June 2011

By Ellen Dannin. Professor Dannin is the Fannie Weiss Faculty Scholar and Professor of Law at Penn State Dickinson School of Law; and a former NLRB attorney. Professor Dannin is also author of the recent ACS Issue Brief,“No Rights Without a Remedy: The Long Struggle for Effective National Labor Relations Act Remedies.”

A recent decision by the National Labor Relations Board’s (NLRB) New York Regional Office, could pave the way for clearing up longstanding misunderstanding of graduate students’ rights to bargaining collectively with universities that employ them.

That decision by Elbert F. Tellem, Acting Regional Director of NLRB Region 2, comes in a case involving the efforts of graduate students at New York University to unionize.

In May 2010, GSOC/UAW Local 2110 filed a petition with the NLRB to represent New York University graduate student employees.  The union had already won a majority of votes tallied by the American Arbitration Association on April 26, but NYU refused to recognize the union.  On October 25, 2010, the Board, in a 2-1 decision, ordered the Regional Director for NLRB Region 2 (which has jurisdiction over boroughs of Manhattan and the Bronx in New York City; and Orange, Putnam, Rockland, and Westchester counties) to hold a hearing on the employee status of the NYU graduate students.

Most people incorrectly believe that graduate student employees have no right to union representation.  Take, for example, a July 23, 2004 Chronicle of Higher Education story on the NLRB’s 2004 decision concerning Brown University graduate students.  “Labor Board Rules Against TA Unions - Decision is major blow to organizing efforts at private colleges”:

"Graduate students at private universities do not have the right to form labor unions, the National Labor Relations Board ruled last week, striking down its own landmark 2000 ruling that had led to a wave of organizing," The Chronicle story stated.

The Chronicle had that impression, because that was the claim made by the majority in the 3-2 decision in Brown University – that graduate students at private universities have no right to union representation, because, said the Board majority, it is not possible to be both a graduate student and an employee of the university the graduate student attends.

The problem is that the Board had no legal authority to issue such a broad decision. Here is why.

First, the majority did not reach this conclusion after an analysis of the facts.  Rather, it said its decision was based on “policy,” and then extended that “policy” to all graduate students, regardless of the facts of their situation.

The problem with making such a policy decision is that the National Labor Relations Act (NLRA) does not give the Board the power to make policy decisions in representation cases.  Rather, NLRA section 9(b) states that the NLRB must decide who is an employee eligible to vote on collective bargaining based on the facts “in each case.”  The case before the Board was not a case about the status of all graduate students everywhere.  It was solely about the Brown graduate student employees. 

Furthermore, the law does not give the Board power to make a “policy” decision on this issue, because the law requires that such a decision be based on an analysis of the facts concerning the working conditions of the employees covered by the election petition.