Report in which the committee requests to be kept informed of development - Report No 350, June 2008

Case No 2547 (United States of America) - Complaint date: 26-FEB-07 - Closed

Allegations: The complainants allege that a decision of the National Labor Relations Board (NLRB) denying graduate teaching and research assistants at private universities the right under the National Labor Relations Act to engage in organizing or collective bargaining is contrary to freedom of association principles

1. 732. The complaint is contained in a communication from the United Automobile, Aerospace and Agricultural Implement Workers of America International Union (UAW) as well as the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO), dated 26 February 2007.
2. 733. The Government replied in a communication dated 11 February 2008.
3. 734. The United States has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 735. In their complaint dated 26 February 2007, the UAW and the AFL–CIO allege that the US Government has violated freedom of association principles embodied in ILO Conventions Nos 87 and 98 by depriving graduate teaching and research assistants at private universities throughout the United States of their right to join unions and engage in collective bargaining. The complainants use the term “graduate teaching and research assistants”, “teaching and research assistants” and “graduate assistants” interchangeably to refer to graduate students who perform teaching, research and administrative functions for the university and who receive compensation in exchange for their services.
2. 736. The complainants explain that the National Labor Relations Act (NLRA or Act), 29 U.S.C.§141 et seq., governs private-sector labour relations in the US section 2(3) of the Act defines “[t]he term ‘employee’ … [to] include any employee … unless this subchapter explicitly states otherwise”. Id. §152(3). Employees covered by the Act “have the right to self-organization, to form, join or assist labour organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”.
3. 737. In 2004, the National Labor Relations Board (NLRB or Board) ruled, over the strong dissent of two of its five members, that graduate teaching and research assistants at private universities have no right under the NLRA to engage in organizing or collective bargaining because they do not come within the Act’s definition of “employee[s]” [Brown University and the UAW, 342 NLRB 483 (Brown)]. This decision overruled the Board’s earlier, unanimous decision in New York University (NYU) and the UAW (332 NLRB 1205 (2000) (NYU)) which held that graduate assistants are employees under the NLRA who have the statutory right to join unions and engage in collective bargaining.
4. 738. Pursuant to the Board’s decision in NYU, a majority of graduate assistants at NYU voted in favour of representation by the Graduate Student Organizing Committee (GSOC)/UAW local 2110 (GSOC/UAW), which negotiated a collective bargaining agreement on their behalf. As a result of the decision in Brown, NYU now refuses to negotiate or deal in any other way with GSOC/UAW. Moreover, graduate teaching and research assistants at private universities throughout the United States have lost their statutory rights under the NLRA to form unions and engage in collective bargaining.
5. 739. According to the complainants, the NLRB’s decision in Brown stands in flagrant violation of the fundamental rights of freedom of association and collective bargaining embodied in Conventions Nos 87 and 98.
   • I. Reliance on teaching assistants at American universities
6. 740. According to the complainants, graduate teaching and research assistants formed their first unions in the US in 1969 at the University of Wisconsin. By 2003, graduate students at more than 60 public and private colleges and universities had chosen union representation. “Economic realities” in the intervening decades have made universities increasingly dependent on graduate assistants to perform core teaching and research functions and have “driven” graduate students’ unionization efforts.
7. 741. Citing various sources, the complainants indicate that, as financial support for colleges and universities lags behind escalating costs, campus administrators increasingly turn to staff of ill-paid, overworked part- or full-time adjunct lecturers and graduate students to meet instructional needs. These workers represent a cheaper form of labour than full-time faculty and are often assigned the duties that full-time faculty do not want, such as teaching undergraduates or engaging in tedious research. Indeed, the use of graduate assistants has become so pervasive that universities simply could not function as they currently do without their services.
8. 742. Thus, unionization among graduate teaching and research assistants has developed as a result of higher education trends in recent decades where universities have increasingly sought to contain costs and function more like businesses. The resulting increased dependence on graduate assistantships has created a group of workers who demand more economic benefits and workplace rights.
   • II. The situation at NYU
9. 743. The complainants state that approximately 35,000 students attend NYU each year. Half are graduate students, of whom roughly 10 per cent serve as graduate assistants, graders and tutors. Graduate assistants at NYU are primarily doctoral candidates. In return for their services, they receive a stipend for the semester as well as tuition remission. Before stipends were subject to collective bargaining, they ranged from about US$6,500 per year to US$20,000. The university pays the stipend by check on a weekly basis through its employee payroll system. Amounts are deducted for federal, city, and state payroll taxes. Before they became represented by GSOC/UAW, graduate assistants generally did not participate in the pension plan.
10. 744. Graduate assistants generally work as teaching assistants (also called TAs). Undergraduate courses are often conducted by professors in large lectures. TAs, under the supervision of a professor, lead supplementary discussion sections with small groups of students enrolled in the course. In discussion sections, TAs review the lecture materials, teach new material, foster discussion, answer student questions, and conduct exercises or experiments that enhance the lecture material. In addition to teaching these smaller sections and conducting labs, TAs also hold office hours. TAs proctor and grade exams, and may help prepare syllabi and/or conduct lectures when the faculty member is unavailable. Many other TAs act as the “stand-alone teacher” or the “teacher of record” for undergraduate courses under the supervision of faculty supervisors.
11. 745. Graduate assistants who are not TAs perform a wide variety of other duties in exchange for their stipend and tuition remission, depending on the particular graduate school within NYU to which they are attached. Some are research assistants who assist a professor in conducting research or experiments; others, for example, organize workshops, perform recruiting and admissions functions, fulfil master electrician or carpenter functions on a stage set, or participate in tutoring and mentoring in the New York City’s public schools.
12. 746. Graduate teaching and research assistants receive training from the university and/or handbooks that describe their responsibilities. Some departments issue contracts that set forth the number of hours graduate assistants must work; others dictate how work is to be made up; still others require their graduate assistants to attend mandatory staff meetings. Graduate assistants who perform below standard may lose their stipend or receive an alternative placement, but are not terminated from their graduate programme. Almost all graduate assistantships require a 20-hour a week time commitment, and graduate assistants are generally precluded from seeking other employment.
13. 747. Only about 10 per cent of graduate students obtain assistantship positions each year. Other graduate students may receive financial aid, such as scholarships and fellowships. Unlike stipends, the university does not process scholarships or fellowships through its payroll system and does not deduct taxes from them. While graduate assistants must complete government-required employment forms – the IRS W-4 (which helps determine the amount of taxes that an employer deducts from an employee’s pay check) and the INS Form I-9 (which verifies that an individual’s citizenship or immigration status provides legal authorization to work), other graduate students do not have to complete these forms. Graduate assistant stipends are reflected in departmental budgets as “personnel” costs while scholarships and fellowships are listed in the budget under the “financial aid” category.
    • III. The union’s attempt to gain recognition at NYU
14. 748. In 2000, after an organizing campaign in which an overwhelming majority of graduate teaching and research assistants employed by NYU sought representation by the UAW, the union petitioned the NLRB to become the certified representative of the unit of “graduate assistants … employed by New York University” for purposes of collective bargaining. NYU opposed certification on the ground that graduate assistants are students rather than employees under section 2(3) of the Act, and are therefore not entitled to organize and bargain collectively.
15. 749. After conducting an extensive hearing, in April 2000, a Regional Director of the Board issued a decision rejecting the employer’s challenge and ordering a secret ballot election. Although the election took place shortly thereafter, the ballots were impounded after the NLRB granted the university’s request for review of the Regional Director’s decision.
    • IV. The Board’s decision in NYU
16. 750. In October 2000, the Board unanimously upheld the Regional Director’s decision and held that graduate teaching and research assistants are employees within the meaning of section 2(3) of the Act. The Board rejected NYU’s contention that the graduate assistants were “predominantly students”, who could not simultaneously be employees under the Act. “[W]e find there is no basis to deny collective bargaining rights to statutory employees merely because they are employed by an educational institution in which they are enrolled as students.”
17. 751. The Board based its decision on the Act’s “broad” definition of “employee”, which “includes[s] ‘any employee’”. Under that definition, “[u]nless a category of workers is among the few groups specifically exempted from the Act’s coverage, the group plainly comes within the statutory definition of ‘employee’”. The Board noted that its conclusion was consistent with the common law principle that a master–servant “relationship exists when a servant performs services for another, under the other’s control or right of control, and in return for payment”.
18. 752. The Board found “ample evidence … that graduate assistants plainly and literally fall within the meaning of ‘employee’ as defined in section 2(3)”:
    • The uncontroverted and salient facts established that graduate assistants perform services under the control and direction of the employer, and they are compensated for these services by the employer. Graduate assistants work as teachers or researchers. They perform their duties for, and under the control of, the employer’s departments or programs. Graduate assistants are paid for their work and are carried on the employer’s payroll system. The graduate assistant’s relationship with the employer is thus indistinguishable from a traditional master–servant relationship. … We, therefore, find this evidence sufficient to support the conclusion that graduate assistants are employees as defined in section 2(3) of the Act.
    • The Board observed that it had recently applied these same principles in Boston Medical Center [30 NLRB 152 (1999)] in which it held that medical interns, residents and fellows who worked at a teaching hospital “were employees under section 2(3) notwithstanding that they were also students”.
19. 753. Contrary to NYU’s argument, the Board found the part-time nature of graduate assistants’ work of no consequence to the determination of employees status. The Board also rejected the university’s claim that teaching and research assistants receive financial aid rather than compensation. Unlike students on financial aid, graduate assistants “perform work, or provide services, for the employer under terms and conditions (e.g. hours of work and instructional curriculum) controlled by the employer” “in exchange for consideration”. Nor did the Board give credence to NYU’s contention that graduate assistants’ work is “primarily educational”. “It is undisputed that working as a graduate assistant is not a requirement for obtaining a graduate degree in most departments.”
20. 754. Finally, the Board resoundingly rejected NYU’s argument that giving graduate teaching and research assistants the right to engage in collective bargaining would “infringe on the employer’s academic freedom”. Noting that the Board had asserted jurisdiction over private, not-for-profit universities as early as 1971 and had approved bargaining units of faculty members since then, the Board concluded, “[a]fter nearly 30 years of experience with bargaining units of faculty members, we are confident that in bargaining concerning units of graduate assistants, the parties can confront any issues of academic freedom as they would any other issue in collective bargaining”. And, the Board reiterated its belief “that unionism and collective bargaining are dynamic institutions capable of adjusting to new and changing work context and demands in every sector of our economy”.
    • V. Events after the NYU decision
21. 755. The Board counted the ballots after issuing its decision and a majority of graduate assistants voted for union representation. Nonetheless, NYU refused to recognize and bargain with the UAW for several months. Only on the eve of a strike vote by the graduate assistants in March 2001, did the university agree to recognize the union and commence collective bargaining.
22. 756. The union won major economic gains for the employees in the first collective bargaining agreement covering teaching assistants at a private university. The agreement covered pay raises (which in some cases doubled the stipend received by graduate assistants), holidays, sick leave, reimbursement for professional development, employer-sponsored health coverage (which saved employees US$1,000 per year per person), a grievance and arbitration procedure, and other terms and conditions of employment. It was set to expire in August 2005.
23. 757. The victory at NYU spurred graduate teaching and research assistants at other major American universities to organize. The UAW filed petitions for elections at Columbia University, Brown University, Cornell University and Tufts University, each one supported by a majority of graduate assistants at the institution. The union also engaged in organizing drives at Yale University, Harvard University, George Washington University, the University of Southern California and Massachusetts Institute of Technology.
24. 758. In May 2001, the union filed a petition with the Board on behalf of graduate teaching and research assistants at Brown University. In a repeat of the NYU proceedings, Brown reiterated the argument that graduate assistants are students who do not enjoy the statutory rights granted to employees under the NLRA. In November 2001, a regional director of the Board rejected that argument, found once again that teaching and research assistants are employees within the meaning of the Act, and directed an election. The university filed a request for review. By now, the composition of the NLRB had changed.
    • VI. The Board’s decision in Brown University
25. 759. In July 2004, the Board decided Brown University and overturned NYU. In a 3–2 decision, the Republican majority concluded that graduate teaching and research assistants “are primarily students and have a primarily educational, not economic, relationship with their university”. Citing what it characterized as a “long-standing rule” against “asserting jurisdiction over relationships that are primarily educational”, the Board held that graduate teaching assistants, including those at Brown, “are not statutory employees” under the NLRA.
26. 760. The majority reached its holding by examining facts virtually identical to those of NYU. This time, however, it relied on the fact that “status as a graduate student assistant is contingent on … continued enrolment as [a] student” and that “the faculty oversees graduate teaching assistants in their role as research or teaching assistant”. The majority found that teaching is “an important component of most graduate programs” and that the money graduate assistants receive “is financial aid” rather than “consideration for work”.
27. 761. Building on its view that the relationship between graduate students and the university is primarily educational, the majority also concluded that collective bargaining, which is “fundamentally an economic process”, would be of “dubious value” “because educational concerns are largely irrelevant to wages, hours, and working conditions”. Moreover, the Board this time embraced the university’s argument that collective bargaining between graduate teaching and research assistants and the university would infringe on academic freedom because it would deal with “broad academic issues involving class size, time, length, and location, as well as issues over graduate assistants’ duties, hours, and stipends”.
28. 762. The dissent characterized the decision as “woefully out of touch with contemporary academic reality” in which universities employ assistants to perform faculty functions. The dissent also emphasized that the NLRB defines “employee” as “any employee” not explicitly excluded, and “reflects the common law agency doctrine of the conventional master–servant relationship”. “We do not understand the majority to hold that graduate assistants in this case are not common law employees”, but only that their primary relationship with the university is educational. However, “[n]othing in section 2(3) excludes statutory employees from the Act’s protections, on the basis that the employment relationship is not their ‘primary’ relationship with their employer”.
29. 763. While the majority asserted that the terms and conditions of graduate assistant employment are incompatible with collective bargaining, the dissent noted that “collective bargaining over these precise issues is being conducted successfully in universities across the nation”, and cited NYU as “a case in point”. That agreement (attached to the complaint) “addresses such matters as stipends, pay periods, discipline and discharge, job posting, a grievance-and-arbitration procedure, and health insurance”, and also includes a “management and academic rights clause” which provides that “[d]ecisions regarding who is taught, what is taught, how it is taught and who does the teaching involve academic judgement and shall be made at the sole discretion of the university”.
30. 764. Finally, the dissent rejected the majority’s assertion that collective bargaining is incompatible with academic freedom. That claim, according to the dissent, rests on the misguided notion that academic freedom encompasses each and every managerial prerogative of the university. Instead, academic freedom “properly focuses on efforts to regulate the content of the speech engaged in by university or those affiliated with it”. Any claims of incompatibility between this right of free speech by the university and collective bargaining are “pure conjecture”.
    • VII. Events after the Board’s decision in Brown University
31. 765. When the UAW agreement with NYU expired at the end of August 2005, the university refused to deal or engage in contract renewal talks with the union. Graduate assistants went on strike in November 2005. In response, many professors moved classes to off-campus sites to avoid crossing picket lines, and a number of departments expressed support for the union’s efforts. The strike continued into the 2006 spring semester, when the University cut stipends and locked out strikers by unilaterally transferring them out of teaching positions. The strike officially expired at the end of the spring semester in May. Classes for the fall semester began in September with no change in position by the university.
32. 766. The Brown decision has had a wide-ranging and uniformly destructive effect on organizing in higher education. Active organizing campaigns at private universities including Yale, Brown and Tufts, stymied as a direct result of the 2004 decision. The union’s victory at Columbia University became moot and the election at the University of Pennsylvania was voided.
33. 767. While the right to organize and bargain at public universities is a matter of state law, the state educational system have found a way to turn the decision in Brown to their advantage. In the State University of New York system where graduate assistants are represented by the Communications Workers of America (CWA), the university has set up a private research foundation that allows it to hire non-union research assistants. In many cases, non-union graduate assistants work alongside their unionized co-workers doing the same kinds of work, but without the protections of a union contract. Those workers’ efforts to organize a union were stymied in 2004 after the Brown decision.
34. 768. The complainants conclude by noting that Convention No. 87 guarantees the right of freedom of association to workers “without distinction whatsoever”. Convention No. 98 guarantees the right of collective bargaining, which lies at the core of associational freedom, to an equally broad universe of workers. The NLRB’s decision in Brown University deprives graduate assistants who work for the university of these fundamental rights.
35. 769. The complainants request the Committee to instruct the United States Government to take immediate measures to restore the right of freedom of association and collective bargaining to the thousands of graduate teaching and research assistants in private universities throughout the nation who have been stripped of their rights by the Board’s decision in Brown University.

B. The Government’s reply

1. 770. In a communication dated 11 February 2008, the Government indicates that the United States has not ratified Conventions Nos 87 and 98 and therefore has neither international law obligations under these instruments nor any obligation to accord their provisions domestic effect in US law. Nonetheless, the US Government has on numerous occasions demonstrated that its labour law and practice are in conformance with the principles underlying Conventions Nos 87 and 98, and the ILO supervisory bodies have generally upheld this view. The Government adds that the ILO Declaration is a non-binding statement of principles, not a treaty, and it therefore gives rise to no legal obligations. However, the US Government has submitted annual reports under the follow-up procedure established by the ILO Declaration that demonstrate that it respects, promotes and realizes the fundamental principles and rights at work embodied in the Declaration and the ILO Constitution.
2. 771. The Government goes on to indicate that the decision of the US National Labor Relations Board (NLRB or Board), in Brown University [342 NLRB 483 (2004) (Brown)], as well as previous and more recent decisions of the Board involving graduate students, do not conflict with fundamental ILO principles of freedom of association, the right to organize, or collective bargaining. The Brown case concerns only the definition in the National Labor Relations Act (NLRA) of “employee,” and its holding is based upon graduate student assistants’ primary status as students. In fact, the Brown decision marked a return to long-standing Board precedent that it shall not assert jurisdiction over relationships that are primarily educational. In view of the particular facts of the case, the Board concluded that graduate student assistants at Brown University are students rather than “employees” as defined by the NLRA and are, therefore, not covered by the specific legal mechanisms established by the NLRA. They nevertheless enjoy the full panoply of associational rights guaranteed by the US Constitution, through which they may address the terms of their appointments or other issues. Consequently, graduate student assistants at every United States university may organize, form unions, and seek collectively – as students – to reach agreement over the terms of their academic engagements.
   • I. NLRA definition of “employee”
3. 772. The Government indicates that the issues raised in this complaint turn principally on the definition of “employee” set forth in section 2(3) of the NLRA. The NLRA was enacted in 1935, and amended in 1947, for the purpose of reducing disruptions to commerce due to labour strife. The US Congress declared it to be national policy “to eliminate the causes of certain substantial obstructions to the free flow of commerce ... by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purposes of negotiating the terms and conditions of their employment or other mutual aid or protection” (29 U.S.C. §151). As emphasized by the Board in Brown, the NLRA’s protections are premised on a fundamentally economic relationship, and the determination of whether or not a person is an “employee” for purposes of the NLRA hinges on the existence of such a relationship. The absence of such a relationship underpinned the Board’s conclusion that graduate student assistants are not “employees” within the meaning of the NLRA definition.
4. 773. An “employee” is defined in the NLRA as follows:
   • The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, 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.
   • According to the Government, the question whether a particular class of workers is covered under the law is very fact intensive.
   • II. The Board’s decision in Brown
5. 774. The Government indicates that the status of graduate students under the NLRA has a long history. The Brown decision restored long-standing Board precedent concerning the status of graduate students. Brown also is consistent with the Board’s “long-standing rule that it will not assert jurisdiction over relationships that are ‘primarily educational’”.
6. 775. The facts in Brown were that Brown University enrolled approximately 7,200 students, of whom over 1,300 were graduate students. As of May 2001 over 1,100 of these graduate students were seeking PhD degrees. At the time of the hearing in the case, approximately 375 graduate students had been awarded teaching assistantships, 220 served as research assistants, 60 served as proctors, and approximately 300 had received fellowships. Teaching assistants are expected to lead a small section of a large lecture course taught by a professor; research assistants generally conduct research under the direction of a faculty member; proctors may perform a wide variety of tasks but generally do not teach or perform research. Graduate students receiving fellowships are not required to be engaged in teaching or departmental assignments.
7. 776. Most PhD candidates at Brown University must teach in order to obtain their degrees. Although graduate student teaching assistants receive money from Brown, so do fellows who perform no teaching or research services. The faculty of each university department is responsible for awarding teaching and research assistantships, or proctorships. The nature of the graduate students’ teaching duties is determined by the department involved, in conjunction with university administration. The facts in the case thus demonstrate that there was no relationship between the money received by a graduate student and any teaching, research, or administrative services rendered.
8. 777. Approximately 75–85 per cent of the graduate students at Brown University receive financial assistance. This financial support is not dependent on whether the student teaches, performs research, or serves as a proctor. In awarding financial assistance, the university considers academic merit and financial need. The amount of funding a student receives is generally the same regardless of whether the student is awarded a fellowship, a teaching or research assistantship, or a proctorship. The university treats these funds as a financial assistance package which often combines this assistance with tuition remission and health insurance coverage. As part of this financial assistance package, the amount of the stipend for any of these activities is generally fixed and bears no relation to hours worked. Thus, the facts in Brown demonstrate that the support provided to the graduate student assistants was financial assistance to students, not wages for services rendered.
9. 778. In concluding that the graduate students in Brown were not “employees” under the NLRA, the Board relied on these facts and noted the following in particular: (1) only enrolled graduate students are awarded teaching assistantships; (2) most of the academic departments at Brown University require teaching as a condition for earning a degree; (3) monies paid to graduate student assistants are provided as financial aid rather than compensation for work; and (4) there was a mutuality of interest in the student–university relationship, in contrast to the adversarial nature of the employer–employee relationship. The Board also was concerned that allowing graduate student assistants to engage in collective bargaining as employees “would have a deleterious impact on overall educational decisions by the Brown faculty and administration. These decisions would include broad academic issues involving class size, time, length, and location, as well as issues over graduate assistants’ duties, hours, and stipends”. For all these reasons, the Board concluded that imposing collective bargaining on the student–university relationship would not effectuate national labour policy or be consistent with the intent of the NLRA:
   • [O]ur decision turns on our fundamental belief that the imposition of collective bargaining on graduate students would improperly intrude into the educational process and would be inconsistent with the purposes and policies of the Act.
10. 779. The Board’s decision thus reflects that the teaching and research responsibilities of graduate student assistants are intimately bound up with meeting their academic obligations. It would make no more sense to compel a university to bargain with graduate students over duties, hours, and stipends, than over course content, dissertation requirements, or the required minimum grade point average.
    • III. Consistency of the Brown decision with long-standing Board precedent
11. 780. As noted above, the Board’s decision in Brown represented a return to long-standing precedent involving the status of graduate student assistants. In perhaps its earliest decision on the issue, Adelphi University [195 NLRB 639 (1972)], the Board held that graduate student assistants are primarily students and should therefore be excluded from a unit of regular faculty members seeking recognition as a bargaining unit. The Board reasoned that “graduate assistants are primarily students and they therefore do not share a similar community of interest with the faculty members and professional librarians”. The Board continued:
    • The graduate assistants are graduate students working toward their own advanced academic degrees, and their employment depends entirely on their continued status as such. They do not have faculty rank, are not listed in the University’s catalogues as faculty members, have no vote at faculty meetings, are not eligible for promotion or tenure, are not covered by the University personnel plan, have no standing before the University’s grievance committee, and, except for health insurance, do not participate in any of the fringe benefits available to faculty members. Graduate assistants may be elected by the students as their representatives on student–faculty committees. Unlike faculty members, graduate assistants are guided, instructed, assisted, and corrected in the performance of their assistantship duties by the regular faculty members to whom they are assigned.
12. 781. Other Board decisions from this time period similarly held that university students should be excluded from non-student bargaining units: See Cornell Univ., 202 NLRB 291 (1973); Georgetown Univ., 200 NLRB 215 (1972); Coll. Of Pharm. Sci., 197 NLRB 959 (1972). These decisions did not address the scope of the NLRA definition of “employee” but are nonetheless instructive as to the Board’s treatment of graduate students.
13. 782. The Board first interpreted the term “employee” with respect to graduate students when it held that graduate students who receive stipends and grants to perform research for advanced degrees are not “employees” under section 2(3) of the NLRA in Leland Stanford Junior University [214 NLRB 621 (1974)]. As in Brown, the Board noted that the financial assistance received by graduate student assistants was not determined by the nature or extent of any services rendered or by their intrinsic value. The Board reasoned that there were important distinctions between the compensation systems for regular faculty and graduate student assistants:
    • [T]here is no correlation between [the work] being done and the amount received by the student, nor is there a correlation between the hours spent in research and the amount received. Furthermore, although [research assistants] are paid through Stanford’s payroll machinery, they do not share the fringe benefits of employees but do have the privileges enjoyed by other students. Thus they have the student health care and insurance, share in various campus activities, and may use student housing; they get no vacation, sick leave, or retirement benefits and have no schooling benefits for their children.
14. 783. As in Brown, the graduate student research assistants in Stanford were all enrolled as PhD candidates, were required to perform research to obtain their degree, received academic credit for performing research, and received financial assistance unrelated to the nature or value of the research they performed.
15. 784. The Board has been consistent in its treatment of students who perform work as a part of their academic programme. The reasoning in Adelphi and Leland Stanford was later applied in Cedars–Sinai Medical Center [223 NLRB 251 (1976)], and St. Clare’s Hospital & Health Center [229 NLRB 1000 (1977)], where the Board held that medical interns, residents, and fellows are primarily students and, therefore, not “employees” within the meaning of the NLRA. Because their relationship with their institutions is predominantly academic rather than economic in nature, the Board reasoned that such interests are not “readily adaptable to the collective-bargaining process”. The Board further reasoned that the graduate interns, residents and fellows (“house staff”) in those cases were primarily engaged in educational training; entered into a relationship with a hospital mainly to fulfil educational requirements of state or specialty boards; received pay more in the nature of a living allowance than as compensation for services, and such pay did not depend on hours worked or on the nature of the services rendered; and the house staff tenure was of relatively short duration with little chance that a regular employment relationship would be established following completion of the programme. Although the Board later overruled St. Clare’s and Cedars–Sinai in Boston Medical Center [330 NLRB 152 (1999)], the latter decision did not address the status of graduate student assistants (such as those at issue in Brown) who have not received their academic degree.
16. 785. Against this long-standing and consistent approach to the status of graduate students, the Board briefly reversed course in New York University [332 NLRB 1205 (2000) (NYU)], and held that graduate student assistants were covered employees under the NLRA. The Board reasoned that graduate student assistants are not specifically excluded from the NLRA definition of employee, and perform services for which they are compensated under the control and direction of the university employer. Brown decided only four years later, soundly rejected this reasoning, overruled NYU, and restored the Board’s long-standing doctrine that graduate student assistants’ primary status as students excluded them from the NLRA definition of “employee”.
17. 786. Recent cases relating to the status of research assistants in educational institutions further confirm the Board’s approach in Brown. In June 2007, the Board revisited these questions in the Research Foundation of the State University of New York, 350 NLRB No. 18 (2007) and the Research Foundation of the City University of New York, 350 NLRB No. 19 (2007). In the Research Foundation cases, the Board distinguished Brown and held that student research assistants were “employees” under the NLRA. The Board relied on several factors which distinguished the Research Foundation cases from Brown, including that the employer research foundations, which managed research programmes, were not universities and did not confer degrees or admit students. Although the research assistants were enrolled as students at the parent university, they were supervised in their work by foundation project directors, not university faculty. Unlike Brown, there was no relationship between the compensation paid to the research assistants and the financial aid that students received from the university. Although research assistants at the foundations must also be enrolled at the university, work on projects closely related to their academic dissertations, and generally leave their research assistant positions when they graduate, the Board reasoned that those factors showed only that the research assistants have a primarily educational relationship with the university, not with the research foundation. The Board therefore held that the research assistants in these cases were “employees” under the NLRA.
    • IV. Consistency of the Brown decision is
    • with ILO principles
18. 787. The Board’s decision in Brown that graduate student assistants are students rather than employees, and that they are consequently not covered by the NLRA, does not conflict with ILO standards. In fact, graduate student teaching assistants are not hired as employees into a PhD programme; instead they are admitted as students based on their academic qualifications, and their teaching and research responsibilities (to the extent they have any) are part and parcel of meeting their degree requirements.
19. 788. None of the CFA cases cited by the complaint stand for the proposition that graduate students are entitled to the rights accorded to workers under ILO Conventions. Indeed, the complainants concede that the CFA has never addressed a complaint involving graduate students. The complaint cites several cases involving teachers, apprentices, and employees in work opportunity programmes, but none of these examples are pertinent: the workers in those cases were not students in a student–educational institution relationship, and were paid for services rendered. By contrast, graduate students such as those in Brown receive funds from their university as part of a financial aid package, which may include tuition remission and payment of the university health plan fee. These packages are awarded as academic financial assistance – without regard for whether the graduate students perform teaching or research – and not as wages for services performed.
20. 789. The fundamental rights embodied in ILO Conventions flow to workers engaged in an economic relationship, not to students engaged in a primarily academic relationship. The work performed by graduate student assistants in Brown did not change their status as students. As the Board noted: “It is clear to us that graduate student assistants, including those at Brown, are primarily students and have a primarily educational, not economic, relationship with their university.”
21. 790. The Board’s decision in Brown is solidly grounded on the facts of that case, which compel the conclusion that the graduate assistants at issue are primarily students. To impose collective bargaining on this academic relationship context would intrude upon educational decisions by the university faculty and administration. Collective bargaining over such issues as class size, time, length, location, as well as students’ duties, hours, and stipends, “would intrude upon decisions over who, what, and where to teach or research”. It would be incongruous indeed if ILO Conventions were interpreted to require a university that awards a work–study position as part of a financial aid package to bargain with the student over the terms of that package and the extent to which any tasks performed in the work–study assignment count toward an academic degree.
22. 791. Even though they are not “employees” under the NLRA, graduate student assistants nonetheless enjoy all the associational rights guaranteed under the US Constitution, through which they may address the terms of their appointment. Developments at New York University (NYU) following the Brown decision are instructive here. In light of Brown, and NYU’s history with the labour organization representing graduate student assistants, the NYU provost determined that it would no longer recognize the union as the students’ bargaining unit representative. However, the university encouraged graduate student assistants to develop an alternative mechanism through which to bargain over terms and conditions of their appointments. A Graduate Affairs Committee (GAC) of the Student Senators Council/University Committee on Student Life was created and charged with “the responsibility of developing a plan for a new organization to provide voice and representation for NYU’s graduate student assistants”. The GAC proposed the creation of a new House of Delegates to represent graduate student interests:
    • The House of Delegates will be an internal NYU student organization which is a new governance structure for graduate assistants that is parallel and independent of, but not coincident to, existing student governance mechanisms. It will designate a small Conference Committee to confer with the administration on an annual basis about the terms and conditions of financial aid and benefits afforded to affected graduate assistants/fellows in future years – those beyond the years for which the administration has already announced financial aid and benefits provisions.
23. 792. The president and provost of NYU accepted these student proposals on behalf of the administration. Graduate student associations at other institutions have also been successful in bargaining for improved terms. Such developments undercut the complainants’ arguments that Brown stripped graduate students of their fundamental associational rights. Brown holds only that the compulsory bargaining mechanisms available under the NLRA do not fit and were not intended for the primarily educational relationships that graduate student assistants have with their parent universities.
24. 793. The complaint therefore confuses Board jurisdiction over graduate student assistants with the fulfilment of their associational rights. The question whether graduate student assistants are “employees” under the NLRA – and therefore entitled to the compulsory processes of the law – is completely different from whether their associational rights have been violated. If, as the complainants assert, it were the case that a party’s inability to invoke the processes of the NLRA and the authority of the Board constituted a per se violation of ILO Conventions, then any country lacking a labour board with authorities equivalent to those of the Board would be in violation of ILO Conventions. The NLRA was designed to foster industrial peace and promote collective bargaining between employers and employees within the context of economic relationships. It was not intended to compel a university to bargain with students over grades, degree requirements, or research obligations.
25. 794. Graduate student assistants nevertheless enjoy the full panoply of associational rights provided by the First Amendment of the US Constitution. Graduate student assistants at every US university may organize, form unions, take political actions, engage in peaceful protest, and seek collectively – as students – to reach agreement over the terms of their academic engagements. No Board decision interpreting United States statutory law can override the US Constitution and deny graduate student teaching and research assistants their right to form and join unions or employee associations. United States law and practice with respect to such students is therefore fully consistent with the principles underlying Convention No. 87.
26. 795. In conclusion, the Government notes that the Board correctly restored long-standing precedent when it decided in Brown that “graduate student assistants who are admitted into, not hired by, a university, and for whom supervised teaching or research is an integral component of their academic development”, are “students”, not “employees”, under the NLRA. The Board’s jurisprudence balances due regard for the students’ associational rights, as well as considerations of academic freedom, and is mindful of the need to avoid compelling universities to negotiate with students over the terms of their academic degrees. Graduate student assistants and their representatives retain the right to associate freely and collectively, and to participate fully in democratic processes, by engaging universities in discussions about their conditions of appointment. Brown therefore provides no basis upon which to question the United States commitment to the fundamental principles of the ILO.

C. The Committee’s conclusions

1. 796. The Committee notes that the present case concerns allegations that a decision of the National Labor Relations Board (NLRB) denying graduate teaching and research assistants at private universities the right under the National Labor Relations Act (NLRA) to engage in organizing or collective bargaining, is contrary to freedom of association principles. The Committee notes that the complainant does not refer to the academic activities of graduate teaching and research assistants as students, but rather to their employment in core teaching and research functions of the universities.
2. 797. As a preliminary matter, the Committee, noting that the Government reiterates the statement it made in previous cases concerning the absence of ratification of Conventions Nos 87 and 98 and the non-binding nature of the ILO Declaration on Fundamental Principles and Rights at Work, wishes to recall once again, as it had done when examining Cases Nos 2227 [332nd Report, para. 600] and 2460 [344th Report, para. 985], that since its creation in 1951, it has been given the task to examine complaints alleging violations of freedom of association whether or not the country concerned has ratified the relevant ILO Conventions. Its mandate is not linked to the 1998 ILO Declaration – which has its own built-in follow-up mechanisms – but rather stems directly from the fundamental aims and purposes set out in the ILO Constitution. The Committee has emphasized in this respect that the function of the International Labour Organization in regard to trade union rights is to contribute to the effectiveness of the general principle of freedom of association and to protect individuals as one of the primary safeguards of peace and social justice [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 1, and Annex I, para. 13]. It is in this spirit that the Committee intends, as it did in previous cases, to pursue its examination of the present complaint.
3. 798. The Committee notes that the complainants object to a decision reached by the NLRB in Brown University (Brown). According to the complainants, the NLRB reversed in Brown its own case law established in New York University (NYU), in order to find that teaching and research assistants are excluded from the protection of freedom of association and the right to organize under the NLRA because they are primarily students and have a primarily educational, not economic, relationship with their university. Moreover, the NLRB found that in these conditions collective bargaining, which is fundamentally an economic process, would be of dubious value because educational concerns are largely irrelevant to wages, hours of work and working conditions.
4. 799. The complainants argue that the decision is wrong and contrary to freedom of association principles for the following reasons: (i) teaching and research assistants perform core educational functions described in detail in the complainants’ allegations; (ii) these workers represent a cheaper form of labour than full-time faculty and the need to improve their condition has driven efforts to achieve their unionization and ensure their representation in collective bargaining; (iii) in 2000 the NLRB had found unanimously that the NLRA’s broad definition of employee covers “any employee” and that graduate assistants are employees as they perform services under the control and direction of the employer and are compensated for these services by the employer; moreover, the NLRB had rejected the argument that giving graduate teaching and research assistants the right to engage in collective bargaining would infringe on the employer’s academic freedom, by stating that “we are confident that in bargaining concerning units of graduate assistants, the parties can confront any issues of academic freedom as they would any other issue in collective bargaining”; and (iv) the Brown decision had a destructive effect on organizing in higher education and in particular, led to the refusal of NYU to renegotiate the agreement previously reached with one of the complainants (UAW) which expired at the end of August 2005.
5. 800. The Committee notes from the reply of the Government that the NLRB’s decision in Brown is not a reversal of its previous case law but rather a return to long-standing precedent which had been interrupted with the decision reached in NYU. In particular, in concluding that the graduate students in Brown were not “employees” under the NLRA, the NLRB relied on the following considerations: (1) only enrolled graduate students are awarded teaching assistantships; (2) most of the academic departments at Brown University require teaching as a condition for earning a degree; (3) monies paid to graduate student assistants are provided as financial aid rather than compensation for work; and (4) there was a mutuality of interest in the student–university relationship, in contrast to the adversarial nature of the employer–employee relationship. The NLRB was also concerned that allowing graduate student assistants to engage in collective bargaining as employees “would have a deleterious impact on overall educational decisions by the Brown faculty and administration. These decisions would include broad academic issues involving class size, time, length, and location, as well as issues over graduate assistants’ duties, hours, and stipends”. For all these reasons, the NLRB concluded that imposing collective bargaining on the student–university relationship would not effectuate national labour policy or be consistent with the intent of the NLRA which is premised on a fundamentally economic relationship.
6. 801. The Committee recalls that all workers without distinction whatsoever, including without discrimination in regard to occupation, should have the right to establish and join organizations of their own choosing [see Digest, op. cit., para. 216]. The Committee has always conferred a very broad meaning to the sense of the term “worker” and has found on various occasions that this principle applies to teachers, instructors, temporary workers, workers undergoing a period of work probation and workers hired under training contracts, apprentices, etc. [see Digest, op. cit., paras 235, 236, 237, 255, 256, 257, 258, 259]. In light of the wealth of information provided to it by the complainants concerning the nature of the relationship between graduate teaching and research assistants and their universities, the former being paid for work and services rendered under the control and direction of the latter (as a result of which they have their stipends processed through the employee payroll system, subject to tax deductions and proof of legal authorization to work), the Committee sees no basis on which to exclude teaching and research assistants from the long-standing principle mentioned above. The Committee considers that teaching and research assistants in so far as they are workers should be ensured full protection of their right to organize.
7. 802. The Committee further notes that, for its part, the Government confirms that graduate student assistants enjoy the full panoply of associational rights provided by the First Amendment of the US Constitution and may thus organize, form unions, take political actions, engage in peaceful protest, and seek collectively – as students – to reach agreement over the terms of their academic engagements. The Committee notes that the Government’s objections are centered on the question of the right to engage in collective bargaining. In particular, the Government considers that collective bargaining, which is premised on an adversarial economic relationship, is not appropriate for teaching and research assistants who have a primarily academic relationship with the University in which they are enrolled. The Government recalls that the NLRA was designed to foster industrial peace by promoting collective bargaining between employers and employees within the context of economic relationships; it was not intended to compel a university to bargain with students over grades, degree requirements, or research obligations. It thus expresses the concern that collective bargaining in this case may compel a university to negotiate issues like grades, degree requirements or research obligations. Furthermore, the Committee notes that the Government proposes alternative mechanisms of negotiations, excluding trade unions, as more appropriate for teaching and research assistants. Thus, the Committee notes from the Government’s reply that after the NLRB decision in Brown, NYU determined that it would no longer recognize the union as the students’ bargaining unit representative and encouraged graduate student assistants to develop an alternative mechanism through which to bargain over terms and conditions of their appointments. Thus, a Graduate Affairs Committee (GAC) of the Student Senators Council/University Committee on Student Life was created and charged with “the responsibility of developing a plan for a new organization to provide voice and representation for NYU’s graduate student assistants”. The GAC proposed the creation of a new House of Delegates to represent graduate student interests. The president and provost of NYU accepted these student proposals on behalf of the administration. Graduate student associations at other institutions have also been successful in bargaining for improved terms. Such developments undercut, according to the Government, the complainants’ arguments that Brown stripped graduate students of their fundamental associational rights.
8. 803. As a general principle, the Committee recalls that it has drawn attention to the importance of promoting collective bargaining, as set out in Article 4 of Convention No. 98, in the education sector [Digest, op. cit., para. 900] and emphasizes that the right to bargain freely with employers constitutes an essential element of freedom of association. As regards the education sector, however, a distinction may be made between matters that essentially concern the determination of the broad lines of educational policy, which may be excluded from collective bargaining, and matters relating to conditions of employment, which should be subject to collective bargaining. The Committee observes in this regard that the collective agreement between NYU and the complainant UAW (provided by the complainants) is confined to addressing such matters as stipends, pay periods, discipline and discharge, job posting, grievance and arbitration procedures and health insurance and excludes “[d]ecisions regarding who is taught, what is taught, how it is taught and who does the teaching” which “involve academic judgement and shall be made at the sole discretion of the university”.
9. 804. The Committee observes that the Government emphasizes that graduate teaching and research assistants should be considered as being primarily in an educational relationship with their university, while the complainant asserts the specifically employment aspects of their relationship to the university. The Committee considers that, while there may be some linkages between the educational and employment relationship of graduate teaching and research assistants to their university, a series of other concrete elements leads the Committee to consider that graduate teaching and research assistants, in so far as they are workers, should, like all other workers, enjoy the right to bargain collectively over the terms and conditions of their employment, excluding academic requirements and policies, so as to protect and promote their occupational interests. In that capacity, this right should include being represented in negotiations by the union of their choice and having sufficient protection for the exercise of their trade union rights. Thus, the Committee requests the Government to take the necessary steps, including legislative, if necessary, to ensure that graduate teaching and research assistants, in their capacity as workers, are not excluded from the protection of freedom of association and collective bargaining. The Committee requests to be kept informed of progress made in this respect.

The Committee's recommendations

1. 805. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to take the necessary steps, including legislative, if necessary, to ensure that graduate teaching and research assistants, in their capacity as workers, are not excluded from the protection of freedom of association and collective bargaining. The Committee requests to be kept informed of progress made in this respect.