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96–674 PDF 2004

S. HRG. 108–719 

NATIONAL LABOR RELATIONS BOARD ISSUES 

HEARING 

BEFORE A

SUBCOMMITTEE OF THE 

COMMITTEE ON APPROPRIATIONS 

UNITED STATES SENATE 

ONE HUNDRED EIGHTH CONGRESS 

SECOND SESSION 

SPECIAL HEARING 

SEPTEMBER 23, 2004—WASHINGTON, DC 

Printed for the use of the Committee on Appropriations 

( 

Available via the World Wide Web: http://www.access.gpo.gov/congress/senate 
(II) 

COMMITTEE ON APPROPRIATIONS 

TED STEVENS, Alaska, Chairman 

THAD COCHRAN, Mississippi 

ARLEN SPECTER, Pennsylvania 

PETE V. DOMENICI, New Mexico 

CHRISTOPHER S. BOND, Missouri 

MITCH MCCONNELL, Kentucky 

CONRAD BURNS, Montana 

RICHARD C. SHELBY, Alabama 

JUDD GREGG, New Hampshire 

ROBERT F. BENNETT, Utah 

BEN NIGHTHORSE CAMPBELL, Colorado 

LARRY CRAIG, Idaho 

KAY BAILEY HUTCHISON, Texas 

MIKE DEWINE, Ohio 

SAM BROWNBACK, Kansas 

ROBERT C. BYRD, West Virginia 

DANIEL K. INOUYE, Hawaii 

ERNEST F. HOLLINGS, South Carolina 

PATRICK J. LEAHY, Vermont 

TOM HARKIN, Iowa 

BARBARA A. MIKULSKI, Maryland 

HARRY REID, Nevada 

HERB KOHL, Wisconsin 

PATTY MURRAY, Washington 

BYRON L. DORGAN, North Dakota 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

TIM JOHNSON, South Dakota 

MARY L. LANDRIEU, Louisiana 

JAMES W. MORHARD, Staff Director 

LISA SUTHERLAND, Deputy Staff Director 

TERRENCE E. SAUVAIN, Minority Staff Director 

SUBCOMMITTEE ON DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND

EDUCATION, AND RELATED AGENCIES

ARLEN SPECTER, Pennsylvania, Chairman 

THAD COCHRAN, Mississippi 

JUDD GREGG, New Hampshire 

LARRY CRAIG, Idaho 

KAY BAILEY HUTCHISON, Texas 

TED STEVENS, Alaska 

MIKE DEWINE, Ohio 

RICHARD C. SHELBY, Alabama 

TOM HARKIN, Iowa 

ERNEST F. HOLLINGS, South Carolina 

DANIEL K. INOUYE, Hawaii 

HARRY REID, Nevada 

HERB KOHL, Wisconsin 

PATTY MURRAY, Washington 

MARY L. LANDRIEU, Louisiana 

ROBERT C. BYRD, West Virginia (Ex officio) 

Professional Staff 

BETTILOU TAYLOR

JIM SOURWINE

MARK LAISCH

SUDIP SHRIKANT PARIKH

CANDICE ROGERS

ELLEN MURRAY (Minority) 

ERIK FATEMI (Minority) 

ADRIENNE HALLETT (Minority) 

Administrative Support 

CAROLE GEAGLEY
(III) 

C O N T E N T S 

Page 

Opening statement of Senator Arlen Specter ........................................................ 1 

Statement of Hon. Robert J. Battista, Chairman, National Labor Relations 

Board ..................................................................................................................... 1 

Prepared statement .......................................................................................... 3 

Brown University and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW AFL– 

CIO, Petitioner. Case 1–RC–21368 ............................................................. 5 

Statement of Hon. Wilma B. Liebman, Member, National Labor Relations 

Board ..................................................................................................................... 25 

Prepared statement .......................................................................................... 27 

Statement of Christina Collins, graduate student and Ph.D. candidate, University of Pennsylvania, and political director, Graduate Employees Together-University of Pennsylvania ..................................................................... 34 

Prepared statement .......................................................................................... 36 

Statement of John Langel, Esq., Ballard Spahr Andrews & Ingersoll, representing the University of Pennsylvania .......................................................... 38 

Prepared statement .......................................................................................... 40 

Statement of Arthur Rosenfeld, General Counsel, National Labor Relations 

Board ..................................................................................................................... 48 

Prepared statement .......................................................................................... 50 

Statement of Nancy Schiffer, associate general counsel, AFL–CIO .................... 53 

Prepared statement .......................................................................................... 55 

Statement of William L. Messenger, staff attorney, National Right to Work 

Legal Defense Foundation ................................................................................... 59 

Prepared statement .......................................................................................... 60 

(1) 

NATIONAL LABOR RELATIONS BOARD ISSUES 

THURSDAY, SEPTEMBER 23, 2004 

U.S. SENATE,

SUBCOMMITTEE ON LABOR, HEALTH AND HUMAN

SERVICES, AND EDUCATION, AND RELATED AGENCIES, 

COMMITTEE ON APPROPRIATIONS, 

Washington, DC. 

The subcommittee met at 9:32 a.m., in room SD–192, Dirksen 

Senate Office Building, Hon. Arlen Specter (chairman) presiding. 

Present: Senators Specter and Shelby. 

OPENING STATEMENT OF SENATOR ARLEN SPECTER

Senator SPECTER. Good morning, ladies and gentlemen. The Appropriations Subcommittee on Labor, Health and Human Services, 

and Education will now proceed. 

We have hearings this morning on issues relating to the National 

Labor Relations Board on the question of the status of university 

students, as to whether they constitute or qualify as employees 

under the Federal labor laws; and a question on the NLRB decertification policy as to unions following voluntary recognition agreements. 

We have quite a number of witnesses and after these proceedings 

were scheduled the Prime Minister of Iraq was invited to address 

a joint session of Congress. That is something that I would like to 

attend, at least in part. So we would ask you to observe to the extent possible the tradition of the subcommittee on 5-minute opening statements, which will leave us the maximum amount of time 

for questions and answers. 

STATEMENT OF HON. ROBERT J. BATTISTA, CHAIRMAN, NATIONAL 

LABOR RELATIONS BOARD 

Senator SPECTER. Our first witness is the Honorable Robert 

Battista, Chairman of the NLRB, appointed by President Bush for 

a 5-year term in 2002. Prior to this position he practiced employment and labor law with the Detroit law firm of Butzel Long. He 

has an undergraduate degree from Notre Dame and a law degree 

from the University of Michigan Law School. 

Thank you for joining us, Mr. Chairman, and the floor is yours. 

Mr. BATTISTA. Thank you, Chairman Specter and members of the 

subcommittee. I am Robert Battista, the Chairman of the NLRB, 

and I am pleased to appear before the subcommittee today as it 

considers National Labor Relations Board issues. 

At the outset, I wish to note that the NLRB is charged with enforcing the law as it exists and to do so in a firm and evenhanded 
2 

manner. 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 various issues, including proposed legislation. As to 

Board decisions that have issued, it is a longstanding tradition that 

the Board speaks through those decisions. Indeed, our reasoning in 

the Brown University case is set out in detail in the majority opinion and I would respectfully request that it be placed in the record. 

As to pending matters, members of the Board should avoid commenting upon or discussing such matters. Neither should we apply 

the holdings of a decision we have reached to fact situations which 

could come before us. This tradition is consistent with and informed by the ABA Model Code of Judicial Conduct Canon 3, which 

specifically addresses prohibited ex parte communications and improper public commentary by judicial type officers. 

It is in this context and with these constraints, then, that I turn 

to the question of whether graduate students are employees under 

the National Labor Relations Act. The issue is not a new one for 

the NLRB. The question was first addressed over 30 years ago in 

Adelphi University, where the Board held that graduate student assistants were 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, Jr., University. 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 the relationship to be primarily that of 

student and teaching institution rather than that of employee and 

employer. 

The Board adhered to the Leland Stanford principle for over 25 

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 in NYU. In that case 

the Board decided that graduate student assistants met the test of 

master-servant relationship with the university and accordingly 

found them to be statutory employees, with the right to organize 

into a union and to bargain with their employer. 

In Brown University in 2004, the Board decided to return to the 

previously well-established precedent that graduate student assistants are not statutory employees. Two members of the Board dissented. I respect their well-considered views, albeit I disagree with 

them. In doing so, the Board considered the nature of the relationship between the graduate student assistants and the university, 

finding the 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 primary academic relationship, the Board noted the 

following factors: The individuals in question were students; they 

served as teaching assistant, research assistant, or proctors; and 

the receipt of a stipend and tuition remission depended upon continued enrollment as students; a student’s stipend and tuition remission remained unchanged during times that the student did not 
3 

serve as a teaching assistant, research assistant, or proctor; that 

Brown treated funds for teaching assistants, research assistants, 

and proctors as financial aid; the principal time commitment of the 

student is focused on obtaining a degree; and that teaching and research are core elements of the Ph.D. degree which are fulfilled by 

serving as teaching assistant, research assistant, or proctor. 

In reaching the conclusion that graduate students are not employees under the Act, the Board was guided in part by the admonition of the Supreme Court in NLRB v. Yeshiva University that: 

‘‘The principles developed for use in an industrial setting cannot be 

imposed blindly on the academic world.’’ The Board also was guided by the fundamental rule of statutory construction: A particular 

statutory provision must be considered in context with a view of 

the overall statutory scheme. 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 purposes of the Act. The Supreme Court has found in NLRB v. Bell Aerospace Company that 

the question of employee status falls in the latter category. 

PREPARED STATEMENT

In summary, in determining whether employees such as graduate assistants are employees within the meaning of the Act, the 

Board looks to the nature of the relationship between the individuals and the purported employer. If that relationship is fundamentally economic, the Board typically finds these individuals to be employees within the meaning of the Act. However, if the relationship 

is fundamentally non-economic, such as graduate student assistants who have a primarily educational or academic relationship 

with the university, employee status ordinarily will not be found. 

Thank you for the opportunity to address the committee on this 

subject and I will entertain any questions that you have. 

[The statement follows:] 

PREPARED STATEMENT OF HON. ROBERT J. BATTISTA

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. 
4 

1Two Members of the Board dissented. I respect their well-considered views, albeit I disagree 

with them. 

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 25 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.1 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. 
5 

1 Amicus curiae briefs were filed by the following: Joint brief of the American Council on Education and the National Association of Independent Colleges and Universities; American Association of University Professors; American Federation of Labor-Congress of Industrial Organizations; Committee of Interns and Residents; Joint brief of Harvard University, Massachusetts Institute of Technology, Stanford University, George Washington University, Tufts University, 

University of Pennsylvania, University of Southern California, Washington University in St. 

Louis, and Yale University; National Right to Work Legal Defense Foundation; and Trustees 

of Boston University. 2See, e.g., Leland Stanford Junior University, 214 NLRB 621 (1974). 3 ‘‘This relationship exists when a servant performs services for another, under the other’s control or right of control, and in return for payment.’’ NYU, 332 NLRB at 1206, relying on NLRB v. Town & Country Electric, 516 U.S. 85, 90–91, 93–95 (1995). 4 NYU was preceded by Boston Medical Center, 330 NLRB 152 (1999), a case involving the 

employee status of medical school graduates serving as interns, residents, and house staff at 

a teaching hospital. The Board in Boston Medical Center overruled St. Clare’s Hospital & Health 

Center, 229 NLRB 1000 (1977), and Cedars-Sinai Medical Center, 223 NLRB 251 (1976). Applying the master-servant test, the Board found that these medical professionals were statutory 

employees and constituted an appropriate unit for collective bargaining. In our decision today, 

we express no opinion regarding the Board’s decision in Boston Medical Center. 

Thank you again for the opportunity to address this Subcommittee. 

[NOTICE.—This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, 

D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.] 

BROWN UNIVERSITY AND INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE

AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW AFL–CIO, PETITIONER. CASE 1–RC–21368 

(July 13, 2004) 

DECISION ON REVIEW AND ORDER

(By Chairman Battista and Members Liebman, Schaumber, Walsh, and Meisburg) 

On November 16, 2001, the Regional Director for Region 1 issued a Decision and 

Direction of Election in which she applied New York University, 332 NLRB 1205 

(2000) (NYU), to find that teaching assistants, research assistants, and proctors are 

employees within the meaning of Section 2(3) of the Act and constitute an appropriate unit for collective bargaining. Thereafter, in accordance with Section 102.67 

of the Board’s Rules and Regulations, Brown University (Brown) filed a timely request for review, urging the Board, inter alia, to reconsider NYU. The Petitioner 

filed an opposition. On March 22, 2002, the Board granted the request for review. 

Brown and the Petitioner filed briefs on review. Amicus curiae briefs also were 

filed.1

The case presents the issue of whether graduate student assistants who are admitted into, not hired by, a university, and for whom supervised teaching or research is an integral component of their academic development, must be treated as 

employees for purposes of collective bargaining under Section 2(3) of the Act. The 

Board in NYU concluded that graduate student assistants are employees under Section 2(3) of the Act and therefore are to be extended the right to engage in collective 

bargaining. That decision reversed more than 25 years of Board precedent.2 That 

precedent was never successfully challenged in court or in Congress. In our decision 

today, we return to the Board’s pre-NYU precedent that graduate student assistants 

are not statutory employees. 

Until NYU, the Board’s principle was that graduate student assistants are primarily students and not statutory employees. See Leland Stanford, supra. The 

Board concluded that graduate student assistants, who perform services at a university in connection with their studies, have a predominately academic, rather than 

economic, relationship with their school. Accordingly, the Board held that they were 

not employees within the intendment of the Act. 

This longstanding approach towards graduate student assistants changed abruptly with NYU. The Board decided that graduate student assistants meet the test establishing a conventional master-servant relationship with a university,3 and that 

they are statutory employees who necessarily have ‘‘statutory rights to organize and 

bargain with their employer.’’ 332 NLRB at 1209.4

After carefully considering the record herein, and the briefs of the parties and 

amici, and for the reasons detailed in this decision, we reconsider NYU and conclude 
6 

5 Brown’s request for oral argument is denied as the record and the briefs adequately present 

the issues and positions of the parties and amici. 6 Included among the TAs are senior TAs, assistants, supplemental TAs, and teaching fellows. 

The union also seeks to represent the few medical students who are seeking a Ph.D. and serving 

as a TA. 7The Petitioner did not seek to represent other RAs, who are largely in the life and physical 

sciences departments of the university. In its Brief on Review, however, the Petitioner for the 

first time takes the position that all RAs should be included in the unit. The Petitioner did not 

file a request for review of the Regional Director’s finding, discussed infra, that the RAs in life 

and physical sciences should be excluded from the unit. 8Further, Brown argued that there is no basis for treating groups of RAs differently for the 

purposes of collective bargaining. Thus, although Brown argues that none of the RAs are employees, it asserts that all RAs should be treated the same; either all are employees or all are 

not employees. 9The University was originally named Rhode Island College. In 1804, the school was renamed 

Brown University to honor local merchant, Nicholas Brown. 10 At least 32 departments bestow doctorates, while 5 award masters degrees only. 

that the 25-year precedent was correct, and that NYU was wrongly decided and 

should be overruled.5

I. THE PETITION AND THE REGIONAL DIRECTOR’S FINDINGS

The Petitioner sought to represent a unit of approximately 450 graduate students 

employed as teaching assistants (TAs),6 research assistants (RAs) in certain social 

sciences and humanities departments,7 and proctors. The Petitioner, relying on 

NYU, supra, contended to the Regional Director that the petitioned-for TAs, RAs, 

and proctors are employees within the proctors are employees within the meaning 

of Section 2(3) and that they constitute an appropriate unit for collective bargaining. 

Brown contended to the Regional Director that the petitioned-for individuals are 

not statutory employees because this case is factually distinguishable from NYU. 

Brown asserted that, unlike NYU, where only a few departments required students 

to serve as a TA or RA to receive a degree, most university departments at Brown 

require a student to serve as a TA or RA to obtain a degree. Brown contended that 

these degree requirements demonstrate that the petitioned-for students have only 

an educational relationship and not an employment relationship with Brown. Brown 

also argued that the TA, RA, and proctor awards constitute financial aid to students, emphasizing that students receive the same stipend, regardless of whether 

they ‘‘work’’ for those funds as a TA, RA, or proctor, or whether they receive funding 

for a fellowship, which does not require any work. Finally, Brown argued that even 

assuming the petitioned-for individuals are statutory employees, they are temporary 

employees who do not have sufficient interest in their ongoing employment to entitle 

them to collectively bargain.8

The Regional Director, applying NYU, rejected Brown’s arguments. She also concluded that the petitioned-for unit was appropriate, and she directed an election. 

The election was conducted on December 6, 2001, and the ballots were impounded 

pending the disposition of this request for review. 

II. FACTS AND CONTENTIONS OF THE PARTIES

A. Overview of Brown and the Graduate Assistants 

Brown is a private university located in Providence, Rhode Island. It was founded 

in 1764 and is one of the oldest colleges in the United States.9 The mission of Brown 

is to serve as a university in which the graduate and undergraduate schools operate 

as a single integrated facility. Brown has over 50 academic departments, approximately 37 of which offer graduate degrees.10 Brown employs approximately 550 regular faculty members, and has an unspecified number of short-term faculty appointments. Although student enrollment levels vary, over 1,300 are graduate students, 

5,600 are undergraduate students, and 300 are medical students in various degree 

programs. Most graduate students seek Ph.D. degrees, with an estimated 1,132 

seeking doctorates and 178 seeking master’s degrees as of May 1, 2001. 

Each semester many of these graduate students are awarded a teaching 

assistantship, research assistantship, or proctorship, and others receive a fellowship. 

At the time of the hearing, approximately 375 of these graduate students were TAs, 
7 

11These figures are for a moment in time. During a given period, a much higher number will 

have served in one of these positions at some point during that period. Thus, as noted infra, 

the students in 21 of approximately 32 departments require teaching as a condition of getting 

a Ph.D. degree. 12 Approximately 50 graduate students receive a dean’s fellowship, and a university fellowship 

is offered to 60 candidates. Each department also has fellowships. The Employer asserts in its 

posthearing brief that there are at least 300 fellowships, although the record is not entirely clear 

as to the precise number overall. 13 A few TAs in some departments do not lead sections or labs, but teach a course, although 

under the supervision of a faculty member. In addition, teaching fellows, who constitute less 

than 10 percent of all TAs, teach courses independently. The vast majority of TAs, however, 

typically lead sections or labs that are subsections of a large lecture. 

220 served as RAs, 60 were proctors,11 and an additional number received fellowships.12

Although varying somewhat among the departments, a teaching assistant generally is assigned to lead a small section of a large lecture course taught by a professor. Although functions of research assistants vary within departments, these 

graduate students, as the title implies, generally conduct research under a research 

grant received by a faculty member. Proctors perform a variety of duties for university departments or administrative offices. Their duties depend on the individual 

needs of the particular department or the university administrative office in which 

they work and, thus, include a wide variety of tasks. Unlike TAs and RAs, proctors 

generally do not perform teaching or research functions. Fellowships do not require 

any classroom or departmental assignments; those who receive dissertation fellowships are required to be working on their dissertation. 

B. Educational Relationship Between Brown and the Graduate Student Assistants 

Brown’s charter describes the school’s mission as ‘‘educating and preparing students to discharge the office of life with usefulness and reputation.’’ To educate and 

prepare its students, Brown uses the university/college model, which ‘‘furnishes the 

advantages of both a small teaching college and a large research university,’’ according to Brown’s Bulletin of the University for the years 2001–2003. The Bulletin describes the Ph.D. degree as ‘‘primarily a research degree’’ and emphasizes that 

‘‘[t]eaching is also an important part of most graduate programs.’’ The testimony of 

nearly 20 department heads, and the contents of numerous departmental brochures 

and other Brown brochures, all point to graduate programs steeped in the education 

of graduate students through research and teaching. 

In their pursuit of a Ph.D. degree, graduate students must complete coursework, 

be admitted to degree candidacy (usually following a qualifying examination), and 

complete a dissertation, all of which are subject to the oversight of faculty and the 

degree requirements of the department involved. In addition, most Ph.D. candidates 

must teach in order to obtain their degree. Although these TAs (as well as RAs and 

proctors) receive money from the Employer, that is also true of fellows who do not 

perform any services. Thus, the services are not related to the money received. 

The faculty of each department is responsible for awarding TAs, RAs, or proctorships to its students. To receive an award, the individual usually must be enrolled 

as a student in that department. 

TAs generally lead small groups of students enrolled in a large lecture class conducted by a faculty member in the graduate student’s department. The duties and 

responsibilities vary with the department involved. In the sciences, TAs typically 

demonstrate experiments and the proper use of equipment, and answer questions. 

In the humanities and social sciences, TAs lead discussions of what was discussed 

in the lecture by the professor.13 All the TAs’ duties are under the oversight of a 

faculty member from the graduate department involved. 

During semesters when these students do not act as TAs, RAs, or proctors, they 

enroll in courses and work on dissertations. Even during those semesters when they 

are acting in one of these capacities, they nonetheless participate in taking courses 

and writing dissertations. 

The content of the courses that the TAs teach, and the class size, time, length, 

and location are determined by the faculty members, departmental needs, and 

Brown’s administration. Although undergraduate enrollment patterns play a role in 

the assignment of many TAs, faculty often attempt to accommodate the specific educational needs of graduate students whenever possible. In addition, TAs usually lead 

sections within their general academic area of interest. In the end, decisions over 

who, what, where, and when to assist faculty members as a TA generally are made 

by the faculty member and the respective department involved, in conjunction with 

the administration. These are precisely the individuals or bodies that control the 

academic life of the TA. 
8 

14The University requires all students to submit a Free Application for Federal Student Aid 

(FAFSA). Because proctorships usually are paid with Federal work-study funds, those students 

must financially qualify for this support. The University also provides Federal loans, such as 

the Federal Direct Student Loan Program. 15Students receiving the dean and dissertation fellowships receive $14,500, while university fellowships receive $13,300. Some departments, particularly in the sciences, offer RA stipends 

from $13,200 to $14,250. Some departments, mostly in sciences and social sciences, use senior 

TAs who receive $13,300, while teaching fellows receive from $14,300 to $14,800. Our colleagues 

say that the graduate assistantships are ‘‘modest,’’ citing the $12,800 stipend paid by Brown 

as an example. However, Brown may also provide these individuals with tuition remission worth 

$26,000 per year, and in addition pays the University’s health fee on their behalf. 16 As indicated above, TAs, RAs, and proctors participate in taking courses and are permitted 

to take a maximum of three courses during the semester that they serve. Fellows, however, are 

permitted to take a maximum of five courses with four courses being most typical. 

Research assistantships are typically generated from external grants from outside 

Brown, i.e., Federal agencies, foundations, and corporate sponsors. A faculty member, referred to as the ‘‘principal investigator,’’ typically applies for the grant from 

the Government or private source, and funds are included for one or more RAs. The 

general process is for students to work with or ‘‘affiliate with’’ a faculty member, 

who then applies for funds and awards the student the RA. The students supported 

by the grant will work on one of the topics described in the grant. The faculty member who serves as a principal investigator most typically also serves as the advisor 

for that student’s dissertation. Although technically the principal investigator on the 

grant, the faculty member’s role is more akin to teacher, mentor, or advisor of students. Although the RAs in the social sciences and humanities perform research 

that is more tangential to their dissertation, the students still perform research 

functions in conjunction with the faculty member who is the principal investigator. 

Proctors perform a variety of duties for university departments or administrative 

offices. The Regional Director cited a representative list of these duties, which include working in Brown’s museums or libraries, editing journals or revising brochures, working in the office of the dean, advising undergraduate students, and 

working in various university offices. Although a few perform research and at least 

one teaches a class in the Hispanic studies department, they generally do not perform research or teaching assistant duties. 

C. Financial Support for Graduate Students 

The vast majority of incoming and continuing graduate students receive financial 

support. In the preceding academic year, 85 percent of continuing students and 75 

percent of incoming students received some financial support from Brown. Brown 

gives assurances to some students that additional support will be available in the 

future. Thus, at the discretion of each department and based on the availability of 

funds, some incoming students are told in their award letters that if they ‘‘maintain 

satisfactory progress toward the Ph.D., you will continue to receive some form of financial aid in your second through fourth years of graduate study at Brown, most 

probably as a teaching assistant or research assistant.’’ Brown’s ultimate goal is to 

support all graduate students for up to 5 years, typically with a fellowship in the 

first and fifth years, and TA or RA positions in the intervening years. As noted 

above, the financial support is not dependent on whether the student performs services as a TA, RA, or proctor. 

Brown considers academic merit and financial need when offering various forms 

of support, although support is not necessarily issued to those with the greatest financial need.14 This support may include a fellowship, TA, RA, or proctorship, 

which may include a stipend for living expenses, payment of university health fee 

for oncampus health services, and tuition ‘‘remission’’ (payment of tuition). Priority 

is given to continuing students when awarding financial support. 

The amount of funding for a fellowship, TA, RA, and proctorship generally is the 

same. The basic stipend for a fellowship, TA, RA, or proctorship is $12,800, although 

some fellowships, RAs, and TAs are slightly more.15 Tuition remission and health 

fee payments generally are the same for TAs, RAs, proctors, and fellows, although 

the amount of tuition remission depends on the number of courses taken by a student.16

Brown treats funds for TA, RAs, proctors, and fellowships as financial aid and 

represents them as such in universitywide or departmental brochures. Graduate 

student assistants receive a portion of their stipend award twice a month, and the 

amount of stipend received is the same regardless of the number of hours spent performing services. The awards do not include any benefits, such as vacation and sick 

leave, retirement, or health insurance. 
9 

D. Contentions of the Parties 

1. Brown 

In its Brief on Review, Brown argues that New York University, 332 NLRB 1205 

(2000), was wrongly decided, contending that it reversed 25 years of precedent 

‘‘without paying adequate attention to the Board’s role in making sensible policy decisions that effectuate the purposes of the Act.’’ Brown contends that the Board ‘‘did 

not adequately consider that the relationship between a research university and its 

graduate students is not fundamentally an economic one but an educational one.’’ 

Further, Brown contends that the support to students is part of a financial aid program that pays graduate students the same amount, regardless of work, and regardless of the value of those services if purchased on the open market (i.e., hiring a 

fully-vetted Ph.D.). Brown also emphasizes that ‘‘[c]ommon sense dictates that students who teach and perform research as part of their academic curriculum cannot 

properly be considered employees without entangling the... Act into the intricacies of graduate education.’’ Brown also incorporates arguments made in its request 

for review that, at a minimum, NYU, supra, is distinguishable from this case because of the extent that teaching and research are required for a graduate degree, 

and because the graduate assistants are temporary employees. 

2. Petitioner 

The Petitioner argues that the Regional Director correctly followed the Board’s decision in NYU, and that NYU must be upheld. The Petitioner contends that the petitioned-for employees clearly meet the statutory definition of ‘‘employee’’ because 

they meet the common law test. The Petitioner disputes Brown’s contention that TA 

and RA stipends, like fellowship stipends, are ‘‘financial aid.’’ The Petitioner argues 

that Brown’s contention that TAs or RAs lose their status as employees because the 

TAs and RAs are academically required to work is based on the false notion that 

there is no way to distinguish between a graduate student’s academic requirements 

and the ‘‘work appointments’’ of the TAs or RAs. Further, even assuming that these 

individuals usually are satisfying an academic requirement, this is not determinative of employee status. 

With regard to the RAs in the life and physical sciences that the Regional Director excluded, the Petitioner now asserts that these individuals should be included 

in the unit because they provide a service to Brown and are compensated for such 

service in a manner consistent with a finding that they are employees within the 

meaning of the Act. 

Finally, the Petitioner contends that the petitioned-for individuals are not temporary employees. 

III. DISCUSSION AND ANALYSIS

A. Pre-NYU Board Decisions 

In Adelphi University, 195 NLRB 639 (1972), the Board held that graduate student assistants are primarily students and should be excluded from a unit of regular 

faculty. In Leland Stanford, 214 NLRB 621 (1974), the Board went further. It held 

that graduate student assistants ‘‘are not employees within the meaning of Section 

2(3) of the Act.’’ The common thread in both opinions is that these individuals are 

students, not employees. The Board found that the research assistants were not 

statutory employees because, like the graduate students in Adelphi, supra, they 

were ‘‘primarily students.’’ In support of this conclusion, the Board cited to the following: (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 skill or function of the 

recipient, but instead was determined by the goal of providing the graduate students with financial support. For over 25 years, the Board adhered to the Leland 

Stanford principle. 

In each of these Board decisions, the Board’s view of graduate students enrolled 

at a college or university remained essentially the same. In Adelphi University, 

supra, the graduate student assistants were graduate students working towards 

their advanced academic degrees, and the Board noted that ‘‘their employment depends entirely on their status as such.’’ 195 NLRB at 640. Further, the Board emphasized that graduate student assistants ‘‘are guided, instructed, assisted, and corrected in the performance of their assistantship duties by the regular faculty members to whom they are assigned.’’ Id. The Board concluded that graduate student 

assistants were primarily students and contrasted them with research associates in 

C. W. Post Center of Long Island University, 189 NLRB 904 (1971), because the re-
10 

17Sec. 1, 29 U.S.C. § 151. 18 1 Leg. Hist. 318 (NLRA 1935). See also American Ship Building Co. v. NLRB, 380 U.S. 300, 

316 (1965) (a purpose of the Act is ‘‘to redress the perceived imbalance of economic power between labor and management.’’); 1 Leg. His. 15 (NLRA 1935) (remarks of Sen. Wagner, 78 

Cong.Rec. 3443 (Mar. 1, 1934). 19 NLRB v. Insurance Agents, 361 U.S. 477, 488 (1960). 

search associates ‘‘[were] not simultaneously a student but already had... [a] 

doctoral degree and, under the Center’s statutes, [were] eligible for tenure.’’ 195 

NLRB at 640 fn. 8. As noted above, the rationale was similar in Leland Stanford, 

supra, in which the Board likewise contrasted the research assistants there to research associates, again emphasizing that research associates are not simultaneously students and concluding that ‘‘these research assistants are like the graduate teaching and research assistants who we found were primarily students in 

Adelphi University.’’ 214 NLRB at 623. 

In St. Clare’s Hospital, 229 NLRB 1000 (1977), and Cedars-Sinai Medical Center, 

223 NLRB 251 (1976), the Board reaffirmed its treatment of students ‘‘who perform 

services at their educational institutions which are directly related to their educational program’’ and stated that the Board ‘‘has universally excluded students 

from units which include nonstudent employees, and in addition has denied them 

the right to be represented separately.’’ St. Clare’s Hospital, 229 NLRB at 1002. The 

Board emphasized the rationale that they are ‘‘serving primarily as students and 

not primarily as employees... [and] the mutual interests of the students and the 

educa tional institution in the services being rendered are predominately academic 

rather than economic in nature.’’ Id. Although the Board later overruled St. Clare’s 

Hospital and Cedars-Sinai in Boston Medical Center, 330 NLRB 152 (1999), and asserted jurisdiction over the individuals there, those individuals were interns, residents, and fellows who had already completed and received their academic degrees. 

The Board in Boston Medical did not address the status of graduate assistants who 

have not received their academic degrees. In the instant case, the graduate assistants are seeking their academic degrees and, thus, are clearly students. We need 

not decide whether Boston Medical (where the opposite is true) was correctly decided. 

B. Return to the Pre-NYU Status of Graduate Student Assistants 

The Supreme Court has recognized that principles developed for use in the industrial setting cannot be ‘‘imposed blindly on the academic world.’’ NLRB v. Yeshiva 

University, 444 U.S. 672, 680–681 (1980), citing Syracuse University, 204 NLRB 641, 

643 (1973). While graduate programs may differ somewhat in their details, the concerns raised in NYU, supra, and here forcefully illustrate the problem of attempting 

to force the studentuniversity relationship into the traditional employeremployee 

framework. After carefully analyzing these issues, we have come to the conclusion 

that the Board’s 25-year pre-NYU principle of regarding graduate students as nonemployees was sound and well reasoned. It is clear to us that graduate student assistants, including those at Brown, are primarily students and have a primarily educational, not economic, relationship with their university. Accordingly, we overrule 

NYU and return to the pre-NYU Board precedent. 

Leland Stanford, supra, was wholly consistent with the overall purpose and aim 

of the Act. In Section 1 of the Act, Congress found that the strikes, industrial strife 

and unrest that preceded the Act were caused by the ‘‘inequality of bargaining 

power between employees who do not possess full freedom of association or actual 

liberty of contract, and employers who are organized in the corporate or other forms 

of ownership. . . .’’ 17 To remove the burden on interstate commerce caused by this 

industrial unrest, Congress extended to and protected the right of employees, if they 

so choose, to organize and bargain collectively with their employer, encouraging the 

‘‘friendly adjustment of industrial disputes arising out of differences as to wages, 

hours or other conditions. . . .’’ Id.18 The Act was premised on the view that there 

is a fundamental conflict between the interests of the employers and employees engaged in collective-bargaining under its auspices and that ‘‘ ‘[t]he 

parties... proceed from contrary and to an extent antagonistic viewpoints and 

concepts of self-interest’ ’’[:] 19

[T]he damage caused to the nation’s commerce by the inequality of bargaining 

power between employees and employers was one of the central problems addressed by the Act. A central policy of the Act is that the protection of the right 

of employees to organize and bargain collectively restores equality of bargaining 

power between employers and employees and safeguards commerce from the 
11 

20WBAI Pacifica Foundation, 328 NLRB 1273, 1275 (1999) (emphasis added). 21 416 U.S. 267 (1974). 22 Id. at 284. 23 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–133 (2000) (‘‘The meaning— 

or ambiguity—of certain words or phrases may only become evident when placed in context. It 

is a fundamental canon of statutory construction that the words of a statute must be read in 

their context and with a view to their place in the overall statutory scheme. A court must therefore interpret the statute as a symmetrical and coherent regulatory scheme.’’) (Citations and internal quotations omitted.) See also Sutherland, Statutory Construction (5th ed. 1994) § 46.05: 

‘‘A statute is passed as a whole and not in parts or sections and is animated by one general 

purpose and intent. Consequently, each part or section should be construed in connection with 

every other part or section so as to produce a harmonious whole. Thus, it is not proper to confine 

interpretation to the one section to be construed.’’ 24This fact is relevant to our analysis, but it is not necessarily critical. That is, if the fact 

were to the contrary, we would not necessarily find employee status. Indeed, the fact was contra 

in NYU and employee status was found, but we have overruled that case. 

harm caused by labor disputes. The vision of a fundamentally economic relationship between employers and employees is inescapable.20

The Board and the courts have looked to these Congressional policies for guidance 

in determining the outer limits of statutory employee status. Thus, the Supreme 

Court held, in NLRB v. Bell Aerospace Co.,21 that managerial employees, while not 

excluded from the definition of an employee in Section 2(3), nevertheless are not 

statutory employees. As the Court explained: 

[T]he Wagner Act was designed to protect ‘‘laborers’’ and ‘‘workers,’’ not vicepresidents and others clearly within the managerial hierarchy. Extension of the 

Act to cover true ‘‘managerial employees’’ would indeed be revolutionary, for it 

would eviscerate the traditional distinction between labor and management. If 

Congress intended a result so drastic, it is not unreasonable to expect that it 

would have said so expressly.22

This interpretation of Section 2(3) followed the fundamental rule that ‘‘a reviewing 

court should not confine itself to examining a particular statutory provision in isolation.’’ 23 We follow that principle here. We look to the underlying fundamental 

premise of the Act, viz. the Act is designed to cover economic relationships. The 

Board’s longstanding rule that it will not assert jurisdiction over relationships that 

are ‘‘primarily educational ‘‘ is consistent with these principles. 

We emphasize the simple, undisputed fact that all the petitioned-for individuals 

are students and must first be enrolled at Brown to be awarded a TA, RA, or proctorship. Even students who have finished their coursework and are writing their 

dissertation must be enrolled to receive these awards. Further, students serving as 

graduate student assistants spend only a limited number of hours performing their 

duties, and it is beyond dispute that their principal time commitment at Brown is 

focused on obtaining a degree and, thus, being a student. Also, as shown below, 

their service as a graduate student assistant is part and parcel of the core elements 

of the Ph.D. degree. Because they are first and foremost students, and their status 

as a graduate student assistant is contingent on their continued enrollment as students, we find that that they are primarily students. 

We also emphasize that the money received by the TAs, RAs, and proctors is the 

same as that received by fellows. Thus, the money is not ‘‘consideration for work.’’ 

It is financial aid to a student. 

The evidence demonstrates that the relationship between Brown’s graduate student assistants and Brown is primarily educational. As indicated, the first prerequisite to becoming a graduate student assistant is being a student. Being a student, of course, is synonymous with learning, education, and academic pursuits. At 

Brown, most graduate students are pursuing a Ph.D. which, as described by the 

Brown’s University Bulletin, is primarily a research degree with teaching being an 

important component of most graduate programs. The educational core of the degree, research, and teaching, reflects the essence of what Brown offers to students: 

‘‘the advantage of a small teaching college and large research university.’’ At least 

21 of the 32 departments that offer Ph.D. degrees require teaching as a condition 

of getting that degree. Sixty-nine percent of all graduate students are enrolled in 

these departments. Thus, for a substantial majority of graduate students, teaching 

is so integral to their education that they will not get the degree until they satisfy 

that requirement.24 Graduate student assistant positions are, therefore, directly related to the core elements of the Ph.D. degree and the educational reasons that students attend Brown. The relationship between being a graduate student assistant 
12 

and the pursuit of the Ph.D. is inextricably linked, and thus, that relationship is 

clearly educational. 

We recognize that a given graduate student may be a teacher, researcher, or proctor for only a portion of his or her tenure as a student. However, as described above, 

that task is an integral part of being a graduate student, and cannot be divorced 

from the other functions of being a graduate student. 

Because the role of teaching assistant and research assistant is integral to the 

education of the graduate student, Brown’s faculty oversees graduate student assistants in their role as a research or teaching assistant. Although the duties and responsibilities of graduate student assistants vary among departments and faculty, 

most perform under the direction and control of faculty members from their particular department. TAs generally do not teach independently, and even teaching 

fellows who have some greater responsibilities follow faculty-established courses. 

RAs performing research do so under grants applied for by faculty members, who 

often serve as the RA’s dissertation adviser. In addition, these faculty members are 

often the same faculty that teach or advise the graduate assistant student in their 

coursework or dissertation preparation. 

Besides the purely academic dimension to this relationship is the financial support provided to graduate student assistants because they are students. Attendance 

at Brown is quite expensive. Brown recognizes the need for financial support to 

meet the costs of a graduate education. This assistance, however, is provided only 

to students and only for the period during which they are enrolled as students. Further, the vast majority of students receive funding. Thus, in the last academic year, 

85 percent of continuing students and 75 percent of incoming students received assistance from Brown. In addition, as noted above, the amounts received by graduate 

student assistants generally are the same or similar to the amounts received by students who receive funds for a fellowship, which do not require any assistance in 

teaching and research. Moreover, a significant segment of the funds received by 

both graduate student assistants and fellows is for full tuition. Further, the funds 

for students largely come from Brown’s financial aid budget rather than its instructional budget. 

Thus, in light of the status of graduate student assistants as students, the role 

of graduate student assistantships in graduate education, the graduate student assistants’ relationship with the faculty, and the financial support they receive to attend Brown, we conclude that the overall relationship between the graduate student 

assistants and Brown is primarily an educational one, rather than an economic one. 

Over 25 years ago, the Board in St. Clare’s Hospital, supra, clearly and cogently 

explained the rationale for declining to extend collective-bargaining rights to students who perform services at their educational institutions, that are directly related to their educational program, i.e., 

The rationale . . . is a relatively simple and straightforward one. Since the 

individuals are rendering services which are directly related to—and indeed 

constitute an integral part of—their educational program, they are serving primarily as students and not primarily as employees. In our view this is a very 

fundamental distinction for it means that the mutual interests of the students 

and the educational institution in the services being rendered are predominantly academic rather than economic in nature. Such interests are completely 

foreign to the normal employment relationship and, in our judgment, are not 

readily adaptable to the collectivebargaining process. It is for this reason that 

the Board has determined that the national labor policy does not require—and 

in fact precludes—the extension of collective-bargaining rights and obligations 

to situations such as the one now before us. 

229 NLRB at 1002 (footnote omitted). 

The Board explained, ‘‘[i]t is important to recognize that the student-teacher relationship is not at all analogous to the employer-employee relationship.’’ Thus, the 

student-teacher relationship is based on the ‘‘mutual interest in the advancement 

of the student’s education,’’ while the employer-employee relationship is ‘‘largely 

predicated on the often conflicting interests’’ over economic issues. Because the collective-bargaining process is fundamentally an economic process, the Board concluded that subjecting educational decisions to such a process would be of ‘‘dubious 

value’’ because educational concerns are largely irrelevant to wages, hours, and 

working conditions. In short, the Board determined that collective bargaining is not 

particularly well suited to educational decisionmaking and that any change in emphasis from quality education to economic concerns will ‘‘prove detrimental to both 

labor and educational policies.’’ 

The Board noted that ‘‘the educational process—particularly at the graduate and 

professional levels—is an intensely personal one.’’ The Board emphasized that the 
13 

25 In citing St. Clare’s, we do not necessarily register our agreement with all aspects of that 

case. That is, we do not hold that residents and interns are not employees for purposes of collective bargaining. Nor do we hold that the Act ‘‘precludes’’ residents and interns from employee 

status under Sec. 2(3). We simply say that, for many of the same policy considerations that underlie St. Clare’s, we have chosen not to treat graduate assistants as employees for purposes 

of collective bargaining. 26 Academic freedom includes the right of a university ‘‘to determine for itself on academic 

grounds who may teach, what may be taught, how it shall be taught, and who may be admitted 

to study.’’ Sweezy v. State of New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J, concurring). As our dissenting colleagues note, the Supreme Court found that these freedoms were not 

infringed by the EEOC’s efforts to subpoena tenure-related documents in University of Pennsylvania v. EEOC, 493 U.S. 182 (1990). In reaching this conclusion, the Court stressed that the 

application of Title VII to tenure decisions would not usurp the university’s authority to determine employment criteria for professors except by precluding the use of those proscribed by Title 

VII. The imposition of collective bargaining on the relationship between a university and its 

graduate student assistants, in contrast, would limit the university’s freedom to determine a 

wider range of matters. Because graduate student assistants are students, those limitations intrude on core academic freedoms in a manner simply not present in cases involving faculty employees. 27Member Schaumber agrees with his colleagues that graduate student assistants are not 

statutory employees for the reasons stated above. He finds further support for this conclusion 

in the fact that graduate student assistants fit poorly within the common law definition of ‘‘employee, ‘‘ which the Supreme Court has held is relevant to the question of whether an individual 

is an ‘‘employee’’ under the Act, although not controlling. NLRB v. Town & Country Electric, 

516 U.S. 85, 94 (1995) (contrasting interpretation of term ‘‘employee’’ under other Federal laws, 

applying common law standards, with the ‘‘’considerable deference’’’ given to the Board’s construction of that term when administering the Act). Under the common law, an employee is a 

person who performs services for another under a contract of hire, subject to the other’s control 

or right of control, and in return for payment. Id. Here, graduate student assistants are not 

‘‘hired’’ to serve as graduate teaching or research assistants. They are admitted to a graduate 

program that includes a requirement for service as a graduate student assistant. The teaching 

and research are not performed ‘‘for’’ the university, as such, but rather as an integral part of 

the student’s educational course of study. The financial arrangements for graduate student stipends further confirm the fundamentally educational nature of service as a TA or RA, as the 

stipends are based upon status—enrollment in a graduate program. They do not depend on the 

nature or value of the services provided, and, thus, are not a quid pro quo for services rendered. 

In disagreeing with this analysis, Member Schaumber believes that his dissenting colleagues 

Continued 

process is personal, not only for the students, but also for faculty, who must educate 

students with a wide variety of backgrounds and abilities. In contrast to these individual relationships, collective bargaining is predicated on the collective or group 

treatment of represented individuals. The Board observed that in many respects, 

collective treatment is ‘‘the very antithesis of personal individualized education.’’ 

The Board also emphasized that collective bargaining is designed to promote 

equality of bargaining power, ‘‘another concept that is largely foreign to higher education.’’ The Board noted that while teachers and students have a mutual interest 

in the advancement of the student’s education, in an employment relationship such 

mutuality of goals ‘‘rarely exists.’’ 

Finally, the Board concluded that collective bargaining would unduly infringe 

upon traditional academic freedoms. The list of freedoms detailed in St. Clare’s Hospital, 229 NLRB at 1003, includes not only the right to speak freely in the classroom, but many ‘‘fundamental matters’’ involving traditional academic decisions, including course length and content, standards for advancement and graduation, administration of exams, and many other administrative and educational concerns. 

The Board opined that once academic freedoms become bargainable, ‘‘Board involvement in matters of strictly academic concern is only a petition or an unfair labor 

practice charge away.’’ 25

The concerns expressed by the Board in St. Clare’s Hospital 25 years ago are just 

as relevant today at Brown. Imposing collective bargaining would have a deleterious 

impact on overall educational decisions by the Brown faculty and administration. 

These decisions would include broad academic issues involving class size, time, 

length, and location, as well as issues over graduate assistants’ duties, hours, and 

stipends. In addition, collective bargaining would intrude upon decisions over who, 

what, and where to teach or research—the principal prerogatives of an educational 

institution like Brown. Although these issues give the appearance of being terms 

and conditions of employment, all involve educational concerns and decisions, which 

are based on different, and often individualized considerations.26

Based on all of the above-statutory and policy considerations, we concluded that 

the graduate student assistants are not employees within the meaning of Section 

2(3) of the Act. Accordingly, we decline to extend collective bargaining rights to 

them, and we dismiss the petition.27
14 

focus too narrowly on the mechanics of the work performed by graduate student assistants without considering it in context with the controlling academic relationship of which it is an integral 

part. This parallels the dissent’s application of the definition for ‘‘employee’’ set forth in Sec. 

2(3) of the Act. Member Schaumber believes that the dissenters read the definition in isolation 

while the breadth of the term’s application—its intended contours—can only be determined accurately by reading the definition in the context of the Act, see, e.g., Sec. 1 in which it appears. 28Our colleagues say that, under St. Clare’s, house staff were not employees for bargaining 

purposes but they could be employees for other statutory purposes. Our colleagues complain 

that, in the instant case, we are holding that graduate student assistants are not employees 

for any statutory purposes. In our view, that result flows from our interpretation of Sec. 2(3). 

Of course, St. Clare’s is not now the law, and we decline to consider its holding here. 29 Although the dissent cites language from Cedars-Sinai, supra, to the effect that the Board 

has included students in some bargaining units and in a few instances, authorized elections in 

units composed solely of students, the Board clarified this general assertion in St. Clare’s by 

making clear that this does not include the category of students who perform services at their 

university related to their educational programs. 30Sheltered Workshops of San Diego, 126 NLRB 961(1960), Goodwill of Tidewater, 304 NLRB 

767 (1991); and Goodwill of Denver, 304 NLRB 764 (1991). 

Our dissenting colleagues question our analysis of pre-NYU precedent. More specifically, they assert that the holding of Leland Stanford, 214 NLRB 621 (1974), is 

confined to research assistants and that research assistants are unlike graduate 

teaching assistants. The language of the Board in that case is directly contrary to 

this assertion. The Board said: 

In sum, we believe these research assistants are like the graduate teaching and 

research assistants who we found were primarily students in Adelphi University, 

195 NLRB 639, 640 (1972). We find, therefore, that the research assistants in 

the physics department are primarily students, and we conclude they are not 

employees within the meaning of Section 2(2) of the Act. 

214 NLRB at 623 (emphasis added). Our colleagues’ assertions, therefore, turn a 

blind eye to the Board’s longstanding policy, discussed above, of declining to extend 

collectivebargaining rights to graduate students and holding that graduate students 

are not employees under Section 2(3) of the Act. See Adelphi University, supra; Leland Stanford University, supra; and St. Clare’s, supra.28

The broad applicability of this policy to graduate student assistants is clear from 

St. Clare’s, in which the Board carefully delineated several categories of Board cases 

involving students, including those students who perform services at an educational 

institution where those services are directly related to the university’s educational 

programs. Discussing this category of cases, and citing Leland Stanford and Adelphi 

University, the Board stated, ‘‘[i]n such cases, the Board has universally excluded 

students from units which include nonstudent employees, and in addition has denied them the right to be represented separately.’’ Id. at 1002.29 Until NYU, this 

had been the Board’s unbroken policy towards the issue of collective-bargaining 

rights for graduate students. Although the Board may not have been presented the 

precise facts of NYU in earlier cases, the dissent chooses either to ignore or simply 

to disregard what had been Board law regarding this category of students for over 

25 years. This Board law is also consistent with nearly one-half century of Board 

decisions holding that the disabled who are in primarily rehabilitative rather than 

an economic or industrial work relationships are not statutory employees and that 

it would not effectuate the policies of the Act to subject the rehabilitative program 

into which they have been admitted to collective bargain ing.30

Our colleagues argue that graduate student assistants are employees at common 

law. Even assuming arguendo that this is so, it does not follow that they are employees within the meaning of the Act. The issue of employee status under the Act 

turns on whether Congress intended to cover the individual in question. The issue 

is not to be decided purely on the basis of older common-law concepts. For example, 

a managerial employee may perform services for, and be under the control of, an 

employer. Indeed, the Supreme Court used the term ‘‘managerial employee’’ in Bell 

Aerospace Co., 416 U.S. 267 (1974). And yet, the Court held that these persons were 

not statutory employees. 

Similarly, our colleagues say that we never address the language of Section 2(3). 

In fact, we do. The difference is that our colleagues stop their analysis with the recitation of the statutory words ‘‘the term ‘‘employee’’ shall include any employee.’’ We 

go further than this tautology. We examine the underlying purposes of the Act. 

Our colleagues rely on NLRB v. Town & Country Electric, 516 U.S. 85 (1995), and 

Sure-Tan v. NLRB, 467 U.S. 883 (1984), to support their contention that the absence of an express exclusion in Section 2(3) for graduate student assistants mandates a finding that the assistants are statutory employees. As the foregoing discussion makes clear, that is simply not so. Further, neither of these cases supports the 
15 

dissent’s position. In both Town & Country and Sure-Tan, the individuals found to 

be employees worked in fundamentally economic relationships. Moreover, and consistent with our approach, the Court in both cases examined the underlying purposes of the Act in determining whether paid union organizers and illegal aliens, 

respectively, were statutory employees. Town & Country, supra, 516 U.S. at 91; 

Sure-Tan, supra, 467 U.S. at 891–892. We have examined and rely upon those same 

statutory purposes in determining that Brown’s graduate student assistants are not 

employees within the meaning of the Act. 

Contrary to the dissent, our decision today is also consistent with the Board’s recent decision in Alexandria Clinic, 339 NLRB No. 162 (2003), which considered 

whether a union satisfied Section 8(g)’s 10-day strike notice requirement when it 

issued a 10-day notice, but deliberately delayed the start of the strike for 4 hours 

after the time specified in the notice. Section 8(g) contains detailed requirements for 

strike notices at healthcare facilities, and the Board properly relied on those explicit 

statutory provisions in concluding that the notice in Alexandria Clinic, supra, was 

deficient. Section 2(3), by contrast, contains no detailed provisions for determining 

statutory employee status. That issue, therefore, must be examined in the context 

of the Act’s overall purpose. 

The dissent’s further contention that we ‘‘fail to come to grips’’ with the statutory 

principles of Section 2(3) is nothing more than a disagreement with our interpretation and application of the statute. In reality, the NYU decision on which our colleagues rely was contrary to historic Board precedent. It was also contrary to Supreme Court and Circuit Court precedent, in that it read Section 2(3) out of the context in which it appears. We are unprepared to do so. As discussed above, the absence of ‘‘students’’ from the enumerated exclusions of Section 2(3) is not the end 

of the statutory inquiry. Rather, although Section 2(3) contains explicit exceptions 

for groups that must be excluded from the statutory definition of ‘‘employee,’’ other 

groups also have been held to be excluded. 

Moreover, even if graduate student assistants are statutory employees, a proposition with which we disagree, it simply does not effectuate the national labor policy 

to accord them collective bargaining rights, because they are primarily students. In 

this regard, the Board has the discretion to determine whether it would effectuate 

national labor policy to extend collective bargaining rights to such a category of employees. Indeed, the Board has previously exercised that discretion with respect to 

medical residents and interns. See St. Clare’s Hospital, supra. Thus, assuming 

arguendo that the petitioned-for individuals are employees under Section 2(3), the 

Board is not compelled to include them in a bargaining unit if the Board determines 

it would not effectuate the purposes and policies of the Act to do so. 

We also reject the dissent’s contention that our policy is unsound because we 

‘‘minimize the economic relationship between graduate student assistants and their 

universities.’’ Contrary to the dissent, the ‘‘academic reality’’ for graduate student 

assistants has not changed, in relevant respects, since our decisions over 25 years 

ago. See, e.g., the description of graduate assistants in Adelphi University, 195 

NLRB at 640. As the Board explained in St. Clare’s, the conclusion that these graduate student assistants are primarily students ‘‘connotes nothing more than the 

simple fact that when an individual is providing services at the educational institution itself as part and parcel of his or her educational development the individ ual’s 

interest in rendering such services is more academic than economic.’’ 229 NLRB at 

1003. That is the essence of the relationship between a university and graduate student assistants, and why we decline to accord collective bargaining rights to them. 

Although the dissent theorizes how the changing financial and corporate structure 

of universities may have given rise to graduate student organizing, these theories 

do not contradict the following facts demonstrating that the relationship between 

Brown and its graduate student assistants is primarily academic: (1) the petitionedfor individuals are students; (2) working as a TA, RA, or proctor, and receipt of a 

stipend and tuition remission, depends on continued enrollment as a student; (3) the 

principal time commitment at Brown is focused on obtaining a degree, and, thus, 

being a student; and (4) serving as a TA, RA, or proctor, is part and parcel of the 

core elements of the Ph.D. degree, which are teaching and research. Although the 

structure of universities, like other institutions, may have changed, these facts illustrate that the basic relationship between graduate students and their university has 

not. 

The dissent gives a few examples of collective-bargaining agreements in which 

there is assertedly no intrusion into the educational process. However, inasmuch as 

graduate student assistants are not statutory employees that is the end of the inquiry. Nevertheless, we will respond to our dissenting colleagues. Even if some 

unions have chosen not to intrude into academic prerogatives, that does not mean 

that other unions would be similarly abstemious. The certification sought by the Pe-
16 

31See, e.g., Cal. Gov’t Code Sec. 3562(q) (West 2004) (excluding, from collective bargaining, 

admission requirements for students, conditions for awarding degrees, and content and supervision of courses, curricula, and research programs), applied in Regents of the University of California, 23 PERC P 30025 (1998); see also Central State University v. American Assn. of University Professors, 526 U.S. 124 (1999) (per curiam) (Ohio statute exempting university professors’ 

instructional workload standards from collective bargaining does not violate equal protection); 

University Education Association v. Regents of the University of Minnesota, 353 N.W. 2d 534 

(Minn. 1984) (criteria to determine promotion and tenure, review of faculty evaluations, and academic calendar, are matters of inherent management policy, which are not negotiable under 

labor relations statute); and Regents of the University of Michigan v. Michigan Employment Relations Commission, 389 Mich. 96, 204 N.W. 2d 218 (1973) (scope of bargaining limited if subject 

matter falls clearly within the educational sphere). 

titioner here has no limitations. As discussed above, the broad power to bargain 

over all Section 8(d) subjects would, in the case of graduate student assistants, carry 

with it the power to intrude into areas that are at the heart of the educational process. In contrast to the broad power to bargain under Section 8(d) of the Act, all 

states have the authority to limit bargaining subjects for public academic employees, 

and at least some have exercised that authority.31

The dissent also faults us for acting in the absence of ‘‘empirical evidence,’’ and 

for allegedly engaging in policymaking reserved to Congress. Once again, inasmuch 

as graduate student assistants are not statutory employees, that is the end of our 

inquiry. It is our dissenting colleagues who are intruding on the domain of the Congress. In addition, as to the former point, 25 years of untroubled experience under 

pre-NYU standards seem to us a far more sound empirical basis for action than that 

offered by the studies our colleagues cite. And, as to the latter point, we note that 

Congress voiced no disapproval of the Board’s 25-year rule that graduate students 

are not employees. See American Totalisator, 243 NLRB 314 (1979), affd. 708 F.2d 

46 (2d. Cir. 1983), cert. denied 464 U.S. 914 (1983) (‘‘Congress is well aware of the 

Board’s historic stance of declining to assert jurisdiction over horseracing and dogracing,... [a]bsent an indication from Congress that the Board’s refusal to assert 

jurisdiction is contrary to congressional mandate, we are not persuaded that we 

should exercise our discretion to reverse our prior holdings on this issue.’’). 

Finally, our colleagues suggest that we have concluded that ‘‘there [is] no room 

in the ivory tower for a sweatshop.’’ Although the phrase is a catchy one, it does 

nothing to further the analysis of this case. Our decision does not turn on whether 

our nation’s universities are ivory towers or sweatshops (although we do not believe 

that either has been shown). Rather, our decision turns on our fundamental belief 

that the imposition of collective bargaining on graduate students would improperly 

intrude into the educational process and would be inconsistent with the purposes 

and policies of the Act. 

For the reasons we have outlined in this opinion, there is a significant risk, and 

indeed a strong likelihood, that the collective-bargaining process will be detrimental 

to the educational process. Although the dissent dismisses our concerns about collective bargaining and academic freedom at private universities as pure speculation, 

their confidence in the process in turn relies on speculation about the risks of imposing collective bargaining on the student-university relationship. We decline to take 

these risks with our nation’s excellent private educational system. Although under 

a variety of state laws, some states permit collective bargaining at public universities, we choose to interpret and apply a single federal law differently to the large 

numbers of private universities under our jurisdiction. Consistent with long standing Board precedent, and for the reasons set forth in this decision, we declare the 

federal law to be that graduate student assistants are not employees within the 

meaning of Section 2(3) of the Act. 

ORDER

The Regional Director’s Decision and Direction of Election is reversed, and the petition is dismissed. 

Dated, Washington, D.C., July 13, 2004 

llllllllllllllll 

Robert J. Battista, Chairman 

llllllllllllllll 

Peter C. Schaumber, Member 

llllllllllllllll 

Ronal Meisbrug, Member 
17 

1See Neal H. Hutchens & Melissa B. Hutchens, Catching the Union Bug: Graduate Student 

Employees and Unionization, 39 GONZAGA L. REV. 105, 106–107 (2004) (surveying history and 

status of graduate student unions); Daniel J. Julius & Patricia J. Gumport, Graduate Student 

Unionization: Catalysts and Consequences, 26 REVIEW OF HIGHER EDUCATION 187, 191–196 

(2002) (same); Grant M. Hayden, ‘‘The University Works Because We Do’’: Collective Bargaining 

Rights for Graduate Assistants, 69 FORDHAM L. REV. 1233, 1236–1243 (2001) (same); Douglas 

Sorrelle Streitz & Jennifer Allyson Hunkler, Teaching or Learning: Are Teaching Assistants Students or Employees, 24 JOURNAL OF COLLEGE & UNIVERSITY LAW 349, 358–370 (1997) (same). 

By one recent count, 23 American universities have recognized graduate student unions or faculty unions including graduate students, beginning in 1969 with the University of WisconsinMadison. See Coalition of Graduate Employee Unions, Frequently Asked Questions about Graduate Employee Unions at http://www.cgeu.org/FAQ basics.html. 2 New York University, 332 NLRB 1205 (2000) (NYU). 3Leland Stanford Junior University, 214 NLRB 621 (1974). 4St. Clare’s Hospital & Health Center, 229 NLRB 1000 (1977). 5 Boston Medical Center, 330 NLRB 152 (1999). That decision concerned hospital interns, residents, and fellows (house staff) involved in medical training as well as in patient care. In upholding their right to engage in collective bargaining, despite their status as students, the Board 

overruled St. Clare’s Hospital, supra. The Board’s decision today explicitly notes that it 

‘‘express[es] no opinion regarding’’ Boston Medical Center. We believe that Boston Medical Cen- ter was correctly decided. 

NATIONAL LABOR RELATIONS BOARD

(SEAL) 

(Members Liebman and Walsh, dissenting) 

Collective bargaining by graduate student employees is increasingly a fact of 

American university life.1 Graduate student unions have been recognized at campuses from coast to coast, from the State University of New York to the University 

of California. Overruling a recent, unanimous precedent, the majority now declares 

that graduate student employees at private universities are not employees protected 

by the National Labor Relations Act and have no right to form unions. The majority’s reasons, at bottom, amount to the claim that graduate-student collective bargaining is simply incompatible with the nature and mission of the university. This 

revelation will surely come as a surprise on many campuses—not least at New York 

University, a first-rate institution where graduate students now work under a collective-bargaining agreement reached in the wake of the decision that is overruled 

here.2

Today’s decision is woefully out of touch with contemporary academic reality. 

Based on an image of the university that was already outdated when the decisions 

the majority looks back to, Leland Stanford 3 and St. Clare’s Hospital,4 were issued 

in the 1970’s, it shows a troubling lack of interest in empirical evidence. Even 

worse, perhaps, is the majority’s approach to applying the Act. It disregards the 

plain language of the statute—which defines ‘‘employees’’ so broadly that graduate 

students who perform services for, and under the control of, their universities are 

easily covered—to make a policy decision that rightly belongs to Congress. The reasons offered by the majority for its decision do not stand up to scrutiny. But even 

if they did, it would not be for the Board to act upon them. The result of the Board’s 

ruling is harsh. Not only can universities avoid dealing with graduate student 

unions, they are also free to retaliate against graduate students who act together 

to address their working conditions. 

I. 

We would adhere to the Board’s decision in NYU and thus affirm the Regional 

Director’s decision in this case. 

In NYU, applying principles that had recently been articulated in Boston Medical 

Center,5 the Board held that the graduate assistants involved there were employees 

within the meaning of Section 2(3) of the Act, because they performed services 

under the control and direction of the university, for which they were compensated 

by the university. The Board found ‘‘no basis to deny collective-bargaining rights to 

statutory employees merely because they are employed by an educational institution 

in which they are enrolled as students.’’ 332 NLRB at 1205. It was undisputed, the 

Board observed, that ‘‘graduate assistants are not within any category of workers 

that is excluded from the definition of ‘employee’ in Section 2(3).’’ Id. at 1206. 

In turn, the Board rejected policy grounds as a basis for effectively creating a new 

exclusion. Rejecting claims that graduate assistants lacked a traditional economic 

relationship with the university, the Board pointed out that the relationship in fact 

paralleled that between faculty and university, which was amenable to collective 
18 

6The majority quotes from the Supreme Court’s decision in NLRB v. Yeshiva University, 444 

U.S. 672, 680–681 (1980), in which the Court held that, given their role in university governance, the faculty members involved there were managerial employees, not covered by the Act. 

The Court made clear, however, that not all faculty members at every university would fall into 

the same category. 444 U.S. at 690 fn. 31. Following Yeshiva, the Board has continued to find 

facultymember bargaining units appropriate. See, e.g., Bradford College, 261 NLRB 565 (1982). 7Graduate assistantships are modest, even at top schools. The Regional Director found that 

at Brown the ‘‘basic stipend for a fellowship, teaching assistantship, research assistantship, or 

proctorship is $12,800 for the 2001–2002 academic year.’’ According to a 2003 report, the ‘‘average amount received by full-time, full-year graduate and first professional students with 

assistantships was $9,800.’’ Susan P. Choi & Sonya Geis, ‘‘Student Financing of Graduate and 

First-Professional Education, 1999–2000,’’ National Center for Education Statistics, Institute of 

Education Sciences, U.S. Dept. of Education 22 (2003). It stands to reason that graduate student 

wages are low because, to quote Sec. 1 of the Act, the ‘‘inequality of bargaining power’’ between 

schools and graduate employees has the effect of ‘‘depressing wage rates.’’ 29 U.S.C. § 151. 8 Adelphi University, 195 NLRB 639 (1972). 

bargaining. 332 NLRB at 1207–1208. The university’s assertion that extending collective-bargaining rights to graduate students would infringe on academic freedom 

was also rejected. Such concerns, the Board explained, were speculative. Citing 30 

years of experience with bargaining units of faculty members, and the flexibility of 

collective bargaining as an institution, the Board concluded that the ‘‘parties can 

‘confront any issues of academic freedom as they would any other issue in collective 

bargaining.’ ’’ Id., quoting Boston Medical Center, supra, 330 NLRB at 164. 

Here, the Regional Director correctly applied the Board’s decision in NYU. She 

concluded that the teaching assistants (TAs), research assistants (RAs), and proctors 

were statutory employees, because they performed services under the direction and 

control of Brown, and were compensated for those services by the university. With 

respect to the TAs, the Regional Director rejected, on both factual and legal 

grounds, Brown’s attempt to distinguish NYU on the basis that teaching was a degree requirement at Brown. Finally, she found that the TAs, RAs, and proctors were 

not, as Brown contended, merely temporary employees who could not be included 

in a bargaining unit. Accordingly, she directed a representation election, so that 

Brown’s graduate students could choose for themselves whether or not to be represented by a union. 

We agree with the Regional Director’s decision in each of these respects. 

II. 

Insisting that it is simply restoring traditional precedent, the majority now overrules NYU and reverses the Regional Director’s decision. It concludes that because 

graduate assistants ‘‘are primarily students and have a primarily educational, not 

economic, relationship with their university,’’ they are not covered by the National 

Labor Relations Act and the Board cannot exercise jurisdiction over them. According 

to the majority, ‘‘[p]rinciples developed for use in the industrial setting cannot be 

‘imposed blindly on the academic world.’ ’’ 6

There are two chief flaws in the majority’s admonition. First, the majority fails 

to come to grips with the statutory principles that must govern this case. Second, 

it errs in seeing the academic world as somehow removed from the economic realm 

that labor law addresses—as if there was no room in the ivory tower for a sweatshop.7 Before addressing those flaws, we question the majority’s account of Board 

precedent in this area. 

A. 

Seeking to avoid the consequences of overruling such a recent precedent, the majority contends that Leland Stanford, not NYU, correctly resolves the issue presented here. The majority argues, moreover, that Leland Stanford itself was consistent with a decision that came before it, Adelphi University.8 In fact, until today, 

the Board has never held that graduate teaching assistants (in contrast to certain 

research assistants and medical house staff) are not employees under the Act and 

therefore should not be allowed to form bargaining units of their own—or, indeed, 

enjoy any of the Act’s protections. 

In Adelphi University, decided in 1972, the Board excluded graduate assistants 

from a bargaining unit of faculty members because they did not share a community 

of interest with the faculty, not because they were not statutory employees. 195 

NLRB at 640. The Board pointed out, among other things, that ‘‘graduate assistants 

are guided, instructed, and corrected in the performance of their assistantship duties by the regular faculty members to whom they are assigned.’’ Id. Nothing in the 

Board’s decision suggests that the graduate assistants could not have formed a bargaining unit of their own. 
19 

9Member Schaumber asserts that ‘‘graduate student assistants fit poorly within the common 

law definition of ‘employee.’ ’’ He maintains that graduate assistants are ‘‘not ‘hired’ to serve’’ 

in that capacity, that their work is ‘‘not performed ‘for’ the university, as such,’’ and that their 

stipends ‘‘are not a quid pro quo for services rendered.’’ We disagree in each respect, as a factual 

matter. As the Regional Director found, graduate assistants carry out the work of the university, 

not their own projects, and they are compensated for it. There can be no doubt, of course, that 

Brown had the right to control the performance of the graduate assistants’ work for the university, a key test for employee status at common law. See RESTATEMENT (SECOND) OF AGENCY

§ 2(2) (1958) (‘‘A servant is an agent employed by a master to perform service in his affairs 

whose physical conduct in the performance of the service is controlled or is subject to the right 

to control by the master’’). Graduate students are clearly neither volunteers nor independent 

contractors. 

The Leland Stanford Board, as the majority acknowledges, ‘‘went further’’ in 1974. 

It concluded that because the research assistants (RAs) there were ‘‘primarily students’’ (citing Adelphi University), they were ‘‘not employees within the meaning 

of . . . the Act.’’ 214 NLRB at 623. How the conclusion followed from the premise 

was not explained. The rationale of Leland Stanford, moreover, turned on the particular nature of the research assistants’ work. The Board observed that: 

[T]he relationship of the RA’s and Stanford is not grounded on the performance 

of a given task where both the task and the time of its performance is designated and controlled by the employer. Rather it is a situation of students 

within certain academic guidelines having chosen particular projects on which 

to spend the time necessary, as determined by the project’s needs. 

Id. at 623. This narrow rationale is not inconsistent with NYU, where the Board 

actually applied Leland Stanford to exclude certain graduate assistants from the 

bargaining unit. 332 NLRB at 1209 fn. 10. 

Finally, the majority cites Cedars-Sinai Medical Center, 223 NLRB 251 (1976), 

and St. Clare’s Hospital, supra, which involved medical interns, residents, and clinical fellows. The medical housestaff decisions, issued over the sharp dissents of 

then-Chairman Fanning, were correctly overruled in Boston Medical Center, supra, 

which the majority leaves in place. 

Notably, in St. Clare’s Hospital, the Board made clear that while ‘‘housestaff are 

not ‘employees,’ ’’ the Board was not ‘‘renouncing entirely [its] jurisdiction over such 

individuals,’’ but rather was simply holding that they did not have ‘‘bargaining 

privileges’’ under the Act. 229 NLRB at 1003 (footnote omitted). The majority here 

does not seem to make this distinction—which would give graduate assistants at 

least some protections under the Act—and thus itself seems to depart from the 

precedent it invokes. 

In sum, while the NYU Board did not write on a clean slate, it hardly abandoned 

a long line of carefully reasoned, uncontroversial decisions. And, as we will explain, 

much has changed in the academic world since the 1970’s. 

B. 

The principle applied in NYU—and the one that should be followed here—is that 

the Board must give effect to the plain meaning of Section 2(3) of the Act and its 

broad definition of ‘‘employee,’’ which ‘‘reflects the common law agency doctrine of 

the conventional masterservant relationship.’’ NYU, 332 NLRB at 1205, citing 

NLRB v. Town & Country Electric, 516 U.S. 85, 93–95 (1995). See also Seattle 

Opera v. NLRB, 292 F.3d 757, 761–762 (D.C. Cir. 2002), enfg. 331 NLRB 1072 

(2000) (opera’s auxiliary choristers are statutory employees, applying common-law 

test). Section 2(3) provides in relevant part that the ‘‘term ‘employee’ shall include 

any employee... .’’ 29 U.S.C. § 152(3) (emphasis added). Congress specifically envisioned that professional employees—defined in Section 2(12) in terms that easily 

encompass graduate assistants—would be covered by the Act. 

We do not understand the majority to hold that the graduate assistants in this 

case are not common-law employees, a position that only Member Schaumber 

reaches toward.9 Here, the Board’s ‘‘departure from the common law of agency’’ with 

respect to employee status is unreasonable. Compare Town & Country Electric, 

supra, 516 U.S. at 94 (upholding Board’s interpretation of term ‘‘employee’’ as ‘‘consistent with the common law’’). See also Seattle Opera, 292 F.3d at 765 fn. 11 

(Board’s hypothetical ‘‘neglect of the common law definition could have rendered its 

decision arbitrary and capricious’’). 

Nothing in Section 2(3) excludes statutory employees from the Act’s protections, 

on the basis that the employment relationship is not their ‘‘primary’’ relationship 

with their employer. In this respect, the majority’s approach bears a striking resemblance to the Board’s original ‘‘economic realities’’ test for employee status, which 
20 

10See NLRB v. United Insurance Co., 390 U.S. 254, 256 (1968) (discussing Congressional overruling of NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944)). As we will explain, we believe 

that the economic realities here do support finding statutory coverage in any case. 11See also NLRB v. Lighthouse for the Blind of Houston, 696 F.2d 399, 404 fn. 21 (5th Cir. 

1983) (rejecting argument that Board lacked jurisdiction over sheltered workshop and disabled 

workers employed there). We believe that the Board’s approach in this area—the Board chooses 

to exercise jurisdiction only where the relationship between disabled workers and their employer 

is ‘‘typically industrial,’’ as opposed to ‘‘primarily rehabilitative’’—is ripe for reconsideration, particularly in light of the evolution of Federal policy toward disabled workers. See NYU, 332 

NLRB at 1207 (discussing disabled-worker cases). The issue is now pending before the Board 

in Brevard Achievement Center, Inc., No. 12–RC–8515 (review granted Aug. 23, 2000). 12 Alexandria Clinic, 339 NLRB No. 162, slip op. at 3 fn. 8 (2003). 

Congress expressly rejected when it passed the Taft-Hartley Amendments in 1947. 

That test was based on economic and policy considerations, rather than on commonlaw principles, but it did not survive.10

Absent compelling indications of Congressional intent, the Board simply is not 

free to create an exclusion from the Act’s coverage for a category of workers who 

meet the literal statutory definition of employees. As the NYU Board observed, 

there is no such exclusion for ‘‘students.’’ 332 NLRB at 1206. Cf. Sure-Tan, Inc. v. 

NLRB, 467 U.S. 883, 891–892 (1984) (observing that the ‘‘breadth of [the Act’s] definition is striking’’ and noting lack of express exemption for undocumented aliens). 

Here, the majority cites nothing in the text or structure of the Act, nothing in the 

Act’s legislative history, and no other Federal statute that bears directly on the 

issues presented. It goes without saying that the Board’s own policymaking is 

bounded by the limits Congress has set. 

The Supreme Court’s decision in Yeshiva, supra, is instructive on this point. 

There, the Court considered whether university faculty members at one institution 

were managerial employees and so excluded from coverage. It observed that it could 

not decide this case by weighing the probable benefits and burdens of faculty collective bargaining. That, after all, is a matter for Congress, not this Court. 444 U.S. 

at 690 fn. 29 (citation omitted). Other Federal courts have made similar observations in analogous cases, choosing to follow the plain language of the Act, rather 

than ‘‘attempting to ‘second guess’ Congress on a political and philosophical issue.’’ 

Cincinnati Assn. for the Blind v. NLRB, 672 F.2d 567, 571 (6th Cir. 1982), cert. denied 459 U.S. 835 (1982) (refusing to find exception to Section 2(3) of Act for disabled workers employed in sheltered workshops).11 In a recent case where the Act’s 

language was far less clear, our colleagues themselves have insisted that the statutory text alone dictated the outcome—indeed, they were content to ‘‘examine a particular statutory provision [Section 8(g) of the Act] in isolation’’ (to quote their words 

here).12 The approach taken in this case stands in sharp contrast. 

The majority never addresses the language of Section 2(3), which the Supreme 

Court has described as ‘‘broad.’’ Town & Country Electric, 516 U.S. at 90 (citing dictionary definition of ‘‘employee’’ as including any ‘‘person who works for another in 

return for financial or other compensation’’). Instead, it proceeds directly to consult 

‘‘Congressional policies for guidance in determining the outer limits of statutory employee status.’’ The majority cites the exclusion for managerial employees, which is 

not based on the Act’s text. But in that example, as the Supreme Court 

explained, the ‘‘legislative history strongly suggests that 

there... were . . . employees... regarded as so clearly outside the Act that 

no specific exclusionary provision was thought necessary.’’ NLRB v. Bell Aerospace 

Co., 416 U.S. 267, 283 (1974). Graduate assistants simply do not fall into that category. 

The Board’s decision in WBAI Pacifica Foundation, 328 NLRB 1273 (1999), quoted 

by the majority, does not support its position here. That case involved the unpaid 

staff of a noncommercial radio station, who did not receive compensation or benefits 

of any kind, and whose work hours were ‘‘a matter within their discretion and desire.’’ Id. at 1273. The Board found ‘‘no economic aspect to their relationship with 

the Employer, either actual or anticipated.’’ Id. at 1275 (emphasis added). ‘‘Unpaid 

staff,’’ the Board observed, ‘‘do not depend upon the Employer, even in part, for their 

livelihood or for the improvement of their economic standards.’’ Id. at 1276. Rather, 

the Board explained, unpaid staff ‘‘work[ed] out of an interest in seeing the station 

continue to exist and thrive, out of concern for the content of the programs they 

produce, and for the personal enrichment of doing a service to the community and 

receiving recognition from the community.’’ Id. at 1275. 

The relationship between Brown and its graduate assistants is clearly different 

in nature. Teaching assistants, the Regional Director found, ‘‘perform services under 

the direction and control of Brown’’—they teach undergraduates, just as faculty 
21 

13The Regional Director found that the number of teaching assistantships, and the assignment of assistants to particular courses, is tied to undergraduate enrollment. She also found 

that Brown had ‘‘failed to demonstrate that most teaching assistantships at Brown are undertaken in order to fulfill a degree requirement.’’ 14The Regional Director found ‘‘insufficient evidence... upon which to conclude that as a 

general rule the RAs in the social sciences and humanities departments perform research as 

part of their studies in order to complete their dissertations,’’ in contrast to RA’s in the physical 

sciences, who were not included in the unit. 15 See, e.g., Seattle Opera, 292 F.3d at 762 (‘‘[T]he person asserting employee status [under 

the Act] does have such status if (1) he works for a statutory employer in return for financial 

or other compensation... and (2) the statutory employer has the power or right to control 

and direct the person in the material details of how such work is to be performed’’). 16 Jacques Barzun, The American University: How It Runs, Where It Is Going 3 (1968). 17See Cornell University, 183 NLRB 329, 331–333 (1970), overruling Trustees of Columbia 

University, 97 NLRB 424 (1951). 18See, e.g., Clark Kerr, Troubled Times for American Higher Education: The 1990s and Beyond 3 (1994). 

members do 13—and ‘‘are compensated for these services by Brown,’’ by way of a stipend, health fee, and tuition remission. As for research assistants in the social 

sciences and humanities (who were included in the bargaining unit), the Regional 

Director observed that they ‘‘have expectations placed upon them other than their 

academic achievement, in exchange for compensation.’’ 14 The proctors, finally, are 

‘‘performing services that are not integrated with an academic program,’’ such as 

working in university offices and museums. Notably, the Regional Director found 

that Brown withholds income taxes from the stipends of teaching assistants, research assistants, and proctors and requires them to prove their eligibility for employment under Federal immigration laws. 

The majority is mistaken, then, when it insists that the graduate assistants here 

do not receive ‘‘consideration for work,’’ but merely financial aid. While it is true, 

as the majority observes, that ‘‘all the petitioned-for individuals are students and 

must first be enrolled at Brown to be awarded a TA, RA, or proctorship,’’ that fact 

does not foreclose a meaningful economic relationship (as well as an educational relationship) between Brown and the graduate assistants. The Act requires merely the 

existence of such an economic relationship, not that it be the only or the primary 

relationship between a statutory employee and a statutory employer.15

C. 

Even assuming that the Board were free to decide this case essentially on policy 

grounds, the majority’s approach, minimizing the economic relationship between 

graduate assistants and their universities, is unsound. It rests on fundamental misunderstandings of contemporary higher education, which reflect our colleagues’ unwillingness to take a close look at the academic world. Today, the academy is also 

a workplace for many graduate students, and disputes over work-related issues are 

common. As a result, the policies of the Act—increasing the bargaining power of employees, encouraging collective bargaining, and protecting freedom of association— 

apply in the university context, too. Not only is the majority mistaken in giving virtually no weight to the common-law employment status of graduate assistants, it 

also errs in failing to see that the larger aims of federal labor law are served by 

finding statutory coverage here. Indeed, the majority’s policy concerns are not derived from the Act at all, but instead reflect an abstract view about what is best 

for American higher education—a subject far removed from the Board’s expertise. 

American higher education was being transformed even as the Board’s ‘‘traditional’’ approach to graduatestudent unionization developed. Nearly a decade before 

the Board decided St. Clare’s Hospital, distinguished scholar and Columbia University administrator Jacques Barzun described changes that were tearing ‘‘apart the 

fabric of the former, single-minded’’ American university. He warned that ‘‘a big corporation has replaced the once self-centered company of scholars.’’ 16 In deciding to 

exercise jurisdiction over private, non-profit universities more than 30 years ago 

(and reversing longstanding precedent in doing so), the Board recognized this devel 

opment.17

After the 1980’s, financial resources from governments became more difficult for 

universities to obtain.18 ‘‘[A]s financial support for colleges and universities lag behind escalating costs, campus administrators increasingly turn to ill-paid, overworked part- or full-time adjunct lecturers and graduate students to meet instruc-
22 

19 COMMITTEE ON PROFESSIONAL EMPLOYMENT, MODERN LANGUAGE ASSOCIATION, FINAL REPORT 3 (1997) at http://www.mla.org/resources/documents/replemployment/profemployment1 

(examining higher education’s pedagogical and professional crisis and proposing ways to increase the effectiveness of higher education). 20 Reliance on Part-Time Faculty Members and How They Are Treated, Selected Disciplines, 

CHRON. HIGHER EDUC., Dec. 1, 2000, available at http://chronicle.com/prm/weekley/v47/i14/ 

14a01301.htm. See also Hutchens & Hutchens, supra, Catching the Union Bug, 39 GONZAGA L. 

REV. at 126 (‘‘In an effort to contain costs, colleges and universities have increasingly relied on 

graduate students and nontenure-track instructors’’). Illustrating this trend, the New York 

Times recently reported that graduate students ‘‘teach more than half of the core courses that 

all Columbia [University] students must take.’’ Karen W. Arenson, Pushing for Union, Columbia 

Grad Students Are Set to Strike, NEW YORK TIMES, p. A–11 (April 17, 2004). 21 Ana Marie Cox, More Professors Said to Be Off Tenure Track, for Graduate Assistants, 

CHRON. HIGHER EDUC. (July 6, 2001) available at http://chronicle.com/prm/weekly/v47/i43/ 

43a01201.htm. See also Stipends for Graduate Assistants, 2001, CHRON. HIGHER EDUC., Sept. 

28, 2002, available at http://chronicle.com/stats/stipends/. 22Gordon J. Hewitt, Graduate Student Employee Collective Bargaining and the Educational 

Relationship between Faculty and Graduate Students, 29 J. COLLECTIVE NEGOTIATIONS IN THE

PUBLIC SECTOR 153, 154 (2000). See also Hutchens & Hutchens, supra, Catching the Union Bug, 

39 GONZAGA L. REV. at 126 (‘‘[T]he reality at many institutions likely belies a picture of students 

carefully mentored by faculty in their employment capacities, especially in the context of teaching assistants.’’). 23See Sec. 1, 29 U.S.C. § 151. 24See Cornell University, supra, 183 NLRB at 333. 

tional needs.’’ 19 By December 2000, 23.3 percent of college instructors were graduate teaching assistants.20

The reason for the widespread shift from tenured faculty to graduate teaching assistants and adjunct instructors is simple: cost savings. Graduate student teachers 

earn a fraction of the earnings of faculty members.21

Two perceptive scholars have recently described the context in which union organizing among graduate students has developed. Their description is worth quoting 

at length: 

The post World War II expansion of universities is a well-documented phenomenon. Enrollments, resources, and activities increased and diversified. Universities were transformed into mega-complexes. But by the late 1980s and 

throughout the 1990s, the realization spread that expansion was not limitless. 

In response to heightened accountability demands, universities adopted management strategies that entailed belttightening and restructuring of the academic workplace.... [M]any universities replaced full-time tenure-track faculty lines with non-tenure-line and part-time appointments. 

* * * * * * * 

Expansion of doctoral degree production has continued nonetheless. . . . The 

discrepancy between ideals and realities prompt graduate students to consider 

unionization a viable solution to their concerns and an avenue to redress their 

sense of powerlessness. 

* * * * * * * 

Among the primary reasons for graduate student unionization is the lengthened time required to complete a degree, coupled with an increased reluctance 

on the part of students to live in what they perceive as academic ghettos. Many 

older graduate students desire to start families, need health care coverage and 

job security, and perceive the faculty with whom they work to be living in comparative luxury. . . . [D]ata show that the unionization of these individuals is 

driven fundamentally by economic realities. 

Daniel J. Julius & Patricia J. Gumport, Graduate Student Unionization: Catalysts 

and Consequences, 26 REVIEW OF HIGHER EDUC. No. 2, 187 at 191, 196 (2002) (emphasis added; citations omitted). 

Describing the same process, another scholar observes that the ‘‘increased dependence on graduate assistantships has created a group of workers who demand more 

economic benefits and workplace rights.’’ 22 The question, then, is whether the collective efforts of these workers will be protected by federal labor law and channeled 

into the processes the law creates. Given the likelihood that graduate students will 

continue to pursue their economic interests through union organizing—even those 

who live the life of the mind must eat—there are powerful reasons to apply the Act 

and so encourage collective bargaining to avoid labor disputes, as Congress envisioned.23 The prospect of continued labor unrest on campus, with or without federal 

regulation, is precisely what prompted the Board to assert jurisdiction over private 

non-profit universities in the first place, three decades ago.24
23 

25 The Board’s recent failure to face contemporary economic realities threatens to become a 

recurring theme of its decisions. See MV Transportation, 337 NLRB 770, 776 (2002)(Member 

Liebman, dissenting) (criticizing Board’s reversal of successor-bar doctrine, despite large increase in corporate mergers and acquisitions that destabilize workplaces). 26The collective-bargaining agreement is posted on the University’s Internet website at http:/ 

/www.nyu.edu/hr/. 27The AFL–CIO, for example, cites bargaining relationships at the University of California, 

the University of Florida, the University of South Florida, the University of Iowa, the University 

of Kansas, the University of Massachusetts, Michigan State University, the University of Michigan, Rutgers, the City University of New York, New York University, the State University of 

New York, the University of Oregon, Temple University, the University of Wisconsin, and 

Wayne State University. Brief of Amicus Curiae AFL–CIO in Support of Petitioner at 36 (May 

20, 2002). See also Julius & Gumport, supra, Graduate Student Unionization, 26 Review of 

Higher Education at 192–193 (Table 1: ‘‘The Status of Graduate Student Unions in U.S. Institutions’’). 28The majority points out that ‘‘states have the authority to limit bargaining subjects for public academic employees.’’ But under the Act, not every subject of interest to graduate assistants 

would be a mandatory subject of bargaining. The Board presumably would be free to take into 

account the nature of the academic enterprise in deciding which subjects are mandatory and 

which merely permissive. See fn. 32, infra (discussing statutory bargaining obligations). 

The majority ignores the developments that led to the rise of graduate student 

organizing or their implications for the issue decided today. Instead, it treats the 

Board’s 1974 decision in Leland Stanford, together with the 1977 decision in St. 

Clare’s Hospital, as the last word. Like other regulatory agencies, however, the 

Board is ‘‘neither required nor supposed to regulate the present and the future within the inflexible limits of yesterday,’’ but rather must ‘‘adapt [its] rules and practices 

to the Nation’s needs in a volatile changing economy.’’ American Trucking Associations v. Atchison Topeka & Santa Fe Railway Co., 387 U.S. 397, 416 (1967).25 The 

majority’s failure to do so in this case is arbitrary. 

III. 

At the core of the majority’s argument are the twin notions that (1) issues related 

to the terms and conditions of graduate student employment are ‘‘not readily adaptable to the collective-bargaining process,’’ St. Clare’s Hospital, 229 NLRB at 1002; 

and (2) imposing collective bargaining will harm ‘‘academic freedom’’ (as the majority defines it) and the quality of higher education. Neither notion is supported by 

empirical evidence of any kind. In fact, the evidence refutes them. 

How can it be said that the terms and conditions of graduate-student employment 

are not adaptable to collective bargaining when collective bargaining over these precise issues is being conducted successfully in universities across the nation? New 

York University, ironically, is a case in point, but it is hardly alone. The recentlyreached collective bargaining agreement there addresses such matters as stipends, 

pay periods, discipline and discharge, job posting, a grievance-andarbitration procedure, and health insurance. It also contains a ‘‘management and academic rights’’ 

clause, which provides that: 

Decisions regarding who is taught, what is taught, how it is taught and who 

does the teaching involve academic judgment and shall be made at the sole discretion of the University. 

Collective Bargaining Agreement between New York University and International 

Union, UAW, AFL–CIO and Local 2110, Technical Office and Professional Workers, 

UAW (Sept. 1, 2001–Aug. 31, 2005), Art. XXII.26 The NYU agreement neatly illustrates the correctness of the NYU Board’s view that the institution of collective bargaining is flexible enough to succeed in this context, as it has in so many others, 

from manufacturing to entertainment, health care to professional sports. 

The NYU agreement cannot be dismissed as an anomaly. The amicus briefs to the 

Board submitted by the American Federation of Labor-Congress of Industrial Organizations (AFL–CIO) and the American Association of University Professors (AAUP) 

inform us of many other, established collective bargaining relationships between 

graduate student unions and universities.27 To be sure, most involve public universities, but there is nothing fundamentally different between collective bargaining in 

public-sector and private-sector universities.28 The majority concedes that the subjects of graduate student collective bargaining ‘‘give the appearance of being terms 

and conditions of employment.’’ Obviously, they are terms and conditions of employment, as found in a particular setting. 

There remains the majority’s claim that collective bargaining can only harm ‘‘academic freedom’’ and educational quality. Putting aside the issue of the Board’s authority to serve as an expert guardian of these interests, the question is one of evidence. Here, too, the majority’s claims are not simply unsupported, but are actually 
24 

29See Julius & Gumport, supra, Graduate Student Unionization, 26 Review of Higher Education at 201–209; Hewitt, supra, Graduate Student Employee Collective Bargaining and the 

Educational Relationship between Faculty and Graduate Students, 29 Journal of Collective Negotiations in the Public Sector at 159–164. 

30 Julius & Gumport, supra, 26 Review of Higher Education at 201, 209. 

31 Associated Press v. NLRB, 301 U.S. 103, 130–133 (1937). 32The majority contends (1) that the ‘‘imposition of collective bargaining on the relationship 

between a university and its graduate students . . .’’ would limit the university’s [academic] 

freedom to determine a wide range of matters;’’ and (2) that ‘‘because graduate student assistants are students, those limitations intrude on core academic freedoms in a manner simply not 

present in cases involving faculty employees.’’ We disagree with both claims. 

First, under Sec. 8(d) of the Act, collective bargaining would be limited to ‘‘wages, hours, and 

other terms and conditions of employment’’ for graduate student assistants. 29 U.S.C. § 158(d). 

And with respect to those mandatory subjects of bargaining, the ‘‘Act does not compel agreements between employers and employees,’’ just the ‘‘free opportunity for negotiation,’’ as the 

NYU Board correctly observed. 332 NLRB at 1208, quoting NLRB v. Jones & Laughlin Steel 

Corp., 301 U.S. 1, 45 (1937). 

Second, the basis for the majority’s distinction between facultymember bargaining and graduate-assistant bargaining escapes us. In our view, there is no harm to genuine academic freecontradicted. The majority emphasizes that collective bargaining is ‘‘predicated on 

the collective or group treatment of represented individuals,’’ while the ‘‘educational 

process’’ involves personal relationships between individual students and faculty 

members. The issue, if one is presented at all by this difference, is whether the two 

processes can coexist. Clearly, they can. The evidence is not just the ongoing collective-bargaining relationships between universities and graduate students already 

mentioned. It also includes studies ignored by the majority, which show that collective bargaining has not harmed mentoring relationships between faculty members 

and graduate students.29 These conclusions are not surprising. Collective bargaining 

is typically conducted by representatives of the university and graduate students’ 

unions, not individual mentors and their students. 

After a careful review, scholars Daniel Julius and Patricia Gumport, for example, 

concluded not only that ‘‘fears that [collective bargaining] will undermine mentoring 

relationships... appear to be foundationless,’’ but also that data ‘‘suggest that the 

clarification of roles and employment policies can enhance mentoring relationships.’’ 30 Scholar Gordon Hewitt reached a similar con clusion based on an analysis 

of the attitudes of almost 300 faculty members at five university campuses with at 

least four-year histories of graduate-student collective bargaining. Summarizing the 

results of his survey, Hewitt observes that: 

It is clear... that faculty do not have a negative attitude toward graduate 

student collective bargaining. It is important to reiterate that the results show 

faculty feel graduate assistants are employees of the university, support the 

right of graduate students to bargain collectively, and believe collective bargaining is appropriate for graduate students. It is even more important to restate 

that, based on their experiences, collective bargaining does not inhibit their ability to advise, instruct, or mentor their graduate students. 

Hewitt, supra, 29 Journal of Collective Negotiations in the Public Sector at 164 (emphasis added). Amicus AAUP echoes these views in its brief to the Board. These 

findings should give the majority some pause, as should the obvious fact that whether or not the rights of graduate student employees are to be recognized under the 

Act, economic concerns have already intruded on academic relationships. 

Finally, the majority invokes ‘‘academic freedom’’ as a basis for denying graduate 

student employees any rights under the Act. This rationale adds insult to injury. 

To begin, the majority defines ‘‘academic freedom’’ so broadly that it is necessarily 

incompatible with any constraint on the managerial prerogatives of university administrators. But academic freedom properly focuses on efforts to regulate the ‘‘content of the speech engaged in by the university or those affiliated with it.’’ University of Pennsylvania v. EEOC, 493 U.S. 182, 197 (1990). On the majority’s view, private universities should not be subject to the Act at all. But, of course, they are— 

just as are newsgathering organizations, whose analogous claims of First Amendment immunity from the Act were rejected by the Supreme Court long ago.31

The NYU Board correctly explained that, the threat to academic freedom in this 

context—properly understood in terms of free speech in the university setting—was 

pure conjecture. 332 NLRB at 1208 fn. 9. We hasten to add that graduate students 

themselves have a stake in academic freedom, which they presumably will be reluctant to endanger in collective bargaining. As demonstrated in the amicus brief of 

the AAUP (a historical champion of academic freedom), collective bargaining and 

academic freedom are not incompatible; indeed, academic freedom for instructors 

can be strengthened through collective bargaining.32
25 

dom in either case. But under the majority’s view, faculty-member bargaining would interfere 

with the prerogatives of university management at least as much as graduate-student bargaining would. It is surely the subjects of bargaining that matter, not the identity of the bargaining party. In that respect, the similarities between graduate assistants and faculty members 

(in contrast to clerical or maintenance staff members, for example) is clear. 

IV. 

‘‘[W]e declare the federal law to be that graduate student assistants are not employees within the meaning of Section 2(3) of the Act,’’ says the majority. But the 

majority has overstepped its authority, overlooked the economic realities of the academic world, and overruled NYU without ever coming to terms with the rationale 

for that decision. The result leaves graduate students outside the Act’s protection 

and without recourse to its mechanisms for resolving labor disputes. The developments that brought graduate students to the Board will not go away, but they will 

have to be addressed elsewhere, if the majority’s decision stands. That result does 

American universities no favors. We dissent. 

Dated, Washington, D.C. July 13, 2004 

NATIONAL LABOR RELATIONS BOARD

llllllllllllll 

Wilma B. Liebman, Member 

llllllllllllll 

Dennis P. Walsh, Member 

STATEMENT OF HON. WILMA B. LIEBMAN, MEMBER, NATIONAL LABOR 

RELATIONS BOARD 

Senator SPECTER. Thank you very much, Mr. Battista. 

We now turn to a member of the NLRB, Ms. Wilma Liebman, 

serving her second term, appointed by President Clinton and confirmed for a term which expired in the year 2002, subsequently reappointed by President Bush. Prior to her appointment to the 

NLRB, she served in the Federal Mediation and Conciliation Service, as counsel to the Bricklayers and Allied Craftsman, and the 

International Brotherhood of Teamsters. A Philadelphia native, she 

has a bachelor’s from Barnard and a law degree from George 

Washington University. 

Thank you for joining us, Ms. Liebman, and we look forward to 

your testimony. 

Ms. LIEBMAN. Mr. Chairman, thank you for the chance to testify 

today about the Board’s recent decision involving university graduate student assistants, the Brown University case. Along with my 

Board colleague Dennis Walsh, I dissented from that decision, 

which overruled an earlier unanimous decision in which I also participated involving New York University. 

Our dissent explains in detail why we thought that the Brown 

graduate students met the definition of employee reflected in the 

National Labor Relations Act. The Supreme Court has told us that 

the definition is very broad and that we must be guided by common 

law principles. 

The question then is whether certain graduate students work for 

their universities in return for some type of compensation. With respect to the teaching assistants, research assistants, and proctors 

at Brown, the answer is yes. They teach classes, they do research, 

and perform services in university offices. In return, they receive 

stipends, health benefits, and tuition remission. 

In the majority’s view, the graduate student assistants were primarily students and had a primarily educational, not economic, re-
26 

lationship with their university. But this standard, the dissent argued, is not based on the language of the Act, on the legislative history, on the Supreme Court’s decisions, or on common law principles. Rather, it is based on the majority’s view that the academic 

world and the economic world are sharply separated. 

But this is an outdated view. To quote the scholar Jacques 

Barzun, ‘‘A big corporation has replaced the once self-centered company of scholars.’’ American universities are workplaces for many 

people, including many graduate students. Indeed, studies show 

that over the last few decades universities have become more and 

more dependent on the work of graduate students. At many 

schools, teaching assistants have replaced tenure track faculty. 

Statistics show that by December 2000 nearly one-quarter of college instructors were graduate teaching assistants. 

To be blunt, graduate students are cheaper. Yet these students 

have the same problems and concerns that other workers do: their 

wages, their health care benefits, their workloads—all the things 

that labor unions negotiate with employers. 

The majority said that the issues that concern graduate student 

workers are not suitable for collective bargaining, but graduate student unions and universities can bargain successfully. They do so 

at public universities and they did so at NYU following the Board’s 

decision involving that school. 

The majority also argued that collective bargaining is a threat to 

educational quality and academic freedom. But it cited no empirical 

evidence that the NYU decision had created problems, and studies 

show that collective bargaining does not interfere with the mentoring relationships between faculty members and graduate students. 

Academic freedom in turn does not mean giving university administrators an unlimited managerial prerogative. As the Supreme 

Court has explained, academic freedom is a form of free speech. 

Collective bargaining does not interfere with free speech in a university setting. 

The result of the Board’s decision, if it stands, is that graduate 

student workers at private universities have no right to organize 

labor unions or bargain collectively. In fact, they can be punished 

for trying. Of course, this does not mean that the issues which 

drive graduate students to organize will go away. It simply means 

that labor disputes involving graduate students will not be governed by the Federal statute that was designed to stabilize labor 

relations. 

PREPARED STATEMENT

Finally, viewing the Brown decision in a broader context, the 

Board’s recent trend has been not only to interpret the statute’s 

protections narrowly, but also to limit the coverage of the Labor 

Act itself. Fewer workers now enjoy fewer rights. As the statute’s 

circle of protection diminishes, so too does its relevance in the 

American workplace. 

I thank you and would be happy to answer any questions. 

[The statement follows:] 
27 

1 Brown University, 342 NLRB No. 42 (July 13, 2004). 2 New York University, 332 NLRB 1205 (2000). The Brown decision also leaves in question the 

employee status of hospital residents and interns. NYU was based on the reasoning of the 

Board’s decision in Boston Medical Center, 330 NLRB 152 (1999), which held that residents and 

interns were statutory employees. In Brown, the majority took no position on whether Boston 

Medical Center was correctly decided. Member Walsh and I believe that it was. The Board will 

likely confront this issue soon. 3 NLRB v. Town & Country Electric, 516 U.S. 85 (1995). 

PREPARED STATEMENT OF WILMA B. LIEBMAN

Mr. Chairman and Members of the Subcommittee: My name is Wilma Liebman, 

and I have been a member of the National Labor Relations Board (NLRB) since 

1997, when I was first appointed by President Clinton. I was reappointed by President Bush in 2002. Before joining the Board, I held senior positions at the Federal 

Mediation and Conciliation Service (FMCS). I have also served as an attorney for 

two labor unions, the Bricklayers and Allied Craftsmen and the International Brotherhood of Teamsters. I began my legal career as a staff attorney for the NLRB. With 

my colleague Dennis Walsh, I am now one of two Democratic members on the fivemember Board. 

Thank you for the opportunity to testify today about the Board’s recent decision 

in the Brown University case.1 The issue in Brown was whether certain graduate 

students—who also worked for the university as teaching assistants, research assistants, and proctors—were employees protected by the National Labor Relations 

Act. In my view, they clearly were. But a three-member majority of the Board held 

they were not and overruled an earlier decision to the contrary, New York University (NYU), which issued in 2000.2 My colleagues cited no empirical evidence that 

NYU had created problems. 

I had been in the majority in the NYU case, but in Brown, I dissented, along with 

Member Walsh. Our dissent explains our reasoning in detail, and I would ask that 

it be made part of the hearing record. With your permission, I will highlight the 

dissent’s arguments. 

The National Labor Relations Act is nearly 70 years old, but it still plays a vital 

role in the American workplace, by allowing workers to join together (if they choose) 

to improve their working conditions. Although the Act was written at a time when 

manufacturing dominated our economy, the statute has been applied successfully to 

a wide range of industries, from health care to professional sports to the media. 

The Brown case raises important issues about collective bargaining in private-sector higher education. The Board’s role in this debate is to interpret and apply the 

Act. We are guided by the language of the statute, by the legislative history, by the 

decisions of the Supreme Court, and (within these limits) by our views of sound 

labor relations policy. Questions of statutory coverage are fundamental, because 

they determine which workers are protected by the Act—and which are not. As I 

will explain, the Act defines covered employees very broadly, subject to a few specific exclusions. Broad statutory coverage, consistent with the intent of Congress, is 

critical to the effectiveness of the law. 

Focusing on policy, the Board majority in Brown concluded that collective bargaining by graduate student assistants is incompatible with the nature and mission 

of universities. I strongly disagree. But the majority’s first mistake was in focusing 

too quickly on policy. As Member Walsh and I argued in our dissent, the starting 

point should have been the statute. By that, I mean asking how the National Labor 

Relations Act defines employees and then deciding whether graduate student assistants meet that definition, whether or not the answer seems like good policy or bad 

policy. 

Graduate student assistants do meet the statutory definition of an employee. Section 2(3) of the Act simply says that ‘‘the term ‘employee’ shall include any employee.’’ As you can see, the Act’s definition is circular. But the Supreme Court has 

made clear that when a federal statute defines ‘‘employee’’ this way, the definition 

must be understood by looking to the common law. The judge-made common law has 

developed a test for deciding whether a worker is an employee (or instead falls into 

some other category, like a volunteer or an independent contractor). In its Town & 

Country Electric decision,3 the Supreme Court held that the common-law definition 

of employee applies under the National Labor Relations Act. 

The common-law definition, in turn, says that a person is an employee if he works 

for another in return for financial or other compensation. Many graduate student 

assistants, including the graduate students in the Brown case, meet this definition. 

They perform work, such as teaching classes, doing research, or providing services 

in university offices. And they receive compensation, such as stipends, health benefits, and tuition remission for performing that work. Because the Act incorporates 
28 

4 Very recently, the Board did essentially the same thing, by excluding disabled workers in 

rehabilitative settings from the coverage of the Act, even where they, too, met the common-law 

definition of employees. Member Walsh and I also dissented in that case, Brevard Achievment 

Center, 342 NLRB No. 101 (Sept. 10, 2004). 5 Jacques Barzun, The American University: How It Runs, Where It Is Going 3 (1968). 6 Cornell University, 183 NLRB 329 (1970). 

the common-law definition of employee, graduate students are protected by the Act 

if they meet that definition, even if they are also students. That is the basic position 

of the dissent in Brown. 

My colleagues in the majority, of course, took a different position. In their view, 

the graduate student assistants at Brown were ‘‘primarily students’’ and they had 

‘‘a primarily educational, not economic, relationship with their university.’’ As a result, the majority said, the graduate students were not employees under the Act. 

The short answer to the majority’s argument is that there is no basis for this test. 

It is not based on the language of the Act, or on the Act’s legislative history, or on 

the Supreme Court’s decisions, or on common-law principles. 

What the majority’s position is based on, it seems to me, is its view of policy. For 

the reasons I have explained, I do not believe that the Board is free to create an 

exclusion from statutory coverage, where Congress did not.4 That exclusion means 

the graduate student assistants have no rights at all under the National Labor Relations Act. They have no right to form unions and no right to engage in collective 

bargaining. In fact, they can be punished by universities for even trying to take 

those steps. That is a very harsh result. 

Let me turn now to the policy issues raised by the Brown case. As I suggested 

before, I do believe that Congress intended the Board to help make federal labor 

relations policy, based on the Board’s expertise in that area. In this case, however, 

the Board exceeded its policy-making authority. But putting that issue aside, I also 

think that the majority’s position is wrong purely as a matter of policy. It reflects 

an outdated view of how universities work. 

The majority saw a sharp separation between the academic world and the economic world. As Member Walsh and I pointed out in our dissent, that separation 

does not really exist. To quote the scholar Jacques Barzun, ‘‘a big corporation has 

replaced the once self-centered company of scholars.’’ 5 Universities are workplaces 

for many people, including many graduate students. Those students have the same 

problems and concerns that other workers do. They may have families to support. 

They are concerned about their wages, their health-care benefits, their workloads— 

about all the things that labor unions negotiate with employers. 

Our colleagues at the Board, unfortunately, were blind to the dramatic changes 

that have occurred in higher education. In their view, everything is the same as it 

was thirty years ago. But over the last few decades, studies show, American universities have become more and more dependent on the work of graduate students. At 

many universities, graduate student teaching assistants have replaced tenure-track 

faculty members. The Brown dissent cited statistics showing that by December 

2000, nearly one quarter of college instructors were graduate teaching assistants. 

To be blunt, graduate students are cheaper—and, of course, they will stay cheaper 

if they cannot unionize. 

There is nothing new about collective bargaining in a university setting. The 

Board first exercised jurisdiction over private universities in 1970, in the Cornell 

University decision.6 University professors, for example, are covered by the Act, except where their role in university governance makes them ‘‘managerial’’ employees. 

Finally, both faculty and graduate student unions are common at public universities, which lie outside of the Board’s jurisdiction. 

The question, then, is why graduate students should not be permitted to organize 

unions, if they wish. The Brown majority gave two basic reasons: (1) that the workrelated issues that concern graduate students are not suitable for collective bargaining; and (2) that collective bargaining would threaten academic freedom and the 

quality of higher education. Neither reason strikes me as persuasive. 

First, graduate student unions and universities can and do bargain successfully 

over terms and conditions of employment. They certainly do so at public universities. And, in the wake of Board’s 2000 decision involving New York University, 

they did so at NYU, where a four-year collective bargaining agreement was reached 

in September 2001. 

As for the supposed threat to academic freedom and educational quality, it seems 

dubious, to say the least. The Brown majority emphasized the importance of personal relationships between faculty members and graduate students. The dissent, 

however, cited studies showing that collective bargaining has not harmed mentoring 

relationships. The majority pointed to no contrary evidence. 
29 

7 University of Pennsylvania v. EEOC, 493 U.S. 182, 197 (1990). 

Nor does collective bargaining threaten academic freedom, properly understood. 

Academic freedom does not mean the unlimited managerial prerogative of university 

administrators. Rather, as the Supreme Court has explained, academic freedom 

means freedom from attempts to regulate the ‘‘content of the speech engaged in by 

the university or those affiliated with it.’’ 7 Collective bargaining is not a restriction 

on free speech in the university setting. If university professors can engage in collective bargaining without endangering academic freedom, then surely graduate student assistants can, too. Notably, the collective bargaining agreement at New York 

University contains a ‘‘management and academic rights’’ clause, making clear that 

the University has sole discretion to decide ‘‘who is taught, what is taught, how it 

is taught and who does the teaching.’’ 

In our dissent, Member Walsh and I said that ‘‘[c]ollective bargaining by graduate 

student employees is increasingly a fact of American university life.’’ If it stands, 

the Board’s decision in Brown likely will cut that development short, at least at private universities. That result is unfortunate. The issues that drive graduate students to organize unions will not go away. For many decades, the National Labor 

Relations Act has been an effective tool for channeling labor disputes into peaceful 

collective bargaining. Under Brown, the Act cannot serve the purpose that Congress 

intended. 

The Brown decision, finally, should be understood in its larger context. The 

Board’s recent trend has been not only to interpret the Act’s protections narrowly, 

but also to limit the coverage of the Act itself. Fewer workers now enjoy fewer 

rights. Graduate student assistants and disabled workers in rehabilitation programs 

are the latest examples. Growing numbers of contingent workers are also at risk, 

if the Board classifies them as independent contractors (a statutory exclusion). As 

the Act’s circle of protection diminishes, so does its relevance in the American workplace. 

I would be happy to answer your questions. 

REVERSAL OF PRECEDENT

Senator SPECTER. Thank you very much, Ms. Liebman. 

It is an unusual situation to have a ruling by the NLRB in the 

year 2000 which overturns 25 years of NLRB decisions that graduate assistants are not employees and then to have only 4 years 

later a shift on that. What were the factors, Ms. Liebman? You 

were a member of the Board which reversed 25 years of experience. 

What were the factors that led you to that change of legal interpretation? 

Ms. LIEBMAN. Well, first of all, the NYU decision followed another decision involving Boston Medical Center, in which the Board 

reversed older precedent and decided that interns and residents 

were employees under the National Labor Relations Board. 

Senator SPECTER. How long before the year 2000 was that decision? 

Ms. LIEBMAN. I think that was the year before, 1999. 

Senator SPECTER. Okay, so you have a longstanding law. The 

concerns which are present turn on legal interpretation and to 

have a three to two decision along party lines in the year 2004 

raises an obvious issue as to whether there is a political consideration as opposed to a legal consideration. When you have a decision 

in the year 2000 or 1999 overturning longstanding precedents, the 

first question arises, which I put to you, Ms. Liebman, and to you, 

Mr. Battista, will be the same question as to reversal: But what 

factors led to a reversal when you are dealing with a question of 

law, not a question of policy or a question of anything to do with 

the political arena, not public policy but law? We like to think 

there is some objectivity and certainty as to the legal conclusions. 
30 

Ms. LIEBMAN. Mr. Chairman, the Boston Medical decision in 

1999 and the NYU decision which followed it were based on the 

majority’s view that the law, correctly interpreted, allowed for the 

graduate student assistants or the interns and residents to be 

treated as statutory employees because they met the common 

law—— 

Senator SPECTER. Well, had anything changed when you considered the Brown case from the decision before which had held to the 

contrary? 

Ms. LIEBMAN. From the Brown decision? 

Senator SPECTER. Well, had anything changed from the 1999 or 

2000 decision which reversed longstanding law? Had anything 

changed in the interim to warrant that kind of change in legal interpretation? 

Ms. LIEBMAN. The composition of the Board changed. 

Senator SPECTER. Well, that is not necessarily a very good reason. If there had been an evolving factual situation or underlying 

public policy considerations changing—— 

Ms. LIEBMAN. Certainly from the perspective of the dissent nothing had changed, and nothing was argued by the majority in Brown 

to show that there was empirical evidence—— 

Senator SPECTER. I am not on Brown right now. I am on the decision in the year 2000 and 1999. 

Ms. LIEBMAN. Well, things had changed in universities. Certainly 

universities had become more and more dependent on the use of 

teaching assistants for teaching classes, as I indicated in the statement. 

Senator SPECTER. But had the relationship between the teaching 

assistants and the universities changed from the time the assistants were determined not to be employees until—a unanimous decision in the year 2000 reversed that policy. 

Ms. LIEBMAN. That is right. The earlier decision was really based 

on a policy decision that they were primarily students engaged in 

an educational relationship rather than an economic relationship. 

So in essence the majority in 1999 and 2000 decided to part with 

that policy rationale and look strictly at the language of the statute, which in our view demanded the result that they be treated 

as statutory employees and common law employees. 

Senator SPECTER. Mr. Battista, what changed from the decision 

in the year 2000 to the Brown decision except for a change in the 

composition of the Board? 

Mr. BATTISTA. Senator, let me preface my remarks by saying that 

I believe the law should have some predictability and that practitioners and people who are governed by the law should have a feel 

for what the law is and it really should not change unless there 

are changed circumstances or we are as a Board firmly convinced 

that the underlying decision that we are looking at should be reversed, that it was wrongly decided. 

When NYU was decided, it was decided by three members of the 

Board: Chairman Truesdale, members Liebman and Hurtgen. With 

regard to the other two Board seats—one position was vacant and 

one member of the Board did not participate. So when member 

Liebman says it is a unanimous decision, it was, but it was not a 

decision of the full Board. That was a factor we looked at. 
31 

Two, we thought—— 

Senator SPECTER. It was not a decision of the full Board? How 

many members were there? 

Mr. BATTISTA. There were only three of the five. One position 

was vacant and one member did not participate. 

Senator SPECTER. But it was unanimous? 

Mr. BATTISTA. It was unanimous. 

Senator SPECTER. That is as many votes as you had when you 

overturned it? 

Mr. BATTISTA. That is correct. 

As a majority, we looked at NYU and thought it was wrongly decided. At least I can speak for myself: I thought it was wrongly decided. 

Senator SPECTER. Well, you thought it was wrongly decided. 

What weight did you give to precedent, to stare decisis? 

Mr. BATTISTA. I gave a great deal of emphasis to the fact that 

there had been 25 years of Board precedent that had stood the test 

of time, both as far as the courts and the Congress were concerned, 

and I thought that decision was correct. I viewed our action as reestablishing a long established precedent. 

Senator SPECTER. Well, now you are talking about the precedent 

up to the 2000 decision. 

Mr. BATTISTA. That is correct. 

Senator SPECTER. My question to you was different than that. 

My question to you was what weight did you give to the precedent 

or stare decisis on the decision which you overturned? 

Mr. BATTISTA. I gave little weight to it because, frankly, it was 

a decision of rather short duration and, frankly, a decision that I 

thought, personally speaking, was erroneous. I gave a lot of weight 

to the 25 years that had been the previous precedent and to the 

fact that the common law test for master-servant cannot be decided 

in a vacuum. I think that the Supreme Court had told us in Town 

and Country that when we interpret terms like ‘‘employee’’ we are 

given great deference and we have to do so in looking at the objectives of the Act. Quite frankly, the objectives of the Act in my view 

were that the Act governs primarily economic relationships and not 

primarily academic relationships, and I personally viewed this as 

a primarily academic relationship and not covered by the Act. 

Senator SPECTER. Mr. Battista, when the University of Pennsylvania students voted on February 26 and 27 of the year 2003 on 

this issue, their ballots were not counted because of the consideration of the Brown University case. But why were not at least the 

ballots counted so there would be a determination as to what had 

occurred at the election, even if the law was possibly to or likely 

to be changed? 

Mr. BATTISTA. Senator, we followed our standard procedure when 

a request for review is filed—in other words, the regional director 

came down with a decision in Pennsylvania finding that, in accordance with NYU, the graduate student assistants were employees. 

That was appealed by the University of Pennsylvania. There was 

a request for review filed. 

That request for review was granted by the Board. Once that request for review was granted, the standard procedure for the Board 

is to conduct the election and impound the ballots pending action 
32 

on the request for review, final action on the request for review. 

That was held in abeyance until Brown was decided and then the 

Pennsylvania case, along with a number of other cases, were then 

remanded back to regional directors for action in accordance with 

the Brown decision. 

Senator SPECTER. Well, did you review the University of Pennsylvania decision or did you just follow your change in legal interpretation on the Brown case? 

Mr. BATTISTA. What we did is remanded it back for the regional 

director to make a decision in accordance with Brown. Senator SPECTER. Well, that was after, that was after the Brown 

decision. 

Mr. BATTISTA. That is correct. 

Senator SPECTER. The concern I have, Mr. Battista, is that you 

have a year and a half delay, from February 2003 until July 2004, 

and you have the University of Pennsylvania election occurring 

under existing law where the students are employees. Why not follow the existing law? If you are going to reverse it later, sufficient 

unto the day when you reverse it? 

Mr. BATTISTA. Well, because one of the two parties, in this case 

the University of Pennsylvania, had filed a request for review, and 

the normal Board procedure in all cases is to try to expedite that 

request for review and action on it. 

Senator SPECTER. Well, did you expedite it? 

Mr. BATTISTA. We attempted. We made a decision on it and we 

granted the review, and I think that took place before my appointment to the Board. Then that issue was held in abeyance until the 

issue was decided—— 

Senator SPECTER. Well, is it customary when you grant requests 

for a review to have it pending for a year and a half before the review is made? 

Mr. BATTISTA. It is not unusual where you have got a very significant case, and this obviously was a significant case. These 

issues were significant issues. 

We would like to dispose of the cases much more quickly than 

a year and a half, but that is not always possible. 

Senator SPECTER. Are you underfunded, Mr. Battista? 

Mr. BATTISTA. I think, Senator, that we can always use more 

money, but the fact of the matter is I think that the President’s 

budget is just fine. 

Senator SPECTER. I take that to be a no. 

Mr. BATTISTA. I think that that is correct. We could always use 

more. 

Senator SPECTER. Well, this subcommittee funds the NLRB. 

There was an effort made to cut the funding by 30 percent back 

in 1996 and this subcommittee took the lead in seeing to it that 

that was not done and that there have been additions to the funding. 

But I am not happy to see a year and a half’s delay. I think there 

ought to be a much prompter decision, especially when it is not the 

initial decision; it is a decision for reconsideration. Even if you have 

another case pending, it seems to me that there is no great harm 

in counting the ballots where the failure to count the ballots has 

an overtone of secrecy or suppression. 
33 

The concerns I have, I think about Justice Roberts’ decision in 

the case in the mid-30s on the Supreme Court where there was a 

reversal and he made a famous statement about: ‘‘This decision is 

like a railroad ticket, good for this day only.’’ Where there is a reversal on law and it comes down along the lines of the appointees, 

it obviously raises concerns. 

I would urge you to try to work it out on the Board to find a way, 

as Chief Justice Warren did in the segregation case, where there 

are hotly contested issues and a lot of views. You are not under 

that kind of scrutiny, to see if you cannot find some way to accommodate and have decisions which at least do not appear to be partisan. 

Mr. BATTISTA. Let me just respond if I could briefly to that, Senator. 

Senator SPECTER. Sure. 

Mr. BATTISTA. With respect to the various cases that come before 

us, I do not decide them on a partisan basis. I decide them on what 

I believe is a correct statement of the law. There was a case earlier 

in my term, San Manuel Casino. That was a case on whether or 

not the jurisdiction of the Board should extend over to commercial 

Indian casinos on tribal lands. I sided with member Liebman and 

member Walsh on that because I believed that that was a correct 

decision. That was one Republican and two Democrats. 

Similarly, with Management Training I sided with member 

Liebman to form a majority to sustain that principle. So that happens frequently. 

It is not unusual, though, when you get three or four major 

cases—and we have only had about five or six, I think—that sometimes voting will fall along party lines. But it is not a partisan 

thing. It is really that that is the shared view of the majority. 

Senator SPECTER. Party lines but not partisan, okay. 

Ms. Liebman, in light of your statement that the only thing that 

changed was the composition of the Board, do you want to disagree 

with Mr. Battista’s last answer? 

Ms. LIEBMAN. No. I should say I do not believe that I said the 

only thing that changed was the composition of the Board. Certainly the only thing that changed between 2000 and 2004 was the 

composition of the Board. 

But between the earlier precedent and 1999–2000 obviously the 

workplace has changed enormously, our economy has changed 

enormously. While we have great respect for stare decisis, an administrative agency is supposed to be attuned to changes in the 

economy, changes in the workplace, and there will sometimes be 

reversals of precedent based on changing conditions. I think it is 

our obligation to respond to changing conditions. 

Nonetheless, the NLRB is a political body and there are likely to 

be changes of precedent, changes of view, as the composition of the 

Board changes. That unfortunately may be the political reality. 

Thank you. 

Senator SPECTER. Well, okay. Those two answers suggest an appropriate degree of collegiality on your Board. 

Mr. BATTISTA. There is, Senator, thank you. 

Senator SPECTER. That is good to hear. We could use a little 

more of it in the Senate. 
34 

Mr. BATTISTA. Thank you. 

STATEMENT OF CHRISTINA COLLINS, GRADUATE STUDENT AND Ph.D. 

CANDIDATE, UNIVERSITY OF PENNSYLVANIA, AND POLITICAL 

DIRECTOR, GRADUATE EMPLOYEES TOGETHER-UNIVERSITY OF 

PENNSYLVANIA 

Senator SPECTER. Thank you very much. 

We turn to our second panel: Mr. John Langel and Ms. Christina 

Collins. Ms. Collins is a sixth year graduate student at the University of Pennsylvania, working on a joint Ph.D. in history and education and a certificate in urban studies. She has been a research 

and teaching assistant at both the Graduate School of Education 

and the History Department for 5 years, one of the founding members of the Graduate Employees Together-University of Pennsylvania, and currently serves as its political director. Thank you for 

joining us, Ms. Collins, and the floor is yours. 

Ms. COLLINS. Thank you, Senator Specter, and good morning. My 

name is Tina Collins. I am a sixth year doctoral candidate at Penn. 

During my first 5 years at Penn, as you mentioned, I was employed 

as a research and as a teaching assistant, working in both the 

Graduate School of Education and the History Department. I have 

taught both undergraduate and graduate students at Penn. 

I am also a member of GET-UP, the Graduate Employees Together-University of Pennsylvania, which is a union organizing 

campaign which seeks to represent about 1,000 teaching and research assistants at the university. We are affiliated with the 

American Federation of Teachers. 

I appreciate the opportunity to discuss the recent NLRB decision 

with you today which overturned the rights of graduate employees 

at private universities to bargain with their employers. The NYU 

decision in 2000 led a group of us at Penn to begin meeting about 

what could be done at our school and we looked to 3 decades of collective bargaining by grad employees at some of the most prestigious public universities in the country as a model for what we 

might accomplish at Penn. 

Grad teachers and researchers at the Universities of Wisconsin, 

Michigan, California, and a number of other schools have been recognized and gained the right to bargain contracts with their administrations. These are premier research centers, which have not suffered any ill effects as a result of grad unionization. 

Today, though, I want to talk about what grad assistants do, 

which I believe will make it obvious that we are indeed employees 

of our universities. My own first year of teaching in the history department I think provides a good illustration of these duties. I was 

assigned a class in Latin American history, even though I had 

never taken a graduate course in that field. I was not given training, office space, a phone line, or a computer. 

Each week I spent approximately 20 hours working for the university. I met with the professor and another teaching assistant before the course began and then for about an hour a week to discuss 

the readings and the assignments. Like any other university instructor, I also prepared lesson plans and led my own weekly discussion sections. 

Additionally, I held weekly office hours for students. These were 

usually held in coffee shops or other public spaces because most 
35 

teaching assistants do not get offices. I was also available to students by e-mail and by phone, including during evenings and on 

weekends. Students routinely asked me for academic advice and 

sent me drafts of papers to review. In addition, I was responsible 

for grading my students’ exams and for calculating their final 

grades. In addition to these duties as an instructor, I was also taking four graduate classes of my own. 

What I have just outlined is not unusual for teaching assistants 

throughout Penn. And for performance of these duties, most teaching and research assistants in the Graduate School of Arts and 

Sciences currently receive an annual salary of $15,750. However, 

many other graduate employees at the university make less. Compensation is therefore a very significant issue to our members, especially nontraditional students who may have family responsibilities, as well as international students, who are legally barred from 

seeking other employment options. 

According to a recent survey of our members, their average annual rent is more than half of their stipends. A majority also said 

that the funds that they receive are not sufficient to cover their living expenses. 

Health insurance is another major concern. While some departments began paying health insurance premiums for graduate employees soon after our union campaign began, many are still expected to pay the premium out of their stipends. The premium has 

increased every year that I have been at Penn, most recently this 

year by 10 percent. One recent Ph.D. recipient had to make the 

choice in his last year of study of whether to add his wife or his 

infant son to the health insurance plan because their family could 

not afford to do both. We should not have to make this choice at 

an institution as wealthy as Penn. 

These growing inequities in compensation and in benefits have 

led us to seek a collective voice for dealing with the university, 

which is the largest private sector employer in Philadelphia. Our 

goal is simple: a contract with the university that both serves the 

interests of our members and improves the quality of education at 

Penn. 

I believe the NLRB decision represents a significant misinterpretation of the law. Graduate teaching and research assistants in 

the private sector, like the more than 40,000 graduate employees 

who participate in collective bargaining at public universities, are 

clearly employees who provide valuable services. Without our work, 

institutions like Penn would need to hire other employees to do our 

jobs. 

We find the argument that we have no right to form a union unacceptable in a democratic country. Our work is essential to Penn 

and we are proud of the high quality research and instruction we 

deliver, even under sometimes difficult conditions. 

PREPARED STATEMENT

I thank you for examining the impact of this decision on graduate employees and I hope that you will consider legislation that 

explicitly protects our basic right as graduate employees to form 

unions at private colleges and universities. Doing so will send a 
36 

strong message that the work of grad assistants is an essential 

part of higher education in America. 

I welcome any questions you may have about my testimony. 

[The statement follows:] 

PREPARED STATEMENT OF CHRISTINA COLLINS

Good morning Chairman Specter, Ranking Member Harkin and members of the 

subcommittee. 

My name is Tina Collins, and I am a sixth-year doctoral candidate pursuing a 

joint Ph.D. in history and education at the University of Pennsylvania (Penn). During my first five years at Penn, I was employed by the university as a research and 

teaching assistant, working in both the Graduate School of Education and the History Department, and teaching undergraduate and graduate students. I am also a 

member of Graduate Employees Together-University of Pennsylvania (GET-UP/ 

AFT), a union organizing campaign seeking to represent nearly 1,000 graduate-level 

teaching and research assistants employed at Penn. GET-UP is an affiliate of the 

American Federation of Teachers (AFT). 

I appreciate the opportunity to discuss the National Labor Relations Board’s 

(NLRB) July decision in Brown University, 342 NLRB No. 42 (2004) (Brown). This 

overruled recent NLRB precedent and stripped graduate employees at private universities of protection under the National Labor Relations Act (NLRA). The board 

stated in Brown that graduate teaching and research assistants are not ‘‘employees’’ 

under the act, and therefore have no right to form a union and bargain collectively. 

Previously, the board ruled in New York University, 332 NLRB No. 1205 (2000) 

(NYU) that graduate assistants in private universities were employees and constitute an appropriate unit for collective bargaining. 

My fellow graduate assistants and I were encouraged by the earlier NYU decision 

given the many similarities between our experiences and the circumstances facing 

the employees at NYU. The decision led a group of us to begin meeting to talk about 

what could be done about the many issues affecting our ability to perform our duties 

as graduate assistants at the university. We quickly confirmed that organizing graduate employees at universities is not unique or radical. We looked to the three decades of collective-bargaining experiences of graduate employees at some of the most 

prestigious public universities in the United States as a model for what we might 

accomplish. Graduate teachers and researchers at the University of Wisconsin at 

Madison, the University of Michigan, the University of California system, Michigan 

State University and the University of Illinois at Urbana-Champaign have fought 

for and won union recognition and the right to bargain contracts with their respective administrations. 

The Teaching Assistants’ Association (TAA/AFT) has been negotiating with the 

University of Wisconsin at Madison since 1969 over a wide range of issues including 

compensation and benefits packages, grievance procedures, and job training. The 

university has suffered no ill effects as a result of graduate unionization. In fact, 

today the school is nationally recognized as one of the country’s premier research 

institutions. Its own Web site points out that the university is known for its ‘‘worldclass, cutting-edge research.’’ 

Rather than offer my analysis on the legal complexities of this recent Brown decision, I would instead like to talk about what graduate assistants do as Penn employees and demonstrate the integral role we play as part of our institutions’ instructional workforce. I am convinced these experiences would lead a reasonable person 

to recognize our status as employees who have the right to form unions that represent our interests in the workplace. 

My own first year of teaching in the History Department provides a few typical 

examples of the extensive and essential work graduate employees provide at Penn. 

I was told I would be teaching a class in Latin American history, even though I had 

never taken a graduate course in that field, because two teaching assistants were 

needed and no one else was available; the other teaching assistant was working on 

a degree in European intellectual history. I was not given training, office space, a 

phone line or a computer. Consequently, I, like any other teacher at the university, 

had to prepare to teach my class, developing my teaching strategies and establishing a schedule not only for my students but also for myself. Each week, I spent 

approximately 20 hours working for the university. I met with the professor and the 

other teaching assistant before the course began and then for about an hour a week 

to discuss the readings for the class, the assignments and to ensure that our grading criteria were consistent. I attended the professor’s lectures twice a week, taking 

notes and helping with the audio/visual material she used in her presentations. I 
37 

completed all the readings for the class, as well as reviewing other background materials and multi-media sources, including several films. I prepared lesson plans for 

my two classes, which included about 30 students and met once a week; during lessons I led discussion of the material, answered students’ questions and assisted 

them in refining arguments in their written assignments. 

I also held weekly office hours for students. Because teaching assistants at Penn 

do not have offices, these meetings usually were held in coffee shops or other public 

spaces. I was also available to students by e-mail and phone, during the week and 

on evenings and weekends (especially before big papers were due). I was expected 

to pay all of my own expenses for Internet access at home because the university 

had discontinued its off-campus access system the previous year. Students asked me 

for advice on completing coursework and sent me drafts of papers for comments on 

style and content, as well as turning to me for more general support regarding adjustment to life at the university. Over the course of the semester, I was responsible 

for grading three essay papers from each student on a wide variety of topics. I also 

was responsible for grading both a midterm exam and a final exam, each of which 

included short-answer as well as essay questions. I was also responsible for calculating and submitting students’ final grades at the end of the semester. In addition 

to my duties for this class, I was completing my own academic work for four graduate classes, giving presentations at several conferences around the country and 

working on a journal article with two colleagues. 

What I have just outlined is not unusual. In addition to teaching their own classes, graduate employees at Penn lead small group discussions and lab classes that 

complement the larger lecture classes typically taught by faculty. This semester, 87 

percent of the teaching hours in large lecture classes in the History Department will 

be conducted by graduate employees. In the English Department, where large lecture classes are not the norm, graduate-level teachers will teach 40 percent of the 

introductory level seminars this semester. The tendency to rely heavily on graduate 

assistants to work with students in smaller groups, while also teaching their own 

classes, is increasing throughout the School of Arts and Sciences. 

Former Penn President Judith Rodin recognized the valuable work performed by 

graduate assistants when she established the Penn Prize for Excellence in Teaching 

by Graduate Students. The prize seeks to recognize ‘‘excellence in teaching by graduate students across the university who, through their dedication to teaching have 

had a profound impact on undergraduate education at Penn.’’ Yet, for all of these 

contributions and this high praise, most teaching and research assistants in the 

Graduate School of Arts and Sciences this year will receive a standard stipend of 

$15,750. In addition, hundreds of graduate employees in schools such as Education, 

Social Work and Design typically receive much less than $15,750. Even more troubling, more experienced teaching assistants at Penn actually now receive less for 

doing the same work as newer employees. 

Compensation is a significant issue to our members, especially those non-traditional students with family responsibilities or international students with few other 

employment options. For the past several months, GET-UP has been surveying 

graduate employees from across Penn regarding their current quality of life and 

issues they would like to see addressed in a future contract. What we have learned 

from our colleagues is instructive. The average monthly rent for those surveyed is 

$671, which amounts to an average of $8,052 per year. So, the average cost of rent 

alone is more than half of the standard annual stipend in the School of Arts and 

Sciences. Overall, 56 percent of those surveyed said that the funds they receive from 

the university are not sufficient to cover their day-to-day living expenses. 

Health insurance is also a major concern for our members. Although the departments that make up the School of Arts and Sciences began paying health insurance 

premiums for their graduate employees soon after our union campaign began, most 

graduate employees in the Schools of Design, Social Work and Education are still 

expected to pay the premium out of their stipends. The premium has increased 

every year I’ve been at Penn. For 2004–05, the annual rate is $2,072, a 10 percent 

increase from last year. For graduate employees with two dependents, the premium 

cost jumps to $8,207—and has the potential to price someone out of graduate school. 

One recent Ph.D. recipient had to make the choice in his last year of study between 

adding his wife or their infant son to the health insurance plan, because he could 

not afford to pay for both. Ultimately, his wife went without healthcare until he 

graduated and took a job in the private sector. This is a choice we should not be 

confronted with at an institution as wealthy as Penn. Even if graduate employees 

with children are able to pay these high premiums, the only primary care provider 

fully covered under the plan is the student health clinic, which does not have a pediatrician on staff. 
38 

There are also high co-pays, deductibles and prescription costs that often put care 

out of reach for graduate students, and can even affect treatment. One of my colleagues recently met with a doctor who suggested a test to better determine a 

course of action for his ailment. However, my colleague couldn’t afford the $100 outof-pocket expense. The doctor then just went ahead with a treatment, unsure of 

whether it would be effective. 

For many graduate employees—especially those of limited means or those with 

families—growing inequities in compensation and benefits packages may limit their 

ability to pursue graduate studies. 

It was these types of examples that led us to eventually reach agreement on the 

need to establish a formalized vehicle to represent our interests and needs before 

the administration at Penn. Armed with the new status afforded to us by the NYU 

decision, we decided to form GET-UP in Fall of 2000. Our goal was simple: We 

sought the right to bargain a contract with the university that would serve the interests of our members and improve both working and learning conditions at Penn. 

We affiliated with the AFT later that academic year, and have been working ever 

since to gain recognition. 

Throughout this period, we have faithfully followed the rules set forth under the 

NLRA as interpreted by the NLRB. Unfortunately, Penn failed to display that same 

level of commitment—In 2001, a substantial majority of graduate employees signed 

authorization cards asking Penn to recognize GET-UP as their union and begin bargaining; Penn refused this request. After another year of waiting, our case was finally heard; the regional labor relations board ruled in our favor and called for an 

election to be held In February 2003. According to a survey performed by the Daily 

Pennsylvanian, we won that election 62 percent to 38 percent, despite an intense 

anti-union campaign by the university. However, our votes were never counted because the university continued to reject our right to unionize. Despite four years of 

hard work by GET-UP members—who struggled to balance their academic, employment and personal responsibilities with their efforts to gain a voice at work—the 

NLRB overruled the previous NYU decision, ruling that graduate teaching and research assistants are not employees eligible to form unions under the NLRA. Our 

petition for recognition was subsequently dismissed in August 2004. 

I believe that the most recent NLRB decision represents a significant misinterpretation of the NLRA. Graduate teaching and research assistants in the private 

sector, like the more than 40,000 graduate employees who participate in collective 

bargaining at public universities, are clearly employees providing valuable services 

at our institutions in exchange for compensation. Without our work, institutions like 

Penn would need to hire other employees to do fill these jobs. 

We continue to organize graduate employees on campus and to highlight the necessity of advocating for our interests. However, our challenge has been increased 

by the recent NLRB decision. 

GET-UP and its members find the argument that graduate employees have no 

right to or need for a union to be absolutely unfounded and unacceptable in a democratic country. Our work is essential to the university’s mission, and we are proud 

of the high-quality research and teaching that our members perform, even under the 

often difficult conditions I’ve just described. We, and the other union organizing 

campaigns affected by the Brown decision, are committed to using our collective 

voice as employees to make our institutions better places in which to work and to 

learn. 

On behalf of my graduate colleagues at Penn, I thank you for taking the time 

today to examine the impact of the recent NLRB decision on graduate employees. 

I hope that you and your colleagues in Congress will consider introducing and pushing legislation that explicitly protects the basic right of these employees to form 

unions at private colleges and universities under the protections of the NLRA. Doing 

so will send a strong message that graduate assistants are an essential part of undergraduate education programs not just at Penn but at other private colleges and 

universities across the nation. 

I welcome any questions that members of the committee may have in regard to 

my testimony. 

STATEMENT OF JOHN LANGEL, ESQ., BALLARD SPAHR ANDREWS & INGERSOLL, REPRESENTING THE UNIVERSITY OF PENNSYLVANIA 

Senator SPECTER. Thank you very much, Ms. Collins. 

We turn now to Mr. John Langel, litigation department, Ballard 

Spahr, a prestigious law firm in Philadelphia. Before joining the 

firm, Mr. Langel served as law clerk for Judge Hewitt in the Fed-
39 

eral court in Philadelphia. He is a member of the Philadelphia Bar 

Association Labor and Employment Committee, has a bachelor’s 

from Marietta, and summa cum laude from Temple University. 

Thank you for joining us, Mr. Langel, and we look forward to 

your testimony. 

Mr. LANGEL. Thank you, Senator Specter. It is a pleasure to be 

here today representing the University of Pennsylvania. 

As you have heard, for nearly three decades the National Labor 

Relations Board agreed with Penn’s position that graduate students are not employees because teaching and research are integral 

parts of the education they receive. In 2000 the Board suddenly 

changed course and found certain graduate teaching and research 

assistants at NYU had the right to unionize. Interestingly, they did 

not find that all graduate students had the right to unionize. Then, 

this July in the Brown decision the Board returned to its long-held 

recognition that graduate students are just that, students, not employees. 

I am here today to talk, not about the law of Brown, but rather 

to talk about graduate education at Penn, with which I became familiar representing Penn throughout the lengthy proceedings before the Board. Let us first review the benefits provided to Penn’s 

graduate students. All graduate students at Penn, not just the select graduate group that the union had chosen to include in its petition, come to Penn with one goal in mind: to earn advanced degrees while acquiring the skills and expertise necessary for successful careers in their chosen fields. Often that is academic in nature. 

Penn administers its diverse graduate programs with precisely 

that goal in mind. The programs deliver on that goal through a 

combination of formal instruction and applied learning. At the center of Penn’s graduate educational programs are opportunities for 

students to gain hands-on experience in the most important functional areas of graduate level education, teaching and research. 

The union seeks to distort the educational nature of those teaching and research experiences by contending that students who 

teach and research while simultaneously receiving generous financial aid that enables them to attend graduate school in the first 

place are Penn employees. 

Let us look at the financial aid. It is significant and it bears no 

direct relationship to the services students perform as graduate assistants. Penn’s graduate students receive multi-year funding packages, 4 to 5 years. They include: fully paid tuition, fully paid tuition at the University of Pennsylvania, and fees for each year of enrollment; a substantial stipend each year to cover living expenses, 

between $15,000 and $22,000; health insurance coverage. 

The cost to Penn and the value to the students exceeds $50,000 

per student year. They are not cheaper labor. In fact, if the university were looking for cheaper labor they would find it in their adjunct professors, who are much less costly on a semester by semester basis. 

The funding provided to its graduate degree students is and is 

intended to be educational financial aid at its core. Indeed, upon 

acceptance Ph.D. students are guaranteed this funding package for 

4 or 5 years. Yet they serve as teaching or research assistants for 

as little as two semesters, and typically only during portions of 2 
40 

of those 4 or 5 years. During the rest of their time as students, 

when they receive the identical funding package, they devote their 

time exclusively to their course work and the beginning stages of 

their dissertations. 

I will now turn to the academic focus of Penn’s graduate programs. The nature of the services are likewise driven by an educational, not economic, engine. Students pursuing Ph.D. degrees 

overwhelmingly seek careers in academia. As part of its educational program and its mission to prepare the next generation of 

university educators, Penn requires its graduate students to conduct research and to teach. In fact, teaching and research are so 

much a part of graduate education at Penn that in many of its 

graduate programs serving as a teaching or a research assistant is 

a degree requirement, no different than taking certain courses. 

Like other aspects of their studies, graduate students teach and research and are reviewed by their instructors and their performance 

is made part of their academic record. 

There is a fundamental nexus between teaching and the course 

work. So too that appears with their research. Indeed, most of the 

students, if not all the students, do research in the areas that wind 

up being their dissertations. 

Clearly the services are pedagogical in nature. But beyond that, 

treating students as employees threatens academic freedom. Academic freedom is not just free speech. The erosion in the establishment of collective bargaining here would do an injustice to what 

the Supreme Court of the United States has recognized. 

Imposing collective bargaining on Penn’s relationship with its 

students would undermine Penn’s ability to make each of these decisions. Penn would be forced to bargain over broad academic 

issues, including class size, time, length, location, as well as the 

graduate student’ duties. 

If you look at the proposed unit that GET-UP seeks to represent, 

you would see the anomaly that was created. They excluded all of 

the hard science research assistants and teaching assistants, saying that that which they did was academic in nature. If you examine the record, a 7-week record before the regional director in 

Philadelphia, you will see that all of the services are academic in 

nature that all of the graduate students provide. 

PREPARED STATEMENT

One last item and that is: Under the Board’s longstanding precedent, unrelated to students or whether students are employees, is 

the concept of temporary employees. Temporary employees are 

those who are there for a finite and short duration. The graduate 

students teach a semester, teach two semesters. They are there for 

a short, finite duration with no expectation of continued employment. Under the industrial model which GET-UP seeks to impose 

on the university model, they all are temporary employees. 

Thank you for your time. 

[The statement follows:] 

PREPARED STATEMENT OF JOHN B. LANGEL

Senator Specter, Members of the Committee. It is a pleasure to be here today to 

address this Subcommittee on an issue of such importance to the preservation of 
41 

academic freedom at our nation’s great universities, like the University of Pennsylvania, which I have the honor to represent here today. 

I am not here to present to you the legal history of these issues, but a little background is necessary. For nearly three decades, the National Labor Relations Board 

(the ‘‘Board’’) agreed with Penn’s position that students are not statutory employees 

because teaching and research are integral parts of the education they receive. In 

October 2000, the Board departed from this precedent when it found certain graduate teaching and research assistants at New York University had the right to 

unionize. In doing so, the Board overruled such cases as Adelphi University, 195 

N.L.R.B. 639 (1972), and Leland Stanford Junior University, 214 N.L.R.B. 621 

(1974), where the Board underscored that the financial support received by graduate 

students is not compensation for services performed, but financial aid to help graduate students pursue their education. 

Then, in July 2004, the Board overruled NYU in the Brown University decision 

and returned to its long-held recognition that graduate students are just that, students, not employees. Brown University, 342 N.L.R.B. No. 42 (2004). Rather than 

talk about why the Brown decision was the right decision, legally, I want to talk 

about graduate education at Penn, with which I became familiar representing Penn 

throughout the proceedings before the Board. 

PENN’S GRADUATE STUDENT PROGRAMS

Penn is one of the country’s premier research institutions. Research is what the 

faculty do; research is what the faculty work with the graduate students, and indeed 

increasingly the undergraduates, to teach them to do. Faculty members, students, 

research professionals, and lab technicians all collaborate to conduct this research, 

and all contribute to the success of Penn’s research mission. 

Beyond their first year of enrollment, many graduate students become increasingly involved in research activities. Students are encouraged early on in their degree program to meet professors, learn the professors’ areas of expertise, and develop relationships with professors whose interests match their own. It is through 

these mentored relationships that graduate students learn the skills and methodologies that will distinguish them as gifted scholars and researchers. 

At the same time, Penn does not operate solely as a center of research, and does 

not permit its faculty to focus solely on their individual research interests. Teaching 

is an equal component of Penn’s mission. Students come to Penn to learn, and the 

duty of teaching them falls to the faculty. Accordingly, all faculty members are expected not only to teach, but to teach at an exemplary level. 

Teaching graduate students at Penn is an interactive process. Students learn to 

teach under the guidance of faculty members. It is expected that, by the time they 

earn their degrees, Penn graduate students will have had first-hand experience in 

the major tasks performed by Penn faculty: conducting significant collaborative or 

independent research; writing grant proposals; authoring scholarly publications 

about their research; and teaching and mentoring Penn’s other students. Penn expects its graduate students to perform all these functions as graduate students to 

prepare them for their own careers, as Penn recognizes that the vast majority of 

its graduate students go on to academic careers of their own. 

BENEFITS PROVIDED TO PENN’S GRADUATE STUDENTS

All graduate students at Penn—not just the select group that the Union has chosen to include in its petition—come to Penn with one goal in mind: to earn advanced 

degrees while acquiring the skills and expertise necessary for successful careers in 

their chosen fields. Penn administers its diverse graduate programs with precisely 

that goal in mind. The programs deliver on that goal through a combination of formal instruction and applied learning. And at the center of Penn’s graduate educational programs are opportunities for students to gain hands-on experience in the 

most important functional areas of graduate-level education—teaching and research. 

The Union seeks to distort the educational nature of those teaching and research 

experiences by contending that students who teach and research, while simultaneously receiving generous financial aid that enables them to attend graduate 

school in the first place, are Penn employees. 

Let’s start with the financial aid. It is significant, and it bears no direct relation 

to the services students perform as graduate assistants. Penn’s graduate students 

receive multi-year funding packages that include: 

—Fully-paid tuition and fees for each year of enrollment; 

—A substantial stipend each year to cover living expenses; 

—Health insurance coverage. 
42 

The cost to Penn and the value to the students exceeds $50,000 per student per 

year. 

The funding Penn provides to its graduate degree students is and is intended to 

be educational financial aid at its core. Graduate education at Penn is expensive. 

Tuition alone for a full-time graduate student enrolled in classes is more than 

$20,000 per year. Penn recognizes that Ph.D. students most often go on to academic 

careers in positions that do not pay well in the early years. Those students, therefore, will have limited resources with which to repay large student loan debt. 

At the same time, Penn believes it is important for students to focus full-time on 

their studies while they are enrolled, in order to receive the maximum educational 

benefit and to enable them to earn their degrees as quickly as possible. Consequently, Penn offers full funding to these students so that they may be adequately 

supported to work full-time on their degrees without the distraction or time commitment of employment. 

The funding students receive is tied to remaining in good academic standing and 

in making adequate progress towards their degree requirements. It is not tied to 

performing a certain number of hours each semester of teaching or research work. 

Indeed, upon acceptance, Ph.D. students are guaranteed this funding package for 

four or five years, yet they serve as teaching or research assistants for as little as 

two semesters, and typically during only portions of two of those four or five years. 

During the rest of their time as students, when they receive the identical funding 

package, they devote their time exclusively to their coursework and the beginning 

stages of their dissertations. 

Take, for example, a Ph.D. student in Humanities and Social Sciences. To entice 

the student to come to Penn, that student is offered a fellowship package, consisting 

of five years of guaranteed support, including fully-paid tuition, a generous stipend 

each year and health insurance. In the student’s first year, she concentrates on her 

own coursework and does not teach. In her second year, she continues to take classes and begins to learn to teach. In her third year, she continues to teach while she 

finishes her classes and begins to focus on her dissertation. In years four and five, 

the student has no teaching responsibilities and concentrates entirely on researching and writing her dissertation. The student receives the same funding package 

throughout all five years without regard to any service she performs. 

THE ACADEMIC FOCUS OF PENN’S GRADUATE PROGRAMS

The nature of the services are driven by an educational, not economic, engine. 

More importantly, the students’ relationship with Penn is an academic one. It is 

driven by Penn’s mission—to train the next generation of university faculty by preparing its graduate students for successful academic and professional careers. 

Students pursuing Ph.D. degrees overwhelmingly seek careers in academia. Penn 

requires that students pursuing a Ph.D. complete 20 credit units of course work, a 

series of examinations, and a dissertation. The dissertation is the culmination of 

sustained research developed to answer an unexplored question within the student’s 

field. Its purpose is to demonstrate that the student has proven ability to create new 

knowledge as a researcher after graduation. Most Ph.D. students begin to perform 

some form of research early in their programs and then progress to the point that 

their only activity is conducting research in furtherance of their dissertations. 

All Penn’s graduate degree programs are structured so that students learn from 

experienced faculty members how to conduct high level, advanced research within 

their fields, and to use that knowledge to contribute to the creation of new knowledge. Research assistantships provide students with hands-on experience in the procedural and practical aspects of research in their fields, all in furtherance of their 

professional development. Students then take that experience and incorporate it directly into their dissertations and research papers. 

The academic positions Penn’s Ph.D. students seek after graduation nearly always 

require the graduates to teach as a major part of their professional careers. To prepare those students properly for academic careers, the majority of Penn’s graduate 

degree programs require a teaching component. The teaching activities in these programs train the students in both the pedagogical and administrative aspects of instruction at the university level. Moreover, even students who do not receive funding (the so-called ‘‘wages’’ for the ‘‘service’’), still must take on these teaching responsibilities in order to obtain their degrees. 

Penn requires its graduate students to conduct research and to teach for the simple reason that teaching and research is what the vast majority of them aspire to 

do. Teaching and research are so much a part and parcel of students’ graduate education at Penn that, in many of its graduate programs, serving as a teaching or research assistant is a degree requirement no different than taking certain courses. 
43 

Indeed, graduate students often receive course credit for their teaching and research 

activities. Like other aspects of their studies, graduate students’ teaching and research activities are reviewed by the students’ instructor and made part of their 

academic record. And just like other aspects of their degree programs, poor teaching 

or research performance can jeopardize academic standing. 

This fundamental nexus between the service a teaching assistant performs and 

the students’ own academic program is enhanced and exemplified by the fact that, 

at Penn, graduate students teach only in classes within their discipline and, most 

often, ones that relate to their particular areas of specialization. So too in the research arena. Graduate students serving as research assistants are matched with 

faculty members whose research interests coincide with their own. In fact, in the 

vast majority of cases, the research Ph.D. students perform as research assistants 

is the very same research the students conduct for their dissertations. 

TREATING STUDENTS AS EMPLOYEES THREATENS ACADEMIC FREEDOM

As the Board in Brown recognized, extending collective bargaining rights to graduate students risks transforming this fundamentally academic endeavor, as it would 

seriously intrude upon and infringe universities’ basic academic freedoms. Academic 

freedom is not some lofty or theoretical concept. It lies at the core of Penn’s mission, 

and lives and breathes throughout its graduate programs on a daily basis. 

‘‘The United States Supreme Court recognizes that a university enjoys four essential freedoms . . . to determine for itself on academic grounds who may teach, 

what may be taught, how it shall be taught and who may be admitted to study.’’ 

Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957). Indeed, according to the Supreme Court, ‘‘[u]niversity faculties must have the widest range of discretion in 

making judgment as to the academic performance of students and their entitlement 

to promotion or graduation.’’ Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 

78, 96 n.6 (1978). 

In direct contravention of the Supreme Court’s admonition to allow universities 

to manage their own academic affairs, imposing collective bargaining on Penn’s relationship with its graduate students would interfere with each of Penn’s ‘‘essential 

freedoms.’’ Penn would be required to bargain over terms and conditions of employment that, according to the Board, are mandatory subjects of bargaining, which 

would result in a direct conflict with the faculty’s academic decisions concerning the 

course of studies for its graduate students. 

Consider the following: 

—Under the NLRA, procedures governing the discipline and discharge of unit employees are a mandatory subject of bargaining. See Washoe Med. Ctr., Inc., 337 

N.L.R.B. No. 32 (2001). Many of Penn’s graduate programs do not permit graduate students to act as teaching or research assistants unless they remain a 

student in good academic standing. Thus, to allow Penn’s graduate students to 

engage in collective bargaining over just cause discipline protection and a grievance and arbitration procedure—standard protections sought by unions in nearly all contract negotiations—would intrude upon Penn’s fundamental right to 

determine for itself which students are entitled to remain in its academic programs. 

—Standards of employee work performance also are a mandatory subject of bargaining. Tenneco Chems., Inc., 249 N.L.R.B. 1176 (1980). Student performance 

as teaching and research assistants is used as a basis for evaluating the academic progress of graduate students. Allowing students to bargain over standards of ‘‘work’’ performance would result in a clear erosion of Penn’s academic 

freedom to determine which students have met their program’s academic requirements and standards and thus may remain students in good academic 

standing. 

—An employer’s decision to use supervisors to perform bargaining unit work is 

also a mandatory subject of bargaining. Hampton House, 317 N.L.R.B. 1005 

(1995). At Penn, many departments choose to have faculty members teach labs 

or recitation sections rather than graduate students. Thus, Penn’s academic 

freedom to structure and teach classes in the manner its faculty find most effective would be affected by graduate student collective bargaining. 

—Assignment of work is also a mandatory subject of bargaining. Engineered Control Sys., 274 N.L.R.B. 1308 (1985). At Penn, professors choose students to be 

their teaching, and especially research assistants, based upon a variety of factors, including the students’ interest in the professors’ academic discipline. Allowing students to bargain over how these selections are made would prevent 
44 

professors from working with students who most closely share their own academic interests. 

These examples illustrate the concerns recognized by the Board in Brown that extension of collective bargaining rights to graduate students will intrude upon universities’ academic freedom. The unions’ arguments that such academic decisionmaking can be cordoned off from the collective bargaining process ignores the substantial autonomy granted Penn’s graduate programs to shape and structure all aspects of their students’ educational programs. 

The Board in Brown found: 

‘‘Imposing collective bargaining would have a deleterious impact on overall educational decisions by the Brown faculty and administration. These decisions would 

include broad academic issues involving class size, time, length, and location, as 

well as issues over graduate assistants’ duties, hours, and stipends. In addition, collective bargaining would intrude upon decisions over who, what, and where to teach 

or research—the principal prerogatives of an educational institution like Brown.’’ 

Brown, slip. op. at 8. 

GET-UP’S PROPOSED UNIT DIVIDED PENN GRADUATE STUDENTS

Another myth I need to dispel is that unions seeking to organize graduate students, including GET-UP, seek to represent all graduate students. In fact, they seek 

to impose the ‘‘employee’’ model on only a limited portion of a diverse graduate student population. The bargaining unit GET-UP sought to represent at Penn was both 

divisive and illogical. 

In short, what GET-UP proposed was a unit oddly divorced from its own purported concept that graduate students are employees because they engage in ‘‘work 

for pay.’’ Consider the following: 

—Students who receive a stipend and tuition and teach or research were included 

in GET-UP’s proposed bargaining unit, but students who receive hourly pay and 

provide the same ‘‘service,’’ even within the same departments, were excluded. 

We could never understand why. 

—Professional students (that is law students and M.B.A. students) were excluded 

altogether, regardless of whether they teach or research. 

—Wharton Business School Ph.D. teaching assistants were included, but Wharton 

M.B.A. teaching assistants, performing in the identical teaching in the very 

same class as the Ph.D. students, were excluded. 

Before the Board’s Brown decision, these illogical and inconsistent distinctions 

were being made all over the country. Consider the chaos as reflected in the following: 

—A ‘‘natural science’’ research assistant working toward his dissertation while 

supported by an external grant at NYU is not a member of the bargaining unit, 

though if he went to Columbia or Tufts and were supported by that same grant, 

he would be a member of the bargaining units at those schools. Had he chosen 

Brown or Penn, however, he would not be eligible for union representation. 

—A teaching assistant in the Business School at Columbia would be in Columbia’s 

bargaining unit, but the same TA would not be in Penn’s bargaining unit if pursuing an M.B.A. But, at the same time, the M.B.A. TA at Penn would be in 

the bargaining unit if he were pursuing a Ph.D. 

—A student serving as a research assistant in Penn’s Graduate School of Education would be included in the unit if pursuing an M.S.Ed., excluded if pursuing an Ed.D., and included if pursuing a Ph.D., notwithstanding that all three 

research assistantships carry the same responsibilities. 

—A student teaching legal research and writing at Columbia would be a member 

of the bargaining unit, yet a student serving in the same role at Penn would 

not. 

—A Penn Engineering student serving as a teaching assistant for one semester 

as part of his academic program (an Engineering Ph.D. academic requirement), 

would be in the bargaining unit for that one semester even though he has no 

expectation of being a TA for any more than one semester. Yet, the Penn M.B.A. 

student, serving as a teaching assistant for twice as long would be excluded 

from the unit. The same Engineering student grading papers the following semester would not be in the Penn bargaining unit, even though grading papers 

is a TA function. At NYU, Columbia or Tufts, however, his grading duties would 

place him in the bargaining unit. 

The distinctions the unions sought to make between different groups of students 

performing the same teaching and research functions bear no rational relationship 
45 

to their claim of wanting to represent student ‘‘employees’’ and are impossibly divisive to the university communities. 

GRADUATE STUDENTS ARE, AT MOST, TEMPORARY EMPLOYEES

GET-UP maintains that the service performed creates an employee model. Yet, 

even GET-UP recognizes that these services are performed for a brief and finite duration—only a portion of the five years. These facts highlight an additional reason— 

one that the Board does not mention in the Brown decision—that graduate students 

are not subject to unionization. Graduate students are, at most, temporary employees who have no right to unionize under the NLRA and the Board’s long-standing 

precedent. 

The Board’s test for determining temporary employment status is simple, 

straightforward, and well-settled: whether the employee’s ‘‘prospect of termination 

was sufficiently finite on the eligibility date to dispel reasonable contemplation of 

continued employment beyond the term for which the employee was hired.’’ St. 

Thomas-St. John Cable TV, 309 N.L.R.B. 712, 713 (1992). Under this test, even if 

one were to assume that graduate students are employees, they are, at most, temporary employees. 

No Penn graduate student has any reasonable contemplation of continued ‘‘employment’’ beyond the duration of his or her studies. No Penn graduate student has 

any expectation whatsoever of a permanent position. All appointments are finite, for 

periods substantially less than the duration of the student’s studies. Indeed, many 

appointments last no more than a single academic semester. 

GRADUATE STUDENTS ARE STUDENTS, NOT EMPLOYEES

In short, the attempt to place an employee label on Penn’s graduate students distorts the educational nature of graduate students’ teaching and research experiences. This effort to hammer the square economic employment relationship at the 

heart of collective bargaining into the round academic relationship between graduate student and university ignores what drives students to attend graduate school 

in the first place, and the totality of circumstances that shape their experience for 

the brief and finite time they are there. 

Recognizing this, the Board in Brown found that graduate students were primarily students, not employees. The Board stated: 

‘‘It is clear to us that graduate students assistants... are primarily students 

and have a primarily educational, not economic, relationship with their university.’’ 

Brown, slip. op. at 5. This finding is unquestionably the right one at Penn. 

Senator SPECTER. Thank you, Mr. Langel. 

I note that you are a graduate of the James E. Beasley School 

of Law at Temple. Worth noting for a moment that Mr. Beasley 

was a very distinguished Philadelphia lawyer who, regrettably, 

passed away a few days ago and made a great contribution to law 

and in endowing the Temple Law School, and a good friend of 

mine. 

The process at Temple University, they do have graduate student 

unions. Do you think there is a challenge to academic freedom at 

Temple, Mr. Langel? 

Mr. LANGEL. Senator, first let me tell you that I represented 

Temple University in the proceedings that resulted in there being 

a union at Temple University. At the hearing level, Temple University prevailed and we prevailed in light of the Adelphi University 

and the Stanford University cases. 

With NYU that changed and the Pennsylvania Labor Relations 

Board, following the precedent of the NYU decision, reversed—— 

Senator SPECTER. Historically that is very interesting, Mr. 

Langel, but did it affect academic freedom? 

Mr. LANGEL. Well, this is the second part of that, Senator, and 

that is there was an agreement with Temple University and the 

union that those items that are academic in nature—for example 

if a student uses their research that they do while they are a re-
46 

search assistant in their dissertation, they cannot be in the union. 

Likewise, if they teach a course for which it is a program requirement or for which they get credit, they cannot be in the union. 

So by agreement they took out all of the academic-related issues, 

and almost all Penn students would not be in a bargaining unit as 

defined with the Temple University agreement. 

Senator SPECTER. Well, could the Penn program be structured as 

Temple was to preserve academic freedom in the same model? 

Mr. LANGEL. We never got to that, Senator, because—— 

Senator SPECTER. Why not? 

Mr. LANGEL. Because the union sought to take the academic component and put it in the matrix of a union. And almost all of Penn 

students use their research for their dissertation and almost all 

who teach are part of a program requirement. So there would be 

no employees by that definition. They would all be students. 

Senator SPECTER. Ms. Collins, how was the decision made as to 

which graduate students were included and excluded from your 

bargaining unit? 

Ms. COLLINS. We based it on the precedent that was available at 

the time, which was the NYU decision, and our unit exactly 

matched the Board’s ruling of that, of that decision. So that was 

the basis for our decision. 

Senator SPECTER. How many of the graduate assistants at the 

university are members of GET-UP? 

Ms. COLLINS. We seek to represent about a 1,000 people that are 

currently teaching and research assistants. That number has varied between 800 and 1,000 people who would potentially be affected 

by this decision. 

Senator SPECTER. Ms. Collins, could the Penn program be structured like the Temple program to preserve the issue of academic 

freedom under the structure described by Mr. Langel? 

Ms. COLLINS. I certainly believe that academic freedom is maintained under grad unionization. As I have mentioned in my testimony, at universities like the University of Michigan, the University of Wisconsin-Madison, they have had unions for over 30 years 

at this point and are well respected for the independent professional academic scholarship that they produce. 

So I think that the evidence of that experience is the best testimony really for our confidence that academic freedom would not be 

compromised by unions at private universities either. 

Senator SPECTER. Well, that is a generalization, but how about 

the points Mr. Langel raised, which were in my question? Could 

you structure the Penn program like the Temple program to meet 

the considerations Mr. Langel raised? 

Ms. COLLINS. In terms of the research that directly relates to dissertations? 

Senator SPECTER. That is what he testified about. 

Ms. COLLINS. And to teaching that relates to grad requirements? 

Basically, that was the reasoning in the original NYU decision for 

why they did not want hard science RAs included in that unit, because their research often does directly relate to their dissertation. 

My experience at Penn, as I mentioned, in two different schools 

has not been that most people’s research assignments directly relates to their dissertation when they are assigned as RAs, and 
47 

many of the teaching requirements that Mr. Langel mentioned 

have been instituted in the 5 years since the unionization campaign began, rather than having been longstanding Ph.D. requirements at the university. So our feeling would be that we would certainly want an agreement that preserves academic freedom, but an 

agreement that preserved it without sacrificing our members’ right 

to make that decision themselves as to whether or not they wanted 

to be part of a union. 

Senator SPECTER. Mr. Langel, you made a comment about unions 

distorting the process. I did not quite understand the thrust of that 

particular contention on your part. 

Mr. LANGEL. I think what I was referring to is that in who they 

sought to represent and who they chose not to represent that they 

were distorting the relationship. If you look at the regional director’s decision, she actually agrees with the university and says that 

there is very little difference between the hard sciences and the liberal arts and soft sciences, but she felt constrained by NYU’s decision. 

Most of the case went to the fact that research overlaps with dissertation and teaching is part of the training. In fact, Ms. Collins 

testified at the hearing and I recently reviewed her transcript of 

that testimony. She under the Temple model could not be in a 

union because she said that she used her research as part of her 

dissertation. That is really the crux of the matter. There is no difference between the hard sciences and the soft sciences and liberal 

arts and the hard sciences. It is all part of the academic relationship with the university. 

Senator SPECTER. Ms. Collins, does it pose any problem on an ongoing basis for you to take this kind of a position with the university in your relationship with university officials or with professors 

you work with? 

Ms. COLLINS. No, it has not. I have actually—you mean in terms 

of my own academic career so far has it posed any problem? 

Senator SPECTER. Your day to day relationships, your career? 

Ms. COLLINS. No. I have very collegial relationships with all of 

my professors. We talk about the union. Occasionally they ask me 

how the campaign is going. And they have been very happy with 

both my teaching and my research work. So I have had a very positive experience. 

Senator SPECTER. Mr. Langel, is there any calculation as to how 

much more money it would cost the University of Pennsylvania if 

Ms. Collins’ position were upheld? 

Mr. LANGEL. I do not think it is a financial calculation, Senator. 

I think the university is competitive with all the other elite universities in giving its tuition and stipend. I really think it is much 

more a matter of undermining the academic freedom and the ability of the university to determine the academic relationship. 

Senator SPECTER. So these are matters of ‘‘principle’’ with l-e and 

not a-l? 

Mr. LANGEL. Absolutely. 

Senator SPECTER. Okay. Well, it is a very fascinating issue which 

we had heard a lot about and wanted to explore. We have been 

careful not to intrude upon the judicial functions of the NLRB in 

trying to assess what the underlying issues are. Congress could leg-
48 

islate in the field. We could make a definition as to where the academic interests begin and end and where the economic interests 

begin and end. 

But I must tell you candidly that I think that unlikely in light 

of our great difficulties in passing appropriations bills and dealing 

with the 9/11 Commission report, wrestling with all of the other 

issues which we have. But this is an important issue and it is helpful to see the thoughtful approaches being undertaken on all sides 

by the members of the NLRB who testified here today in the spirit 

of collegiality and the concern which the subcommittee has for 

precedent and the issue of delay and the kind of considerations 

which are articulated by Ms. Collins and Mr. Langel. 

So we thank you all very much. 

We have a second issue to take up and that is the recognition 

bar doctrine, the NLRB policy on decertifying unions following voluntary recognition agreements. We are going to adjourn the hearing for 15 minutes because it is necessary for me to attend at least 

a portion of the joint session with the Prime Minister of Iraq. So 

we will reconvene at 10:40. Thank you. 

Senator SPECTER. The Appropriations Subcommittee on Labor, 

Health, Human Services, and Education will now resume. 

STATEMENT OF ARTHUR ROSENFELD, GENERAL COUNSEL, NATIONAL 

LABOR RELATIONS BOARD 

Senator SPECTER. Our first witness on the panel on the NLRB 

policy on decertifying unions following voluntary recognition agreements is the distinguished General Counsel of the NLRB, Mr. Arthur Rosenfeld. Confirmed by the Senate on May 26, 2001, had 

served in senior staff positions in the Senate and the Department 

of Labor, a native of Allentown, bachelor’s from Muhlenberg, master’s from Lehigh, and a doctorate from the Villanova University 

School of Law. 

Thank you for joining us, Mr. Rosenfeld, and we look forward to 

your testimony. 

Mr. ROSENFELD. Thank you, Mr. Chairman. I will be exceedingly 

brief. I would ask that my statement be made a part of the record. 

Senator SPECTER. Without objection, it will be made a part of the 

record. 

RECOGNITION BAR

Mr. ROSENFELD. My purpose here today I believe is to lay out a 

foundation for a further discussion of the recognition bar doctrine. 

On June 7, 2004, the Board in a 3-2 decision granted review of an 

administrative dismissal by a regional director of an ‘‘RD petition,’’ 

a decertification petition. The purpose of the grant of review as I 

understand it from the Board’s order is to review the scope and application of the recognition bar doctrine. 

In a nutshell, that is, since at least 1966, where there is a voluntary recognition of a union—where voluntary recognition of a 

union is validly granted—and I emphasize, ‘‘validly granted’’—by 

an employer, the Board will not entertain or not consider for a reasonable period of time after that recognition is granted election petitions. In other words, they are barred by the grant of recognition. 
49 

I would contrast that just as an example to the ‘‘certification 

bar,’’ wherein after a union election the union is certified as the exclusive representative of the unit of employees, elections are barred 

in that circumstance also for 1 year, not for an ‘‘undefined reasonable period’’ of time but for 1 year. 

The purpose of the recognition bar—and again I emphasize I am 

speaking of a valid recognition, based on valid indication of employees’ majority sentiment—the purpose is to allow the new bargaining representative sufficient time to bargain without looking 

over its shoulder, without a demand for immediate results in bargaining. It removes an incentive for an employer to delay bargaining in hopes of undermining union strength. It minimizes the 

possibility of raiding during that bargaining period by another 

union. It recognizes that majority support for that union, for that 

exclusive representative, may fluctuate over a period of time, but 

the employer is free of concern that, after putting much effort into 

collective bargaining and getting close to reaching an agreement, 

that the union could be ousted by the employees prior to the agreement being reached and all that effort wasted. 

On June 14, the Board invited amicus briefing on the recognition 

bar issue. These cases arise in representation settings, usually decertification petitions, occasionally a rival union situation. These 

cases are not within the core aegis of the general counsel. The authority for ‘‘R case’’ matters runs from the Board to the regional directors, whereas the delegation for unfair labor practice matters 

runs from the general counsel to the regional directors. 

Nonetheless, because we in the general counsel’s office have experience in investigating and prosecuting unfair labor practices 

arising out of elections and voluntary recognition and also have 

general responsibility for supervision of the regional office staff, 

which is where R case petitions and elections are processed, we 

filed a brief. 

The brief of the general counsel is on the NLRB’s website. We 

did not include it with the testimony, for which I apologize. 

Senator SPECTER. Summarize what your brief said? 

Mr. ROSENFELD. Let me summarize this way about a recognition 

bar and what my brief says. What we propose in the brief is that 

the Board allow, as a limited exception to the recognition bar, because we believe the recognition bar is very important, the holding 

of an election in situations where support—either for representation by another union or for no union representation—is expressed 

in writing by at least 50 percent of the bargaining unit employees. 

Further, such support must be expressed either at the time the employees receive formal written notice of the employer’s recognition 

of the union or no later than 21 days thereafter; and that a decertification petition in the usual form must be filed no later than 30 

days after the formal notice of recognition. 

PREPARED STATEMENT

The rationale for the proposed 50 percent threshold is that any 

showing of less than 50 percent opposition to the newly recognized 

union would not support an inference that a majority of employees 

did not actually support the union at the time of recognition, and 

moreover because there has already been a showing of majority 
50 

1 Keller Plastics Eastern, 157 NLRB 583 (1966). 2Dana Corp. and Metaldyne Corp., 341 NLRB No. 150 (2004). 

support that has not been challenged in an unfair labor practice 

proceeding, reliance on the usual showing of interest for an election 

petition, which is 30 percent, would be insufficient to justify an exception to the recognition bar. 

I could go on, but I think at this point, Senator, I would just respond to whatever questions you might have. 

[The statement follows:] 

PREPARED STATEMENT OF ARTHUR F. ROSENFELD

Mr. Chairman and Members of the Committee: I am Arthur Rosenfeld, General 

Counsel of the National Labor Relations Board. I have been invited to appear before 

this Committee to discuss the Board’s ‘‘recognition bar doctrine’’ and its recent decision to review that rule. 

The doctrine was first announced by the Board in 1966 in a case called Keller 

Plastics.1 Stated simply, the Board will not conduct an election to displace or replace 

a union within a ‘‘reasonable’’ period of time following the employer’s voluntary extension of recognition to that union as exclusive representative of the employees in 

a bargaining unit, where that extension of recognition was premised on a showing 

of majority support. 

Thus, whether an election petition is filed by a group of employees seeking to decertify a union as bargaining agent or by a rival union seeking to replace the new 

incumbent, the Board will dismiss that petition and will not proceed to an election 

if the petition is filed within a reasonable interval after recognition was extended— 

again, assuming the union has demonstrated majority support at the time of recognition. 

The Board is now considering whether to preserve, abolish, or modify the recognition bar doctrine. It announced this intention to reconsider on June 7, in a single 

published order that encompassed three separate cases, brought by employees of the 

Dana and Metaldyne corporations.2 These employees are seeking elections to decertify the unions following voluntary recognition by their respective employers. Those 

voluntary recognitions were extended pursuant to so-called ‘‘card check agreements’’ 

that the respective employers had entered into with the union. 

In each case the employee followed standard NLRB procedure and filed a ‘‘decertification’’ petition with the appropriate Regional Office of the Board. Each petition 

apparently met the Board’s threshold test—namely, that it was supported by at 

least 30 percent of the employees in the bargaining unit. In each case, the Regional 

Director, following Board precedent, dismissed the petition on the ground that it 

was barred for a reasonable period of time by the employer’s voluntary recognition 

of the union pursuant to the card-check agreement. 

The Board’s grant of review signals its view that these cases raise substantial 

issues as to whether, and under what conditions, an employer’s voluntary recognition of a union should bar a decertification petition. On June 14, the Board invited 

the parties and interested amici to file briefs addressing the issues raised in these 

cases. 

As General Counsel I am responsible for the investigation and prosecution of unfair labor practice cases and also for the general supervision of the Regional Offices. 

Although the recognition bar doctrine is a representation case matter, not an unfair 

labor practice matter, I decided to file an amicus brief in this matter. I did so because the Office of the General Counsel has considerable experience in the day to 

day processing of representation cases, arising both from the General Counsel’s responsibility for overall supervision of the Agency’s Regional Offices and from his or 

her statutory prosecutorial authority with respect to the unfair labor practice cases 

that sometimes accompany union elections and voluntary recognitions. A copy of my 

brief is available online at: http://www.nlrb.gov/nlrb/about/foia/DanaMetaldyne/ 

NLRBGC.pdf. 

I took the position in my amicus brief that the voluntary recognition bar should 

be retained as an important and effective means of promoting voluntary recognition 

and furthering the purposes and policies of the NLRA, but that an exception to that 

bar is warranted in certain circumstances. 

As the brief explains, both Board-conducted elections and voluntary recognition 

are accepted ways of establishing a legally valid collective bargaining relationship. 

Of course, a Board-conducted election—when held under well-established procedures 
51 

3 Brooks v. NLRB, 348 U.S. 96, 99–100 (1954). 

in an environment that is free from coercion—is the most reliable way of determining whether a majority of bargaining unit employees desire exclusive representation by a particular union. 

A card check procedure is a less reliable, but nevertheless legitimate, way to demonstrate that a majority of employees support a particular union. Because of its 

practical advantages, the Board and the courts have sanctioned voluntary recognition based on a card check since the earliest days of the NLRA. 

I agree that the voluntary recognition bar should be retained, albeit with certain 

modifications. As I indicated in the brief, the voluntary recognition bar effectuates 

the purposes of the NLRA in several ways. As with the similar bar that is imposed 

after the Board has certified a union pursuant to a Board-conducted election, the 

voluntary recognition bar, among other things, gives a union time to negotiate an 

agreement without undue time pressure and removes incentives for an employer to 

delay or undermine bargaining in hopes of ousting the union. 

However, the brief goes on to argue that an exception to the recognition bar is 

warranted in certain circumstances because of the inherently less reliable nature of 

authorization cards, as compared to a Board-conducted election, as an indicator of 

employee choice. As the Supreme Court has pointed out, a Board election is a ‘‘solemn’’ occasion, conducted under ‘‘safeguards to voluntary choice,’’ including the ‘‘privacy and independence of the voting booth.’’ 3 Given the lesser safeguards associated 

with the use of authorization cards, it is appropriate, and I believe important, that 

greater vigilance be exercised in deciding whether circumstances warrant barring 

challenges to employees’ expressions of support for a union based on cards. 

Thus, I proposed in my amicus brief that the Board allow, as a limited exception 

to the recognition bar, the holding of an election in situations where support, either 

for representation by another union or for no union representation, is expressed in 

writing by at least 50 percent of the bargaining unit employees. Further, such support must be expressed either at the time the employees receive formal, written notice of the employer’s recognition of the union, or no later than 21 days thereafter; 

and a decertification petition in the usual form must be filed no later than 30 days 

after that formal notice of recognition. 

As explained in the brief, the rationale for the proposed 50-percent threshold is 

that ‘‘Any showing of less than 50 percent opposition would not support an inference 

that a majority of employees likely did not actually support the union [at the time 

of recognition].’’ And, ‘‘[b]ecause there has already been a showing of majority that 

has not been challenged in an unfair labor practice proceeding, reliance on the usual 

showing of interest’ for an [election] petition (30 percent) would be insufficient to 

justify an exception to the recognition bar.’’ 

Finally, the brief explains the rationale for the proposed 21 and 30-day cutoffs, 

as follows: 

‘‘The Board should therefore require that the showing of interest be obtained as 

soon as reasonably possible after recognition. A more extended period (such as 30 

or 60 days) could allow time for active undermining of a union’s valid majority support, essentially continuing the organizing campaign and contributing to the very 

instability [that an election] bar is meant to prevent.’’ 

* * * * * * * 

‘‘The General Counsel recommends allowing 30 days from formal notice of recognition for employees to file the petition with the regional office, as employees [who 

seek to oust a union] are often [legally] unrepresented and may be unfamiliar with 

Board procedures. In order to avoid litigation over when those periods (i.e., 21 days 

and 30 days) begin, the Board should require that they begin when the employer 

and/or the union give formal written notice to the unit employees of the voluntary 

recognition.’’ 

As noted above, our amicus brief is available on the NLRB’s website at: http:// 

www.nlrb.gov/nlrb/about/foia/DanaMetaldyne/NLRBGC.pdf. 

All of this can be boiled down to a simple principle: if there’s a legitimate issue 

of whether a union had majority support at the time an employer recognized it, the 

best way to untangle the knot is to have a Board-conducted election. 

Again, the idea is to balance two competing goals: on one hand the right of a nascent union to enjoy the benefits of exclusive representative status free of challenge, 

for a reasonable period; and on the other, the need to guarantee employee free 

choice by deterring the entrenchment of a union that does not truly enjoy uncoerced 

majority support. This balance is best struck by a test that provides that when half 
52 

or more of unit employees promptly indicate their dissatisfaction with a voluntary 

recognition, that recognition should not act as a bar to an election. 

In view of the Board’s expressed desire to look very carefully into the appropriateness of continuing the voluntary recognition bar in its current form, my office will 

be alert to cases that may raise this important issue. Indeed, shortly after filing my 

amicus brief with the Board, I directed our Regional Offices to submit, to our Division of Advice in Washington, unfair labor practice cases involving card check and 

neutrality agreements, so that they may receive legal review and coordination before 

any dispositive prosecutorial decisions are made. A copy is available online at: http:/ 

/www.nlrb.gov/nlrb/sharedlfiles/ommemo/ommemo/om04l76.pdf 

It is essential that the legal theories and arguments advanced in these cases be 

consistent and uniform. To date, no new cases involving the recognition bar have 

been submitted. 

Again, I thank you for this opportunity to provide my testimony on this important 

issue. 

Senator SPECTER. There are two methods for union certification. 

One is the election procedure and a second is by signatures of employees in a majority that they wish to be represented by the 

union. Is that correct, Mr. Rosenfeld? 

Mr. ROSENFELD. Yes. There is voluntary recognition, which does 

not necessarily have to be through a card check. It could be 

through a private agreement to have an election conducted by a 

neutral party. There are a variety of ways, but contrast that to the 

formal NLRB election process. 

Senator SPECTER. But the card check is a procedure generally 

used to ascertain whether there is a majority of the employees who 

want the union? 

Mr. ROSENFELD. Very often, yes, sir. 

Senator SPECTER. And that is the essential provision contained 

in S. 1925? 

Mr. ROSENFELD. I have not reviewed that piece of legislation. 

Senator SPECTER. At the present time, you can have the so-called 

card check if it is a matter where the employer voluntarily agrees 

to it, correct? 

Mr. ROSENFELD. Yes, sir. 

Senator SPECTER. Are the considerations which you have outlined to bear on revising that so that there would not be a card 

check certification with the agreement of the employer? 

Mr. ROSENFELD. No, sir. We support the concept of voluntary recognition. We offer a proposal for a limited exception, which I just 

read. 

Senator SPECTER. A limited exception? 

Mr. ROSENFELD. To the recognition bar, just to the recognition 

bar. We support voluntary agreements. 

Senator SPECTER. Well, are you saying that there is an exception 

to supporting voluntary agreements? 

Mr. ROSENFELD. No. There is an exception to being barred from 

entertaining for an election petition. In other words, the Board will 

not entertain an election petition during a reasonable period of 

time after voluntary recognition has been—— 

Senator SPECTER. Reasonable period of time? What is the 1 year 

requirement? 

Mr. ROSENFELD. 1 year is for certification after an election, a flat 

1-year bar, that the Board will not entertain. 

Senator SPECTER. A 1-year bar? 

Mr. ROSENFELD. Yes. 
53 

Senator SPECTER. And there is a bar for a reasonable period of 

time—— 

Mr. ROSENFELD. For the voluntary recognition situation. 

Senator SPECTER. All right. Now, consideration is being given by 

the NLRB to an exception to that rule? 

Mr. ROSENFELD. Yes, sir. 

Senator SPECTER. And what are the range of exceptions possible? 

Mr. ROSENFELD. Well, the Board asked for amicus briefs. I believe they received, in addition to briefs of the parties, about 20 

other briefs. I have not read those, but they probably range from 

doing away with completely, as a policy matter, the bar itself, to 

not changing the law at all. 

Senator SPECTER. Okay. And so far as you are concerned, your 

brief took the position of a limited exception to the bar? 

Mr. ROSENFELD. Yes, sir. 

Senator SPECTER. Where there is indication on another card 

check or some other means that a majority of the employees do not 

want the union? 

Mr. ROSENFELD. Yes, sir, within the very limited period after recognition has been granted. 

Senator SPECTER. How limited is the period? 

Mr. ROSENFELD. Twenty-one days after formal written notice of 

recognition. 

Senator SPECTER. And if action is not taken within the 21 days, 

then you cannot decertify? 

Mr. ROSENFELD. Right, exactly. 

Senator SPECTER. Okay. It is an arcane field, but you are well 

prepared for it because you have been educated in all those great 

Pennsylvania institutions, Mr. Rosenfeld. 

Mr. ROSENFELD. Thank you, Mr. Chairman. 

Senator SPECTER. It is good to see a fellow Pennsylvanian doing 

so well in this tough town. 

Thank you. If you would stand by in the event some question 

arises where we need some expertise, I would appreciate it. 

STATEMENT OF NANCY SCHIFFER, ASSOCIATE GENERAL COUNSEL, 

AFL–CIO 

Senator SPECTER. We now turn to our second panel, Ms. Nancy 

Schiffer and Mr. William Messenger. Ms. Schiffer is the Associate 

General Counsel of the AFL–CIO. Before that she was Deputy General Counsel to the United Auto Workers. She has a bachelor’s degree from Michigan State and a doctorate from the University of 

Michigan Law School. Thank you for joining us, Ms. Schiffer, and 

we look forward to your testimony. 

Ms. SCHIFFER. Thank you very much, Mr. Chairman. Thank you 

for this opportunity to address this very important issue of voluntary recognition and the recognition bar doctrine, which are so 

critical to workers’ freedoms under the National Labor Relations 

Act. I have submitted written testimony and I would request that 

that be made part of the record here, and I am not going to go 

through that testimony. 

Senator SPECTER. Without objection, it will be made a part of the 

formal record. 

Ms. SCHIFFER. Thank you. 
54 

I would like to add one thing, if I may, to your introduction. I 

am also a proud member of United Auto Workers Local 1981. 

I would like to tell you why continuation of the recognition doctrine matters to workers and why the radical change that is currently under consideration will harm the very policies that the National Labor Relations Act is supposed to support and defend. I 

would like to begin with a hypothetical. Suppose all the employer’s 

workers come into the owner’s office and say that they want to 

form a union, and the employer honors their choice. Or suppose the 

employer agrees ahead of time that if the workers demonstrate 

that a majority of them support forming a union then it will honor 

their choice. 

Workers have the right to choose union representation, so why 

is it a bad thing when the employer respects that right and honors 

their choice? And how does this become an abdication of the 

Board’s authority, as is urged in this case? Should not the Board 

in fact applaud the employer’s willingness to recognize the union 

that its employees have selected pursuant to their Federally protected right to do so? And why should workers be forced through 

the Board’s certification election process in order for their choice to 

be respected? 

In fact, the Board does recognize and applaud voluntary recognition, as we have just heard. For many years after passage of the 

Wager Act, voluntary recognition was primarily used as a vehicle, 

it was the primary vehicle for forming a union. The Act specifically 

allows it. It has been repeatedly validated by the Board and courts 

as legitimate and well accepted, and so too has this corollary, the 

recognition bar doctrine. It has been consistently applied by the 

Board for 40 years. 

So what has happened to suddenly compel a radical change that 

is being now contemplated that would discard this 40-year recognition bar doctrine? I submit the answer is: Nothing. So why this 

challenge to the recognition bar doctrine? I think the answer to 

that is found in the arguments used to make the challenge, and 

that is that voluntary recognition is illegitimate and so that the 

workers’ choice it allows should not be honored. 

Changing the recognition bar doctrine is really a means to attack 

all voluntary recognition, the recognition process itself, and it surely does that, because such a change as is being contemplated here 

would discourage the use of the voluntary recognition process, because what is the point if the Board certification process can be required anyway? 

So this attack attempts to achieve through adjudication a result 

that Congress has expressly rejected, and it serves to remove a 

means to workers’ representation that the Act specifically permits. 

The proposed change would allow 30 percent of the workforce to 

overturn the expressed will of the majority. So this minority of 

workers could undo the majority support for the union and it would 

allow the minority to control, stall, and delay the collective bargaining process. 

Even the position articulated in the amicus brief filed by the general counsel, with its time limits and the 50 percent threshold, 

serves to seriously undermine the entire recognition process. An 
55 

employer is not going to agree to voluntary recognition if decertification is permitted, can be permitted immediately thereafter. 

The recognition process inherently requires a snapshot of the 

level of interest of the workforce in forming a union and it is a 

process that must have finality in order to achieve the stability 

necessary to foster collective bargaining. 

I would like to just note that this is not the only attack on voluntary recognition. This past July the NLRB’s general counsel 

issued a memo to its regional office that lists various issues connected with voluntary recognition agreements which the regions 

are directed to submit to the office. It is mentioned in Mr. 

Rosenfeld’s testimony. 

Also, earlier this month and again just this week the general 

counsel has announced that complaints will issue against other voluntary recognition agreements. So that the current status of voluntary recognition is frighteningly like living in Florida this past 

summer and contemplating Bonnie and Charles and Francis and 

Ivan and Jean. You do not know what the impact is going to be, 

but meanwhile nobody is building new homes and nobody is planning a trip to Disney World. 

PREPARED STATEMENT

The point is that this series of attacks and this consideration of 

reversal of a 40-year-old recognition bar doctrine really undermines 

the entire recognition, voluntary recognition process. 

Thank you. 

[The statement follows:] 

PREPARED STATEMENT OF NANCY SCHIFFER

Thank you for inviting me to testify before the Subcommittee today. My name is 

Nancy Schiffer, I am an Associate General Counsel of the AFL–CIO. 

The notice of today’s hearing states that it will examine the recognition bar doctrine of the National Labor Relations Act. 

This is an extremely important and timely issue for discussion before this Subcommittee. It is an issue that is critical to workers’ freedoms under the National 

Labor Relations Act which, in turn, vitally affect the quality of life of workers and 

the living standards of their families. 

Let me start with the NLRA itself—what it does and what it doesn’t do; then explain how voluntary recognition works for workers; and finally, detail the harmful 

impact on workers’ rights under the Act if the recognition bar policy were to be radically changed or eliminated, as proposed. 

The National Labor Relations Act (NLRA) states that its purpose is to encourage 

worker self-organization for representation in collective bargaining with employers. 

According to the National Labor Relations Act, it is ‘‘the policy of the United States 

to . . . encourag[e] the practice and procedure of collective bargaining and to protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing. . . .’’ 

For workers, collective bargaining provides economic advantages. Union workers 

earn 27 percent more than non-union workers. They are 53 percent more likely to 

have medical insurance through their job. And they are nearly four times as likely 

to have a guaranteed pension, according to the U.S. Department of Labor, Bureau 

of Labor Statistics. The advantages for women and workers of color are even more 

dramatic. Unionized women workers make 33 percent more than their non-unionized counterparts; the differences for African Americans is 35 percent and, for 

Latinos, 51 percent. 

Even workers who are not unionized benefit from having strong unions in their 

communities and states. States with a strong union presence have higher wages— 

for all workers—than those with a weak union presence. And, because union jobs 

provide more benefits than non-union jobs, they alleviate the burden on public 
56 

health care and other social services which are increasingly relied on by the working 

poor who lack union contracts and, accordingly, employer-provided benefits. 

The NLRA has historically protected the rights of workers to organize and bargain with their employers for fair wages and decent benefits. But today, U.S. workers have lost these rights. The Act which is supposed to protect them has degenerated into a law which protects employer interests at the expense of workers’ 

rights. The Act has become a tool of the ‘‘union-free’’ interests and their consultants, 

to the detriment of working families and their communities. When good union jobs 

are lost, all workers face depressed wages and lose their health care benefits and 

guaranteed retirement benefits. Their families and communities all suffer. 

The National Labor Relations Act provides two avenues for workers to form a 

union. One starts with the filing a petition supported by thirty percent of the workers, includes a Board-conducted election, then Board certification and, eventually, 

an enforceable bargaining order. This process can take months and years. 

If the NLRB election process were applied to a political election, then: 

—You could not qualify for the ballot unless you first persuaded 30 percent of all 

eligible voters to sign a petition supporting you. 

—You would not know the names and addresses of eligible voters until just a few 

weeks before the election. And the list would be drafted and provided by your 

opponent, the incumbent. 

—The incumbent would be allowed to hold as many campaign rallies as he wants 

and could even compel voters to attend them, under penalty of termination. The 

voters themselves would be restricted from discussing the campaign except in 

non-work areas and during non-work times. You would be barred as a trespasser from entering the district. Instead, you would have to stand at the edge 

of the district, outside the community, waving signs or shouting about your 

qualification as voters come and go. 

—The incumbent would control the election, its timing and its location. He would 

also control the economic livelihoods of the voters. And he could use that control 

to influence voters’ choice. He could even fire voters from their jobs if he thinks 

they support you. Of course, this is illegal, but enforcement will take months 

and years. Nothing would happen until long after the election. 

—If the incumbent lost, he could prevent you from taking office for months and 

years, simply by filing appeals, even if he loses every appeal. 

This analogy demonstrates how flawed the election certification process is. So do 

the NLRB’s own statistics: the number of workers who are retaliated against because they try to form a union has grown by leaps and bounds. In 1969, the number 

of such workers was just over 6,000. By the 1990’s, more than 20,000 workers each 

year were victims of unlawful discrimination. 

Research shows that at least one worker is illegally fired because of union activity 

in one-fourth of the organizing campaigns attempted. Over 90 percent of employers 

force employees to attend mandatory, closed-door meetings against the union and 

78 percent force their workers to attend one-on-one meetings with their supervisors 

about the union. In over half of all organizing campaigns, the employer threatens 

to close the workplace if the union wins the election. Over half of organizing campaigns that involve undocumented workers include threats to call immigration officials. 

These startling statistics of rampant interference with workers’ rights during organizing campaigns demonstrate the harsh fact that that the NLRA process actually 

rewards employer violations. The Act’s remedies have no deterrent impact and are 

applied too late to protect workers’ free choice. This is precisely what Human Rights 

Watch concluded and reported in 2000 in ‘‘Unfair Advantage: Workers’ Freedom of 

Association in the United States under International Human Rights Standards,’’ p. 

9. The bottom line is that workers are being robbed of their right to a fair and free 

choice about forming a union because the NLRB does not protect workers during 

organizing campaigns. 

This interference is not cured simply because the NLRA representation process 

includes a secret ballot election conducted by an NLRB agent. A secret ballot election does not and cannot provide workers with a fair and free choice when they have 

already endured weeks and months of threats by their employer of the dire consequences of a vote in favor of forming a union. A company’s threat to lay off workers or close the facility if the union is selected cannot be cured by the secrecy of 

a polling booth. Insistence by a company that it will never negotiate with a union, 

no matter how workers vote, cannot be mitigated by a secret vote. An NLRB-conducted election does not allow a worker, convinced by their employer’s illegal threats 

that selecting a union will cause grave personal and financial loss, to freely exercise 

their right to vote. 
57 

The grim reality is that the Board’s certification process forces workers through 

a confrontational, divisive war that can last for months and years. The inclusion, 

in that process, of a secret ballot election procedure cannot erase the fears and cannot produce a fair opportunity for workers to choose whether or not to form a union. 

It is a process that not only fails to protect workers’ right to a fair and free choice 

regarding union representation, but also poisons the resulting bargaining process. 

But this certification process is not the only method of union recognition provided 

for in the NLRA. 

Since the passage of the Act, the Board and courts have recognized that employees may demonstrate majority support for a union by means other than a Board 

election. Employees may designate their majority support by signing cards authorizing the union to represent them and the employer may voluntarily recognize 

unions based on this demonstration of majority support. Such a process has been 

validated by the U.S. Supreme Court. Gissell Packing Co. v. NLRB, 395 U.S. 575 

(1969) and United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62 (1956). It 

works in many Canadian provinces and it is required for public sector workers in 

Illinois, New York and California. 

The value of voluntary recognition and the legitimacy of card check to establish 

majority support have been repeatedly affirmed by the Board and are consistent 

with the express language of the Act itself. Section 9(a) specifically refers to the 

union representative as ‘‘designated or selected’’ by a majority of the workers and 

does not specify, require or prioritize any particular method. Moreover, in passing 

the Taft-Hartley amendments in 1947 Congress rejected provisions that would have 

eliminated voluntary recognition. 

So what does this have to do with the recognition bar doctrine? How does the recognition bar doctrine affect workers’ rights to organize and bargain? 

The answer is that, through a challenge to the recognition bar doctrine, the continued viability of voluntary recognition is at risk. On June 7, 2004, the Board 

granted review in cases involving voluntary recognition agreements and the recognition bar doctrine. The facts of these cases are straightforward. Worker majorities 

at two automotive parts supplier plants authorized the union to represent them, 

their majority status was verified by a neutral third party, the employers acceded 

to their workers’ choice by granting recognition pursuant to a recognition agreement 

with the union, and the union and employers commenced collective bargaining negotiations. Shortly thereafter, NLRB decertification petitions were filed seeking elections to determine the union’s continuing majority status. The petitions were dismissed by the NLRB Regional Offices in which they were filed on the basis of the 

recognition bar doctrine. 

The NLRB recognition bar doctrine provides that a newly recognized union representative will be accorded a reasonable period of time, following voluntary recognition, to engage in collective bargaining for a contract, free of challenges to its majority status. This policy promotes industrial peace and stability, honors the expressed 

wishes of a majority of the workers, and encourages good faith collective bargaining 

between the parties. It is consistent with similar bars when recognition is granted 

pursuant to a Board certification or as a result of a settlement agreement. 

The dismissals were appealed and review was granted by a divided Board. 

Dozens of briefs were filed in this case, including an amicus brief by the NLRB’s 

General Counsel. In his brief, the General Counsel acknowledged that voluntary recognition through a card check process is a ‘‘long-established,’’ ‘‘legitimate,’’ and 

‘‘well-accepted’’ method of establishing majority support. Moreover, according to the 

General Counsel, voluntary recognition furthers harmony and stability of labormanagement relations and promotes ‘‘the Act’s fundamental policy of promoting employees’ choice regarding bargaining representation.’’——Brief, p. 3, 4, and 5. 

A necessary corollary of voluntary recognition is the recognition bar doctrine. Recognition bar has been the Board’s policy since 1966 and has been repeatedly endorsed by the Board and courts since that time. By insulating the newly recognized 

union from a decertification election process, the recognition bar doctrine protects 

the new bargaining relationship from disruption in order to allow it to mature and 

succeed. It fosters stability in labor management relations and promotes industrial 

peace by permitting the parties an unfettered opportunity for negotiation of an initial contract. The predictability and certainty it provides encourage the parties to 

bargain in good faith and to work conscientiously toward agreement by eliminating 

the pressure on unions of having to produce results immediately and by discouraging employers from delaying in hopes that the union’s strength will erode. Recognition bar also respects the majority’s authorization of collective bargaining by allowing bargaining to bear fruit for employees. The protection is not indefinite, but 

only for a reasonable period of time, between about six months and one year. It is 

this policy—and these goals—that the Board is now considering. To undo the rec-
58 

ognition bar doctrine is to so seriously undermine voluntary recognition that it becomes meaningless and irrelevant. 

The AFL–CIO is not the only organization with this view. General Motors, 

Daimler/Chrysler, Ford, Delphi, Lear, Liz Claiborne, Levi, Kaiser Permanente, and 

other employers filed briefs in support of the continuation of the recognition bar doctrine. These are well-established, solid companies that provide quality jobs for workers here, in our local communities. 

The brief filed by our nation’s three largest auto manufacturers states that they 

have each experienced, in varying degrees, disruptions and distractions during the 

course of contentious organizing campaigns, and that such campaigns have had an 

impact on their over-all labor-management relationship. They express their belief 

that the recognition bar doctrine is essential for the maintenance of industrial peace 

and stability following voluntary recognition. They assert their view that ‘‘voluntary 

recognition [i]s their established and valid right’’ and that each ‘‘would experience 

a significant impact if voluntary recognition were significantly undermined.’’ They 

point out that, without recognition bar, ‘‘the continued viability of voluntary recognition is threatened.’’ Brief, p 8. Other employers have voiced similar sentiments in 

briefs filed in support of continuing the recognition bar doctrine. 

The approaches being advocated against the recognition bar doctrine are to either 

eliminate it altogether or to create a window period that would allow the filing of 

a decertification petition after voluntary recognition has been extended, regardless 

of the status of the parties’ collective bargaining negotiations. Such a petition, by 

a mere thirty percent of the workforce, would require the Board to set aside the expressed will of a majority of the workers in favor of a request by only one third of 

the workers. A minority of the workforce would be able to force all workers into the 

ordeal described above that is the NLRB’s representation process. Collective bargaining would be effectively suspended; instead of developing a positive relationship 

at the bargaining table, the union and employer would be squaring off for a timeconsuming, divisive campaign that disrupts the workplace and creates tensions and 

hostilities that are not easily reversed. 

What is the argument for eliminating the recognition bar doctrine? It is being 

challenged on the basis of an underlying belief that voluntary recognition is somehow inherently coercive and not entitled to the full protection accorded recognitions 

resulting from either Board certifications or settlement agreements. Not only are 

these arguments just plain wrong, but they are also inconsistent with forty years 

of NLRB and court precedent. As described above, voluntary recognition has been 

repeatedly validated by the Board and courts since the Act’s inception; it has been 

endorsed by Congress and it is embodied in the statutory language of the Act. 

Voluntary recognition serves the interests of employers, employees and unions. It 

is typically far more expeditious than obtaining Board certification, so it more readily effectuates employee choice; it minimizes the duration of workplace campaigning 

so as to enhance productivity and customer service; and it creates positive labormanagement relationships. 

Voluntary recognition is an NLRB regulated process, contrary to the assertions 

of those who oppose it. It is subject to NLRB oversight and enforcement. Collusion 

and coercion in the process of voluntary recognition is strictly prohibited. The Act 

safeguards employee free choice by ensuring the existence of majority support and 

outlawing abuse in the collection of evidence of majority support. Board procedures 

are already in place to make sure the process is fair and that employee choice is 

honored. 

In many ways, voluntary recognition incorporates even more worker protections 

than the certification process. First of all, over half of the entire workforce must 

support the union in order for the employer to lawfully recognize the union as their 

representative. In a Board certification process, however, workers achieve representation when only a majority of those voting select unionization. Second, voluntary 

recognition avoids the delays inherent in the certification process, delays that deny 

employees the benefits of their election for months and years. Finally, voluntary recognition fosters positive bargaining relationships, while the certification process produces adversarial, combative relationships which are hostile to good faith collective 

bargaining. 

What is currently being urged on the Board is a radical departure from longstanding, well-established precedent. It would severely undermine voluntary recognition, to the detriment of workers, unions and employers. The change being 

sought serves no legitimate purpose, but rather, is at odds with the stated policies 

of the Act, which are to promote industrial peace, encourage collective bargaining, 

and protect employees’ free choice regarding representation. Instead, it will do great 

harm. 

Thank you for the opportunity to address this committee. 
59 

STATEMENT OF WILLIAM L. MESSENGER, STAFF ATTORNEY, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION 

Senator SPECTER. Thank you very much, Ms. Schiffer. 

We turn now to Mr. William Messenger, Staff Attorney for the 

National Right to Work Legal Defense Foundation. He had been on 

the staff of the Republican Senate Policy Committee and the Assistant Majority Leader’s Office, Federal Election Commission, and 

the National Association of Manufacturers. He has a bachelor’s degree from Ohio University and a law degree from George Washington. 

Thank you for joining us, Mr. Messenger, and the floor is yours. 

Mr. MESSENGER. Thank you, Mr. Chairman, for the opportunity 

to testify today on this important issue. 

The recognition bar is a Board policy that prevents the NLRB 

from conducting secret ballot elections after an employer recognizes 

a particular union to be the representative of its employees. I submit that this policy should be abandoned as it deprives the Board 

and employees of the best means to determine whether or not an 

employer-recognized union actually has the support of a majority 

of employees. 

Now, unions in this country are increasingly turning to employer 

recognition to satisfy their organizing objectives. Employer recognition is simply where an employer recognizes a particular union as 

the representative of its employees and the union accepts such recognition. Now, employer recognition over the past decade is frequently bestowed pursuant to a prearranged agreement between 

the employer and the union. These agreements are often called voluntary recognition agreements, neutrality agreements, or sometimes partnership agreements. 

Now, while the terms of these agreements vary, the standard 

provision is that they require the employer to recognize the union, 

usually based upon authorization cards collected by the union. 

These agreements usually also have many other types of provisions, usually commitments by the employer to assist the union organizing drive against its employees, and commitments by the 

union to behave in an employer-friendly manner after being recognized. 

But the most important and critical aspect of employer recognition is that it is a purely private process. It occurs entirely outside 

of NLRB supervision and outside of NLRB processes. In fact, the 

entire purpose of recognition or partnership agreements is to exclude the NLRB from the representational process. Again, employer 

recognition is simply a private agreement between an employer and 

a union purporting that a third party, employees, want the representation of that union. 

Now, the National Labor Relations Act was enacted to protect 

the rights of that third party, of employees. And the most important of those rights is employee freedom of choice as to union representation. The Supreme Court has recognized there can be no 

greater infringement of employee rights than for an employer to 

recognize a union that does not actually enjoy majority support. 

That brings us to the underlying issue with regard to the recognition bar: How does the NLRB determine if an employer-recognized union actually has the support of a majority of employees? 
60 

1See Patterson v. Heartland Industrial Partners, et. al, No. 5:03 CV 1596 (U.S. District Court, 

N.D. Ohio); UAW & Dana Corp. (Bristol, VA), Case Nos. 11–CB–3397, 11–CB–3398, 11–CB– 

3399; UAW & Thomas Built Buses, Inc, (High Point, NC), Case Nos. 11–CB–3455–1, 11–CA– 

20338; USWA & Heartland Industrial Partners (Cleveland, Ohio), Case No. 8–CE–84; UAW (Detroit, MI), Case Nos. 7–CE–1786 & 7–CE–57; USWA & Goodyear Tire & Rubber Co. , (Asheboro, 

NC), Case Nos. 11–CA–20434 et. seq.; USWA & Metaldyne Corp. (Cleveland, OH), Case No. 8– 

RD–1966. 

Or to be rephrased, through what procedural mechanism does the 

NLRB investigate whether the employer recognition was in fact 

valid? 

I respectfully submit that the NLRB secret ballot elections are 

the best method for determining whether or not employees truly 

support an employer-recognized union or if in fact they do not support the union their employer recognized. In fact, Congress enacted 

the representational procedures of the National Labor Relations 

Act and gave employees a statutory right to request a decertification election after employer recognition for precisely that purpose. 

The Board should not deprive itself of its primary tool for divining employee representational preferences. Yet that is exactly what 

it is doing with its recognition bar doctrine. The bar is in fact a policy of deliberate blindness. It is a license granting employers and 

unions complete control over the representational process and the 

right to shut the NLRB and employees out of that process. 

PREPARED STATEMENT

Therefore, abolition of the recognition bar is needed so that the 

Board can resume its proper statutory duty of ensuring that an employer-recognized union actually has the support of a majority of 

employees and therefore protect employees’ rights to choose to be 

represented by a representative of their choosing or no union at all. 

Thank you, Mr. Chairman. 

[The statement follows:] 

PREPARED STATEMENT OF WILLIAM L. MESSENGER

Chairman Specter and Distinguished Senators: Thank you for the opportunity to 

comment on the National Labor Relation Board’s (‘‘NLRB’’ or ‘‘Board’’) current ‘‘recognition bar’’ policy in these important hearings. 

My name is William L. Messenger. I am a Staff Attorney with the National Right 

to Work Legal Defense Foundation, in Springfield, Virginia. Since the Foundation 

was founded in 1968, it has provided free legal aid to workers who choose to stand 

apart from a labor union, to exercise the ‘‘right to refrain’’ that Congress granted 

them under § 7 of the National Labor Relations Act, 29 U.S.C. § 157, and that, more 

fundamentally, is guaranteed by the First Amendment’s freedom of association. 

I am counsel or co-counsel in several cases pending before the NLRB challenging 

the Board’s ‘‘recognition bar’’ policy, which is the subject matter of this hearing. See 

Metaldyne Precision Forming/UAW (St. Marys, PA), 341 N.L.R.B. No. 150 (2004); 

UAW & Dana Corp. (Upper Sandusky, OH), 341 N.L.R.B. No. 150 (2004); USWA 

& Cequent Towing Products (Goshen, IN), N.L.R.B. Case No. 25-RD–1447. I also 

represent individual employees in several cases challenging various forms of socalled ‘‘neutrality agreements.’’ 1

INTRODUCTION

In 1966, with virtually no reasoning or analysis, the Board planted the seeds of 

what has become known as the ‘‘recognition bar’’ in Keller Plastics Eastern, Inc., 157 

N.L.R.B. 583, 587 (1966). From this rudimentary ruling mushroomed an unfair and 

undemocratic recognition bar that blocks employees from exercising their statutory 

right to a decertification election (or otherwise changing representatives) once an 

employer unilaterally bestows voluntary recognition on a particular union. 

Employees enjoy a statutory right to petition for a decertification election under 

§ 9(c)(1)(A)(ii) of the National Labor Relations Act (‘‘NLRA’’ or ‘‘Act’’). By contrast, 
61 

2See Metaldyne Precision Forming/UAW (St. Marys, PA), 341 N.L.R.B. No. 150 (2004); UAW 

& Dana Corp. (Upper Sandusky, OH), 341 N.L.R.B. No. 150 (2004); USWA & Cequent Towing 

Products (Goshen, IN), N.L.R.B. Case No. 25–RD–1447. 

the voluntary recognition bar–which frustrates employees’ right to a decertification 

election–is not a creature of statute. It is a discretionary Board policy which should 

be reevaluated when industrial conditions warrant. 

The time has come for the Board to reassess entirely the underlying purpose of, 

and need for, a recognition bar. This is particularly true given the growth of socalled ‘‘voluntary recognition agreements.’’ In these agreements, unions and employers deliberately take advantage of the Board’s recognition bar rule to completely exclude the NLRB from the process in which employees choose (or reject) union representation. In a perverse way, the Board’s electoral machinery is being driven to 

obsolescence by its own recognition bar policy. 

Exclusion of the NLRB from the representational process leaves employee rights 

in the abusive hands of employers and unions that are pursuing their own self-interests under these agreements. Unions are desperately seeking additional members 

and dues revenues. Employers are (naturally) pursuing their business interests, 

such as avoiding coercive union corporate campaigns or obtaining pre-negotiated 

‘‘sweetheart deals’’ regarding future-organized employees’ terms and conditions of 

employment. Neither entity has any interest in protecting employee rights to freely 

choose or reject union representation (which is what the NLRB exists to protect). 

Employee free choice should not, and under the text of the Act can not, be subject 

to the vagaries of self-interested unions and employers. Accordingly, abolition of the 

‘‘voluntary recognition bar’’ is needed to reestablish the Board’s proper role in the 

representational process, and thereby protect employee rights to freely choose or reject union representation. 

Thankfully, the NLRB is currently evaluating the propriety of the recognition bar 

in a series of important cases.2 We hope that a prompt decision in these cases will 

result in the rescission of the recognition bar policy, thereby restoring to employees 

their right to a secret-ballot challenging the status of an employer-recognized union. 

OVERVIEW OF BASIC CONCEPTS

Under current Board law, a union can become the exclusive representative of a 

group of employees in three ways: (1) be ‘‘certified’’ as the representative of employees pursuant to an NLRB-conducted secret-ballot election; (2) be ‘‘recognized’’ by an 

employer as the representative of its employees; or (3) through an NLRB ‘‘bargaining order’’ in which the Board orders an employer to recognize and bargain with 

a union as the remedy for its unfair labor practices. The third method, which is reserved for extraordinary situations, does not concern us here. 

‘‘Certification’’ occurs when a union obtains the majority of votes in a NLRB-conducted, secret-ballot election. The NLRB ‘‘certifies’’ that union is the exclusive representative of employees based upon the uncoerced support of a majority of employees. NLRB officials control and monitor the conduct of such elections to ensure their 

validity and protect employee free choice. See General Shoe Corp., 77 N.L.R.B. 124, 

127 (1948) (‘‘In election proceedings, it is the Board’s function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as 

possible, to determine the uninhibited desires of the employees’’). 

‘‘Recognition’’ is where an employer recognizes a particular union to be the exclusive representative of a group of its employees, and the union accepts such recognition. The NLRB is not involved in this process. Employer recognition is simply a 

private agreement between a union and an employer in which both purport that a 

majority of employees desire the union’s representation. 

Employers frequently recognize unions pursuant to pre-arranged agreements between the entities. These agreements are often referred to as ‘‘neutrality agreements,’’ ‘‘partnership agreements,’’ or ‘‘voluntary recognition agreements.’’ While the 

terms of the agreements vary greatly, a standard provision is an obligation by the 

employer to recognize the union without a NLRB secret-ballot election. Other common provisions include employer commitments to assist union organizing campaigns 

against their employees, and union commitments to behave in an employer-friendly 

manner upon being recognized. 

The National Labor Relations Act (‘‘NLRA’’) grants employees a statutory right to 

petition for a decertification election challenging the status of a recognized or certified union. Section 9(c)(1)(A)(ii) states that employees may file an election petition 

asserting that ‘‘the individual or labor organization, which has been certified or is 

being currently recognized by their employer as the bargaining representative, is no 

longer a representative.’’ 29 U.S.C. § 159(c)(1)(A)(ii). 
62 

3See MGM Grand Hotel Inc., 329 N.L.R.B. 464, 471–472 (1999) (election petition filed 356 

days after employer recognition dismissed pursuant to recognition bar). However, as a practical 

matter, the actual bar to elections is three or more years due to common provisions in ‘‘neutrality agreements’’ that guarantee a collective bargaining agreement within a few months after 

recognition. This is discussed at greater length below. 4See 29 U.S.C. §§ 153–54; Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992) (‘‘By its plain 

terms, thus, the NLRA confers rights only on employees, not on unions or their nonemployee 

organizers’’); Levitz Furniture Co. of the Pacific, Inc., 333 N.L.R.B. 717, 728 (2001) (employers 

only statutory interest in representational matters ‘‘is in ensuring that they do not violate Section 8(a)(2) by recognizing minority unions’’). 5 Jonathan P. Hiatt & Lee W. Jackson, Union Survival Strategies for the Twenty-First Century, Labor Law Journal, Summer/Fall 1996, p. 176 ( AFL–CIO’s General Counsel writes that 

unions should ‘‘use strategic campaigns to secure recognition... outside the traditional representation processes’’). 

The only statutory limitation on decertification elections is when, within the ‘‘preceding twelve month-period, a valid election shall have been held.’’ 29 U.S.C. 

§ 159(e)(2) (emphasis added). Thus, employees may not petition for an election for 

one year after a union is certified in an NLRB election. However, there is no statutory restriction on an employee’s right to petition for an election after a union is 

merely recognized by their employer. 

The ‘‘recognition bar’’ is an NLRB created policy that prevents employees from exercising their statutory right to petition for an election after employer recognition 

of a union. The bar precludes elections for ‘‘reasonable’’ period of time, which can 

include a year.3 The validity of this policy is the subject of this testimony. 

ISSUE PRESENTED

How Does the NLRB Determine if an Employer-Recognized Union Actually Has the 

Uncoerced Support of a Majority of Employees? 

In a narrow sense, the issue is the validity of the Board’s recognition bar policy. 

However, the overarching issue is: how should the NLRB determine if an employerrecognized union actually has the uncoerced support of a majority of employees? The 

proper, statutorily prescribed method for making this determination is an NLRBconducted, secret-ballot election. 

The NLRB was created by Congress to protect employee rights.4 The most important of these rights is an employee’s right to choose union representation, or refrain 

from union representation. 29 U.S.C. § 157. There could be ‘‘no clearer abridgement’’ 

of this right than for an employer to recognize a union that does not enjoy the actual, uncoerced support of a majority employees in the bargaining unit. Ladies Garment Workers (Bernhard-Altmann Texas Corp.) v. NLRB, 366 U.S. 731, 737 (1961). 

The NLRB has a duty to ensure that an employer-recognized union actually enjoys 

the uncoerced support of a majority of employees. 

However, employer recognition of a union occurs entirely outside of NLRB processes and supervision. Indeed, the primary purpose of employer/union ‘‘partnership 

agreements’’ is to exclude the NLRB from the representational process.5 Employer 

recognition is merely a private agreement between a union and an employer in 

which both entities purport that a majority of employees desire the representation 

of the union. 

Employer recognition does not itself mean that the employer-recognized union actually enjoys uncoerced support of a majority employees. ‘‘The fact that an employer 

bargains with a union does not tell us whether the employees wish to be represented by the union.’’ Baseball Club of Seattle, LP, Seattle Mariners, 335 N.L.R.B. 

563, 567 n.2 (2001) (Member Hurtgen, dissenting); see also Ladies Garment Workers, 

366 U.S. 731 (employer negotiated with minority union based on erroneous ‘‘good 

faith’’ belief that union had majority support of employees). 

The NLRB itself does not know whether or not employees actually support the 

union their employer designated to represent them, unless and until the Board 

takes some action to determine the representational preferences of employees. This 

fact is readily apparent from the facts of the three primary cases in which the 

NLRB is reviewing the validity of the recognition bar doctrine: 

‘‘Metaldyne Precision Forming & UAW (St. Marys, PA), Case Nos. 6–RD–1518 and 

6–RD–1519. Metaldyne and the UAW are parties to a secret ‘‘partnership agreement.’’ In December, 2003, Metaldyne declared the UAW to be the representative 

of its employees pursuant to that agreement. Within days after employer recognition, over 50 percent of employees signed a showing of interest against UAW representation and for a decertification election. The election petition was dismissed 

under the recognition bar policy. 
63 

6That the recognition bar precludes the NLRB from conducting elections in these cases, despite the fact that the NLRB does not know employees’ actual representational preferences at 

the time, is perhaps the doctrine’s greatest flaw. The recognition bar is effectively a policy of 

deliberate blindness by the NLRB regarding the existence of employee support for an employer 

recognized union. 

‘‘UAW & Dana Corp. (Upper Sandusky, OH), Case No. 8–RD–1976. Dana and the 

UAW are parties to a secret ‘partnership agreement.’ Pursuant to this agreement, 

Dana provided the UAW with personal information about employees, access to its 

facilities, and conducted a series of captive audience meetings in which Dana 

praised its ‘partner’ union. Dana then recognized the UAW as the representative of 

its employees. Approximately 33 days later, a decertification petition was filed, duly 

supported by 35 percent of employees. The election petition was dismissed under the 

recognition bar policy. 

‘‘USWA & Cequent Towing Products (Goshen, IN), Case No. 25–RD–1447. Cequent 

and the USWA are parties to a secret ‘neutrality agreement.’ Pursuant to their 

agreement, Cequent and the union launched an organizing drive against Cequent’s 

employees in Goshen, IN. During the campaign (and before employer recognition), 

a majority of employees signed a petition stating that they did not want the USWA 

to be their representative, and wanted an NLRB election in the event that Cequent 

ever recognized the USWA. Despite this petition against USWA representation, 

Cequent recognized the USWA as the representative of its employees. An election 

petition was filed by employees within three days of employer recognition. The petition was dismissed under the recognition bar policy.’’ 

In each of the above cases, it is at best unclear whether a majority of employees 

actually desires the representation of the employer-recognized union. Indeed, it is 

likely that the employees do not want that representation. 

Most important, the NLRB does not know what the actual free choice of 

Metaldyne, Dana, and Cequent employees is with regard to union representation.6

The Board has a statutory duty to ensure that a union acting as the exclusive representative of employees enjoys the uncoerced support of a majority. The issue then 

is how—or through what procedural mechanism—does the NLRB determine if an 

uncoerced majority of employees actually desires the representation of an employer 

recognized union? 

ANALYSIS

There are three possible methods through which the NLRB could attempt to determine whether an uncoerced majority of employees support an employer-recognized union. First, the Board can simply defer to the decision of the employer and 

union. Second, the NLRB can rely on unfair labor practice proceedings challenging 

the employer’s recognition as unlawful under the NLRA. Third, the NLRB can conduct secret-ballot election to determine employees’ true representational preferences. 

As discussed at greater length below, the first and second options are grossly insufficient to protect employee freedom of choice. Deference to the decision of the employer and union leaves employee rights in the abusive hands of these entities, each 

of which is pursuing its own self-interests. This is particularly true given the growth 

of ‘‘voluntary recognition agreements,’’ in which recognition is bestowed pursuant to 

pre-arranged deal between an employer and union. 

Unfair labor practice proceedings are also inadequate, as those procedures were 

not designed to determine the representational desires of employees. Instead, unfair 

labor practice charges are designed to punish (and thereby prevent) violations of the 

NLRA. Moreover, conduct which itself does not amount to an unfair labor practice, 

but is offensive to employee free choice in an NLRB election because of the higher 

standards of conduct required in election proceedings, is inherent in any union ‘‘card 

check’’ campaign. 

Only the third option—representational proceedings culminating in an election— 

accurately determines whether an employer-recognized union truly has the 

uncoerced support of employees. Indeed, Congress created the representational procedures of the NLRA for expressly this purpose. See 29 U.S.C. §§ 159–61; see also 

NLRB v. Gissel Packing Co., 395 U.S. 575, 602 (1969) (‘‘secret elections are generally the most satisfactory-indeed the preferred-method of ascertaining whether a 

union has majority support’’). 

Unfortunately, the Board’s recognition bar policy precludes elections after employer recognition, thereby preventing employees and the NLRB from determining 

the actual representational preferences of employees. This was the doctrine’s affect 

in the Metaldyne, Dana, and Cequent cases discussed above, in which election peti-
64 

7See Ladies Garment Workers, 366 U.S. 731 (employer negotiated with minority union based 

on erroneous good faith belief that union had majority support of employees); see also Duane 

Reade, Inc., 338 N.L.R.B. No. 140 (2003), enforced, Case No. 03–1156, 2004 WL 1238336 (D.C. 

Cir. June 10, 2004) (employer recognized union after unlawfully assisting the union by coercing 

employees to sign union authorization cards). 8See Auciello Iron Works v. NLRB, 517 U.S. 781, 790 (1996) (‘‘There is nothing unreasonable 

in giving a short leash to the employer as vindicator of its employees’ organizational freedom’’); 

see also Levitz Furniture, 333 N.L.R.B. 717 (employer determinations as to employee support 

or opposition to union representation disfavored); Underground Service Alert Southern California, 315 N.L.R.B. 958, 960–61 (1994) (same). 9This lesson was recently reiterated in Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 

2003). There, the Board deferred to a contractual agreement between an employer and union 

stating that the union had majority employee support, without independently verifying the truth 

of that assertion. The D.C. Circuit reversed, holding that ‘‘[b]y focusing exclusively on employer 

and union intent, the Board has neglected its fundamental duty to protect employee section 7 

rights, opening the door to even more egregious violations than the good faith mistakes at issue 

in Garment Workers.’’ Id. at 537. 10The cases where an employer conspired with its favored union to secure ‘‘recognition’’ of 

that union are legion. See, e.g., Duane Reade, Inc., 338 N.L.R.B. No. 140 (2003), enforced, Case 

No. 03–1156, 2004 WL 1238336 (D.C. Cir. June 10, 2004) (employer unlawfully assisted UNITE 

and unlawfully granted recognition); Fountain View Care Center, 317 N.L.R.B. 1286 (1995), 

enf’d, 88 F.3d 1278 (D.C. Cir. 1996) (supervisors and other agents of the employer actively encouraged employees to support the union); NLRB v. Windsor Castle Healthcare Facility, 13 F.3d 

619 (2nd Cir. 1994), enforcing 310 N.L.R.B. 579 (1993) (employer provided sham employment 

to union organizers and assisted their recruitment efforts); Kosher Plaza Super Market, 313 

N.L.R.B. 74, 84 (1993); Brooklyn Hospital Center, 309 N.L.R.B. 1163 (1992), aff’d sub nom. 

Hotel, Hosp., Nursing Home & Allied Servs., Local 144 v. NLRB, 9 F.3d 218 (2nd Cir. 1993) 

(employer permitted local union, which it had already recognized as an exclusive bargaining representative, to meet on its premises for the purpose of soliciting union membership); Famous 

Casting Corp., 301 N.L.R.B. 404, 407 (1991) (employer actions unlawfully supported union and 

coerced the employees into signing authorization cards); Systems Management, Inc., 292 

N.L.R.B. 1075, 1097–98 (1989), remanded on other grounds, 901 F.2d 297 (3rd Cir. 1990); Anaheim Town & Country Inn, 282 N.L.R.B. 224 (1986) (employer actively participated in the union 

organizational drive from start to finish); Meyer’s Cafe & Konditorei, 282 N.L.R.B. 1 (1986) (employer invited union it favored to attend hiring meeting with employees); Denver Lamb Co., 269 

N.L.R.B. 508 (1984); Banner Tire Co., 260 N.L.R.B. 682, 685 (1982); Price Crusher Food Warehouse, 249 N.L.R.B. 433, 438–49 (1980) (employer created conditions in which the employees 

were led to believe that management expected them to sign union cards); Vernitron Electrical 

Components, 221 N.L.R.B. 464 (1975), enf’d., 548 F.2d 24 (1st Cir. 1977); Pittsburgh Metal 

Lithographing Co., Inc., 158 N.L.R.B. 1126 (1966). 

tions were dismissed in spite of manifest uncertainty as to what the free choice of 

employees may be with regard to union representation. 

The Board should overrule and discard its current recognition bar policy. The bar 

serves only to prevent employees and the NLRB from determining whether an 

uncoerced majority of employees desire the representation of an employer-recognized 

union. 

I. THE NLRB CANNOT DEFER TO THE SELF-INTERESTED CHOICE OF EMPLOYERS AND

UNIONS WITH REGARD TO THE REPRESENTATIONAL PREFERENCES OF EMPLOYEES

1. NLRB Cannot Assume That Employer Recognition of a Union Proves that An 

Uncoerced Majority of Employees Actually Supports Union Representation 

An employer voluntarily recognizing a union does not itself indicate that employees freely wish to be represented by that union. Voluntary recognition means only 

that an employer has selected a particular union to represent its employees without 

a Board-certified election. An employer could potentially voluntarily recognize a 

union that has majority employee support, does not have majority support, or whose 

employee support was obtained through coercion.7

The Board cannot blindly defer to employer and union determinations regarding 

employees’ representational preferences.8 As the Supreme Court long ago recognized, deferring to even an employer’s ‘‘good-faith’’ determination that a union has 

majority employee support ‘‘would place in permissibly careless employer and union 

hands the power to completely frustrate employee realization of the premise of the 

Act–that its prohibitions will go far to assure freedom of choice and majority rule 

in employee selection of representatives.’’ Ladies Garment Workers, 366 U.S. at 738– 

39 (emphasis added).9

Indeed, there is a long and tawdry history of cases in which employers recognized 

unions that did not enjoy the support of an uncoerced majority of employees.10 In 

many cases, the employer itself distorted employee free choice by pressuring employees to ‘‘vote’’ for a favored union by signing union authorization cards. 

The Board’s current policy of dismissing employee election petitions seeking to determine whether a union has the actual support of employees, because an employer 
65 

11The facts are well known: most unions are desperate for new dues paying members. In 

2003, 12.9 percent of wage and salary workers were union members, down from 13.3 percent 

in 2002, according to the U.S. Department of Labor’s Bureau of Labor Statistics. http:// 

www.bls.gov/news.release/union2.nr0.htm (January 21, 2004). The number of persons belonging 

to a union fell by 369,000 in 2003, to a total of 15.8 million. The union membership rate has 

steadily declined from a high of 20.1 percent in 1983, the first year for which comparable union 

data are available. For example, in 1982, the Steelworkers claimed 1.2 million members, but 

by 2002 the number was 588,000. In 1982 the UAW claimed 1.14 million members, by 2002, 

700,000 members. As of today, only 8.2 percent of the private sector workforce is unionized, and 

the other 91.8 percent do not appear to be flocking to join. IBM Corp., 341 N.L.R.B. No. 148, 

slip op. at 19 n.9 (2004). In UFCW Local 951 (Meijer, Inc.), 329 N.L.R.B. 730 (1999), Texas A 

& M labor economist Morgan O. Reynolds testified that the single largest factor hindering union 

organizing is employee resistance. According to Prof. Reynolds, polling data commissioned by the 

AFL–CIO indicates that 2⁄3 of employees are not favorably disposed towards unions. (Hearing 

Transcript pp. 1382–83). 12 In United Food & Commercial Workers Locals 951, 7 & 1036 (Meijer, Inc.), 329 N.L.R.B. 

730, 732, 734–35 (1999), the UFCW unions and the Board majority relied upon the expert testimony of a labor economist, Professor Paula Voos. Prof. Voos has written that unions seek to 

organize for a whole host of reasons, including the desire of union leaders for political aggrandizement and power; the monetary self-interest of union leaders to keep and enhance their own 

jobs and wages; and the perceived ‘‘social idealism’’ and ‘‘ideological gains’’ brought about by 

union organizing. See Paula Voos, Union Organizing Costs and Benefits, 36 Industrial and Labor 

Relations Review 576, 577 (July 1983). Professor Voos also wrote that organizing is a profitmaking venture for many unions. Id. at 577 & n.5. For example, she recognized that unions 

often organize larger units precisely because that is ‘‘where the money is!’’ Id. at 578 n.8. 13Organized labor’s ‘‘top-down’’ organizing strategy is repulsive to central purposes of the 

NLRA, and creates the potential for severe abuse of employees’ § 7 rights. See Connell Construction Company, Inc. v. Plumbers & Steamfitters Local No. 100, 421 U.S. 616, 632 (1975) (‘‘One 

of the major aims of the 1959 Act was to limit top-down’ organizing campaigns’’); Woelke & Romero Framing v. NLRB, 456 U.S. 645, 653 n.8 (1982) (‘‘It is undoubtedly true that one of the 

central aims of the 1959 amendments to the Act was to restrict the ability of unions to engage 

in top-down organizing campaigns’’) (citations omitted). 

avers that the union it recognized had majority employee support (i.e. the recognition bar), repeats the folly identified in Ladies Garment Workers. The Board’s failure 

to determine for itself whether the employer-recognized union actually has the 

uncoerced support of a majority of employees by conducting a secret ballot election 

places fundamental employee rights directly in ‘‘permissibly careless employer and 

union hands.’’ Id. 

Worse still, the Board abdicates its statutory duties by deferring to employer and 

union determinations as to the representational preferences of employees. Congress 

empowered the NLRB to administer the Act and decide representational matters. 

See 29 U.S.C. §§ 153–54, 159–161. The Board is thereby charged with protecting employee rights under § 7 of the Act, see, e.g., 29 U.S.C. § 160, and with determining 

and ensuring that employees’ representational wishes are realized under § 9 of the 

Act. See 29 U.S.C. § 159. The Board cannot delegate its duties to self-interested employers and unions. 

2. Employer Recognition Bestowed Upon a Union Pursuant to a ‘‘Voluntary Recognition Agreement’’ Counsels Heightened Board Scrutiny Regarding Whether an 

Employer Recognized Union Truly Enjoys the Uncoerced Support of a Majority 

of Employees 

Employer recognition of a union pursuant to a pre-arranged deal between the entities counsels even greater scrutiny from the NLRB than employer recognition 

made in the absence of such an arrangement (which is itself undependable). Employer recognition pursuant to a ‘‘voluntary recognition agreement’’ is not an ‘‘arm’s 

length’’ determination that likely reflects the free choice of employees. Instead, it 

reflects only the intersection of the employer and union self-interests that led to the 

parties to make the agreement in the first place. 

Unions are aggressively seeking voluntary recognition agreements to satisfy their 

self-interest in acquiring more dues paying employees to replenish their rapidly diminishing ranks.11 Every new facility organized brings more members into the 

union, more money into union coffers through compulsory dues payments, and 

places more power in the hands of union officials.12

By seeking voluntary recognition agreements, unions are effectively organizing 

employers, not employees, by coercing or coaxing the employers to agree in advance 

which particular union is to represent employees. The employer and its anointed 

union then work together to organize employees from the ‘‘top down,’’ irrespective 

of the employees’ actual preference.13

Unions obtain voluntary recognition agreements from employers with a combination of the ‘‘stick’’ and the ‘‘carrot.’’ The ‘‘stick’’ often includes ‘‘corporate campaigns’’ 
66 

14 It is well documented that these corporate campaigns include, inter alia, baseless lawsuits, 

unfavorable publicity to cast the employer in an evil light and pressure by so-called ‘‘community 

activists.’’ See Daniel Yager & Joseph LoBue, Corporate Campaigns and Card Checks: Creating 

the Company Unions of the Twenty-First Century, 24 Employee Relations Law Journal 21 

(Spring 1999); Symposium: Corporate Campaigns, 17 Journal of Labor Research, No. 3 (Summer 

1996); Herbert R. Northrup & Charles H. Steen, Union ‘Corporate Campaigns’ as Blackmail: the 

RICO Battle at Bayou Steel, 22 Harv. J. L. & Pub. Pol’y 771 (1999). 15See, e.g., Pittsburgh Fulton Renaissance Hotel, Case No. 6–CE–46, at 5 (N.L.R.B. G.C. Feb. 

7, 2002) (Division of Advice finds that provision of neutrality agreement that ‘‘does not permit 

the Employer to lease, contract or subcontract its operations . . . to any person unless that person agrees to neutrality, access, voluntary recognition, card-check, no-strike/no-lockout, etc. provisions of the neutrality agreement’’ violates § 8(e), but advises against issuing a complaint because it is time-barred under § 10(b)); Int’l Union UAW, Case No. 7–CE–1786 et al (case pending 

before General Counsel alleging that UAW has § 8(e) agreement with auto manufacturers to not 

do business with automobile parts suppliers that do not sign voluntary recognition agreements 

with UAW); Heartland Industrial Partners (USWA), Case No. 8–CE–84 (case pending before 

General Counsel alleging that USWA has § 8(e) agreement with an investment company that 

requires the company to not do certain business with employers that will not sign the USWA 

neutrality agreement). 16See Aeroground, Inc. v. City & County of San Francisco, 170 F. Supp. 2d 950 (N.D. Cal. 

2001) (San Francisco Airport Authority mandate that private concessionaires who wished to 

lease space at the airport had to first sign a neutrality agreement preempted); Chamber of Commerce v. Lockyer, 364 F.3d 1154 (9th Cir. 2004) (California statute that forbids employers who 

receive state grants or funds from using such funds to advocate against or in favor of union 

organizing is preempted); H.E.R.E. Local 57 v. Sage Hospitality Resources LLC, 299 F. Supp. 

2d 461 (W.D.Pa. 2003), appeal pending, Third Circuit Case No. 03–4168 (City of Pittsburgh 

pressured hotel operator to sign a neutrality and card check agreement as a condition of approving the public financing necessary to complete its project, even directing the hotel operator to 

contact specific HERE officials to negotiate this mandatory arrangement). 17See Majestic Weaving Co., 147 N.L.R.B. 859 (1964), enforcement denied on other grounds, 

355 F.2d 854 (2nd Cir. 1966) 18See November 27, 2000, Side Letter and Framework for a Constructive Collective Bargaining Relationship Agreements between Heartland Industrial Partners, LLP (Cequent’s parent company) and the USWA, at Side Letter § 9(A–C). 19On September 3, 2004, the NLRB’s Office of General Counsel decided to issue unfair labor 

practice complaints against the UAW and Dana for violating §§ 8(a)(1), 8(a)(2), and 8(b)(1)(A) 

of the Act by entering into agreements regarding employees’ terms and conditions of employment in their ‘‘partnership agreement’’. See Dana Corp. (UAW), Case Nos. 7–CA–46965 et. seq., 

Dana Corp. (UAW), Case Nos. 7–CA–47079 et. seq., and Dana Corp. (UAW), Case Nos. 11–CA– 

20134 et. seq. 20Waiving employees’ right to strike is a massive concession at the expense of employees, as 

it destroys employee bargaining leverage to obtain favorable terms and conditions of employment. ‘‘The economic strike against the employer is the ultimate weapon in labor’s arsenal for 

achieving agreement upon its terms.’’ NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 181 

(1967) see also Pattern Makers League v. NLRB, 473 U.S. 95, 129 (1985) (‘‘The strike or the 

threat to strike is the workers’ most effective means of pressuring employers, and so lies at the 

center of the collective activity protected by the Act’’) (emphasis added). 

against the employer,14 the use of secondary pressure,15 and enlisting the aid of 

state or local government to force private employers to sign voluntary recognition 

agreements with a favored union as a condition of doing business with the governmental entity.16

The ‘‘carrot’’ frequently includes pre-negotiating terms and conditions of employment favorable to the employer that will come into effect upon the union successfully organizing employees.17 In each of the three major recognition bar cases currently pending before the Board, the union agreed to ‘‘sweetheart’’ collective bargaining terms in exchange for employer assistance with organizing employees. 

In USWA and Cequent Towing Products (Goshen, IN), N.L.R.B. Case No. 25–RD– 

1447, the USWA agreed to a ‘‘Side Letter and Framework’’ agreement that limits 

the wages and benefits employees can attain after the USWA is recognized as their 

union representative.18 In UAW and Dana Corp. (Upper Sandusky, OH), Case No. 

8–RD–1976, the UAW signed a ‘‘partnership agreement’’ with Dana in which the 

union pre-negotiated several terms and conditions of employee’s employment in a 

manner favorable to the employer.19 Finally, in Metaldyne Precision Forming and 

UAW (St. Marys, PA)., Case Nos. 6–RD–1518 and 6–RD–1519, Metaldyne and the 

USWA entered into a ‘‘partnership agreement’’ in which the USWA sacrificed the 

right of employees to strike or engage in work actions to support bargaining demands.20

A typical example of the ‘‘carrot’’ of favorable terms and conditions of employment 

unions are willing to offer employers in exchange for assistance with organizing is 

the ‘‘Agreement on Preconditions to a Card Check Procedure Between Freightliner 

LLC and the UAW.’’ This reprehensible agreement speaks for itself. A copy of it is 

attached to this testimony. 
67 

21See Price Crusher Food Warehouse, 249 N.L.R.B. 433 (1980); Brooklyn Hospital Center, 309 

N.L.R.B. 1163 (1992), aff’d sub nom., Hotel, Hosp., Nursing Home & Allied Servs., Local 144 

v. NLRB, 9 F.3d 218 (2nd Cir. 1993); and Kroger Co., 219 N.L.R.B. 388 (1975), respectively. 22See General Shoe, 77 N.L.R.B. 124, 127 (1948); see also NLRB v. Sanitary Laundry, 441 

F.2d 1368, 1369 (10th Cir. 1971); Gissel Packing, 395 U.S. 525, 601–602 (1969). 

Employers have a wide variety of self-interested business reasons to enter into 

voluntary recognition agreements that have nothing to do with facilitating employee 

free choice. This primarily includes avoiding the ‘‘stick’’ of union pressure tactics, 

and/or obtaining the ‘‘carrot’’ of favorable future collective bargaining agreements, 

as discussed above. Other reasons for which employers have assisted union organizing drives include: (a) to cut off the organizing drive of a less favored union; (b) 

because of the existence of a favorable bargaining relationship with the union at another facility; or (c) as a bargaining chip during negotiations regarding other bargaining units.21

None of the union or employer motivations or arrangements for entering into voluntary recognition agreement center on ensuring employee free choice. Instead, 

unions and employers seek and enter into these agreements purely to satisfy their 

narrow self-interests. Accordingly, employer and union determinations regarding the 

representational choices of employees that are made pursuant to pre-arranged ‘‘partnership agreements’’ are entitled to no deference from the NLRB. 

II. UNFAIR LABOR PRACTICE PROCEEDINGS ARE AN INADEQUATE SUBSTITUTE FOR SECRET-BALLOT ELECTIONS FOR DETERMINING THE REPRESENTATIONAL PREFERENCES

OF EMPLOYEES

1. Unfair Labor Practice Proceedings Are Not Designed to Determine the Representational Preferences of Employees 

Unfair labor practice procedures are inadequate to determine whether employees 

support or oppose union representation because that is simply not what the procedures were designed by Congress to accomplish. Sections 10 and 11 of the Act empower the Board to prevent and remedy violations of the Act. 29 U.S.C. § 160–61. 

Sections 3(d) and 10 of the Act assign the General Counsel with the responsibility 

of investigating unfair labor practice charges, issuing and prosecuting complaints, 

and seeking compliance with Board orders in Court. These sections were not designed to determine the representational wishes of employees. 29 U.S.C. § 153(d) 

and 160. By contrast, Congress specifically enacted § 9 of the Act to gauge whether 

employees support or oppose union representation. 29 U.S.C. § 159 

Congress also solely empowered the Board to decide representational issues. Id. 

By contrast, unfair labor practice charges are filtered sparingly through the General 

Counsel’s discretionary prosecutorial lens. See 29 U.S.C. § 153(d); NLRB v. UFCW, 

484 U.S. 112 (1987) (General Counsel has unreviewable discretion to issue or not 

issue unfair labor practice complaints). Allowing the General Counsel to resolve 

what are effectively representational issues–determining whether the union designated by an employer has the uncoerced support of a majority of employees–is contrary to the basic structure of the Act. 

As a practical matter, an after-the-fact investigation of an unfair labor practice 

allegation does not affirmatively determine the representational desires of employees. It merely hunts for unfair labor practices. It is impossible for the General Counsel, after-the-fact, to divine the true wishes of employees by trying to piece together 

all the myriad events and circumstances that occurred in a ‘‘card check’’ drive. 

2. Conduct Offensive to Employee Free Choice in an NLRB Election, Which Does Not 

Itself Amount to An Unfair Labor Practice, is Inherent in ‘‘Card Check’’ Campaigns 

A higher standard for union and employer conduct is required in representational 

proceedings than in unfair labor practice proceedings. In secret-ballot elections, the 

Board provides a ‘‘laboratory’’ in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine employees’ uninhibited desires.22 A 

lower standard is utilized in unfair labor practice proceedings. 

Conduct that does not rise to the level of an unfair labor practice can interfere 

with employee free choice in an NLRB election, and warrant overturning the results 

of that election. See General Shoe, 77 N.L.R.B. 124, 127 (1948). A union can become 

the exclusive bargaining representative of employees via employer recognition by 

engaging in conduct that would have precluded it from obtaining such status 

through a secret-ballot election, without committing an unfair labor practice. In fact, 

conduct objectionable in any secret-ballot election is inherent to union ‘‘card check’’ 

campaigns! 
68 

23See Alliance Ware Inc., 92 N.L.R.B. 55 (1950) (electioneering activities at the polling place); 

Claussen Baking Co., 134 N.L.R.B. 111 (1961) (same); Bio-Medical Applications of P.R., 269 

N.L.R.B. 827 (1984) (electioneering among the lines of employees waiting to vote); Pepsi Bottling 

Co. of Petersburg, 291 N.L.R.B.578 (1988) (same). 24Peerless Plywood Co., 107 N.L.R.B. 427 (1953). 25Piggly-Wiggly, 168 N.L.R.B. 792 (1967). 26The Board’s justification for prohibiting solicitation immediately prior to employee voting 

in a secret-ballot election is fully applicable to the situation of an employees making a determination as to union representation in a card check drive. ‘‘The final minutes before an employee casts his vote should be his own, as free from interference as possible. Furthermore, the 

standard here applied insures that no party gains a last minute advantage over the other, and 

at the same time deprives neither party of any important access to the ear of the voter.’’ 

Milchem Inc., 170 N.L.R.B. 362, 362 (1968). Union soliciting and cajoling employees to sign authorization cards is incompatible with this rationale. 27 An additional distinction is that in a secret-ballot election, once an employee has made the 

decision ‘‘yea or nay’’ by casting a ballot, the process is at an end. By contrast, a choice against 

signing a union authorization card does not end the decision-making process for an employee 

in the maw of a ‘‘card check drive,’’ but often represents only the beginning of harassment for 

that employee. Eventually, many employees sign union authorization cards just to get the union 

organizers ‘‘off their back.’’ 28Of course, many card-check drives are also fraught with union coercion, intimidation and 

misrepresentations that could amount to an unfair labor practice charges. See eg HCF Inc., 321 

N.L.R.B. 1320 (1996) (union ‘‘not responsible’’ for threats to employee by authorization card solicitor that ‘‘the union would come and get her children and it would also slash her tires’’); Levi 

Strauss & Co., 172 N.L.R.B. 732, 733 (1968) (Board recognizes the serious problem of union misrepresentations about the purpose and effect of an authorization card). 

For example, in an NLRB-supervised secret ballot election, the following conduct 

has been held to upset the laboratory conditions necessary to guarantee employee 

free choice, thus requiring the invalidation of the election: (a) electioneering activities, or even prolonged conversations with prospective voters, at or near the polling 

place; 23 (b) speechmaking by a union or employer to massed groups or captive audiences within 24 hours of the election; 24 and (c) a union or employer keeping a list 

of employees who vote as they enter the polling place (other than the official eligibility list).25

Yet, this conduct occurs in almost every ‘‘card check campaign.’’ When an employee signs (or refuses to sign) a union authorization card, he is not likely to be 

alone. To the contrary, it is likely that this decision is made in the presence of one 

or more union organizers soliciting the employee to sign a card, and thereby ‘‘vote’’ 

for the union.26 This solicitation could occur during or immediately after a union 

mass meeting or a company-paid captive audience speech. In all cases the employee’s decision is not secret, as in an election, as the union clearly has a list of who 

has signed a card and who has not.27

A very recent Board decision further demonstrates that conduct inherent to a 

card-check drive is objectionable and coercive if done during a secret-ballot election. 

In Fessler & Bowman, Inc., 341 N.L.R.B. No. 122 (2004), the Board announced a 

prophylactic rule that prohibits union officials from performing the ministerial task 

of handling a sealed secret ballot—even absent a showing of tampering—because 

where ‘‘ballots come into the possession of a party to the election, the secrecy of the 

ballot and the integrity of the election process are called into question.’’ (Slip. op. 

at 2). 

In a card check campaign, union officials do much more than merely handle a 

sealed secret ballot as a matter of convenience to one or more of the employees. 

Union officials directly solicit employees to sign an authorization card (and thereby 

cast their ‘‘vote’’), stand over them as they ‘‘vote,’’ know with certainty how each individual employee ‘‘voted,’’ and then physically collect, handle and tabulate these 

purported ‘‘votes.’’ This conduct is infinitely more intimidating and intrusive than 

the theoretical taint found to warrant a remedy in Fessler & Bowman. 

Accordingly, even a card-check drive devoid of conduct that may constitute an unfair labor practice does not approach the ‘‘laboratory conditions’’ guaranteed in a 

Board-conducted election.28 The superiority of Board supervised secret-ballot elections for protecting employee free choice is beyond dispute. It is therefore incongruous for the Board to apply the unyielding recognition bar to card check recognitions, because the lack of integrity inherent in such card checks would surely taint 

a Board election held under similar circumstances. 

3. Secret Ballot Elections are a Faster and More Decisive Method to Determine Employee Representational Preferences Than Unfair Labor Practice Proceedings 

Finally, representational proceedings are faster than unfair labor practice proceedings. See NLRB Case Handling Manual, ¶ 11000 ‘‘Agency Objective’’ (‘‘The processing and resolution of petitions raising questions concerning representation, i.e., 
69 

29See Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 304, 307 (1974); NLRB v. Gissel Packing Co., 395 U.S. 575, 602 (1969) (‘‘secret elections are generally the most satisfactory-indeed the preferred-method of ascertaining whether a union has majority support’’); Brooks v. NLRB, 348 U.S. 96 (1954) (‘‘an election is a solemn and costly occasion, conducted under safeguards to voluntary choice’’). 30See also Underground Service Alert, 315 N.L.R.B. 958, 960 (1994); NLRB v. Cornerstone 

Builders, Inc., 963 F.2d 1075, 1078 (8th Cir. 1992). 31 Clearly, labor union officials are not advocating employer determinations based on cards or 

petitions because these officials sincerely believe that this method reflects employee sentiment 

more reliably than a Board supervised secret-ballot election. Rather, they advocate the ‘‘card 

check recognition’’ process solely to advance their self-serving interests. 

RC, RM, and RD petitions, are to be accorded the highest priority’’). This is particularly true in the context of employer recognition bestowed pursuant to a ‘‘partnership agreement,’’ as the ‘‘partners’’ are unlikely to file blocking charges against each 

other that delay an expeditious election. 

Representational proceedings are also more decisive, as an election is a one-time 

occurrence that definitively decides the issue, one way or the other. By contrast, unfair labor practice proceedings generate multiple preliminary decisions as the charge 

proceeds from the General Counsel, to trial before an Administrative Law Judge, 

to the Board itself, and then to an appellate court. These proceedings are the equivalent to holding a ‘‘sword of Damocles’’ over a collective bargaining relationship for 

years. 

Thus, representational proceedings are far superior to unfair labor practice proceedings for stabilizing (lawful) collective bargaining relationships, as they settle the 

issue of whether the employer-recognized union enjoys uncoerced majority support 

quickly and in ‘‘one fell swoop.’’ Ironically, effectuating the Act’s interest in the ‘‘stability of labor-management relations’’ is one of the primary arguments proponents 

of the recognition bar raise to justify its existence. In reality, by forcing employees 

to turn to drawn-out ULP proceedings to protect their representational rights, the 

recognition bar injures that interest. For all of the above stated reasons, unfair 

labor practice proceedings are an inadequate and wholly inappropriate substitute for 

secret-ballot elections for determining employees’ true representational preferences. 

III. THE SUPERIORITY OF BOARD SUPERVISED SECRET-BALLOT ELECTIONS IS BEYOND

DISPUTE

1. Secret Ballot Elections are the Act’s Preferred Method for Determining the Representational Preferences of Employees 

Congress created the NLRA’s statutory representation procedures to determine 

whether employees support or oppose representation by a particular union. See 29 

U.S.C. § 159. The Supreme Court has long recognized that Board supervised secretballot elections are the preferred method for gauging whether employees desire 

union representation.29 The Board and the lower courts similarly ‘‘emphasize that 

Board-conducted elections are the preferred way to resolve questions regarding employees’ support for unions.’’ Levitz Furniture, 333 N.L.R.B. at 723, citing Gissel, 395 

U.S. at 602.30

Even the AFL–CIO has recognized that NLRB supervised secret-ballot elections 

are superior to ‘‘card checks’’ in establishing the true choice of the uncoerced majority. With regard to an employer withdrawing recognition from a union (as opposed 

to bestowing recognition), the AFL–CIO argued to the Board that employee petitions 

and cards advocating decertification ‘‘are not sufficiently reliable indicia of the employees’ desires,’’ and that employees and employers should only be able to remove 

a union pursuant a secret-ballot election. See Brief of the AFL–CIO to the NLRB 

in Chelsea Industries & Levitz Furniture Co. of the Pacific, Inc., Case Nos. 7–CA– 

36846, at 13 (May 18, 1998).31

Fully recognizing this principle, the Board has held that non-electoral evidence of 

employee support—even if untainted by unfair labor practices—is not as reliable in 

gauging employee support for a union as an election. In Underground Service Alert 

Southern California, 315 N.L.R.B. 958 (1994), a majority of employees voted for 

union representation in a decertification election. But, well before the election results were known, a solid majority of employees delivered a signed petition to their 

employer making clear that they did not support union representation. The employer withdrew recognition. Even though the investigation revealed no ‘‘impropriety, taint, factual insufficiency, or unfair labor practice of any type with respect 

to this employee petition,’’ id. at 959, the Board held that the employer violated the 

Act because the election results were a far superior indication of employee wishes. 

The employee petition was considered a ‘‘less-preferred indicator of employee sentiment,’’ particularly as compared to ‘‘the more formal and considered majority em-
70 

32See also Rollins Transportation System, 296 N.L.R.B. 793, 793 (1989) (emphasis added) 

(‘‘The paramount concern . . . must be the employees’ right to select among two or more 

unions, or indeed to choose none’’) (emphasis added); In re MV Transportation, 337 N.L.R.B. 

770, 775 (2002) (‘‘the fundamental statutory policy of employee free choice has paramount value, 

even in times of economic change’’); Bloom v. NLRB, 153 F.3d 844, 849–50 (8th Cir. 1998) (‘‘Enlisting in a union is a wholly voluntary commitment; it is an option that may be freely undertaken or freely rejected’’), vacated & remanded on other grounds sub nom. OPEIU Local 12 v. Bloom, 525 U.S. 1133 (1999). 33Section 7 of the NLRA could not be more clear: ‘‘Employees shall have the right to selforganization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing... and shall also have the right to refrain from any or all 

such activities.’’ (emphasis added). Similarly, § 8(a)(3) precludes ‘‘discrimination in regard to hire 

or tenure of employment or any term or condition of employment to encourage or discourage 

membership in any labor organization.’’ (emphasis added). 34See Levitz Furniture, 333 N.L.R.B. at 731 (Member Hurtgen, concurring) (‘‘our nation protects and encourages the practice and procedure of collective bargaining for those employees who 

have freely chosen to engage in it’’); In re MV Transportation, 337 N.L.R.B. 770, 772 (2002) 

(‘‘[preservation of the stability of bargaining relationships] is a matter of policy and operates 

with respect to those situations where employees have chosen a bargaining relationship’’) (citations omitted, emphasis added). 35See Ladies Garment Workers, 366 U.S. at 737; Majestic Weaving, 147 N.L.R.B. at 860–61. 

ployee preference for union representation which was demonstrated by the preferred 

method—the Board-conducted secret-ballot election.’’ Id. at 961. The Board explained why: 

‘‘The election, typically . . . is a more reliable indicator of employee wishes because employees have time to consider their options, to ascertain critical facts, and 

to hear and discuss their own and competing views. A period of reflection and an 

opportunity to investigate both sides will not necessarily be available to an employee confronted with a request to sign a petition rejecting the union. No one disputes that a Board-conducted election is much less subject to tampering than are 

petitions and letters.’’ 

Id. at 960, quoting W. A. Krueger Co., 299 N.L.R.B. 914, 931 (1990) (Member Oviatt, 

concurring in part and dissenting in part). 

That the superiority of secret-ballot elections could require extended argument is 

itself remarkable. Every American understands instinctively that such elections are 

the cornerstone of any system that purports to be democratic. Accordingly, any averment by union officials that they are attempting to save industrial democracy by 

eliminating the secret-ballot election should be greeted with the incredulity the 

proposition deserves. 

2. Employee Freedom of Choice is Paramount Under the NLRA, and Thereby Must 

be Given the Greatest Weight in Any Analysis 

Because NLRB-conducted secret-ballot elections are the best means to effectuate 

employee free choice as to union representation, it is imperative that the Board 

favor and encourage this option. After all, ‘‘employee free choice’’ must be granted 

the greatest weight in any analysis, as the fundamental and overriding principle of 

the Act is ‘‘voluntary unionism.’’ Pattern Makers v. NLRB, 473 U.S. 95, 104–07 

(1985).32

Any notion that the NLRA’s fundamental purpose is to increase the membership 

ranks of labor organizations is false. The Act exists to enable employees to freely 

choose union representation, or freely reject union representation. It does not favor 

one choice over the other.33 As former NLRB Member Brame cogently stated: 

‘‘unions exist at the pleasure of the employees they represent. Unions represent employees; employees do not exist to ensure the survival or success of unions.’’ MGM 

Grand Hotel, 329 N.L.R.B. at 475 (Member Brame, dissenting). 

Also, the policy of ‘‘encouraging the practice and procedure of collective bargaining,’’ stated in the preamble to the Act at 29 U.S.C. § 151, does not mean that 

the Act endorses favoritism towards unions or employees who support union representation over those who wish to refrain from union representation. Only where 

a majority of employees freely select union representation is there any policy interest in promoting collective bargaining or labor stability. Because collective bargaining is entirely predicated on the exercise of employee free choice enshrined in 

§ 7 of the Act.34 This is amply demonstrated by the undisputable fact that the NLRA 

does not favor ‘‘collective bargaining’’ between an employer and a union that lacks 

the uncoerced support of a majority of employees, but instead condemns it as a 

grievous offense against employee rights.35

Since collective bargaining is predicated on employee free choice, the Act’s policy 

of promoting stable collective bargaining relationships favors secret-ballot elections. 
71 

36 It is for this reason that the interest in ‘‘encouraging... collective bargaining’’ cannot 

support the Board’s current voluntary recognition bar policy, as the bar prevents the Board from 

determining if the employer-selected union has majority employee support. Without such a determination, there is no interest in preserving the stability of a union/employer bargaining relationship that may be unlawful. 37See Central Parking, 335 N.L.R.B. 390 (2001); Verizon Information Systems, 335 N.L.R.B. 

558 (2001). 38The neutrality and partnership agreements used in the Dana, Metaldyne, and Cequent 

cases all include such an arbitration provision. 39See Waste Management of Maryland, 338 N.L.R.B. No. 155 (2003) (‘‘contract bar’’ precludes 

election petitions during first three years of a collective bargaining agreement, save a 30-day 

window period near the end of the period). 

Unless and until the NLRB holds an election to determine whether employees truly 

support or oppose union representation, the interest of ‘‘encouraging the practice 

and procedure of collective bargaining’’ cannot be attributed to any bargaining relationship, as the employer-recognized union may in fact lack majority employee support.36

Accordingly, when employees petition for a decertification election after their employer selects a particular union as the representative of its employees, the Board 

should conduct a secret-ballot election to protect and facilitate the Act’s paramount 

interest in employee free choice. The recognition bar policy, which precludes the 

NLRB from conducting such elections, should be discarded. 

IV. THE BOARD’S RECOGNITION BAR POLICY THREATENS TO RENDER THE NLRA’S REP- RESENTATIONAL PROCEDURES IRRELEVANT AND UNUSABLE IN THE CURRENT AGE OF

VOLUNTARY RECOGNITION AGREEMENTS

The recognition bar policy threatens the continued viability of the Board’s representation machinery. Unions and employers are taking advantage of the Board’s 

current recognition bar policy by entering into voluntary recognition agreements 

that render it virtually impossible for the NLRB to conduct secret-ballot elections. 

The NLRB must not permit self-interested employers and unions to render the representation procedures of § 9 unusable and irrelevant, and deny the Board its supervisory role in the union selection (or rejection) process. 

Two common provisions of ‘‘partnership’’ or ‘‘neutrality’’ agreements operate to 

preclude the use of the Board’s procedures. First, virtually all these agreements require an employer to recognize the union without an NLRB election. This provision 

automatically waives both the employer’s and union’s right to request a Board-supervised election,37 and blocks election petitions from employees under the recognition bar. 

Second, many ‘‘partnership’’ agreements establish an arbitration procedure that 

guarantees a collective bargaining agreement in the event that the employer and 

union are unable to negotiate an agreement within a certain amount of time after 

employer recognition.38 This provision effectively ensures that a contract will be 

signed before the recognition bar period expires. See e.g. MGM Grand, 329 N.L.R.B. 

464 (1999) (recognition bar can last one year or more). Moreover, after this contract 

is signed, the Board created ‘‘contract bar’’ rules then apply to preclude an election 

for another three years.39

Thus, under current Board policy, many ‘‘neutrality’’ or ‘‘partnership’’ agreements 

block election petitions for three or more years because (i) employer recognition triggers the recognition bar; (ii) an arbitration provision ensures that a collective bargaining agreement is signed before the voluntary recognition bar expires; (iii) the 

signing of the collective bargaining agreement triggers the ‘‘contract bar,’’ which 

bars petitions for approximately three years. Under this regime, it is impossible for 

any party (employee, union or employer) to obtain a secret-ballot election for over 

three years from the date of union recognition. Unless the Board changes its current 

policies, the Board’s representational machinery is unusable and irrelevant. 

Many ‘‘neutrality’’ agreements also cut the Board out of other aspects of the union 

selection process. Many agreements allow the union to gerrymander the unit to include union supporters and exclude union opponents, thereby removing the Board 

from the unit determination process. 

The Board is also often precluded from determining whether particular organizing 

conduct is lawful or not, as most voluntary recognition agreements forbid any postselection disputes to be brought to the Board. The result is that important challenges and objections concerning the conduct of the ‘‘card check elections’’ (as some 

union officials euphemistically calls them) are not heard by the Board, no matter 

how coercive the conduct. 

This leads to incongruous results like that demonstrated in Service Employees 

International Union v. St. Vincent Medical Center, 344 F.3d 977 (9th Cir. 2003). 
72 

There, a union lost an NLRB supervised secret-ballot election, but was nevertheless 

able to force an employer to ‘‘arbitrate’’ before a private arbitrator over purported 

objectionable election conduct. The purported ‘‘objections’’ of the SEIU union could 

have been–and clearly should have been–filed with the Board under its Rules and 

Regulations. Instead, the Board was cut out of post-election proceedings in a Board 

supervised election! 

Such results show the insidious nature of many ‘‘voluntary recognition agreements.’’ In effect, private parties can now repeal, at their mutual discretion, all of 

the Board’s Rules and Regulations related to elections and post-election challenges 

and objections. The Board has no role in any of this, and, apparently, neither do 

the individual employees whose rights are at stake whenever a union is being selected. 

The union strategy of eliminating the NLRB from its proper role in determining 

representational issues through use of voluntary recognition agreements is having 

its intended effect. The Board is increasingly cast aside and prevented from making 

labor law policy and overseeing private sector labor relations. The number of representation elections held by the NLRB in 2003 decreased to 2,333 from 2,723 in 

2002, continuing a sharp decline in NLRB elections since 1996, when about 3,300 

were conducted. See Daily Labor Reporter Online, Union Representation Elections, 

June 8, 2004. The number of eligible voters in representation elections fell to 

148,903 in 2003 from 191,319 in 2002. (Id). 

The Board should not (and cannot) abdicate its statutory duties to the self-interested desires of unions and employers. Congress empowered the NLRB to administer the NLRA and decide representational matters. See 29 U.S.C. §§ 153–54, 159– 

161. The Board is thereby charged with the responsibility of protecting employee 

rights under § 7 of the Act, see, e.g., Lechmere Inc. v. NLRB, 502 U.S. 527, 532 

(1992), and with administering § 9 of the Act. See 29 U.S.C. §§ 159. 

‘‘In election proceedings, it is the Board’s function to provide a laboratory in which 

an experiment may be conducted, under conditions as nearly ideal as possible, to 

determine the uninhibited desires of the employees. It is our duty to establish those 

conditions; it is also our duty to determine whether they have been fulfilled.’’ 

General Shoe Corp., 77 N.L.R.B. at 127 (emphasis added). The NLRB must not sit 

passively on the sidelines and allow its representational processes to become irrelevant. See e.g., Charles I. Cohen, Neutrality Agreements: Will the NLRB Sanction Its 

Own Obsolescence?, The Labor Lawyer (Fall, 2000). 

In short, the increased usage of ‘‘recognition agreements’’ permits employers and 

unions to strip employees of their § 7 rights and their statutory right to a decertification election, and erases the Board from the process of employees’ selecting (or 

rejecting) a union. These practices must be halted. The first step to doing so is for 

the Board to eliminate the recognition bar. 

CONCLUSION

For the foregoing reasons, the Board should abandon its recognition bar rule. 

Senator SPECTER. Thank you very much, Mr. Messenger. 

Mr. Messenger, under current law employers are allowed to withdraw from establishing a bargaining relationship on the basis of 

evidence that the union has lost its majority status and no NLRB 

process is required. If an employer can withdraw recognition without an election being required, why should not the same process be 

allowed when workers want their union recognized? 

Mr. MESSENGER. Well, I believe that after an employer recognizes the union, the exception—or the abolition of the recognition 

bar doctrine I believe would only apply to employee petitions. If an 

employer voluntarily recognized a union to be the representative of 

its employees, I believe that labor law would prevent that union 

from changing—that employer from later changing its mind and 

turning around and withdrawing that recognition. 

However, employees were left out of that initial recognition process, in that employer recognition again is a purely private agreement between the employer and the union. So the issue is how do 
73 

employees challenge or have the NLRB determine whether or not 

the employer-recognized union is really their representative. 

Senator SPECTER. Ms. Schiffer, when you referred to the 30 percent figure what did you have in mind on that? 

Ms. SCHIFFER. Under the Board’s policies, a decertification petition can be filed by an employee when it is supported by 30 percent 

of the workers in the bargaining unit. So that under this proposal 

to eliminate the recognition bar doctrine and allow a decertification 

petition to be filed, it can be filed when only 30 percent of the 

workers support it. So then that would trigger a Board election certification process under this proposal to abolish the recognition bar 

doctrine. 

Senator SPECTER. Mr. Rosenfeld, if you could come back to the 

table, I have a question for you. The whole question of industrial 

stability is really the backbone of the National Labor Relations Act. 

There has been a longstanding practice where the Board will not 

entertain—can you hear me? 

Mr. ROSENFELD. Yes. 

Senator SPECTER. There has been a longstanding practice, as I 

say, for the industrial stability in a context where the Board has 

recognized that a petition to decertify a union voluntarily recognized will not be entertained until there has been a reasonable period for the parties to establish their relationship. 

Why the necessity for the kind of proposal which you have articulated in your brief? 

Mr. ROSENFELD. Because there is a balance in the application of 

the Act and the balance is between industrial stability and employee free choice. Employee free choice is guaranteed by section 7 

of the Act. Some would argue that stability is a policy choice, and 

where that balance lies is for the Board to determine. 

The difficulty with the recognition bar is, and I do not think anybody at this table would argue, that the gold standard of the NLRB 

is a secret ballot election. Now, I think, without asking for more 

money, Mr. Chairman, we could not conduct our day to day operations if there were not voluntary recognitions. 

Senator SPECTER. So you are saying that the electoral process is 

not really—well, you articulate it as—the gold bar, not really indispensable to making a determination as to what the real wishes of 

the employees are? 

Mr. ROSENFELD. It is not. I do not have numbers because, as was 

said before, the voluntary recognition scenario occurs very often 

outside the Board’s processes. We do not know the numbers. But 

the truth of it is that voluntary recognition is a way that employee 

sentiments are furthered through collective bargaining, and there 

is absolutely nothing wrong with that. 

Senator SPECTER. And there is a legitimate determination or an 

accurate determination of employees’ sentiments in the voluntary 

procedures which you have described? 

Mr. ROSENFELD. Right. But again, there is no argument that an 

election is a better process. A secret ballot election conducted by a 

government agent is the process. The solemnity of that process has 

been accepted in the whole body of law and Board decisions. Again, 

nobody would question that. 
74 

Senator SPECTER. What is your view, Mr. Rosenfeld? We had a 

hearing in Harrisburg on July 16 where we were taking up the provisions of S. 1925, which provides for a certification on cards as opposed to the election process. We heard a fair amount of testimony 

that the election process lent itself to a lot of maneuvering and a 

lot of coercive practices by employers against employees. We also 

heard testimony to the contrary. That is what a hearing is all 

about. We had a balanced hearing, as we have a balanced hearing 

today, to try to allow all sides to be explored. 

What is your view of the contention that there are coercive practices in the electoral process which are very undesirable? 

Mr. ROSENFELD. They exist. We file complaints on 8(a)(1)’s all 

the time. They exist on both sides, frankly. We get objections where 

there has been electioneering at an election site. But in the main, 

in a secret ballot election conducted by the Board, the overwhelming majority of those elections are conducted within the laboratory conditions that the Board insists upon. But yes, there are 

folks who cross the line. That is probably the reason for—— 

Senator SPECTER. People cross the line on both sides? 

Mr. ROSENFELD. On both sides. That is the reason for the Act. 

Senator SPECTER. Like offsides in a football game. 

Ms. Schiffer, I am not saying there should be a change, but if 

there is a change how would you evaluate Mr. Rosenfeld’s position? 

Would you say that that is a reasonable compromise, unreasonable, 

if there is to be any change at all? 

Ms. SCHIFFER. I appreciate that the general counsel’s brief recognizes that at least a minority of workers should not be allowed to 

interfere with when a majority of workers have indicated they 

want to be represented by a union. So I appreciate that at least his 

position does not reflect that a minority of workers should be able 

to control this process and stall collective bargaining at this point. 

But even the way that he describes this exception will allow this 

bargaining process to be stalled, to be delayed, even after a majority of workers have decided they want to have a union and have 

collective bargaining. I mean, that is the point, to have collective 

bargaining, and this would interrupt that process. 

When Mr. Rosenfeld talks about balancing stability with employee free choice, I think we have to keep in mind that in a voluntary recognition a majority of the workers have exercised their 

free choice and indicated they want to be represented by a union, 

and their rights need to be protected and they ought to be entitled 

to get the benefit of collective bargaining that they elected when 

they sought to form a union. 

I also want to point out that there is Board supervision of this 

process. There are Board rules and procedures in place to make 

sure that it is an uncoerced majority. The union, the employer, and 

employees can challenge the process through the Board’s unfair 

labor practice process if they think that it was not an uncoerced 

majority or that there are other defects in the grant of the recognition. 

Senator SPECTER. Mr. Messenger, what is your sense as to Mr. 

Rosenfeld’s contention that the NLRB simply does not have the facilities to have elections on many, many matters and has to rely 

upon these voluntary procedures? 
75 

Mr. MESSENGER. Well, with the recognition bar, seeking the abolition of the recognition bar will not affect the ability of an employer to recognize the union. The only issue really is through what 

procedures does the NLRB investigate the validity of that recognition if a sufficient number, if a group of employees challenge it as 

being illegitimate? 

An employer can continue to recognize a union even if the recognition bar is abolished. The issue is, under current Board processes if employees disagree that the union their employer recognized actually has majority support, the only way they can challenge it is through unfair labor practice proceedings. 

What we are advancing today is that the proper method to determine this issue is through representation proceedings because, 

after all, the issue is do a majority of employees actually support 

the employer-recognized union or not. And the representational 

procedures are designed to answer that question, not the unfair 

labor practice procedures. 

So really I believe the issue is not card check versus secret ballot 

election. The real issue is unfair labor practice proceedings versus 

representational proceedings to determine the free choice of employees after employer recognition. 

Senator SPECTER. Without intruding into the judicial functions of 

the NLRB, Mr. Rosenfeld—and we did not ask the NLRB members 

to stay. In fact, we separated these hearings so there would be a 

clearcut distinction between our inquiries as to the issue of the 

Brown decision, where we are exercising oversight on something 

which has already concluded, as opposed to something in the discretionary function. 

Without intruding into the judicial functions, can you give us any 

insight as to how close the Board is to having some new rule on 

this area? 

Mr. ROSENFELD. I have no idea. The dynamic of the Board at this 

point is of interest because when Congress adjourns, one of the 

members is a recess appointee and so that recess appointment 

lapses and the Board would then be four members. 

Senator SPECTER. So what do you think, we should stay in session? 

Mr. ROSENFELD. I think that is a great idea, Senator. 

Senator SPECTER. You may find yourself as the sole dissenter on 

Capitol Hill to that proposition. 

Mr. ROSENFELD. Please do not quote me on that. 

Senator SPECTER. I will not quote you. It is in the record. 

Mr. ROSENFELD. That is what I was afraid of. 

Senator SPECTER. Mr. Rosenfeld, I would ask you to take a look 

at S. 1925 because it provides for certification on cards and that 

has an impact on a proposed change. What Congress will do on 

that nobody can predict. But when Congress is in the field, I think, 

and considering that kind of an issue, it is at least a factor which 

ought to be before the Board and ought to be on their radar screen. 

They can make a determination for themselves as to how much 

weight, if any, to give to it. 

Well, thank you all very much for coming. This has been a very 

interesting hearing. The movement by the subcommittee into some 

of these areas is I think a very important oversight function. There 
76 

is general agreement that there is insufficient oversight by the 

Congress and it is educational to stop for a moment and deal with 

some of these arcane issues. 

CONCLUSION OF HEARING

Thank you all very much for being here. That concludes our 

hearing. 

[Whereupon, at 11:27 a.m., Thursday, September 23, the hearing 

was concluded, and the subcommittee was recessed, to reconvene 

subject to the call of the Chair.] 

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