UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
REGION 2
New York University
Employer
and Case No. 2-RC-23481
GSOC/UAW
Petitioner
DECISION AND ORDER DISMISSING PETITION
1. Procedural History
On May 3, 2010,1 the Graduate Student Organizing Comm ittee/U nited
Auto Workers ("GCOC/UAW" or "Petitioner") filed the instant petition seeking to
represent certain graduate students. In response, New York University ("the
Employer') filed a motion to dismiss. On May 14, an Order to Show Cause was
issued seeking responses as to whether the petition should be dismissed based
on the Board's decision in Brown University, 342 NLRB 483 (2004), herein
"Brown." On June 7, an Order Dismissing Petition was issued, consistent with
the holding in Brown that graduate student assistants are not statutory
employees.
On June 21, the Petitioner filed a request for review and argued that the
Board should reconsider Brown because it was based on policy considerations
extrinsic to the Act and thus not properly considered in determining whether
graduate students are employees. In its opposition, the Employer claimed that
no compelling reason required the Board to reconsider the status of graduate
students as employees for the third time in ten years. Further, the Employer
asserted that its reclassification of teaching assistants as adjuncts rendered
Brown inapposite. Finally, the Employer maintained that students performing
research on externally funded grants are not employees under Brown or the
Board's prior decision in New York University, 332 NLRB 1205 (2000), herein
"NYU" and therefore, their status is well-settled and should not be reconsidered.
I All dates are 2010, unless specified otherwise.
By order dated October 25, the Board reversed the dismissal of, and
reinstated the petition and remanded the case for a full hearing and the issuance
of a decision.2 The Board was unwilling to find, in the absence of any evidence,
that the graduate students who have been appointed as adjunct faculty are
currently represented and that the instant petition is therefore inappropriate.
The Board determined that a full record was necessary to access the
accuracy of the Employer's factual representations regarding the inclusion of
graduate students in the adjunct faculty unit. Specifically, the Board requested
evidence regarding the percentage of graduate students who are eligible for
inclusion in the adjunct unit. With respect to the graduate students performing
teaching duties as adjuncts who do not meet the eligibility requirements for the
adjunct unit, the Board solicited the parties' positions regarding the employee
status and unit placement of this group. Further, the Board determined that a full
record was necessary to determine what portion of the graduate students who
provide research assistance are funded by external grants and access whether,
pursuant to the Board's decision in NYU, supra, at 1209, n. 10, they are not
statutory employees regardless of the validity of Brown.3 Finally, the Board
found that there are compelling reasons for reconsideration of Brown and
directed the parties to make any factual representations, contentions and
arguments that they deemed relevant to a determination of whether graduate
students are appropriately classified as employees under the Act.
Accordingly, under a petition filed under Section 9(c) of the National Labor
Relations Act, as amended, ("the Act"), a hearing was held before hearing officers
of the National Labor Relations Board.
The Instant Case
Pursuant to the provisions of Section 3(b) of the Act, the Board has
delegated its authority in this proceeding to the Regional Director, Region 2.
On the entire record in this proceeding,4 it is found that:
1 . The hearing officers' rulings made at the hearing are free from
prejudicial error and hereby are affirmed.
2 The Employer's motion to dismiss the petition made at the outset of this hearing and referred to me is
hereby denied as unnecessary having been rendered moot by my decision herein. The Employer's motion
to reopen the record for receipt of the additional summary is hereby granted and received into evidence as
Employer Exhibit 121. Finally, the Employer's motion to dismiss at the completion of the Union's case is
denied. In this regard I note that Petitioner did elicit testimony regarding the issues presented on remand.
3 In NYU I, the GAs and RAs in the sciences funded by external grants had no expectations placed on them
other than academic advancement, which involved research. They received stipends but they were not
required to commit a set number of hours performing specific tasks for NYU. They were performing the
same research for their dissertations. These GAs and RAs were excluded from the unit because they were
not performing services for the Employer.
4 Briefs filed by counsel to the Employer and the Petitioner have been carefully considered.
2
2. The parties stipulated, and I find, that the Employer, a not-for-profit
corporation, with its campus located in New York, New York, is an institution of
higher education. Annually, in the course and conduct of its operations, the
Employer derives gross revenues in excess of $1 million and purchases and
receives goods and supplies valued in excess of $50,000 at its New York facility,
directly from suppliers located outside the State of New York.
Accordingly, I find that the Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes of the Act to assert
jurisdiction here.
3. At issue is the labor organization status of GSOC/UAW. The
Employer contends that the petition should be dismissed because GSOC/UAW is
not a labor organization within the meaning of the Act because it does not, and
will not, deal with NYU or any other employer.
Section 2(5) of the Act provides the following definition of "labor
organization":
Any organization of any kind, or any agency or employee representation
committee or plan, in which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers concerning
grievances, lab or disputes, wages, rates of pay, hours of employment, or
conditions of work.
The statutory definition of a "labor organization" has long been interpreted
broadly. See, Electrornation, Inc., 309 NLRB 990, 993-94 (1992), enf'd. 35 F.3d
1148 (7" Cir. 1994). To fall within the definition of a "labor organization," the
Board has held that employees must participate in the organization and it must
exist for the purpose, in whole or in part, of dealing with employers on their behalf
regarding their wages, hours of employment and other terms and conditions of
employment. Alto Plastic Mfg. Corp., 136 NLRB 850, 851-852 (1962).
At the hearing, UAW International regional director, Julie Kushner, testified
that the International established the GSOC as the organizing committee of the
graduate assistants at NYU. The committee is staffed by graduate students and
UAW paid organizers. Under the International's constitution, bargaining unit
employees must participate in contract negotiations. Here, the employees who
participate in the GSOC potentially will also serve as the members of the
negotiating committee. Further, the petition clearly states that GSOC is affiliated
with the International, which indisputably exists to represent employees for the
purpose of negotiating their wages, hours, and working conditions.
The Employer's reliance on Sterling Processing Corp., 119 NLRB 1783
(1958), is misplaced. In that case, based on an agreement of two Internationals,
the affiliated petitioning committee existed solely for organizational purposes and
3
was explicitly not empowered to deal with employers concerning labor disputes,
wages, hours, grievances or conditions of employment. In contrast, the
participants in the GSOC will likely become the bargaining committee in future
negotiations, should Petitioner win the election. Regarding the Employer's
concern that naming GSOC on the ballot is misleading, as long as the
International is also named, potential voters will not be misled when casting their
ballots. That the International may assign bargaining to an undisclosed local, is
an internal Union matter outside the purview of the Board. Gemex Corporation,
120 NLRB 46 (1958).
Based on the evidence presented at the hearing, I find that the Petitioner
is a labor organization within the meaning of the Act.
4. A question affecting commerce exists concerning the representation of
certain employees of the Employer within the meaning of Sections 9(c) and 2(6)
and (7) of the Act.
5. The Petitioner seeks to represent employees in the following unit:5
All graduate student employees of New York University who are receiving
stipends from the University and who perform work for the University,
including those classified as research assistants, graduate assistants and
those performing teaching, administrative and other duties, excluding,
graders and tutors, employees at the Sackler Institute, all other employees,
and guards and supervisors, as defined by the Act.
As evidenced in the hearing and the briefs, the parties disagree as to the
employee status of the graduate students and the scope of the unit.
The Employer contends that the petition should be dismissed on its face
because graduate students are not statutory employees pursuant to the Board's
decision in Brown. In the event that Brown is reversed, the Employer argues that
petitioned-for unit is inappropriate because of the graduate students lack a
community of interest. Rather, some of the specific classifications share a greater
community of interest with non-student employees. As an example, the
Employer's current policy regarding teaching assistants reflects a change in the
financial aid package rendering virtually all of the graduate students who are
appointed to teach eligible for inclusion in the adjunct faculty unit. The Employer
argues that there is no factual or legal basis to require the removal of graduate
students from an adjunct unit that has a six-year history of collective bargaining.
To the extent that some graduate students are ineligible because they do not meet
the minimum contact hours, the Employer contends that they should be treated like
the non-student adjuncts that are considered casual employees.
5 The unit description was amcfldcd at hearing. See attached Charts A and B.
4
With respect to research assistants, the Employer contends that the Board,
in NYU, found that research assistants are not providing services to the Employer
because their research is inextricably linked to their doctoral programs. That
rationale was extended in Brown. Accordingly, the graduate research assistants
are not employees under any iteration of the law in this area and, therefore, not
appropriately included in the petitioned-for unit.
As to graduate assistants, the Employer argues that the 'hourly" graduate
students share a community of interest with all other hourly paid employees, some
of whom are undergraduates and some are non-student workers. In summary, the
Employer argues that, even if graduate students are found to be employees, the
petitioned-for unit is inappropriate because the classifications sought do not share
a community of interest.
Contrary to the Employer, the Petitioner claims that Brown was wrongly
decided and should be overruled. In that regard, Petitioner argues that Brown's
categorical exclusion of graduate student employees is inconsistent with the
language and intent of the Act. Moreover, the Petitioner contends that the parties'
experience shows that collective bargaining is suitable to an academic
environment. Through bargaining, the patties successfully addressed the
concerns raised by the Board majority in Brown, including separation of terms and
conditions of employment for academic matters, the mentor relationship and
interference with academic freedom.
Regarding scope, the Petitioner asserts that the petitioned-for unit is
appropriate because the graduate students have a separate and distinct
community of interest. The Petitioner claims that the recent addition of certain
graduate students in the adjunct unit affects only a small segment of the unit
sought here because most teaching assistants do not meet the minimum contact
eligibility requirement for inclusion in the adjunct unit. Further, irrespective of any
prior positions or findings regarding research assistants, the Petitioner contends
that the graduate research assistants in the instant case are providing a service to
the Employer because externally funded programs are central to the Employers
operations. In sum, the Petitioner argues that the graduate students provide
services to the Employer and share a unique community of interest.
The record demonstrates that the bulk of the petitioned-for unit consists of
graduate student adjuncts, formerly, 'leaching assistants." Despite the Employer's
reclassification, the evidence indicates that the actual work performed by the
graduate student adjuncts has not changed. Although the Board in Brown
considered the fact that the services performed were part of the students' financial
aid package, this factor alone was not determinative of employee status. Rather,
the Brown decision is grounded in the notion that graduate assistantships are
integral to a doctoral education and, therefore, the essence of the relationship
between the student and the university is academic, not economic. Accordingly,
the Employer's financial aid reform which guarantees stipends, but separates
5
earnings from teaching and research assistantships, is an insufficient basis upon
which it can be concluded that graduate students are employees. The record
demonstrates that the work performed by graduate assistants is either implicitly or
directly in furtherance of their graduate program. It is indisputable that teaching
and research are vital components of the doctorate program. Finally, with respect
to the graduate research assistants performing work on externally funded grants,
consistent with Brown and NYU, these students are not performing work for the
Employer and, therefore, are not employees within the meaning of the Act.
Although the record describing the recent treatment of graduate students as
employees suggests that the relationship between the graduate students and the
University is both academic and economic, I am bound by the conclusion in Brown
that all graduate students are excluded from coverage of the Act. Accordingly, I
am dismissing the petition.
No comments:
Post a Comment