Testimony of Robert J. Battista Chairman, National Labor Relations Board
Before the
Subcommittee on Labor, Health and Human Services, Education and Related Agencies Senate Committee on Appropriations
Washington, DC September 23, 2004
Chairman Specter and Distinguished Members of the Subcommittee:
I am pleased to appear before the Subcommittee today as it considers National Labor Relations Board issues. I am Chairman of the National Labor Relations Board, and also appearing with me today is Board Member Wilma Liebman. We have been invited to participate in today’s hearing with respect to the question of whether graduate student assistants are "employees" within the meaning of the National Labor Relations Act (the Act).
At the outset, I wish to note that it is a long-standing tradition at the NLRB that members of the Board do not comment on the merits of pending or possible legislative proposals. As you know, the NLRB is charged with enforcing the law as it exists, and to do so firmly and evenhandedly. Accordingly, the Board carefully avoids any actions that could compromise its neutrality or otherwise cast doubt on its ability to act impartially as a quasi-judicial body. Historically, members of the Board have refrained from policy debates regarding pending or proposed legislation because such conduct may conflict with our obligation of neutral enforcement of extant law as passed by Congress.
As to Board decisions that have issued, it is a long-standing tradition that the Board speaks through those decisions. That is, the decisions speak for themselves. As to pending matters, members of the Board should avoid commenting upon or discussing such matters. This tradition is consistent with, and informed by. the ABA Model Code of Judicial Conduct, Canon 3 of which specifically addresses prohibited ex-parte communications and improper public commentary by judicial-type officers.
It is in this context that I now turn to the subject of this portion of the hearing, the question of whether graduate student assistants are employees under the Act.
The issue is not a new one for to the NLRB. The question was first addressed over thirty years ago in Adelphi University, 195 NLRB 639 (1972). The Board held that graduate student assistants are primarily students and therefore should be excluded from a bargaining unit of regular faculty employees. Two years later, the Board considered the issue again in Leland Stanford, 214 NLRB 621 (1974). The Board specifically held that graduate student assistants are not employees within the meaning of Section 2(3) of the Act. In both cases, the Board considered the nature of the relationship of the graduate student assistants to the university. The Board found that relationship to be primarily that of student and teaching institution, rather than that of employee and employer. In reaching this conclusion regarding the research assistants in Leland Stanford, the Board noted the following factors:
1. the research assistants were graduate students enrolled in the Stanford physics department as Ph.D. candidates;
2. they were required to perform research to obtain their degree;
3. they received academic credit for their research work; and
4. while they received a stipend from Stanford, the amount was not dependent on the nature or intrinsic value of the services performed or the function of the recipient. Rather, the amount was determined by the goal of providing financial aid to the graduate students.
The Board adhered to the Leland Stanford principle for over twenty-five years, and that principle was never successfully challenged in court or in Congress. Notwithstanding this long history, the Board in 2000 changed this well-established principle. See New York University, 332 NLRB 1205 (2000). In that case, the Board decided that graduate student assistants meet the test of a master-servant relationship with the university, and that they are statutory employees with the right to organize into a union and to bargain with their employer.
In Brown University, 342 NLRB No. 42 (2004), the Board decided to return to the previously well-established precedent that graduate student assistants are not statutory employees. In doing so, the Board considered the nature of the relationship between the graduate student assistants and the university. Finding that relationship to be primarily academic, rather than economic, the Board concluded that graduate student assistants are not employees within the meaning of the Act. In finding a primarily academic relationship, the Board noted the following factors:
1. the individuals in question are, in fact, students;
2. serving as a teaching assistant, research assistant, or proctor, and the receipt of a stipend and tuition remission, depends upon continued enrollment as a student;
3. a student’s stipend and tuition remission remains unchanged during times the student does not serve as a teaching assistant, research assistant, or proctor;
4. Brown treats funds for teaching assistants, research assistants, and proctors as financial aid;
5. the principle time commitment of the student is focused on obtaining a degree; and
6. teaching and research are core elements of the Ph.D. degree, which are fulfilled by serving as a teaching assistant, research assistant, or proctor.
In reaching the conclusion that graduate student assistants are not employees under the Act, the Board was guided in part by the admonition of the Supreme Court in NLRB v. Yeshiva University, 444 U.S. 672, 680-681 (1980), that principles developed for use in the industrial setting cannot be “imposed blindly on the academic world.” The Board was also guided by a fundamental rule of statutory construction, i.e., a particular statutory provision must be considered in context and with a view of the overall statutory scheme. To be sure, where the statute is explicit, the Board must follow the statute as it reads. However, where the statute is ambiguous, questions of statutory construction must be examined in the context of the overall purpose of the Act. The Supreme Court has held that the issue of employee status falls in the latter category. See NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). In Brown, we followed that principle and the 25 years of history.
In summary, in determining whether individuals such as graduate student assistants are employees within the meaning of the Act, the Board looks to the fundamental nature of the relationship between those individuals and their purported employer. If that relationship is fundamentally economic, the Board typically finds those individuals to be employees within the meaning of the Act. However, if that relationship is fundamentally non-economic – such as graduate student assistants who have a primarily educational or academic relationship with their university – employee status ordinarily will not be found.
Thank you again for the opportunity to address this Subcommittee.
Footnote
1. Two Members of the Board dissented. I respect their well-considered views, albeit I disagree with them.
