Northwestern University and College Athletes Players Association (CAPA), Case No. 13-RC-121359

The AAUP filed an amicus brief with the National Labor Relations Board arguing that graduate assistants at private sector institutions should be considered employees with collective bargaining rights. The board invited amicus briefs in the Northwestern University football players’ case to address several important issues, including whether the board should modify or overrule its 2004 decision in Brown University, 342 NLRB 483 (2004), which found that graduate assistants were not employees and therefore did not have statutory rights to unionize. In its amicus brief, the AAUP argued that the board should overrule the test of employee status applied in Brown to graduate assistants, but did not take a position as to whether the unionization of college football players was appropriate.

This case arose when football players at Northwestern University sought to unionize. The university argued that the football players were not “employees” under the National Labor Relations Act (NLRA), and therefore did not have statutory rights to choose whether to be represented by a union. The Regional Director for the Board had to determine whether players were “employees” as defined by the NLRA. The board normally applies the common law definition under which a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment, is an employee. The regional director found that under this common law test, the football players were employees under the NLRA.

However, the university also argued that the football players were not employees under the board’s decision in Brown, in which the Board found that graduate assistants were not employees and therefore had no statutory right to unionize. The regional director responded that Brown was inapplicable “because the players’ football-related duties are unrelated to their academic studies, unlike the graduate assistants whose teaching and research duties were inextricably related to their graduate degree requirements.” Regional Director Decision at 18 citing Brown University, 342 NLRB 483 (2004). The regional director further found that even applying the test articulated in Brown, the football players would be considered employees. Accordingly, the regional director held that the scholarship football players are “employees” and therefore have the right to choose whether to be represented by a union for the purposes of collective-bargaining.

The university appealed to the National Labor Relations Board, and on April 24, 2014, the board granted the University’s request for review. On May 12, 2014 the board issued a Notice and Invitation to File Briefs inviting amici parties to address one or more of six questions. One of the questions involved whether the Brown test, which impacts the bargaining rights of graduate assistants and other student-employees, should be modified or overruled: "Insofar as the board's decision in Brown University, 342 NLRB 483 (2004), may be applicable to this case, should the board adhere to, modify, or overrule the test of employee status applied in that case, and if so, on what basis?" Thus, while the Northwestern case involved football players, a board decision to modify or overrule Brown would significantly impact the rights of graduate assistants and other similar student-employees.

The AAUP had previously filed amicus briefs before the board arguing that graduate assistants should be granted collective bargaining rights. Since the issue was raised by the board in the Northwestern University case, the AAUP filed an amicus brief arguing that the general rule established in Brown, that deprived graduate assistants of collective bargaining rights, should be overruled. The brief explained:

The policy reasons cited by the Brown University majority do not justify implying a special “graduate student assistant” exception to the statutory definition of “employee.” Therefore, the board should overrule Brown University and return to its understanding that, where “the fulfillment of the duties of a graduate assistant requires performance of work, controlled by the employer, and in exchange for consideration,” “the graduate assistants are statutory employees, notwithstanding that they simultaneously are enrolled as students.” New York University, 332 NLRB 1205, 1207, 1209 (2000).

In its amicus brief, the AAUP took particular issue with the argument that academic freedom justified depriving graduate assistants of the right to unionize: 

At its core, the Brown University test of employee status is based on an erroneous understanding of the relationship between academic freedom and collective bargaining. . . . Indeed, interim developments provide further support for the notion that collective bargaining is compatible with academic freedom. These include the NYU administration’s decision to voluntarily recognize its graduate assistant union and a new research study that is the first to provide a cross-campus comparison of how faculty-student relationships and academic freedom fare at unionized and non-unionized campuses.

Therefore, the AAUP concluded that “the board should overrule the test of employee status applied in Brown University and return to its well-reasoned NYU decision, which found collective bargaining by graduate assistants compatible with academic freedom.”