Whether graduate student assistants at private universities are “employees” covered by the National Labor Relations Act (NLRA) might soon be taken up (again) by the National Labor Relations Board (NLRB).

Since overruling New York University, 332 NLRB 1205 (2000)—which found that graduate students could be employees under the NLRA—with its decision in Brown University, 342 NLRB 483 (2004) and declaring “the Federal law to be that graduate student assistants are not employees within the meaning of Section 2(3) of the Act,” the NLRB has dismissed several representation petitions for graduate student assistants at private universities. However, the current NLRB may be poised to overrule Brown.

New York University

The NLRB’s most recent opportunity to overrule Brown was shot down in a November 2013 case that many viewed as having potential to set new and harmful precedent. New York University (NYU) settled the dispute after the NLRB sought briefs on the question of whether graduate student assistants who perform services for universities in connection with their studies were statutory employees within the meaning of Section 2(3) of the NLRA. The university averted the far-reaching consequences of a Board decision by agreed with the United Auto Workers Union (UAW), which had been trying to organize NYU’s graduate students, to allow the students to vote on collective bargaining and on unionizing teaching assistants at the private university. The graduate student assistants voted 620 to 10 to affiliate with the UAW, making them the only graduate student assistants’ union recognized by a private university in the United States.

Columbia University

Soon they may have company:  on December 23, 2015, the NLRB granted the Request for Review of the Graduate Workers of Columbia-GWC-UAW Local 2110 and Columbia University’s Conditional Request for Review of the Regional Director’s Supplemental Decision and Order Dismissing Petition. The Regional Director first dismissed the petition on February 6, 2015 after a finding that the union “sought an election among graduate students who are not employees within the meaning of Section 2(3) of the Act pursuant to the Board's decision in Brown, 342 NLRB 483 (2004).” The union requested review, and on March 13, 2015, the NLRB granted the union’s request for review. Member Miscimarra dissented in part.

The NLRB remanded for a hearing. After hearing testimony, on October 30, 2015, the Regional Director found that Graduate Workers of Columbia-GWC, UAW is a labor organization, but she dismissed the petition “because the Petitioner seeks to represent individuals employed in classifications which fall within the term, ‘graduate assistants,’” which Brown University held not to be “employees” under Section 2(3) of the NLRA.

The union petitioned for review of the dismissal, and Columbia University conditionally cross-petitioned, anticipating thatBrown may be overturned, to question whether a community of interest exists among doctoral, Masters, and undergraduate students and whether the Regional Director “erred by including in the bargaining unit students on training grants.”

The NLRB granted review of the case and also granted review of the Regional Director’s October 21, 2015 dismissal of a petition filed by student employees at the New School, SENS-UAW. The Board’s decisions to review casts doubt on the viability of Brown. However, the NLRB also granted review before declining to assert jurisdiction over certain football program student-athletes in Northwestern University, 362 NLRB No. 167 (2015).

If the NLRB reverses its decision in Brown, the reversal likely will come over a dissent by Member Miscimarra, and the nation's private colleges and universities can expect an increase in efforts by unions to represent teaching assistants and graduate student assistants until the federal courts have the final word.