When the National Labor Relations Board invited briefs in Columbia University (02-RC-143012), it indicated it would revisit its decision in Brown University (342 NLRB 483) that “graduate assistants who perform services at a university in connection with their studies are not statutory employees under the National Labor Relations Act.”  In other words, the Board will reconsider whether graduate students who teach and research for compensation should have the ability to unionize.

The NLRB’s willingness to take a fresh look at Brown is certainly promising for graduate students hoping to enter into collective bargaining relationships with their universities.  But the Board’s previous attempt to distinguish the circumstances of graduate students from those of student athletes is less than compelling.  If the NLRB finds that graduate students are statutory employees, it should be prepared to reconsider its decision to decline jurisdiction in Northwestern University (13-RC-121359) and instead find that student athletes are also entitled to the protections of the NLRA.  Like graduate students, scholarship athletes are employed by universities, and the nature of their work doesn’t warrant a different test of employee status.

The status of graduate students under the NLRA has been in flux for some time.  In 2000, the NLRB found in New York University that graduate teaching assistants, graduate assistants, and research assistants were employees within the meaning of the NLRA.  The Board decided that, whether or not graduate students were “predominantly students,” they were not excluded from the broad definition of “employee” under Section 2(3).  In 2004, the NLRB reversed itself in Brown University and held that the pre-NYU precedent finding graduate students weren’t statutory employees was correct.  The Board said that since the graduate students’ relationship with universities was primarily academic (as opposed to economic), they were not employees within the meaning of Section 2(3).

Despite the setback in Brown, graduate students at private universities continued to assert collective bargaining rights.  A renewed push by NYU graduate students in 2011 attracted attention, but NYU chose to voluntarily recognize the union before the NLRB could rule.  Meanwhile, graduate students at public universities covered by state labor laws instead of the NLRA have also sought recognition, and according to the United Auto Workers “more than 60 public universities have collective bargaining contracts with their student workers.”

At the same time, a movement has emerged to support the unionization efforts of another group of student employees: scholarship student football players for private Division I (major) programs.  Like graduate students, football players perform services for universities while enrolled as students, and are compensated with scholarships for their playing of football.  After Northwestern University players, led by former quarterback Kain Colter, sought union representation, the NLRB regional director in Chicago in 2014 initially found the scholarship players to be NLRA employees by applying the Brown “primary purpose” test.  Northwestern appealed to the NLRB, and this past August the Board declined jurisdiction by (weakly) concluding that the exercise of jurisdiction “would not effectuate the policies of the NLRA to promote stability in labor relations.”

The Board stated that “scholarship players do not fit into any analytical framework that the Board has used in cases involving other types of students or athletes” because the students’ participation in a traditionally-extracurricular activity “materially sets them apart from the Board’s student precedent.”  But while the Board made clear that it found the differences between the status of student athletes and graduate students significant (giving it the ability to decline jurisdiction), it was far less clear as to why those differences were material under the NLRA.  The Board’s very analysis supports the Regional Director’s application of the Brown “primary purpose” test and the conclusion that the relationship at issue is primarily economic.  Alternatively, the Board doesn’t state why an application of traditional principles to apply the Section 2(3) definition of employee would not lead to a similar result.

Questionably, the NLRB declined to apply any test of employee status because of something supposedly unique about “extracurricular” participation in scholarship athletics, even though scholarship football generates massive revenue for universities.  A 2006 study commissioned by the NCAA showed that “football players in major college programs estimated they spent 44.8 hours per week on athletic activities.”  Several stories and scandals (and most importantly civil-rights historian Taylor Branch’s seminal work on the history of the NCAA) demonstrate that football cannot easily be dismissed as a mere extracurricular endeavor.  NLRB Regional Director Peter Sung Ohr painstakingly documented the “strict and exacting control” Northwestern coaches exercised over players and the nature of the compensatory scholarship relationship between players and the school; the Board’s attempt to ignore facts out of convenience was unconvincing.

The NLRB thus missed an opportunity to extend collective bargaining rights to another group of student employees – the Board punted when it had a first down.  Clarifications in Northwestern footnotes differentiating graduate students did, however, anticipate the present case before the Board.  Which brings us to how in its review of Columbia, the NLRB gave itself a fresh opportunity to clarify the status of a broader class of student employees.  In its Invitation to File Briefs, the Board invited parties and amici to address not only Brown but also any new suggested standard for evaluating whether graduate students are employees, and importantly whether undergraduate student teaching and research assistants should also be statutory employees.

Hopefully, the NLRB will act on its willingness to revisit precedent and adopt a broader standard favorable to finding that students who work for universities are employees.  No matter what test it adopts, the Board should explicitly affirm it applies to all student employees, whether they work for their universities in the laboratory, classroom or on the football field.  The denial of collective bargaining rights to some student employees but not others will otherwise be the product of carefully honed stereotypes, many advanced by the National Collegiate Athletic Association, as opposed to anything unique about the work done by student athletes.