(342 NLRB No. 42) July 13, 2004
National Labor Relations Board, in a 3-2 decision involving Brown
University, found that graduate student assistants are not employees
within the meaning of Section 2(3) of the National Labor Relations
Act. The Board found
that these persons are students and are not statutory employees. The
majority opinion is signed by Chairman Robert J. Battista, and
Members Peter C. Schaumber and Ronald Meisburg.
Members Wilma B. Liebman and Dennis P. Walsh dissented.
decision overrules the Board's decision four years ago in New York
University, 332 NLRB 1205 (2000), which found that the graduate
student assistants there were employees within the meaning of
Section 2(3) of the Act. NYU
had overruled over 25 years of precedent under which graduate
student assistants had not been regarded as statutory employees.
See the 1974 decision in Leland Stanford Junior University,
214 NLRB 621. The majority in Brown stated:
carefully analyzing these issues, we have come to the conclusion
that the Board's pre-NYU principle of regarding graduate student
assistants as nonemployees was sound and well reasoned.
It is clear to us that graduate student assistants, including
those at Brown, are primarily students and have primarily an
educational, not economic, relationship with the their university.
majority pointed out that Leland Stanford was "wholly
consistent with the overall purpose and aim of the Act."
The Act governs "a fundamentally economic relationship
between employees and employers."
Board interpreted Section 2(3) in light of the "underlying
fundamental premise of the Act," i.e. that the Act is
"designed to cover economic relationships."
The majority concluded: "The Board's longstanding rule
that it will not assert jurisdiction over relationships that are
'primarily educational' is consistent with these principles."
reaching its decision in the Brown University case, the Board
dismissed a representation petition filed by the United Auto Workers
union seeking to represent approximately 450 graduate students
employed as teaching assistants, research assistants, and proctors.
It reversed a Regional Director's Decision and Direction of
Election that had relied on NYU in finding that these persons are
statutory employees and constitute an appropriate unit for
collective bargaining. The
election was conducted on December 6, 2001, and the ballots were
impounded pending the disposition of the union's request for review.
Thus, the election is mooted by today's decision.
majority said that there are also policy reasons for declining to
extend collective bargaining rights to such persons.
There is a danger that the imposition of collective
bargaining in this context would intrude upon the academic
relationship between the university and students.
Further, the Board found that "it simply does not
effectuate the national labor policy to accord [such persons]
collective bargaining rights because they are primarily
Board majority expressed no opinion regarding the Board's decision
in Boston Medical Center, 330 NLRB 152 (1999), relied on heavily in
the NYU decision, in which a Board majority found that interns,
residents, and house staff at teaching hospitals were employees
within the meaning of Section 2(3) of the Act.
In dissent, Members Liebman and
Walsh observed that "collective bargaining by graduate students
is increasingly a fact of American university life."
They characterized the majority's decision as "woefully
out of touch with contemporary academic reality" and stated
result of the Board's ruling is harsh.
Not only can universities avoid dealing with graduate student
unions, they are also free to retaliate against graduate students
who act together to address their working conditions.
dissent pointed to the broad definition of "employee" in
the Act, arguing that the Board was not free to create its own
exclusion for graduate assistants.
According to the dissent, American universities increasingly
rely on graduate students to perform important teaching and other
work. Denying graduate
students labor law rights, the dissent predicted, will lead to
increased labor disputes on campus.
Hills Office Services and National Organization of Industrial Trade
342 NLRB No. 25) Rutherford, NJ July 9, 2004.
The Board adopted the
administrative law judge's finding that Respondent North Hills
Office Services (North Hills) violated Section 8(a)(5) and (1) of
the Act by failing and refusing to recognize and bargain with
Service Employees Local 32B-32J; Section 8(a)(2) and (1) by
extending recognition to Respondent National Organization of
Industrial Trades Unions (NOITU) as the exclusive bargaining
representative of the unit employees, and by applying the terms of
its collective-bargaining agreement with NOITU to the unit
employees, at a time when NOITU did not represent an uncoerced
majority of those employees; and by arranging for and attending a
meeting with unit employees during which representatives of NOITU
solicited those employees to sign union authorization cards.
The Board adopted, absent
exceptions, the judge's finding that Respondent NOITU violated
Section 8(b)(1)(A) by accepting recognition as the exclusive
bargaining representative of the unit employees and enforcing the
terms of its collective-bargaining agreement with Respondent North
Hills with respect to the unit employees, at a time when it did not
represent an uncoerced majority of those employees, by participating
in a meeting with unit employees that was arranged by a
representative of North Hills, and by soliciting unit employees to
sign union authorization cards, in the presence of a representative
of North Hills.
Schaumber, Walsh, and Meisburg participated.)
Charges filed by Service Employees
Local 32B-32J; complaint alleged violation of Section 8(a)(1), (2)
and (5) and Section 8(b)(1)(A). Hearing at Newark, April 8 and 9 and May 5 and 6, 2003.
Adm. Law Judge Margaret M. Kern issued her decision Feb. 2,
Gobain Abrasives, Inc. (1-RD-2003;
342 NLRB No. 39) Worcester, MA July 8, 2004.
Chairman Battista and
Members Schaumber and Meisburg granted Petitioner Wayne Gregoire's
request for review, reversed the Regional Director's administrative
dismissal of the decertification petition, and remanded the case to
the Regional Director for further appropriate action.
Members Liebman and Walsh dissented.
The Regional Director dismissed,
without a hearing, the decertification petition, finding that the
Employer's allegedly unlawful change in health insurance benefits
likely caused employee disaffection with the Union.
The majority held that the Regional Director's finding of
causal nexus deprived the employees of their Section 7 rights on the
question of union representation. Citing Master Slack, 271 NLRB 78 (1984), they
concluded that such a factual determination of causal nexus should
not be made without an evidentiary hearing.
While noting that the Board has
applied Master Slack in the context of a representation case
to dismiss a decertification petition without a hearing, the
majority said: "the alleged unfair labor practice is a single
unilateral change on a single subject and, . . . there are
significant factual issues as to the impact of that change.
In such circumstances, it is not appropriate to speculate,
without facts established in a hearing, that there was a casual
relationship between the
conduct and the
disaffection. To so speculate is to deny employees their fundamental
Section 7 rights. Surely,
a hearing and findings are prerequisites to such a denial."
They further stated: "Our
dissenting colleagues say that the change had the 'inherent
tendency' to undercut the Union's support. . . . the real test is
whether there is a causal nexus between the change and the loss of
support for the Union. The
use of a conclusionary phrase can be no substitute for an
evidentiary into this matter. To
the extent that Priority One Services, [331 NLRB 1527 (2000)]
is to the contrary, it is overruled."
Liebman and Walsh, contrary to their colleagues, would deny review
and affirm the Regional Director's dismissal of the petition
pursuant to the Board's decision in Priority One Services.
In agreement with the Regional Director, Members Liebman and
Walsh held that the unilaterally implemented health insurance
benefits affected the entire bargaining unit and that the change is
of the type that would tend to cause employee disaffection with the
Union. They noted that
if the Board upholds the dismissal of the health insurance change
allegation, the decertification petition in this case will be
reinstated and that "expeditious action on the unfair labor
practice case by the Board could make a hearing in this
representation case unnecessary."