NLRB Decision Granting Collective Bargaining Rights
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NOTICE: This opinion is subject to formal revision before publication in the positions of the parties and the amici,3 the reasoning of bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any the Brown University Board, and the views of our dis- typographical or other formal errors so that corrections can be included in the senting colleague, who endorses Brown University (as bound volumes. well as advancing arguments of his own). For the reasons that follow, we have decided to over- The Trustees of Columbia University in the City of rule Brown University, a sharply-divided decision, which New York and Graduate Workers of Columbia– itself overruled an earlier decision, New York University, GWC, UAW. Case 02–RC–143012 332 NLRB 1205 (2000) (NYU). We revisit the Brown August 23, 2016 University decision not only because, in our view, the DECISION ON REVIEW AND ORDER Board erred as to a matter of statutory interpretation, but BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA, also because of the nature and consequences of that error. HIROZAWA, AND MCFERRAN The Brown University Board failed to acknowledge that the Act does not speak directly to the issue posed here, The threshold question before us is whether students which calls on the Board to interpret the language of the who perform services at a university in connection with statute in light of its policies. The Brown University their studies are statutory employees within the meaning Board’s decision, in turn, deprived an entire category of of Section 2(3) of the National Labor Relations Act. workers of the protections of the Act, without a convinc- Here, after a hearing directed by the Board, the Regional ing justification in either the statutory language or the Director applied Brown University, 342 NLRB 483 policies of the Act. (2004), where the Board found that graduate student as- As we will explain, our starting point in determining sistants were not employees within the meaning of Sec- whether student assistants are covered by the Act is the tion 2(3), and dismissed a petition filed by the Graduate broad language of Section 2(3), which provides in rele- Workers of Columbia-GWC, UAW, which seeks to rep- vant part that “[t]he term ‘employee’ shall include any resent both graduate and undergraduate teaching assis- tants, as well as graduate research assistants.1 The Board employee,” subject to certain exceptions—none of 4 granted review in this case on December 23, 2015, and which address students employed by their universities. then issued a notice and invitation to file briefs, identify- The Brown University Board held that graduate assistants ing the primary issue presented, as well as subsidiary cannot be statutory employees because they “are primari- issues that would follow if Brown University were over- ly students and have a primarily educational, not eco- 5 ruled.2 We have carefully considered the record, the nomic, relationship with their university.” We disagree. The Board has the statutory authority to treat student assistants as statutory employees, where they perform 1 The petition defined the bargaining unit sought as follows: work, at the direction of the university, for which they Included: All student employees who provide instructional services, including graduate and undergraduate Teaching Assistants (Teaching Assistants, Teaching Fellows, Preceptors, Course Assistants, Readers 3. If the Board concludes that graduate student assistants, terminal and Graders): All Graduate Research Assistants (including those masters degree students and undergraduate students are statutory em- compensated through Training Grants) and All Departmental Re- ployees, would a unit composed of all these classifications be appro- search Assistants employed by the Employer at all of its facilities, in- priate? cluding Morningside Heights, Health Sciences, Lamont-Doherty and 4. If the Board concludes that graduate student assistants, terminal Nevis facilities. masters degree students and undergraduate students are statutory em- Excluded: All other employees, guards and supervisors as defined in ployees, what standard should the Board apply to determine whether the Act. they constitute temporary employees? 2 On January 16, 2016, the Board invited the parties and interested 3 Briefs were filed in support of the Petitioner by: American Asso- amici to file briefs addressing the following four issues: ciation of University Professors (AAUP); American Federation of 1. Should the Board modify or overrule Brown University, 342 Labor and Congress of Industrial Organizations (AFL-CIO); American NLRB 483 (2004), which held that graduate student assistants who Federation of Teachers (AFT); Ellen Dannin, Attorney; The General perform services at a university in connection with their studies are not Counsel of the NLRB; Individual Academic Professors of Social Sci- statutory employees within the meaning of Section 2(3) of the Nation- ence and Labor Studies (IAP); National Association of Graduate- al Labor Relations Act? Professional Students (NAGPS); Service Employees International Union and Committee of Interns and Resident, SEIU Healthcare 2. If the Board modifies or overrules Brown University, supra, what (SEIU-CIR); and United Steelworkers (USW). Filing in support of should be the standard for determining whether graduate student assis- Columbia were: American Council on Education (ACE), et al.; Brown tants engaged in research are statutory employees, including graduate University et al.; Higher Education Council of the Employment Law student assistants engaged in research funded by external grants? See Alliance (HEC); and National Right to Work Legal Defense and Educa- New York University, 332 NLRB 1205, 1209 fn. 10 (2000) (relying on tion Foundation (NRW). Leland Stanford Junior University, 214 NLRB 621 (1974)). 4 29 U.S.C. §152(3). 5 Brown University, 342 NLRB at 487. 364 NLRB No. 90 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD are compensated. Statutory coverage is permitted by I. OVERVIEW OF PRECEDENT virtue of an employment relationship; it is not foreclosed A. Board precedent prior to Brown University by the existence of some other, additional relationship The Board has exercised jurisdiction over private, that the Act does not reach. nonprofit universities for more than 45 years.9 During The unequivocal policy of the Act, in turn, is to “en- that time, the Board has permitted collective bargaining courag[e] the practice and procedure of collective bar- by faculty members at private universities and has had gaining” and to “protect[ ] the exercise by workers of full frequent occasion to apply the Act in the university set- freedom of association, self-organization, and designa- ting.10 The Board first considered the status of graduate tion of representatives of their own choosing.”6 Given student assistants in Adelphi University, 195 NLRB 639 this policy, coupled with the very broad statutory defini- (1972). There, the Board held that graduate assistants tions of both “employee” and “employer,” it is appropri- should be excluded from a bargaining unit of university ate to extend statutory coverage to students working for faculty members because they did not share a community universities covered by the Act unless there are strong of interest with the faculty. However, the Adelphi Board reasons not to do so.7 We are not persuaded by the did not address whether the student assistants were statu- Brown University Board’s self-described “fundamental tory employees. Two years later, the Board held that belief that the imposition [sic] of collective bargaining on certain university research assistants were “primarily graduate students would improperly intrude into the edu- students” and thus not statutory employees, observing cational process and would be inconsistent with the pur- that the relationship between the research assistants and poses and policies of the Act.”8 This “fundamental be- the university was “not grounded on the performance of lief” is unsupported by legal authority, by empirical evi- a given task where both the task and the time of its per- dence, or by the Board’s actual experience. formance is designated and controlled by an employer.” Thus, we hold today that student assistants who have a The Leland Stanford Junior University, 214 NLRB 621, common-law employment relationship with their univer- 623 (1974). For similar reasons, the Board dismissed sity are statutory employees under the Act. We will ap- representation petitions for house staff at teaching hospi- ply that standard to student assistants, including assis- tals in Cedars-Sinai Medical Center, 223 NLRB 251 tants engaged in research funded by external grants. Ap- (1976) and St. Clare’s Hospital, 229 NLRB 1000 plying the new standard to the facts here, consistent with (1977).11 the Board’s established approach in representation cases, In Boston Medical Center, 330 NLRB 152 (1999), the we conclude (1) that all of the petitioned-for student- Board overruled Cedars-Sinai and St. Clare’s Hospital assistant classifications consist of statutory employees; and held that interns, residents, and clinical fellows (2) that the petitioned-for bargaining unit (comprising (house staff) at a teaching hospital were statutory em- graduate students, terminal Master’s degree students, and ployees entitled to engage in collective bargaining with undergraduate students) is an appropriate unit; and (3) the hospital over the terms and conditions of their em- that none of the petitioned-for classifications consists of ployment. In so holding, the Board emphasized the temporary employees who may not be included in the broad scope of Section 2(3) and noted the absence of any unit. Accordingly, we reverse the decision of the Re- statutory exclusion for students or house staff. And, con- gional Director and remand the proceedings to the Re- trary to St. Clare’s Hospital, in Boston Medical Center gional Director for further appropriate action. the Board found that the policies of the Act would be 6 advanced by extending full statutory protection to house 29 U.S.C.