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- 54. The Committee last examined this case – which concerns 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 – at its March 2010 meeting
[see 356th Report, paras 73–75]. On that occasion, the Committee requested the
Government to keep it informed of progress made with regard to any further developments
at the NLRB in relation to the freedom of association and collective bargaining rights
of graduate teaching and research assistants, as well as any additional steps taken in
the United States Congress as concerns the matter of the introduction of bills in the
United States Congress to overrule the NLRB’s decision by adding language to the
definition of “employee” under the NLRA to include “a student enrolled at an institution
of higher education … who is performing work for remuneration at the direction of the
institution, whether or not the work relates to the student’s course of study”.
- 55. In its communication of 11 October 2012, the Government indicates
that as reported in the previous update, the issue central to the case, Brown
University, 342 NLRB 483 (2004) (Brown University), was being revisited. On 25 October
2010, the NLRB (or Board) reversed a regional director’s dismissal of a petition filed
by a local of the United Auto Workers seeking a representation election for 1,800
graduate teaching and research assistants at New York University, New York University
and GSOC/UAW, 356 NLRB No. 7 (2010) (New York University). The dismissal was based on
the Brown University decision where the NLRB held that graduate student assistants at
another university were not employees within the meaning of the NLRA (the Act). In
reversing the Regional Director’s dismissal, the Board stated that there were
“compelling reasons for reconsideration of the decision in Brown”, and remanded the case
to the Regional Director for a hearing and development of a “full evidentiary
record”.
- 56. The Government adds that in a decision issued on 16 June 2011, Mr
Elbert Tellem, then Acting Regional Director for NLRB Region 2, dismissed the petition
on the ground that the unit sought is composed of graduate student assistants who, under
the Brown University decision, are not treated as employees for purposes of collective
bargaining under section 2(3) of the Act, New York University and GSOC/UAW, NLRB Acting
Regional Director, Case No. 2-RC-23481 of 16 June 2011. However, the ruler wrote that
the Board majority in Brown University was “premised on a university setting as it
existed thirty years ago”. With regard to the New York University graduate assistants,
Mr Tellem noted that “the graduates have a dual relationship with the employer which
does not necessarily preclude a finding of employee status”. Additionally, the
Government reports that Mr Tellem stated that “in the event the Board reconsiders the
employee status of graduate students, it appears on this record that a unit including
all graduate students would be appropriate”.
- 57. The Government states that on 30 June 2011, the Petitioner in New
York University filed a request for review urging the Board to overrule its decision in
Brown University. The Employer filed an opposition to the petitioner’s request for
review on 14 July 2011. On 3 February 2012, a group of New York University teaching,
research and graduate assistants travelled to Washington, DC, to deliver a letter to the
NLRB requesting that the Board move quickly to reach a decision. On 22 June 2012, the
Board granted review in New York University and in another similar matter, Polytechnic
Institute of New York University, Case No. 29-RC-12054. The Board also invited the
parties and interested amici to file briefs addressing four questions, including whether
the Board should modify or overrule its decision in Brown University, which held that
graduate student assistants who perform services at a university in connection with
their studies are not statutory employees within the meaning of section 2(3) of the Act.
Briefs were to be filed with the Board on or before 23 July 2012.
- 58. The Committee takes note of this information. The Committee also
notes that on 26 November 2013, a joint statement was published between New York
University and the union United Automobile, Aerospace and Agricultural Implement Workers
of America International Union (UAW), which concludes that both parties have mutually
agreed to withdraw the NLRB proceedings and have reached a voluntary agreement in which
they are committed to bargain in good faith for a contract upon confirmation of a
majority vote by graduate employees for UAW representation in collective bargaining. The
Committee welcomes this information. Noting, however, that the decision of the NLRB in
Brown University still excludes graduate students from collective bargaining rights set
out in the NLRA, the Committee requests the Government to continue to provide
information on any additional steps taken or envisaged 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.
