NLRB grants review for grad assistant issue; strong dissent issued

Michael P. Tremoglie Jun. 26, 2012, 7:00am

WASHINGTON (Legal Newsline) - The National Labor Relations Board has granted review in two cases to determine whether graduate student assistants should be considered employees covered by the National Labor Relations Act and be able to be represented by a union.

The NLRB took an additional - and controversial - step by requesting briefs from parties interested in the cases. NLRB asked that four issues be addressed, including whether the Board should modify or overrule the 2004 decision in Brown University.

That decision held that graduate student assistants are generally not statutory employees. Brown overruled the 2000 decision in New York University, which held that the assistants are employees.

Chairman Mark Gaston Pearce and members Richard Griffin and Sharon Block ruled in favor of granting review in the cases, while Member Brian Hayes issued a stinging dissent.

Hayes wrote, "Today the Board grants review in this case and in Polytechnic Institute of New York University... and invites amici curiae to file briefs addressing the Petitioner's argument that Brown University... should be overruled.

"The Board in Brown found that graduate student assistants are not employees under Section 2(3) of the Act because they 'perform services at a university in connection with their studies, [and thus] have a predominantly academic, rather than economic, relationship with their school.'

"The Petitioner, in both NYU and Polytechnic, urges the Board to reconsider and overrule Brown. Even after an evidentiary hearing in this case, it is readily apparent that there is no factual basis for granting review and that the Acting Regional Director correctly applied Brown to dismiss the petition once again.

"Further, the issue whether there are compelling circumstances warranting a grant of review is in no different posture than before the hearing."

According to Hayes, the only reason for reconsidering Brown "consists of nothing more than a change in the Board's membership." He said that the review requested merely recycles "arguments made by the dissenters and rejected by the majority in Brown."

He then declares that "The evidentiary remand gambit having failed, the majority now bends to assist the Petitioner once more by granting review and inviting amici to file briefs. Perhaps this venture will yield something more than two academic studies, one of which was unpublished and both of which are, as the Acting Regional Director's Decision seemed to recognize, of questionable value."

He concludes by stating that even without more information, his colleagues on the NLRB "will change the law in this area for the third time in 12 years."

By doing so, it will "undermine both the predictability inherent in the rule of law as well as the Board's credibility. It would also impermissibly distort both labor relations and student relations stability in the higher education industry."

Prof. John Raudabaugh, a former member of the NLRB and now a labor law professor at the Ave Maria School of Law in Naples, Fla., concurred with Hayes.

"I totally agree with Member Hayes," he said. "As the Board majority held in Brown University, "(G)raduate student assistants... are primarily students and have a primarily educational, not economic, relationship with their university."

"(T)heir service as a graduate student assistant is part and parcel of the core elements of the Ph.D. degree. Because they are first and foremost students, and their status as a graduate student assistant is contingent on their continued enrollment as students, we find that that they are primarily students.

"We also emphasize that the money received by the TAs, RAs, and proctors is the same as that received by fellows. Thus, the money is not 'consideration for work.' It is financial aid to a student."

Raudabaugh also noted that one of the NLRB members in Brown said graduate assistants do not meet the definition of employee as defined in common law. They were not hired to do a specific job by the university.

According to Raudabaugh, "A graduate teaching assistant is not an employee under Section 2(3) of the Act. Rather, a graduate assistant is a student and the performance of academic-related duties is part of the learning and degree accreditation process."

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