Talking Stick - September/October 2017 - 47

in academic positions play in private
sector universities, and during that time
it declined to find that such students
were employees within the meaning of
the Act. This meant that attempts by
unions to organize students - whether
those students were teaching or research assistants or even medical house
staff - were rebuffed by the Board. As
early as 1972, the NLRB held that graduate student assistants were "primarily
students" and could not be included
in a bargaining unit of regular faculty.
In 1974 the Board held that graduate
research assistants were students, not
employees. Similarly, in 1976 and 1977
the Board held that hospital interns,
residents, and fellows were students
performing services directly related to
their educational program and were not
entitled to unionize.
Fast forward to 1999, though,
when a Democratically controlled
NLRB reversed course and found that
interns, residents, and fellows were
employees within the meaning of the
Act. Nothing significant had changed,
other than the composition of the
Board. A year later, in the case of New
York University, the NLRB majority
found that graduate student assistants
were employees entitled to collective
bargaining under the Act. This led to a
contract between NYU and the United
Auto Workers, who represented the
graduate assistants.
But this situation was not to last
very long. A Republican majority took
control of the Board under the administration of President George W. Bush,
and, in 2004, in the Brown University
case, the NLRB reversed itself and held
that graduate assistants were "primarily students" who were not entitled
to engage in collective bargaining.
NYU ended its contract with the Auto
Workers, and for more than a decade
graduate assistants were not entitled to
organize.
A similar issue would eventually
be brought in front of the Obama-

If RAs were to be represented by a union
. . . institutions would have to engage
in collective bargaining with RAs about
wages, hours, and other terms and
conditions of RA employment.
influenced Board; in a 2016 decision
involving Columbia University, the
Democratic-majority NLRB reversed
the Brown decision and held that
graduate teaching and research assistants, as well as undergraduate teaching assistants, were "employees" under
the Act. This decision, which was
aggressively pursued by the unions
for years, opened up a floodgate of
graduate assistant organizing, not only
at Columbia, but at other private sector
institutions as well.

In the meantime, and despite all this
uncertainty, the Columbia decision has
led to a broader interpretation of the
rights of all student employees. The
RAs at George Washington University filed their petition for an election
last December. The NLRB regional
director, relying on the Columbia decision, found that they were employees
because they were performing work,
under the direction of the university,
for compensation.

The status of these organizing
drives is on hold, however, because the
ensuing elections have been appealed
to the NLRB, which currently has only
three sitting members. Most recently,
President Donald Trump has nominated two Republican attorneys to the
Board, and, once confirmed, there will
be a Republican majority on the NLRB.
Many observers are predicting another
flip-flop, believing that the Board will
reverse the Columbia decision and
return to the Brown standard.

The NLRB General Counsel then
issued a memorandum earlier this
year stating that scholarship football
players, such as those at Northwestern
University in Evanston, Illinois, are
employees entitled to rights under
the Act. The fair implication of the
General Counsel's memorandum,
taken together with the Columbia decision, is that virtually any undergraduate student who performs services
for a private college or university for
compensation (including, presumably,

SEPTEMBER + OCTOBER 2017

Talking Stick - September/October 2017

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