The status of graduate students and that of medical residents under the National Labor Relations Act as a starting point for crafting a statutory definition of 'employee'.

• Author: Witt, Sara

Hundreds of graduate students [at Yale and Columbia] will not teach classes, hold review sessions or participate in research next week.

The strike will be the first by Ivy League graduate students since the National Labor Relations Board ruled last year that graduate students at private colleges are students, not workers, and cannot form unions.

As a result of that decision, graduate students can win recognition only if university administrators voluntarily grant it--something they have refused to do.

Organizers say they hope the combined pressure of simultaneous strikes on two campuses will help reverse that stance.

"By asserting this as one voice, we're identifying what we have in common: that we should be recognized as legal workers and be respected and given bargaining rights," said Dehlia Hannah, a graduate student in philosophy at Columbia.

University officials say their position has not changed.

"Our relationship with graduate students is educational and collaborative, not an employer-employee relationship," said a Columbia spokeswoman, Alissa Kaplan Michaels, echoing the responses of Yale, Brown University and the University of Pennsylvania. (1)

So goes the debate that originated in 1967 when University of Wisconsin graduate students formed the first graduate student union, the Teaching Assistants Association. (2) Since then, countless graduate students have asserted that they provide a valuable service to the university and thus are employees like all other university workers. Universities always counter that the graduate students are there to receive an education, not to work, and therefore are very different from other university workers. This debate has been replicated between medical residents and hospitals.

The primary issue discussed in this Note is whether graduate students and hospital house staff, including medical residents, are employees for purposes of the National Labor Relations Act (the "NLRA" or the "Act") and hence entitled to engage in collective bargaining. The National Labor Relations Board (the "NLRB" or the "Board") has recently used two different tests to determine whether the groups are appropriate units for collective bargaining. Thus, a main focus of this Note will be to develop a uniform test, or definition, to apply to all cases involving NLRA status determinations. (3) In developing this test, an attempt will be made to foster more consistent results than shown in the past Board decisions, while recognizing that the Board prefers to regulate through adjudication rather than rulemaking.

Part I provides background on the NLRA and the NLRB as well as an overview of the NLRB's inconsistent treatment of graduate students and house staff. Part II discusses why the tests the Board currently uses to make status determinations are inadequate. Part II also includes brief comment on the tests used to make the same status determination under other federal labor and employment statutes. Part HI proposes a new test that incorporates the strengths of the tests the NLRB currently uses while simultaneously addressing the weaknesses of these tests. The new test also provides a greater likelihood of consistent results by imposing bright-line guides that the adjudicator may diverge from only if the party arguing for such divergence meets a heightened burden of proof. Part IV discusses the application of the new test to graduate students and house staff, ultimately concluding that graduate students are not employees under the Act, but house staff are. Part V considers the advantages of having one consistent status test that applies to all federal labor and employment statutes and discusses whether the proposed test is capable of such an application.

1. BACKGROUND

   In 1935, Congress enacted the NLRA for the purposes of combating disruption of industry by labor-management disputes and promoting economic and social progress. (4) In its present form, the NLRA has broad jurisdiction that is limited only by the Constitution and the definitions contained in section 2 of the Act. Section 2 includes definitions of "employers" and "employees." For the purposes of this Note, these definitions' relevant aspects are that: (1) the definition of "employer" explicitly excludes the government as an employer under the Act; (5) and (2) the definition of "employee" is circular and vague. (6)

   1. Section 2(3)--Employee "Shall Include Any Employee" Like the definitions used in many employment statutes, (7) the definition of employee provided in Section 2(3) of the NLRA is ambiguous. The exact language of the definition is as follows:

      The term "employee" shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act.... (8) Due to the vague definition of "employee," courts and the NLRB have generally looked beyond the explicit language of the NLRA to determine whether any particular person is an employee for purposes of the Act. An employee under the Act is entitled to all the rights contained therein. Paramount among these rights is the right to choose union representation in negotiations with the employer--i.e., the fight to collective bargaining--and the right to remedies for unfair labor practices. (9) This Note focuses on whether graduate students performing services for universities and house staff serving hospitals are employees under the NLRA. The most important implication of such a finding would be that universities and hospitals would be required to engage in collective bargaining with graduate students and house staffs should the groups so choose. (10)

   2. Overview of the NLRB's Treatment of Graduate Students

      Originally, the NLRB did not assert jurisdiction over private universities and hence did not consider the status of graduate students (11) under the NLRA. (12) However, in its 1970 Cornell University decision, (13) the Board asserted jurisdiction over private universities on the basis that universities engage in interstate commerce. In that case, the Board ultimately certified a group of non-academic employees as an appropriate bargaining unit. (14) In its 1972 Adelphi University decision, (15) the Board first confronted graduate students attempting to exercise the rights provided for in the NLRA. In Adelphi University, the proposed bargaining unit consisted of graduate students, professors, and library staff. (16) In refusing to certify the unit, the Board did not reach the question of whether the students were employees for purposes of the Act, but rather held that the bargaining unit lacked the "community of interest" required by section 9(a). (17)

      Two years later, the Board directly confronted the status of graduate students in Leland Stanford Junior University (18) ("Stanford"). Stanford could not be disposed of on the ground that the proposed bargaining group lacked "community of interest" because the group was made up exclusively of physics research assistants. (19) However, the Board still refused to certify the unit on the basis that "the research assistants in the physics department are primarily students [and thus] are not employees within the meaning of Section 2(2) [sic] of the Act." (20) In applying what became known as the "primary purpose" test, the Board placed heavy emphasis on several facts: all the services the students performed were "toward the goal of obtaining the Ph.D. degree"; the payment was a form of financial aid since there was "no correlation" between work performed or hours spent and the payment received; the students did not receive the fringe benefits normally associated with employment; the payments made to students were tax exempt; the students received academic credit for their work; and the students were not subject to discharge for unsatisfactory performance. (21) Thus, the Board provided factors to consider in applying the "primary purpose" test.

      The Board used the "primary purpose" test to determine the status of workers for almost thirty years. (22) Where a worker's primary purpose was not economic, the Board consistently held that the worker was not an employee within the meaning of the NLRA. (23) However, in 1999, in Boston Medical Center Corp., (24) the Board developed a different test, the "function" test. (25) It focuses on whether a worker is a common-law employee. In 2000, the Board applied this less stringent test to a case involving graduate students (26) and reversed twenty-six years of precedent. (27) In New York University, (28) the Board used the "function" test to hold that a group of graduate teaching and research assistants was an appropriate bargaining unit under section 9(a) of the Act. (29) In applying the "function" test, the Board focused on a narrow analysis (30)--"graduate assistants perform services under the control and direction of the Employer, and they are compensated for these services by the Employer." (31) Thus, the Board greatly simplified the test for determining whether a person is an employee within the meaning of section 2(3)--any person who would be an employee at common law is an "employee." (32)

      The application of the "function" test to graduate students was short-lived. Four years after New York University, the Board restored the "primary purpose" test. In Brown University, (33) in a two-three ruling, the Board...