New York University

National Labor Relations Board - Board Decisions

Oct 25, 2010

356 N.L.R.B. 18 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18
New York University and GSOC/UAW. Case 2–RC–
23481
October 25, 2010
ORDER
BY MEMBERS BECKER, PEARCE, AND HAYES
Petitioner’s request for review of the Regional Direc-
tor’s order dismissing petition without a hearing is grant-
ed as it raises compelling reasons warranting review.
The Petitioner seeks to represent a unit of graduate
students who, the Petitioner contends, are employed by
the Employer, New York University, to provide teaching
and research services. The Regional Director dismissed
the petition without conducting a hearing, citing the
Board’s decision in Brown University, 342 NLRB 483
(2004), which held that graduate students performing
such services at Brown University are not employees
within the meaning of Section 2(3) of the Act.
The Employer’s opposition to the Petitioner’s request
for review makes several significant factual representa-
tions, and contentions concerning unit placement. Be-
cause the Regional Director dismissed the petition with-
out a hearing, we cannot assess the accuracy of these
representations or determine the Petitioner’s position on
these factual questions or the unit placement issues that
they appear to raise.
First, the Employer represents in its opposition that it
has substantially altered both its relationship to graduate
students who perform teaching duties and its legal posi-
tion in regard to such individuals since the decisions in
New York University, 332 NLRB 1205 (2000), and
Brown University. The Employer represents that it has
classified the overwhelming majority of its graduate stu-
dents who perform teaching duties as adjunct faculty and
now concedes that they are employees covered by the
Act. The Employer concedes that, unlike the graduate
students at issue in Brown University, the payments re-
ceived by graduate students appointed as adjunct faculty
are not the same as or similar to the amounts received by
students on fellowships without teaching duties. Howev-
er, the Employer contends that the graduate students ap-
pointed as adjunct faculty are properly included in an
existing unit of adjunct faculty. The Employer does not
make any specific representations concerning what per-
centage of the graduate students who are appointed as
adjunct faculty satisfy the other criteria for inclusion in
that unit, including provision “of forty contact hours of
instruction in one or more courses in an academic year
. . . or at least a total of 75 contact hours of individual
instruction or tutoring during a semester.” The Employer
further represents that there are fewer than 15 graduate
students performing teaching duties who have not been
classified as adjunct faculty. Neither party presents any
argument concerning the relevance of the classification
of some graduate students performing teaching duties as
adjunct faculty to the employee status of the remaining
graduate student teachers who are not so classified. The
Regional Director therefore did not consider this ques-
tion.
Second, the Employer also represents in its opposition
that some unspecified portion of its graduate students
who provide research assistance are “funded by external
grants” and, pursuant to the Board’s decision in New
York University, supra at 1209 fn. 10, they are not em-
ployees of the Employer regardless of the validity of the
Brown University decision. Again, because the Regional
Director dismissed the petition without a hearing, we
cannot assess the accuracy of these representations and
the Petitioner’s position on the factual and legal ques-
tions they appear to raise.
Finally, we believe there are compelling reasons for
reconsideration of the decision in Brown University. The
Petitioner points out that Brown University overruled the
decision in New York University, which had been issued
just 4 years earlier. The Petitioner argues that the deci-
sion in Brown University is based on policy considera-
tions extrinsic to the labor law we enforce and thus not
properly considered in determining whether the graduate
students are employees. The Petitioner also offered to
present evidence of collective-bargaining experience in
higher education as well as expert testimony demonstrat-
ing that, even giving weight to the considerations relied
on by the Board in Brown University, the graduate stu-
dents are appropriately classified as employees under the
Act. Finally, the Petitioner argues that the decision in
Brown University is inconsistent with the broad defini-
tion of employee contained in the Act and prior Board
and Supreme Court precedent. The Employer, however,
contends that Brown University was correctly decided.1
We believe the factual representations, contentions,
and arguments of the parties should be considered based
on a full evidentiary record addressing the questions
raised above as well as any others deemed relevant by
the Regional Director. Accordingly, the Regional Direc-
tor’s dismissal of the petition is reversed, the petition is
1 Contrary to our dissenting colleague, we do not read Sec. 102.67(c)
of our Rules to bar the Board from considering arguments and factual
assertions contained in the responsive papers in determining whether
“compelling reasons exist” for granting review. In addition, unlike our
colleague, we are 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 inappro-
priate. Factual findings must be based on evidence; since no evidence
was presented, a remand for a hearing is necessary.

356 NLRB No. 7

NEW YORK UNIVERSITY 19
reinstated, and the case is remanded to the Regional Di-
rector for a hearing and the issuance of a decision.

MEMBER HAYES, dissenting.
I would deny the Petitioner’s request for review inas-
much as the Regional Director’s dismissal of the instant
petition is entirely consistent with existing Board prece-
dent, and the Petitioner has set forth no compelling rea-
sons for reconsideration of any Board rule or policy.
Thus, the request for review fails to meet the most basic
requirements for granting review under the Board’s own
Rules and Regulations. Additionally, I disagree with my
colleagues that any of the papers before us creates a ma-
terial issue of fact that would require a hearing in order to
affirm the Regional Director’s determination.
The Petitioner here has sought a unit composed of “all
individuals enrolled in graduate level programs
. . . who are employed to perform the functions of teach-
ing assistants, research assistants and graduate assistants
(regardless of job title).” The unit sought is not appro-
priate under the Board’s decision in Brown University,
342 NLRB 483 (2004). This is a fact which the Petition-
er freely concedes. Thus, it notes that: “It is undisputed
that the Brown decision compels . . . [the dismissal of the
petition].”
The Petitioner makes absolutely no assertion, proffer,
or claim that there are any facts at all that would distin-
guish any of the individuals sought by its petition from
those found not to be statutory employees in Brown.
Indeed, the Petitioner scrupulously notes that its request
for review is based solely on Section 102.67(c)(4) in urg-
ing that there are “compelling reasons for reconsideration
of the Board’s Brown decision.” The Petitioner is com-
pletely candid about the objective of its request for re-
view—it wants the Board to grant the request, overrule
Brown, and reinstate the Board’s prior holding in New
York University, 332 NLRB 1205 (2000) (NYU), that
most of the individuals in the petitioned-for unit are stat-
utory employees.
The request for review itself sets forth no proper, let
alone “compelling” reasons for reconsideration. The re-
quest does not raise, allege, or reference a single fact,
circumstance, argument, legal precedent, or claim that
was not in existence and clearly before the Board when it
rendered its decision in Brown. Thus, the request for
review does nothing more than ask that a Board, with
changed membership, view precisely the same evidence
and argument considered by a prior Board, but reach an
opposite result. This is not a proper basis for “reconsid-
eration.” To suggest that it is merely serves to reinforce
the views of the Board’s critics who charge that its view
of the law is wholly partisan and thus changeable based
on nothing more than changes in Board membership.1
The deficiencies in the Petitioner’s request for review
are patent, and my colleagues’ effort to overcome them
serves only to cast the problems in bolder relief. Rather
than basing their grant of review and direction of a hear-
ing on compelling reasons stated by the Petitioner, the
party requesting review, my colleagues’ take their basis
for granting review from the Employer’s opposition.
Thus, they note that the Employer asserts (1) it has in-
cluded some graduate students in an adjunct faculty bar-
gaining unit; and (2) some graduate students in the peti-
tioned for unit would not only be excludible under the
Brown, but under the prior NYU decision as well.
Neither of these factual assertions presents a “compel-
ling” reason to grant review of Brown’s holding, nor do
they require a hearing. As far as the graduate students in
the adjunct faculty unit are concerned, if their circum-
stances are no different from the time of the prior NYU
decision, then under Brown they are not statutory em-
ployees. The Employer may voluntarily engage in col-
lective-bargaining for a unit including such individuals,
but that does not make them statutory employees. On the
other hand, if their circumstances have changed such that
they are now statutory employees, then they are current-
ly represented and the petition to include them in a sepa-
rate unit is inappropriate.
As for the Employer’s claim that certain individuals in
the petitioned-for unit were also excluded as nonemploy-
ees in NYU, the alleged necessity for a hearing to assess
the “accuracy of [the Employer’s] representations” exists
only if Brown is overruled. It is otherwise immaterial.
Granting review on this basis unavoidably suggests that
overruling Brown is a preordained result.
The remainder of my colleagues’ stated reasons for
granting review unfortunately suffers from the same in-
firmity as the Petitioner’s arguments. Thus, there is noth-
ing referenced that was not, or could not have been duly
considered by the Board when it reached its decision in
Brown. The Board then was well aware of the “evidence
of collective-bargaining in higher education,” including,
most notably the experience of the individuals and Em-
ployer that are the object of the instant petition.2
1 “[A]n agency interpretation of a relevant provision which conflicts
with the agency’s earlier interpretation is entitled to considerably less
deference than a consistently held agency view.” INS v. Cardoza-
Fonseca, 480 U.S. 421, 446 fn. 30 (1987) (citations and internal quota-
tions omitted).
2 Amicus curiae briefs in Brown were filed, inter alia, by: the Ameri-
can Council on Education and the National Association of Independent
Colleges and Universities; American Association of University Profes-
sors; American Federation of Labor-Congress of Industrial Organiza-
tions; Committee of Interns and Residents; Joint brief of Harvard Uni-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20
In sum, the Petitioner’s request for review has failed to
state any compelling reasons for reconsideration of
versity, Massachusetts Institute of Technology, Stanford University,
George Washington University, Tufts University, University of Penn-
sylvania, University of Southern California, Washington University in
St. Louis, and Yale University; and Trustees of Boston University. 342
NLRB 483 fn. 1.
Brown, and the majority unsuccessfully refer to state-
ments in the Employer’s opposition as a basis for grant-
ing a hearing. I would instead deny review of the Re-
gional Director’s correct application of Brown to dismiss
the petition.