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Amicus Brief Supports Collective Bargaining Rights for Graduate Students

By Aaron M. Nisenson

The AAUP filed an amicus brief with the National Labor Relations Board (NLRB) in July arguing that graduate assistants at private institutions should be considered employees with collective bargaining rights.

The brief was filed in the case Northwestern University and College Athletes Players Association, which 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, and therefore did not have statutory rights to choose whether to be represented by a union. The board had to determine whether players were “employees” as defined by the act. 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. A regional director of the NLRB found that under this common law test, the football players were employees under the act.

The board invited amicus briefs in the case to address several important issues, including whether the board should modify or overrule
its 2004 decision in Brown University, 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 to graduate assistants in Brown, but did
 not take a position as to whether the unionization of college football players was appropriate. The AAUP had previously filed amicus briefs before the board arguing that graduate assistants should be granted collective bargaining rights.

In its amicus brief, the AAUP took particular issue with an argument, advanced by opponents of graduate-employee unionization, that academic freedom concerns justify depriving graduate assistants of the right to unionize.

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