Should Brown be Reversed?

By Jon Stockman

On campuses across America, graduate students not only take classes, they also serve as teaching and research assistants.  At many schools, graduate students are required to take on such responsibilities in order to receive their doctorates.[1] While graduate assistants at many public universities are deemed employees under section 2(3) of the National Labor Relations Act (“NLRA”), and thus have to ability to unionize,[2] the National Labor Relations Board (“NLRB”) is still considering whether graduate assistants at private schools are covered by this provision.[3]

Until 2000, the NLRB held that graduate assistants were not statutory employees within the scope of section 2(3),[4] which provides that “[t]he term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise.”[5] In 2000, the NLRB in New York University (“NYU”)[6] ruled that a group of New York University graduate assistants who wanted to unionize fell within that definition because their relationship with New York University was virtually identical to the “traditional master-servant relationship.”[7] Further, the majority ruled that although graduate assistants are students, they are also statutory employees under a plain reading of section 2(3), because students are not among the groups of workers exempt from that section.[8]

Some four years later, the NLRB—which had become more conservative—overturned NYU. [9] In the Brown University[10] case, the Board ruled that graduate assistants at Brown were not employees of the university under the NLRA because of “the status of graduate student assistants as students, the role of graduate student assistantships in graduate education, the graduate student assistants’ relationship with the faculty, and the financial support they receive to attend Brown.”[11] One of the primary concerns underlying this decision was that collective bargaining would intrude upon academic freedom.[12] Specifically, the Board feared that allowing graduate assistants to unionize would have “a deleterious impact” on “broad academic issues involving class size, time, length, and location” and impinge upon “decisions over who, what, and where to teach or research.”[13]

Although Brown University still stands, the NLRB’s recent decision in NYU & GSOC/UAW[14] provides reason to believe that the case may be overturned.[15] The NYU & GSOC/UAW case once again involved graduate assistants seeking to compel New York University to recognize its union,[16] a union with which New York University negotiated after the 2000 NYU decision.[17] Unfortunately for the graduate assistants, the union’s contract with the university expired in 2004, the same year that Brown was decided.[18] Thus, New York University opted not to renegotiate with the union.[19] Relying on Brown, the NLRB’s Regional Director held that the students were not entitled to a hearing.[20] On October 25, 2010, the Board reversed the Regional Director’s dismissal of the students’ petition.[21] The majority, consisting of two Obama appointees, Members Becker and Pearce,[22] did not expressly overturn the Brown decision, but did proclaim that “there are compelling reasons for reconsideration of [it].”[23]

The NLRB’s decision in NYU & GSOC/UAW is a step in the right direction, and is hopefully a sign that Brown will be overturned in the near future.  As the Brown decision was based primarily on speculative policy considerations, not the plain language of section 2(3), reversal is required.[24] As noted by the dissent in Brown, “[n]othing in [s]ection 2(3) excludes statutory employees from the Act’s protections, on the basis that the employment relationship is not their ‘primary’ relationship with their employer.”[25] As for the Brown majority’s concern that allowing graduate assistants to unionize will disrupt academic freedom, the research conducted on graduate student unions at public universities has not produced such a finding.[26] Considering that graduate assistants fulfill the “literal statutory definition of ‘employees’” in section (2)(3)[27] and that there is no definitive evidence that collective bargaining will have a negative impact on academic freedom,[28] there is no reason to deny graduate assistants the ability to unionize.

[1] See Brown U., 342 N.L.R.B. 483, 485 (2004).

[2]Scott Jaschik, Return of Grad Union Movement, Inside Higher Ed (Jan. 28, 2009)

[3] See NYU & GSOC/UAW, 356 N.L.R.B. No. 7, slip op. at 1 (Oct. 25, 2010).

[4] See Brown, 342 N.L.R.B. at 483.

[5] National Labor Relations Act, 29 U.S.C. § 152(3) (2006).

[6] 332 N.L.R.B. 1205 (2000).

[7] See New York U., 332 N.L.R.B. 1205, 1206 (2000).

[8] See id.

[9] See International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, NYU Teaching and Research Assistants Applaud Labor Board Ruling for Hearing on Workplace Rights, UAW (Oct. 28, 2010),

[10] 342 N.L.R.B. 483 (2004).

[11] Id. at 489.

[12] Id. at 490.

[13] Id.

[14] 356 N.L.R.B. No. 7 (Oct. 25, 2010).

[15] See NYU, 356 N.L.R.B. No. 7, slip op. at 2 (finding that there are “compelling reasons” to reconsider Brown).

[16] See NYU, 356 N.L.R.B. No. 7, slip op. at 1.

[17] See James Parks, NYU Graduate Workers Demand Right to Bargain, AFL-CIO Now Blog (Apr. 27, 2010),

[18] See id.

[19] Id.

[20] NYU, 356 N.L.R.B. No. 7, slip op. at 1.

[21] Id. at 2.

[22] Seth Michaels, Maxwell, New NLRB Appointments: Change We Can Believe In, AFL-CIO Now Blog (Apr. 27, 2009),

[23] Id.

[24] See Brown U., 342 N.L.R.B. 483, 497 (2004) (Members Liebman & Walsh, dissenting).

[25] Id. at 496.

[26] See Josh Rinschler, Students or Employees? The Struggle Over Graduate Student Unions in America’s Private Colleges and Universities, 36 J.C. & U.L. 615, 640 (2010) (“It does not appear that public colleges and universities with graduate student unions had to greatly reduce the number of teaching and research assistants in the wake of unionization. The fears of colleges and universities that graduate student unions would attempt to bargain over class sizes and teaching methods have proved largely unfounded as well.”).

[27] See Brown, 342 N.L.R.B. at 496 (Members Liebman & Walsh, dissenting).

[28] See supra text accompanying notes 23-24.

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