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The National Labor Relations Board recently reversed another Clinton-era board decision that had overruled a long-standing NLRB precedent, this one regarding the “employee” status of graduate assistants. Specifically, on July 13, the NLRB held by a 3-2 vote that graduate student assistants are not employees within the meaning of the National Labor Relations Act. Brown University, 342 NLRB No. 42. This decision overruled New York University (NYU), 332 NLRB 1205 (2000), which had found that graduate assistants were statutory employees, and returned to pre -NYU precedent. Individuals who are not “employees” under the National Labor Relations Act (NLRA) are excluded from bargaining units and enjoy little protection. Section 2(3) of the NLRA defines “employee,” but its definition is circular and not very helpful in determining who is a statutory employee (“[t]he term employee shall include any employee, and shall not be limited to the employees of a particular employer, unless [the NLRA] explicitly states otherwise”). Certain categories of workers (agricultural workers, domestic workers, workers employed by a parent or spouse, independent contractors, supervisors and workers employed by an employer subject to the Railway Labor Act) are, however, explicitly exempted from the statutory definition of employee. The board and the courts have thus looked to congressional policies as well as the statutory language of � 2(3) in determining statutory-employee status. For example, the U.S. Supreme Court held, in NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), that managers, while not excluded from the definition of an employee in � 2(3), nevertheless are not statutory employees, reasoning that extension of the NLRA to cover managers “would eviscerate the traditional distinction between labor and management.” Id. at 284. ‘Adelphi’ set the precedent excluding grad students In Adelphi University, 195 NLRB 639 (1972), the board held that graduate teaching and research assistants should be excluded from a unit of regular faculty. The board found that these graduate assistants did not share a sufficient community of interest with the regular faculty to warrant their inclusion because their employment depended on their continued status as graduate students, they were not considered faculty members by the educational institution and they did not enjoy any of the faculty benefits. The board, however, did not consider the issue of whether the graduate assistants were statutory employees. Just two years after Adelphi, the board, in Leland Stanford Junior University, 214 NLRB 621 (1974), went further and held that graduate research assistants were not employees within the meaning of the NLRA because they were “primarily students.” In support of this conclusion, the board relied on the following: The research assistants were graduate students enrolled in the Stanford physics department as doctoral candidates; they were required to perform research to obtain their degrees; they received academic credit for their research work; and while they received a stipend from Stanford, the amount was not dependent on the nature or intrinsic value of the services performed or the skill or function of the recipient, but was determined by the goal of providing the students with financial support. For more than 25 years, the board adhered to the Stanford principle. Thus, in St. Clare’s Hospital, 229 NLRB 1000 (1977), and Cedars-Sinai Medical Center, 223 NLRB 251 (1976), the board stated that the board “has universally excluded students from units which include non-student employees, and in addition has denied them the right to be represented separately.” St. Clare’s Hospital, 229 NLRB at 1002. The board concluded that subjecting educational decisions to a collective-bargaining process would be of “dubious value” because educational concerns are largely irrelevant to wages, hours and working conditions, and collective bargaining is not well suited to educational decision-making. Id. Thus, the board found that house staff (residents, interns and fellows) were not statutory employees. More than two decades later, the board-at that time composed primarily of appointees of President Bill Clinton-overruled St. Clare’s Hospital and Cedars-Sinai in Boston Medical Center, 330 NLRB 152 (1999), and asserted jurisdiction over residents, interns and fellows who had already completed and received their academic degrees. The board majority there reasoned that the interns, residents and fellows were similar to apprentices, whom the board had long considered employees. The board in that case, however, did not address the status of graduate assistants who had not received their academic degrees. Then, in NYU, 332 NLRB 1205 (2000), the board extended its ruling in Boston Medical Center and found that a group of graduate assistants, including teaching assistants and research assistants, were employees. The board majority in NYU rejected the contention that graduate assistants were not employees because they were “predominantly students.” Instead, the board found that � 2(3) broadly defines “employee” to include “any employee,” that the graduate students were paid to perform service under the direction and control of the employer and that because they were not specifically exempted from coverage by � 2(3), they could be considered “employees,” and thus part of a bargaining unit. In Brown, an NLRB regional director, applying NYU, found that teaching assistants (TAs), research assistants (RAs) and proctors were employees and constituted an appropriate unit for collective bargaining. Upon review, a board majority reversed NYU and consequently reversed the regional director’s finding. Chairman Robert J. Battista and members Peter C. Scaumber and Ronald E. Meisburg found that NYU was wrongly decided. They reasoned that � 2(3) must not be interpreted in isolation but must be examined in light of the underlying fundamental premise of the NLRA: The NLRA is designed to cover economic relationships; the board’s long-standing rule that it will not assert jurisdiction over relationships that are “primarily educational” is consistent with these principles; and all of the petitioned-for individuals were “primarily students and had a primarily educational, not economic, relationship with their university.” 342 NLRB No. 42 slip op. at 6, 8. They emphasized that all of the graduate assistants were students and were required to be enrolled as students to be awarded an assistant position, or proctorship, even those who had finished all of their course work. They also emphasized that the money received by the TAs, RAs and proctors was not “consideration for work,” but instead was “financial aid to students” because that money received was the same as that by fellows and came from the university’s financial aid budget, rather than its instructional budget. Id. at 6, 7. They concluded that the individuals at issue were “primarily students” because they served only a limited number of hours performing their duties as TAs, RAs and proctors, their principal time commitment was focused on obtaining a degree and their status as a graduate assistant was contingent on their continued enrollment as students. Moreover, teaching for most graduate students was found integral to obtaining a degree. Id. at 6, 7, 10. Relying on many of the concerns expressed in St. Claire’s Hospital, the majority concluded that imposing collective bargaining on individuals who are primarily students would have a “deleterious impact on overall educational decisions,” would “intrude upon the academic relationship between the university and students” and would not effectuate the national labor policy. Id. at 8, 11. Members Wilma B. Liebman and Dennis P. Walsh dissented from the majority’s decision, which they characterized as “woefully out of touch with contemporary academic reality.” Id. at 12. They claimed that empirical evidence refuted the majority’s position that collective bargaining would harm higher education.” Id. at 17-18. They also argued that the board was not permitted to create its own exclusion for graduate assistants because the NLRA’s broad definition of employee “easily covers” graduate students who perform services for, and are under the control of, their universities. The impact of the ‘Brown University’ decision By overruling NYU, Brown returns to the board precedent of more than 25 years under which graduate assistants had not been regarded as employees. The majority opinion in Brown noted that its holding was broader than merely finding that graduate student assistants were not employees for bargaining purposes. Instead, its holding was that graduate student assistants were not employees for any statutory purpose. Id. at 9, n. 28. While the board majority in Brown expressed no opinion regarding the continued viability of Boston Medical Center, upon which NYU had relied, it nevertheless appears that Boston Medical will soon be overruled. Although medical house staff typically spend more of their time providing patient services than graduate assistants spend performing graduate assistant’s duties, and graduate assistants perform their work in furtherance of a degree while house staff already have their degrees, these differences will probably not be deemed material because the danger of imposing collective bargaining on academic issues applies equally to medical house staff and graduate student assistants. Brown marks the third major decision of the Bush board in which it overruled a Clinton-era board decision that had in turn overturned existing board precedent. See ML Transp., 337 NLRB 770 (2002), overruling St. Elizabeth Manor, 329 NLRB 34 (1999), and IBM Corp., 341 NLRB No. 148 (June 9, 2004), overruling Epilepsy Foundation of Northeast Ohio, 333 NLRB 676 (2000). It is likely that the Bush board will overrule still other Clinton-era decisions that overturned existing board precedent. Kenneth R. Dolin is a partner in the labor and employment practice group of Chicago’s Seyfarth Shaw.

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