NLRB Official's Ruling Bolsters Drive to Unionize NYU Teaching Assistants

June 20, 2011

A National Labor Relations Board official has declared that teaching and research assistants at New York University might be formally considered its employees, potentially clearing the way for them to unionize by seeking the reversal of a 2004 NLRB decision that denied collective-bargaining rights to graduate students who work at private colleges.

In a decision issued last week, Elbert F. Tellem, acting director of the NLRB's regional office in Manhattan, said the graduate assistants, practically speaking, have "a dual relationship" with the university that is "both academic and economic" and that "does not necessarily preclude a finding of employee status" for them. Although they receive financial aid as students, they also perform services under the university's "control and direction," for which they are compensated by it, he said.

Mr. Tellem's decision leaves the graduate assistants a long way from their goal of forming a union affiliated with the United Auto Workers. In fact, his ruling explicitly dismissed their petition to form a union, concluding that he was obliged to do so under the 2004 board decision, which held that graduate students at Brown University were not covered by federal labor law.

But, in declaring that some of the graduate students could be considered the university's employees, Mr. Tellem helped clear the way for them to form a union if they can persuade the full National Labor Relations Board, in Washington, to overturn its 2004 Brown University precedent. Unionization supporters have expressed optimism that the national board, as reconfigured under President Obama, will be friendlier to the cause of unionizing graduate assistants than it had been in 2004, when it was dominated by Republicans appointed by George W. Bush.

In fact, in an October 2010 ruling reversing an NLRB regional director's decision to deny the New York University petition without a hearing, some board members said there are "compelling reasons" for reconsidering the stand the board took in the Brown University case. Graduate assistants at NYU had formed a union in 2001, making theirs the first private university in the nation to recognize a collective-bargaining unit for graduate employees, but their contract expired in 2005 and the university declined to renew it in light of the NLRB's 2004 decision in the Brown case.

"Now we're going to take this case to the National Labor Relations Board in Washington, D.C., and claim our rights as workers," Jan Padios, a teaching assistant at New York University's department of social and cultural analysis, said in a written statement issued in response to Mr. Tellem's decision. "It's unfortunate," she said. "NYU would rather waste resources on a lengthy legal dispute, instead of recognizing our rights."

John H. Beckman, a spokesman for NYU, issued a statement on Monday that said officials there welcomed Mr. Tellem's decision to dismiss the unionization petition but "we fundamentally disagree with his analysis and conclusion that a graduate-student bargaining unit would be appropriate in the event that the Brown case is reversed."

He said Mr. Tellem's analysis ignored the fact that New York University had eliminated teaching assistantships for graduate students and those graduate students who choose to teach there are considered adjunct faculty, who already have a union, affliated with the UAW at NYU.

Mr. Beckman's statement also accused Mr. Tellem of failing to give any reasoning for his decision to allow research assistants supported by external grants to be included in a bargaining unit. That decision, Mr. Beckman said, is "contrary to precedent of some 40 years' holding that such research assistants are not employees."

Mr. Tellem's decision had questioned how much common ground graduate teaching assistants shared with adjuncts, and whether their interests were adequately represented by the adjuncts' union.