While everyone knew it was only going to be a matter of time, two new challenges to have been raised to the NLRB’s graduate assistant decision in Brown University, 342 NLRB 483 (2004). On February 20, 2015, Graduate Workers of Columbia-GWC and Student Employees at The New School, both UAW affiliates, filed requests for review with the NLRB seeking the reversal of orders dismissing their petitions to represent graduate assistants and research assistants given Brown University. Columbia University, Case No. 02-RC-143012 (Feb. 6, 2015); The New School, Case No. 02-RC-143009 (Feb. 6, 2015).

In Brown University, the full NLRB overruled an earlier decision, New York University, 332 NLRB 1205 (2000), to determine that graduate assistants are students, not employees, and thus are not protected by the NLRA. The decision restored more than twenty-five years of prior precedent holding that graduate student assistants are primarily students and thus not statutory employees. The unions argue that under the common law definition of “employee” — any person who works for another in return for financial or other compensation — graduate assistants must be considered to be employees under the NLRA.

The current Board has been looking for cases in which to revisit Brown University. For example, in 2012 the Board granted review of UAW graduate student petitions involving New York University and the Polytechnic Institute of NYU, and solicited briefing from interested parties. In November 2013, before the Board could rule, however, the UAW and NYU reached an agreement to allow a vote, which the union won, and the petitions were withdrawn.

Technically, Columbia University and The New School are the second and third cases still pending before the Board in which Brown University is at issue. In Northwestern Univ., Case No. 13-RC-121359, the student athlete case, the Board invited briefing on whether Brown University was applicable to student athletes and whether it was still good law. Briefing has been completed, and a decision is pending.

Given it is possible that the Board could decide Northwestern without addressing the validity of Brown University as to graduate students, Columbia University and The New School provide the Board with the opportunity to revisit whether graduate assistant are employees covered by the NLRA. Whether the Board does so, and whether it invites yet another round of briefing from interested parties, remains to be seen. Stay tuned.