based on policy considerations unrelated to labor law and that it was inconsistent with the definition of employee under the NLRA and Board and U.S. Supreme Court precedent

 

In his dissent, Board Member Brian Hayes stated that "the request for review does nothing more than ask that a Board, with changed membership, view precisely the same evidence and argument considered by a prior Board, but to reach an opposite result." He concluded: "Granting review on this basis unavoidably suggests that overruling Brown is a preordained result."

 

Ballard Spahr is particularly well positioned in this arena. We have represented a number of universities with differing priorities in graduate student unionization efforts. If you have any questions, please contact David S. Fryman, 215.864.8105 or fryman@ballardspahr.com.


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