In June 2012, the National Labor Relations Board (NLRB) invited briefs from interested parties on the question of whether graduate student assistants may be statutory employees within the meaning of Section 2(3) of the National Labor Relations Act. The NLRB specifically invited parties to address whether the NLRB should modify or overrule its decision in Brown University, 342 NLRB 483 (2004), which held that graduate student assistants are not statutory employees because they “have a primarily educational, not economic, relationship with their university,” and whether, if the NLRB finds that graduate student assistants may be statutory employees, should the Board continue to find that graduate student assistants engaged in research funded by external grants are not statutory employees, in part because they do not perform a service for the university? See New York University, 332 NLRB 1205, 1209 fn. 10 (2000) (relying on Leland Stanford Junior University, 214 NLRB 621 (1974).
AAUP co-signed with the AFL-CIO, AFT, and NEA, on an amicus brief which was filed on July 23, 2012, and argues that the NLRB should overrule Brown University and return to its prior determination that graduate student assistants who “‘must perform work, controlled by the Employer, and in exchange for consideration’” are statutory employees, “‘notwithstanding that they are simultaneously enrolled as students.’” The brief also counters the argument raised in Brown that permitting graduate student assistants to collectively bargain will “be detrimental to the educational process,” pointing out that graduate student assistants at public universities have often engaged in collective bargaining without such detriment. In fact, the brief, argues, Section 8(d) of the National Labor Relations Act would “virtually certain[ly] … be construed to ‘limit bargaining subjects for … academic employees’ by ‘excluding, from collective bargaining, admission requirements for students, conditions for awarding degrees, and content and supervision of courses, curricula, and research programs.’” The NLRB, the brief admonishes, is charged with “encouraging the practice and procedure of collective bargaining” and protecting workers’ rights in organizing and negotiating the terms and conditions of their employment; it “has not been assigned the task of determining whether collective bargaining should be encouraged according to the agency’s views of sound educational policy.”
On the issue of whether the NLRB should continue to find that graduate student assistants engaged in research funded by external grants are not statutory employees, the brief distinguishes graduate students pursuing their own studies supported by external financial assistance from graduate students performing research duties to further a professor’s externally funded research. The former are not performing a “service to the University and thus [would] not [be] employees of the University.” The latter, however, are “no different from other university employees, such as the principal investigator, lab techs, and clericals, who are working on the same project,” and the source of funding used to pay their wages, “is not relative to, much less determinative of, employee status.” The brief also argues that there is no difference between graduate student assistants “assist[ing] on externally funded research projects of their university in return for compensation” from graduate student assistants “employed by a foundation” “established [by their university] to manage its research awards.”
Additional amicus briefs have been filed by Michael Hoerger, PhD, Senior Instructor, University of Rochester Medical Center; United Electrical, Radio and Machine Workers of America (UE) and UE Local 896/ Campaign to Organize Graduate Students (COGS); Adrienne Eaton, Department Chair and Professor of Labor Studies and Employment Relations at Rutgers University; James O’Kelly, law student at Rutgers School of Law-Newark; Higher Education Council of the Employment Law Alliance; Unite Here and Graduate Employees & Students Organization; American Council on Education, Association of American Medical Colleges, Association of American Universities, College and University Professional Association for Human Resources, and National Association of Independent Colleges and Universities; The National Right to Work Legal Defense Fund and Education Foundation, Inc.; Committee of Interns and Residents/SEIU Healthcare; and Brown University.