As anticipated, the NLRB has invited the parties in Columbia University and interested amici to file briefs addressing the issues raised in the pending case, in which the Board will revisit its position on the employment status of university graduate student assistants under the NLRA. The NLRB seeks input on whether it should overrule its 2004 decision in Brown University, in which it held that graduate assistants who perform services at a university in connection with their studies are not statutory employees under the Act. Finding “substantial issues warranting review,” the NLRB on December 23 agreed to review a Regional Director’s decision dismissing Columbia graduate assistants’ election petition, thus reinvigorating their attempt to organize a union. The Regional Director had administratively dismissed the petition last February, concluding the graduate students were not employees within the meaning of NLRA, Section 2(3) under the holding in Brown University. However, the Board granted the petitioner's request for review and remanded the case for hearing. In a supplemental decision and order, the Regional Director dismissed the petition, explaining that because the petitioning union sought to represent individuals in classifications which fall within the term “graduate assistants,” Brown University was controlling. The Board granted review, signaling its intention to revisit Brown University. Member Miscimarra dissented. Specifically, the Board invited comments on the following questions:
- Should the Board modify or overrule Brown University?
- If the Board modifies or overrules Brown University, what should be the standard for determining whether graduate student assistants engaged in research are statutory employees, including graduate student assistants engaged in research funded by external grants?
- If the Board concludes that graduate student assistants, terminal master’s degree students, and undergraduate students are statutory employees, would a unit composed of all these classifications be appropriate?
- If the Board concludes that graduate student assistants, terminal master’s degree students, and undergraduate students are statutory employees, what standard should the Board apply to determine whether they constitute temporary employees?
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