The National Labor Relations Board (Board) has voted 3-1 to reconsider whether graduate assistants at private, nonprofit higher education institutions are entitled to collective bargaining rights under the National Labor Relations Act (NLRA).

The October 21, 2015, decision is the latest in a nearly yearlong bid by the United Auto Workers (UAW) to unionize graduate teaching assistants at the New School.  The UAW filed the original representation petition on December 17, 2014, seeking a unit of “[a]ll student employees who provide teaching, instructionally-related or research services, including teaching assistants (course assistants, teaching assistants, teaching fellows, and tutors), and research assistants (research assistants and research associates), and student assistants at the Parsons School.” The proposed unit includes approximately 350 graduate assistants.

In February 2015, the Board’s regional director summarily dismissed the petition, citing the Board’s 2004 holding in Brown University that graduate assistants have a primarily academic, not economic, relationship with their universities. Therefore, they are not employees within the meaning of the NLRA.

The UAW requested review of the dismissal, which the Board granted and then remanded the case back to the regional director for development of a record so that the issue could be fully considered. The regional director held hearings, resulting in a July 2015 decision to dismiss the petition for a second time. The decision noted again that the regional director was constrained by the Board’s holding in Brown.

The Board’s decision last week to review the decision was anticipated by some observers, after the Board hinted in its decision in the Northwestern football players’ case that it was open to reconsidering the holding in Brown. In declining to assert jurisdiction in the Northwestern case, the Board stated that “the scholarship players bear little resemblance to the graduate student assistants or student janitors and cafeteria workers whose employee status the board has considered in other cases.”

The UAW and related interests are expected to argue that Brown should be overturned, that graduate assistants are employees, and that they are entitled to bargain for better terms and conditions of employment. The New School and other higher education institutions are expected to stress the precedential value of the Brown decision and emphasize that unionization of graduate assistants would constrain professors’ abilities to engage, discharge, and supervise graduate assistants, thus interfering with academic decisions.

If, as many expect, the Brown decision is overturned and graduate assistants are given the right to unionize under the NLRA, universities may face a daunting task in opposing unionization efforts, as the NLRB’s new election rules will shorten the amount of time universities will have to campaign against the effort and other recent pro-union NLRB decisions, such as the Specialty Healthcare micro-unit decision, may mean that unions need only target particular departments or schools within the larger university for organizing.

Ballard Spahr’s Labor and Employment Group and Higher Education Group routinely assist higher education institutions with unionization and collective bargaining issues.

If you have questions about the Board's decision, please contact David S. Fryman at 215.864.8105 or, or the Ballard Spahr attorney with whom you work.

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