The National Labor Relations Board (NLRB) continues on its journey to try to take over the world. On January 13, 2016, the Board issued a Notice and Invitation to File Briefs in Columbia University, a case that involves Graduate Workers of Columbia-GWU, UAW (the Petitioner), who seeks to represent a unit of students who assist faculty with teaching, research, and other miscellaneous duties.
Specifically, the Board asked the parties and amici to address, among other issues, whether the Board should modify or overrule its 2004 decision in Brown University, in which it held that graduate student assistants who perform teaching services at a university in connection with their studies are not statutory employees within the meaning of Section 2(3) of the National Labor Relations Act (Act). Specifically, the Board found the teaching activities are so closely related to the students’ degree requirements that the students and the University are engaged in more of an educational relationship, rather than an economic one. That meant the Act did not cover those graduate student assistants, and they could not unionize. Notably, Brown University was a reversal of the NLRB’s position in its 2000 New York University case, in which it had held that graduate assistants are employees. (Also worth noting, New York University was decided by in a Democratic administration, and Brown University in a Republican one).
The Petitioner argues that an election should be directed because Brown University was wrongly decided and should be overturned. Columbia University argues that the petition should be dismissed because the students holding positions included in the petitioned-for unit are not employees under the current law in Brown University.
The Board’s invitation to file briefs in Columbia University should come as no surprise to many, especially at a time when the Board continues to expand its jurisdictional reach. It was but four months ago that the Board altered 30-years of established precedent, in Browning-Ferris, when it found that that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law; and (2) they share or co-determine those matters governing the essential terms and conditions of employment. The Board’s invitation to file briefs in Columbia University is a strong indication that it is seeking to overturn Brown University. We can be sure to expect additional NLRB overreach in the coming year(s)!