Last week, the National Labor Relations Board (the “Board”) voted 3-1 to reconsider its decision in Brown University, 342 NLRB 483 (2004) that graduate teaching and research assistants are not employees under the National Labor Relations Act (the “Act”) and, therefore, not entitled to collective bargaining rights.  Many predict that the current Board will reverse Brown, opening up the door to graduate student unionization among private non-profit institutions.

The opportunity for Board review of the Brown decision first arose back in 2011 when New York University graduate students appealed the denial of their petition for unionization.  Ultimately, the NYU case never saw the light of day, as the parties settled the dispute.  But, in December 2014, the United Auto Workers filed a representation petition seeking to unionize graduate teaching assistants at the New School in New York City.  The regional director dismissed the petition, again citing Brown.  And, so the Board had another hook to revisit whether graduate student TAs and RAs are truly students, or whether they are more akin to employees. On October 21, the Board issued its decision to reconsiderBrown in The New School, Case No. 02-RC-143009.

We anticipate substantial briefs on both sides of the issue.  Academic labor will point out the growing trend toward higher utilization of graduate students to perform universities’ teaching obligations and the need for such individuals to have the right to negotiate over wages and other terms and conditions of employment.  Higher education management, for their part, will likely cite concerns over unionization’s potential interference with academic freedom.

If this goes to decision and Brown is ultimately reversed, private non-profit universities should anticipate an overall dramatic increase in graduate student organizing, and, should be prepared for the fast track in light of the Board’s recently revised election rules.

We will continue to monitor the New School matter for further developments.