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By Ben Penn
Oct. 22 — The National Labor Relations Board Oct. 21 granted a union's request that it revisit a 2004 decision to deny collective bargaining rights to graduate assistants at private universities.
In a 3-1 order, the board agreed to consider an appeal from the United Auto Workers on behalf of research assistants, teaching assistants, and other graduate students at the New School in New York.
In addition to seeking reversal of an NLRB regional director's decision to dismiss the UAW's representation petition, the union's appeal asked the board to overrule its holding that graduate assistants lack bargaining rights because they have a predominantly academic, rather than employment, relationship with their school (Brown University, 342 N.L.R.B. 483, 175 LRRM 1089 (2004).
The NLRB's regional director in New York, Karen Fernbach, dismissed the petition in July on the grounds that the Brown ruling forbids her from treating the graduate assistants as employees under the National Labor Relations Act.
Two weeks later, the UAW countered in its request for review that Brown is invalid and that the assistants maintain a role as New School employees that is “separate and distinct” from their role as students.
Labor attorneys representing management and unions widely expected the board to take up the appeal, based in part on recent NLRB behavior under the Obama administration.
The UAW has said it will also file an appeal with the board over a separate petition involving a larger group of assistants at Columbia University, once Fernbach dismisses the representation petition—because of Brown—as the union expects.
The New School, in a statement provided to Bloomberg BNA Oct. 22, said, “Our graduate teaching and research assistants are an important and valued part of The New School community, and we appreciate the NLRB’s continued, careful examination of the complex issues involved in this matter.”
However, in the New School's opposition to the UAW request for review filed in August, the college took a different tone. The New School argued that Brown remains good law and that the assistants are students because, among other reasons, their stipends are intended as financial aid rather than wages.
The UAW Region 9A Director Julie Kushner told Bloomberg BNA Oct. 22 that the union's “best hope is that the board acts quickly” when reviewing the New School record “so that we can go to elections and get to the bargaining table.”
Kushner said she wants a fast ruling so that “thousands of graduate employees across the country will have this opportunity” to collectively bargain for the first time since the board under President George W. Bush took away those rights.
At the same time, the UAW's local affiliate at the New School has made it clear to the private college's administration that the union would still welcome a voluntary recognition agreement and neutral representation election administered outside of the NLRB, Kushner said. This was the union's original request last December.
While an agreement of this type would prevent the board from addressing Brown, the regional director said her priority is to begin bargaining promptly.
Asked whether the New School is now mulling the recognition request, a university representative declined further comment.
Granting a request for review Oct. 21 was consistent with other recent cases in which the board expressed an interest in modifying the Brown precedent.
In a case involving Northwestern University football players, the board last year invited the filing of amicus briefs on whether it should “adhere to, modify, or overrule” or even apply Brown University.
Ultimately, the board expressed no opinion on Brown when it unanimously blocked the scholarship athletes from organizing in August, setting the stage to address Brown in a more applicable case like New School.
The board also considered a potential Brown reversal when it asked for amicus briefs in 2012 regarding a petition for graduate assistants at New York University. But before the board could issue a ruling, the NYU administration opted to voluntarily recognize a UAW affiliate, agreeing to a representation election that bypassed the NLRB. In exchange, the UAW withdrew its representation petition, leaving unions and their attorneys in search of a new case to overrule Brown.
As a consequence of NYU's neutrality pact with the UAW, graduate assistants voted overwhelmingly in favor of union representation and to ratify a collective bargaining agreement in April. Today, NYU remains the only private institution in the nation whose graduate assistants have exclusive representation and a labor contract.
The potential for a Brown reversal involves yet another Manhattan private school, Columbia University, where the UAW said last year it has collected signed authorization cards from 1,700 of 2,800 research assistants and teaching assistants.
Once the NLRB regional director responds to the UAW petition—presumably in a similar manner to her New School ruling—and the union appeals her dismissal to the board in Washington, the board would have a procedural decision.
The board could select a single lead case among the neighboring universities in which to address Brown and invite amicus briefs. Or, as Kushner suggested, the board could consolidate the two cases and issue one ruling.
Thomas Meiklejohn, an attorney for the UAW in both cases, has previously told Bloomberg BNA he is “very confident that the NLRB will overrule Brown, since the decision is truly lacking in any legal or factual basis.”
The New School is represented by attorneys with Norton Rose Fulbright US LLP.
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Text of the NLRB order granting review is available at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_The_New_School_Unpublished_2015_BL_346075.
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