The National Labor Relations Board has announced that it will review its 2004 opinion that barred graduate assistants at private universities from unionizing under the rationale that such students were not “employees” under the National Labor Relations Act.

In the 2004 case, Brown University, the Board held that the graduate assistants “perform services at a university in connection with their studies, [and] have [a] predominantly academic, rather than economic, relationship with their school” and, therefore, cannot unionize.

Now, in New York University (a case concerning the status of graduate teaching assistants) and Polytechnic Institute of New York University (a case concerning graduate research assistants), the NLRB has agreed to decide whether Brown University should be reversed. It has also invited the parties and any amici to submit briefs by July 23, 2012 on the issue of the continuing validity of Brown University and, if it is overturned, how the NLRB should treat graduate assistants for unionization purposes.

NLRB Member Brian E. Hayes filed the lone dissent in New York University, arguing that the Board’s action, if it leads to a reversal, “would tend to undermine both the predictability inherent in the rule of law as well as the Board’s credibility. It would also impermissibly distort both labor relations and student relations stability in the higher education industry.” 

These decisions continue the Board’s recent trend of revisiting Bush-era Board decisions and replacing them with potentially significant pro-union case law.