By: Diana M. Cannino
Graduate teaching and research assistants were first recognized as covered “employees” under the National Labor Relations Act (“NLRA”) in the 2000 National Labor Relations Board (“NLRB”) decision New York University. In New York University, the NLRB relied on its decision in Boston Medical Center which held that interns and residents are covered “employees” under the NLRA. The NLRB based their decision in New York University on the fact that “students” are not excluded under the broad definition of “employee” in NLRA Sec. 2(3). “Applying these principles, the [NLRB] reached the same conclusion with regard to graduate assistants, stating that graduate assistants are under the ‘control and dominion’ of the University with regards to the work they perform.”
However, in 2004, the NLRB overturned New York University with its ruling in Brown University, asserting that graduate and teaching assistants are not considered employees under the Act. In Brown, the NLRB determined that the graduate and teaching assistants were rendering services as a direct part of their educational program and therefore that their relationship was primarily one of a student, not an employee. In addition, they determined that the student-teacher relationship was different than the employee-employer relationship and collective bargaining would impede the education process.
In April 2010, graduate assistants began their efforts to unionize again in what could be referred to as “NYU II.” The United Auto Workers union is working with graduate assistants at NYU in an effort to give them the legal ability to unionize because NYU refuses to recognize a graduate assistant union voluntarily. According to the October 25, 2010, decision by the NLRB granting the hearing with the Regional Director, NYU claims to have changed their relationship with graduate assistants and now treat them as adjunct faculty. As such, NYU claims that the graduate assistants are already part of an existing bargaining unit. NYU also notes that graduate assistants not considered adjunct faculty are employed at NYU on outside grants and are therefore outside of the scope of the both the Brown and New York University decisions.
Conversely, the Graduate Student Organizing Committee (“GSOC/UAW”) argues that the decision in Brown was based on “policy considerations extrinsic to labor laws” and was therefore not properly considered or decided. In addition, the GSOC contends that graduate assistants are appropriately classified as employees under the Act and that Brown is inconsistent with the broad definition of “employee” set forth by both the NLRB and the Supreme Court.
Based on these arguments, the NLRB granted the hearing before the Regional Director. In June 2011, Regional Director Tellum gave his decision which rejected the request of the graduate assistants to unionize based on the Brown decision. However, Mr. Tellum asserted that a graduate assistant bargaining unit would be appropriate in the event that Brown was reversed and that he is unsure of the effectiveness of graduate assistants bargaining with an adjunct faculty unit as their interests are considerably different. As of August 26, 2011 the National Right to Work Legal Defense and Education Foundation’s Motion to File an Amicus Curiae Brief was granted by the NLRB, and the motion has been transmitted to the Board for its consideration. With this issue coming before the Board again, many feel that the change in the NLRB make-up will prove to create the desired change in the status of graduate assistants as understood under the Act.
 The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence or, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual heaving the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined. National Labor Relations Act, 29 U.S.C. §§ 151-169 at §152(3) (1959).
 New York University, 332 NLRB 1205 (2000).
 Id. at 1206 citing Boston Medical Center, 330 NLRB 152 (1999).
 New York University, 332 NLRB at 1206 (2000).
 Brown University, 342 NLRB 483 (2004).
 Id. at 489.
 Id. at 490.
 Stephen Greenhouse, NYU Teaching Assistants’ Unionization Hopes Get a Boost, CITY ROOM (June 20, 2011, 12:49PM), http://cityroom.blogs.nytimes.com/2011/06/20/n-y-u-teaching-assistants-unionization-hopes-get-a-boost/.
 David Alim-Young, Setting the Stage for Reversing Brown University, NLRB INSIGHT, February 8, 2011, available at http://www.nlrbinsight.com/2011/02/setting-the-stage-for-reversing-brown-university/.
 New York University, 356 NLRB No. 7, at 1 (2010).
 Id. at 2.
 Peter Schmidt, NLRB Official’s Ruling Bolsters Drive to Unionize NYU Teaching Assistants, THE CHRONICLE OF HIGHER EDUCATION, June 20, 2011, available at http://chronicle.com/article/NLRB-Officials-Ruling/127958/.
 Greenhouse, supra note 10.
 Greenhouse, supra note 10.