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NLRB Invites Amicus Briefs to Determine Whether Grad Students Are Employees Under the NLRA

On January 13, the National Labor Relations Board (NLRB) invited the filing of briefs to address the underlying issues that are raised in Columbia University — namely, whether it should revisit its Brown University ruling which states that graduate students are not employees and therefore cannot unionize.

The NLRB invitation for amicus briefs comes roughly three weeks after the Board’s announcement that it had agreed to review the rejection of a bid by teaching and research assistants at Columbia University to be represented by the Graduate Workers of Columbia — the United Auto Workers-affiliated union seeking to represent the students. The regional director dismissed the petition based on the NLRB’s 2004 ruling in Brown, which held that a private university’s relationship with its graduate students was primarily educational and they were not employees under the National Labor Relations Act (NLRA) and therefore could not be unionized.

In the Board’s notice and invitation to file briefs, it poses a variety of specific questions for amici to respond to. The first of these is whether the Board should overrule its decision in Brown. The board then asks if it does modify or overrule Brown, “what should be the standard for determining whether graduate student assistants engaged in research are statutory employees, including graduate students engaged in research funded by external grants?” It also asks, “If the Board concludes that the graduate student assistants, terminal master’s degree students and undergraduate students are statutory employees, would a unit composed of all these classifications be appropriate?” The Board has also asked how it should determine whether or not the aforementioned groups of people are temporary employees.

The Board is actually already considering a case on the issue of whether graduate students are employees under the NLRA. On October 21, the NLRB agreed to review whether graduate students at The New School are considered employees and therefore eligible for union membership. On December 16, an amicus brief — technically, it accompanies a request for permission to file an amicus brief, since the NLRB did not invite submissions from amici in this matter — was filed on behalf of CUPA-HR and six other associations in the New School case. In this brief, we make clear that the Board should not overturn its decision in Brown and that graduate students should not be considered employees under the NLRA. Given that the NLRB has invited amicus briefs in the Columbia case, we expect the Board to release its decisions on Columbia and the New School at the same time.

The board has requested that all briefs be filed by February 29.

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