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NLRB Law Memo 07/16/2004
LawMemo.Com - First in Employment Law
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NLRB - Graduate student assistants are not statutory employees.

Brown University, (342 NLRB No. 42) July 13, 2004

The 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.

The 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:

After 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.

The 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."

The 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."

In 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.

The 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 students."

The 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 that

The 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.

The 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.

NLRB - Staff summarized 2 other decisions.

North Hills Office Services and National Organization of Industrial Trade Unions

(22-CA-25399, 22-CB-9585; 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.

(Members 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, 2004.


Saint 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."

Members 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."

(Full Board participated.)


Editor: Ross Runkel, Professor of Law Emeritus.  
email Ross@LawMemo.Com, Phone 503-399-8028.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.

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