New NLRB Rulings on Graduate Assistants Narrows Earlier Brown University Decision
 
September 13, 2007
 
Guy Farmer - Jacksonville

In two recent decisions, the National Labor Relations Board (NLRB) ruled that graduate assistants at the State University of New York (SUNY) and at the City University of New York (CUNY) who are employed by foundations related to the schools are protected as “employees” under the National Labor Relations Act (NLRA). These decisions mean that graduate assistants are entitled to select a union as their representative. Research Foundation of State University of N.Y., 350 NLRB No. 18 (6/27/07) and Research Foundation of City University of New York, 350 NLRB No. 19 (6/29/07).

In its earlier decision in Brown Univ., 342 NLRB 483, 175 LRM 1098 (2004), the NLRB ruled that graduate assistants who were employed directly by Brown had a predominately academic rather than an employment relationship with the school and did not qualify as “employees” eligible to unionize under the NLRA.

In the two recent decisions, however, the NLRB ruled that at both SUNY and CUNY the graduate assistants were employed by foundations that were separate from the schools, and did not have students and did not offer degrees. Consequently, the NLRB distinguished the Brown decision and ruled that the graduate assistants were “employees” and could unionize.

The Determining Factor: Who Is the Employer?

In sum, the NLRB has now made it clear that while under Brown, graduate assistants who are employed directly by an academic institution are considered to have a primarily academic and not employment relationship with the school, the Board intends to narrowly interpret that exclusion. It will not apply that exclusion to graduate assistants who work for foundations, even though these foundations are closely affiliated with the universities. As a result, colleges and universities that want to avoid union organization of graduate assistants must directly employ them rather than having them be employed by a foundation or other organization, even though that organization is closely affiliated with the school.

For more information, email Guy Farmer at guy.farmer@hklaw.com or call toll free, 1-888-688-8500.