By: Jeffrey A. Berman, Mary Kay Klimesh, & Bryan R. Bienias

Last week the National Labor Relations Board decided to reconsider whether graduate teaching assistants at private universities should be treated as employees under the National Labor Relations Act. The case, The New School, Case No. 02-RC-143009, involves a UAW petition to organize graduate students at New York’s New School and marks the Obama Board’s latest attempt to re-visit, and likely reverse, its decision in Brown University, 342 NLRB 483 (2004). In Brown, the Board held that graduate students performing teaching and research services are not “employees” within the meaning of Section 2(3) of the Act because their relationship with the university was primarily educational.

Roughly two years ago, many anticipated the Board would use graduate students union campaigns at New York University and the Polytechnic Institute of New York University as a platform for reversing Brown. However, the cases became moot when the schools and the unions reached voluntary election agreements in November 2013.

This recent decision comes on the heels of the Board’s August 2015 denial of jurisdiction over a union’s drive to organize football players at Northwestern University, where it noted that “the scholarship players bear little resemblance to the graduate student assistants or student janitors and cafeteria workers whose employee status the board has considered in other cases.” Northwestern Univ., 362 NLRB No. 167, slip op. at 3-4 (2015).

Board Member Miscimarra dissented from the Board’s decision to use the New School as a vehicle for revisiting the graduate student issue, noting that Brown is consistent with more than 40 years of Board law holding that “graduate student assistants are not statutory employees, except for a brief four-year period” where the Board considered graduate students to be employees under the Act.

The Board will likely invite amicus briefing on both sides of the issue in the New School case. Should the Board reverse its decision in Brown, the nation’s private colleges and universities can expect a dramatic increase in the efforts of unions to represent their graduate students involved in teaching and research.

We will keep you posted as this issue develops.