Hofstra Labor and Employment Law Journal Volume 14 | Issue 2 Article 4 1997 Confusion at the National Labor Relations Board: The iM sapplication of Board Precedent to Resolve the Yale University Grade-Strike Stephen L. Ukeiley Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlelj Part of the Law Commons Recommended Citation Ukeiley, Stephen L. (1997) "Confusion at the National Labor Relations Board: The iM sapplication of Board Precedent to Resolve the Yale University Grade-Strike," Hofstra Labor and Employment Law Journal: Vol. 14: Iss. 2, Article 4. Available at: http://scholarlycommons.law.hofstra.edu/hlelj/vol14/iss2/4 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Labor and Employment Law Journal by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Ukeiley: Confusion at the National Labor Relations Board: The Misapplicati CONFUSION AT THE NATIONAL LABOR RELATIONS BOARD: THE MISAPPLICATION OF BOARD PRECEDENT TO RESOLVE THE YALE UNIVERSITY GRADE-STRIKE Stephen L. Ukeiley* [T]here is a pathetic irony in what my colleagues do today. The onset of organization of housestaff officers is among us. Fewer cases may come to this Agency, but as many will come to training hospitals. The one group so singularly involved in the [1974] con- gressional issues, both in terms of its immediate relationship with the delivery of medical services and in terms of its recognitional interests, is, today, by fiat, read out of the [National Labor Rela- tions] Act. This decision is not grounded in the statute, the law, or reason. Board Member Fanning' CONTENTS I. INTRODUCION ....................................... 529 II. THE FACTs-Tim YALE CoNTRovERsY .............. 531 A. The Proposed GESO Bargaining Unit ............ 534 B. Yales Position-GraduateStudents Are Apprentices ....................................... 536 * J.D. 1996, Hofstra University School of Law; B.A. 1993, Rutgers University. The author is the law clerk to the Honorable E. Thomas Boyle, United States Magistrate Judge for the Eastern District of New York. The views expressed herein are the result of independent research and are not related to any case or motion, pending or otherwise, before Magistrate Judge Boyle. Mr. Ukeiley wishes to thank Dorothy, Richard, Scott and Sara Trueblood Ukeiley for their love, support and encouragement. He is also grateful to his friends and colleagues, especially Michael Rosenthal, Richard Bock, Michael Cardello 111, Steven Enis, Melissa Heilig, Nicole Goldstein, Steven Locke and Beth Pendzick. Finally, special thanks to Jonathan Levine and Richard Keenan who have offered extraordinary support with their comments and insight regarding earlier drafts. 1. Cedars-Sinai Med. Ctr., 223 N.L.R.B. 251,259 (1976) (Member Fanning, dissenting). Published by Scholarly Commons at Hofstra Law, 1997 1 Hofstra Labor and Employment Law Journal, Vol. 14, Iss. 2 [1997], Art. 4 Hofitra Labor Law Journal [Vol. 14:527 C. The 1996 Yale Grade-Strike ....................... 537 1. Three Forms of Discipline Threatened ........ 537 a. Negative Letters of Recommendation .... 537 b. Relieved of Upcoming Teaching Duties .. 538 c. Isolating GESO Officers .................. 538 D. The General Counsel's Advice Memorandum ..... 541 III. THE TRIFECTA DECISIONS REVISITED ................ 545 A. Leland Stanford Junior University ................ 545 B. Cedars-Sinai Medical Center ...................... 547 1. The Housestaff ............................... 547 2. The Housestaff Are Not Employees Under the A ct ....................................... 548 3. Member Fanning's Dissent .................... 549 a. Medical Services in Exchange for Compensation ............................ 550 b. Student and Employee Are Not "Mutually Exclusive" Categories ......... 551 c. Federal Labor Policy Does Not Exclude Students from the NLRA-Macke Co. I1..................................... 552 C. St. Clare's Hospital & Health Center-Four Categories of Student-Employees .................. 553 1. Category 1-Commercial Employer in Areas Unrelated to the Students' Academic Curriculum ................................... 555 2. Category 2-Academic Institution Employs Students in Areas Unrelated to Their Course of Study ...................................... 555 3. Category 3-Commercial Employer in Areas Related to the Students' Academic Curriculum ................................... 558 4. Category 4-Academic Institution Employs Students in Areas Related to Their Course of Study ......................................... 558 IV. THE NLRB's MISAPPLICATION OF THE TRIFECTA DEcISIoNS ............................................ 560 V. ScHoLARSInP ATHLETES AND ThE NATIONAL LABOR RELATIONS Acr ...................................... 563 A. Scholarship Athletes Are Not "Primarily Students".......................................... 564 http://scholarlycommons.law.hofstra.edu/hlelj/vol14/iss2/4 2 1997] Ukeiley:Confusion Confusion at the Nationalat the National Labor Relations Labor Relations Board Board: The Misapplicati 1. The NCAA Is a Business ..................... 565 2. Financial Considerations Lead to Corruption and NCAA Rules Violations ................. 570 3. Alarmingly Low Graduation Rates ........... 573 B. Athletic Scholarship Is Sufficient Compensation... 575 C. Transitory Nature of Employment Does Not Preclude Bargaining .............................. 577 VI. CONCLUSION .......................................... 579 I. INTRODUCTION For the past twenty years, the National Labor Relations Board ("NLRB," "the Board" or "the Labor Board") has precluded stu- dents employed by their universities in areas related and unrelated to their courses of study from employee status under the National Labor Relations Act2 ("NLRA" or "the Act"). The rationale for this exclusionary policy is that the petitioners are either "primarily students" or that their employment is "merely incidental" to the 3 students' academic pursuits and career aspirations. It appears, however, following two decades of public debate and internal Board conflict that this federal labor policy is on the verge of becoming obsolete due to the efforts of the nearly 1100 graduate teaching assistants and part-time acting instructors at Yale Univer- sity.4 On November 18, 1996, NLRB General Counsel Fred Fein- stein issued an Advice Memorandum wherein he ruled that the 2. National Labor Relations Act, ch. 372, 49 Stat. 449 (1935) (current version at 29 U.S.C. §§ 151-169 (1994)). The NLRA defines "employee" as follows: The term "employee" shall include any employee . unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, [45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined. Id. § 152(3). 3. See generally St. Clare's Hosp. & Health Ctr., 229 N.L.R.B. 1000 (1977); Cedars- Sinai Med. Ctr., 223 N.L.R.B. 251 (1976); Leland Stanford Junior Univ., 214 N.L.R.B. 621 (1974). 4. See Despite Threat Yale Won't Settle Labor Case, BosToN GLOBE, Nov. 20, 1996, at B7. Published by Scholarly Commons at Hofstra Law, 1997 3 Hofstra Labor and Employment Law Journal, Vol. 14, Iss. 2 [1997], Art. 4 Hofstra Labor Law Journal [Vol. 14:527 Board will file an unfair labor practice complaint against Yale Uni- versity if the Ivy League institution refused to negotiate in good faith on the mandatory subjects of collective bargaining' with repre- sentatives of these graduate students. 6 The General Counsel based his ruling on three prior Labor Board decisions-Leland Stanford Junior University,7 Cedars-Sinai Medical Center8 and St. Clare's Hospital & Health Center9 (collectively "the Trifecta decisions"). 10 This article examines (1) the Yale decision and (2) whether Divi- sion I-A scholarship athletes should similarly be viewed as employ- ees under the Act. Part II details the Yale controversy and the events leading up to the 1996 Yale grade-strike. In Parts III and IV, the author revisits the Trifecta decisions placing particular emphasis on Member Fanning's dissent in Cedars-Sinai Medical Center." Within these sections, the author further examines the NLRB's mis- application of the Trifecta decisions and identifies the appropriate standard upon which the General Counsel should have based his decision. Part V distinguishes Division I-A scholarship athletes12 and their working relationship with the National Collegiate Athletic Associa- tion' 3 ("NCAA") and its member universities from those of the 5. See PRIMR OF LAiBOR RELATIONS 59-62 (John J. Kenny & Linda G. Kahn eds., 24th ed. 1989). The mandatory subjects of collective bargaining include wages, hours, and working conditions. See id. at 59. Section 8(d) of the NLRA defines the duty to bargain in good faith as requiring representatives of the employer and the union