New York University

National Labor Relations Board - Board Decisions

Oct 31, 2000

332 N.L.R.B. 1205 (N.L.R.B. 2000)

NEW YORK UNIVERSITY 1205
New York University and International Union, United
Automobile, Aerospace and Agricultural Im-
plement Workers of America, AFL–CIO, Peti-
tioner. Case 2–RC–22082
October 31, 2000
DECISION ON REVIEW AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
The principle issue presented by this case is whether a
university’s graduate assistants (teaching assistants,
graduate assistants, and research assistants) are employ-
ees within the meaning of Section 2(3) of the Act.
Relying, inter alia, on the Board’s recent decision in
Boston Medical Center, 330 NLRB 152 (1999) (revers-
ing precedent and finding medical interns and residents
to be statutory employees), the Regional Director for
Region 2 issued a Decision and Direction of Election
(pertinent portions of which are attached as an Appendix)
on April 3, 2000, in which he found that most of the Em-
ployer’s graduate assistants are statutory employees.1 As
discussed below, we agree.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Employer filed a timely request for review of the
Regional Director’s decision. The Petitioner filed an
opposition brief.2 On May 10, 2000, the Board granted
the Employer’s request for review.
Having carefully considered the entire record in this
proceeding, including the briefs on review of the Em-
ployer and the Petitioner and the briefs of the amici cu-
riae,3 we affirm the Regional Director’s decision.4

1 As described infra, the Regional Director found that a relatively
few of the Employer’s graduate assistants (those in the Sackler Institute
and science departments research assistants funded by external grants)
are not statutory employees.
2 The Association of American Universities, Boston University, and
the American Council on Education filed amicus briefs in support of
the Employer’s request for review.
3 Amici Curiae American Federation of Labor and Congress of In-
dustrial Organizations (AFL–CIO), American Association of Univer-
sity Professors (AAUP), Boston University (BU), and Commission on
Independent Colleges and Universities (CICU) filed briefs. Amici
Curiae American Council on Education, Association of American Uni-
versities, National Association of Independent Colleges and Universi-
ties, and Council on Graduate Schools filed a joint brief (ACE, et al.).
Amici Curiae Trustees of Columbia University, Johns Hopkins Univer-
sity, Massachusetts Institute of Technology, Princeton University,
Board of Trustees of Leland Stanford Junior University, Washington
University, and Yale University also filed a joint brief (TC, et al.).
4 The Employer’s motion for oral argument is denied as the record
and the briefs adequately present the issues and positions of the parties
and amici.
Background
The Employer is a large university located in New
York City. Approximately 35,000 students attend the
school. The student body is evenly divided between un-
dergraduate and graduate students. Each year nearly
1700 of the 17,500 graduate students serve as graduate
assistants, graders, and tutors.5 The vast majority of
graduate assistants are doctoral students. The Petitioner
seeks to represent a unit of graduate assistants, excluding
Sackler graduate assistants and the science research
assistants in the Physics and Biology departments. The
Employer contends that the petitioned-for unit is not ap-
propriate because the graduate assistants are students and
not employees within the meaning of Section 2(3). Al-
ternatively, the Employer argues that, even assuming the
graduate students are statutory employees, policy consid-
erations require their exclusion from coverage under the
Act. Finally, the Employer contends that if the graduate
assistants are statutory employees, only a university-wide
unit of all graduate and research assistants (including
those in the Sackler and science departments) is appro-
priate.
Analysis
Consistent with Supreme Court and Board precedent,
we find that the graduate assistants are employees within
the meaning of Section 2(3). We reject the contention of
the Employer and several of the amici that, because the
graduate assistants may be “predominately students,”
they cannot be statutory employees. Like the Regional
Director, we find there is 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.
Section 2(3) of the Act broadly defines the term “em-
ployee” to include “any employee.” This interpretation
is buttressed by the Supreme Court’s long support for our
historic, broad and literal reading of the statute. NLRB v.
Town & Country, 516 U.S. 85, 91–92 (1995); Sure-Tan,
Inc. v. NLRB, 467 NLRB 883, 891–892 (1984);
Hendricks County Rural Electric Membership Corp., 454
U.S. 170, 189–190 (1981); Phelps Dodge Corp. v. NLRB,
313 U.S. 177, 185–186 (1941). As the Court explained
in Sure-Tan, unless a category of workers is among the
few groups specifically exempted from the Act’s cover-
age, the group plainly comes within the statutory defini-
tion of “employee.” 467 U.S. at 891–892.
The definition of the term “employee” reflects the
common law agency doctrine of the conventional master-
servant relationship. Town & Country, 516 U.S. at 93–
5 The Regional Director excluded graders and tutors from the unit.
No party sought review of this exclusion.
332 NLRB No. 111
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1206
95. This relationship exists when a servant performs
services for another, under the other’s control or right of
control, and in return for payment. NLRB v. Town &
Country, 516 U.S. at 90–91, 93–95. Accord: Seattle Op-
era Assoc., 331 NLRB No. 148, slip op. at 2 (2000), cit-
ing WBAI Pacifica Foundation, 328 NLRB 1273 (1999).
These principles were recently applied in Boston
Medical Center, 330 NLRB 152 (1999). In that case, the
Board overruled Cedars-Sinai Medical Center, 223
NLRB 251 (1976), as clarified in St. Clare’s Hospital &
Health Center, 229 NLRB 1000 (1977), which held that
interns, residents, and fellows (house staff) were not enti-
tled to collective-bargaining rights as a matter of statu-
tory policy.6 The Board concluded in Boston Medical
Center that these cases were wrongly decided as a matter
of statutory construction and policy and that the house
staff in Boston Medical Center were employees under
Section 2(3), notwithstanding that they also were stu-
dents. The Board explained that “students” are not one
of the categories of workers excluded from Section 2(3)
and, therefore, they fall within the broad statutory defini-
tion of “employee.” Id., slip op. at 9. In addition, the
Board stated that “nothing in the statute suggests that
persons who are students but also employees should be
exempted from the coverage and protection of the Act.”
Id.
Applying these principles, we reach the same conclu-
sion with respect to graduate assistants. It is undisputed
that graduate assistants are not within any category of
workers that is excluded from the definition of “em-
ployee” in Section 2(3). Like the house staff in Boston
Medical Center, ample evidence exists to find that
graduate assistants plainly and literally fall within the
meaning of “employee” as defined in Section 2(3).
The uncontradicted and salient facts establish that
graduate assistants perform services under the control
and direction of the Employer, and they are compensated
for these services by the Employer. Graduate assistants
work as teachers or researchers. They perform their du-
ties for, and under the control of, the Employer’s de-
partments or programs. Graduate assistants are paid for
their work and are carried on the Employer’s payroll
system. The graduate assistants’ relationship with the
Employer is thus indistinguishable from a traditional
master-servant relationship. See NLRB v. Town & Coun-
try, 516 U.S. at 90–91, 93–95. We, therefore, find this
evidence sufficient to support the conclusion that gradu-

6 The Board majority in St. Clare’s Hospital Center (Member Fan-
ning dissenting) determined that house staff were primarily students
and not primarily employees, and that their relationship with their insti-
tution was predominately academic rather than economic. 229 NLRB
at 1002.
ate assistants are employees as defined in Section 2(3) of
the Act.
The Employer and several amici argue that this case is
not controlled by the analysis in Boston Medical Center.
They contend that the graduate assistants’ relationship
with this Employer is different from the house staffs’
relationship with Boston Medical Center and that the
Regional Director failed to take into account the “entire
nature” of the relationship between the graduate assis-
tants and the Employer. Specifically, they contend that:
(1) the Regional Director ignored evidence that the house
staff spent 80 percent of their time providing services
(patient care) for the hospital, while graduate assistants
spend only 15 percent of their time performing graduate
assistants’ duties for the Employer; (2) graduate assis-
tants do not receive compensation for their teaching and
other duties as did the Boston Medical Center house
staff; and (3) graduate assistants perform this work in
“furtherance” of their degree, while the house staff al-
ready had their degrees.
Contrary to the Employer and others, we do not find
this case significantly distinguishable from Boston Medi-
cal Center. First, the Employer’s comparison of the rela-
tive time the house staff and graduate assistants spend
providing services for their respective employers ignores
the critical and undisputed evidence that the graduate
assistants, just like the house staff, perform work for
their Employer, under their employer’s control. In light
of these facts, while graduate assistants may spend a rela-
tively smaller portion of their time working than the
house staff, they are no less “employees” than part-time
or other employees of limited tenure or status.7 See Uni-
versity of San Francisco, 265 NLRB 1221 (1982) (part-
time faculty constitute an appropriate unit).
Second, we reject the Employer’s argument that the
graduate assistants are not paid for their work. The Em-
ployer insists that the graduate assistants do not receive
compensation but simply financial aid, pointing out that
graduate students in “fully funded departments”8 receive
7 The reference in Boston Medical Center to the amount of time
spent by house staff on physician’s duties was descriptive, not prescrip-
tive.
8 It appears that fully funded departments are those departments in
which all doctoral students are guaranteed full funding for the usual 5-
year duration of their doctoral studies. These students may be required
to perform graduate assistants’ duties for a portion of the years that they
receive funding. In addition, as found by the Regional Director, on the
final day of this 42-day hearing the Employer submitted evidence that
its MacCracken Fellowship program is being restructured. Under the
change, virtually all Graduate School of Arts and Science (GSAS)
doctoral students who enroll in 2000–2001 and thereafter will be Mac-
Cracken Fellows, which will guarantee them funds for 4 or 5 years.
(MacCracken fellows currently constitute 20–25 percent of the GSAS
doctoral students.) The Fellows will be required to teach a minimum of
NEW YORK UNIVERSITY 1207
the same amount of funds each academic year, regardless
of whether they work. It is indisputable, however, that
the graduate assistants, unlike the students receiving fi-
nancial aid, perform work, or provide services, for the
Employer under terms and conditions (e.g., hours of
work and instructional curriculum) controlled by the
Employer. That this is work in exchange for pay, and
not solely the pursuit of education, is highlighted by the
absence of any academic credit for virtually all graduate
assistant work. Indeed, in most cases graduate assistants
have completed their coursework and are working on
their dissertation while performing this work. Thus,
however the Employer may wish to characterize a gradu-
ate assistant position, the fulfillment of the duties of a
graduate assistant requires performance of work, con-
trolled by the Employer, and in exchange for considera-
tion. See Seattle Opera Assn., 331 NLRB No. 148, slip
op. at 3 (“to find individuals not to be employees because
they are compensated at less than the minimum wage, or
because their compensation is less than a living wage,
contravenes the stated principles of the Act”).
Third, we disagree with the Employer’s argument that
graduate assistant work is primarily educational. The
Employer attempts to highlight the educational nature of
this work by claiming that graduate assistants perform
this work to obtain their degrees, contrasting the house
staff in Boston Medical Center who already had degrees
and were merely receiving advanced training in their
profession. We recognize that working as a graduate
assistant may yield an educational benefit, such as learn-
ing to teach or research. But, surely the house staff work
in Boston Medical Center affords an equal, if not greater,
educational benefit, because that work, in part, provides
training in furtherance of becoming certified in a medical
specialty. Even in those circumstances, however, the
Board determined that the fact that house staff “obtain
educational benefits from their employment” is not in-
consistent with employee status. Boston Medical Center,
330 NLRB 152, 161. Nor is it inconsistent here. Indeed,
it is undisputed that working as a graduate assistant is not
a requirement for obtaining a graduate degree in most
departments. Nor is it a part of the graduate student cur-
riculum in most departments. Therefore, notwithstanding
any educational benefit derived from graduate assistants’
employment, we reject the premise of the Employer’s
argument that graduate assistants should be denied col-
lective-bargaining rights because their work is primarily
educational.

two semesters, but no more than six semesters, in exchange for the
Fellowship funding.
For the reasons stated, we reject the Employer’s at-
tempts to distinguish this case from Boston Medical. The
Employer also argues that, even assuming the graduate
assistants are employees, significant policy reasons re-
quire the Board to exclude graduate assistants from cov-
erage under the Act. First, the Employer relies on cases
such as Goodwill of Tidewater, 304 NLRB 767, 768
(1991), to argue that graduate assistants do not have a
traditional economic relationship with the Employer.
The Employer contends that the graduate assistants are
akin to the Goodwill disabled “clients” who the Board
found in that case not to be employees under Section
2(3). The Employer contends that the cases are similar
because students, like those clients, earn money while
being trained for outside employment. We disagree that
this line of cases has any relevance here.
The Goodwill rehabilitation program involved in that
particular case involved a contract with the United States
Navy to provide janitorial services at a naval base. Un-
der the contract, Goodwill operated a janitorial skills
training program and provided janitorial services to the
entire base. The clients were handicapped individuals,
some of whom received rehabilitative services and all of
whom were permitted to work at their own pace. Coun-
seling, rather than discipline, was emphasized. The
Board explained that in making the determination
whether the clients were statutory employees, it,

looks at the employer’s relationship with these indi-
viduals. When the relationship is guided to a great ex-
tent by business considerations and may be character-
ized as a typically industrial relationship statutory em-
ployee status has been found. When the relationship is
primarily rehabilitative and working conditions are not
typical of private sector working conditions, the Board
has indicated that it will not find statutory employee
status. Id.

In deciding that the clients were not statutory employees,
the Board found that “the relationship between the Em-
ployer and the clients is primarily rehabilitative and that
working conditions for the clients are not typical of the pri-
vate sector.” Id.
Clearly, the same cannot be said of the relationship
that graduate assistants have with the Employer here, or
of their working conditions. The physical limitations and
needs of the Goodwill clients, and the special assistance
they required, immediately distinguish them from the
graduate assistants and evoke a profoundly different en-
vironment from that in which the graduate assistants
work in an institution of higher education. The Goodwill
clients’ atypical working conditions contrast sharply with
the working conditions of the Employer’s graduate assis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1208
tants. Indeed in some respects the graduate assistants’
working conditions are no different from those of the
Employer’s regular faculty. And, certainly their working
relationship with the Employer more closely parallels the
traditional economic relationship between faculty and
university than the atypical relationship between “cli-
ents” and Goodwill.
The Employer’s second major policy argument is that
extending collective-bargaining rights to graduate assis-
tants would infringe on the Employer’s academic free-
dom. We are not persuaded by that argument. Thirty
years ago the Board asserted jurisdiction over private,
nonprofit universities and colleges. Cornell University,
183 NLRB 329 (1971). Shortly thereafter, the Board
approved units composed of faculty members, and it con-
tinues to do so today. C.W. Post Center, 189 NLRB 904
(1971); University of Great Falls, 325 NLRB 83 (1997),
and 331 NLRB No. 188 (2000); and Lorretto Heights
College, 264 NLRB 1107 (1982), enfd. 742 F.2d 1245
(10th Cir. 1984); but see NLRB v. Yeshiva University,
444 U.S. 672 (1980) (faculty members managerial em-
ployees). And recently the Board in Boston Medical
Center squarely addressed and rejected the argument that
granting employee status to employees who are also stu-
dents would improperly permit intrusion by collective
bargaining into areas of academic freedom. 330 NLRB
152, 164. After nearly 30 years of experience with bar-
gaining units of faculty members, we are confident that
in bargaining concerning units of graduate assistants, the
parties can “confront any issues of academic freedom as
they would any other issue in collective bargaining.” Id.
The Employer’s concerns about the potential for in-
fringement with academic freedom that collective bar-
gaining with graduate assistants might impose turn
largely on speculation over what the Petitioner might
seek to achieve in collective bargaining, or what might
become part of an agreement between the Employer and
the Petitioner. Such conjecture does not, however, estab-
lish infringement. See, e.g. University of Pennsylvania v.
EEOC, 493 U.S. 182, 195–202 (1990), which rejected as
attenuated and speculative claims of injury to academic
freedom from enforcement of a subpoena for confidential
peer review materials. As the Court explained, the so-
called academic freedom cases involve attempts to con-
trol or direct the content of speech engaged in by the
university, or those affiliated with it, or “direct infringe-
ments” on the asserted right to determine on academic
grounds who may teach. In any event, it is long estab-
lished that,

[t]he Act does not compel agreements between em-
ployers and employees. It does not compel any agree-
ment whatever.…The theory of the Act is that free op-
portunity for negotiation with accredited representa-
tives of employees is likely to promote industrial peace
and may bring about the adjustments and agreements
which the Act in itself does not attempt to compel.

NLRB v. Jones & Laughlin Steel Corp., 301 NLRB 1, 45
(1937).
In Boston Medical, in rejecting a similar academic
freedom claim, we said that this argument

puts the proverbial cart before the horse. The contour
of collective bargaining is dynamic with new issues
frequently arising out of new factual contexts: what
can be bargained about, what the parties wish to bar-
gain about or concentrate on, and what the parties are
free to bargain about, may change. But such problems
have not proven to be insurmountable in the admini-
stration of the Act.
. . . .
If there is anything we have learned in the long history
of this Act, it is that unionism and collective bargaining
are dynamic institutions capable of adjusting to new
and changing work contexts and demands in every sec-
tor of our evolving economy. We have no doubt that
they can also adjust to accommodate the special func-
tions of medical house staff. To assume otherwise is
not only needlessly pessimistic, but gives little credit to
the intelligence and ingenuity of the parties. 330 NLRB
slip op. at 13-14.

We therefore reject the Employer’s claim that collec-
tive bargaining with graduate assistants will infringe on
academic freedom.9 While mindful and respectful of the

9 Cf. Ukiah Valley Medical Center, 332 NLRB No. 59 (2000) (asser-
tion of jurisdiction over a hospital run by religious institution does not
violate First Amendment or Religious Freedom Restoration Act; even
assuming that assertion of jurisdiction creates a “substantial burden” on
the Employer’s free exercise of religion, it nonetheless is in furtherance
of a “compelling state interest” and is the least restrictive means of
furthering that interest); Associated Press v. NLRB, 301 U.S. 103
(1937) (application of Act to cooperative organization of newspapers
does not abridge First Amendment freedom of speech or the press);
NLRB v. Wentworth Institute, 515 F.2d 550, 556 (1st Cir. 1975) (reject-
ing argument that finding faculty to be employees and permitting them
to collectively bargain “will supposedly result in erosion of academic
freedom”). As the Board recently stated, it is long established that the
government has a compelling interest in preventing labor strife and in
protecting the rights of employees to organize and bargain collectively
with their employers over terms and conditions of employment. These
compelling state interests were recognized by the Supreme Court in
upholding the Act’s constitutionality. NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 33 (1937). The right of employees to self-
organization is constitutionally protected; it is a fundamental right
implicit in the First Amendment’s free assembly language. Ukiah
NEW YORK UNIVERSITY 1209
academic prerogatives of our Nation’s great colleges and
universities, we cannot say as a matter of law or policy
that permitting graduate assistants to be considered em-
ployees entitled to the benefits of the Act will result in
improper interference with the academic freedom of the
institution they serve.
Based on all of the above, we agree with the Regional
Director’s finding that most of the graduate assistants are
statutory employees, notwithstanding that they simulta-
neously are enrolled as students.10 Stripped to its es-
sence, the argument of the Employer and others is that
graduate assistants who work for a college or university
are not entitled to the protections of the Act because they
are students. The Board’s broad and historic interpreta-
tion of the Act rejects such a narrow reading of the stat-
ute. Accordingly, we will not deprive workers who are
compensated by, and under the control of, a statutory
employer of their fundamental statutory rights to organ-
ize and bargain with their employer, simply because they
also are students.
ORDER
The Regional Director’s Decision is affirmed. The
proceeding is remanded to the Regional Director for fur-
ther appropriate action.

MEMBER HURTGEN, concurring.
In Boston Medical Center, 330 152, I concluded that
there was no warrant for overturning 20 years of Board
law. I noted that the courts and Congress had approved
this Board law. I also noted that there were sound policy
reasons supporting this Board law. More particularly, I
observed that residents and interns (house staff) have an
educational relationship with the hospitals at which they
train. Thus, the Board should not impose collective bar-
gaining on “what is fundamentally an educational rela-
tionship.”
The instant case clearly demonstrates the contrast be-
tween house staff at a hospital and graduate students at
this university. In Boston Medical, a necessary compo-
nent of the completion of medical training was the re-
quirement that residents and interns attend to patients.
By contrast, in the instant case, it is undisputed that
working as a graduate assistant is not a requirement for
completing graduate education. Nor is such work a part

Valley Medical Center, slip op. at 2, citing Shelton v. Tucker, 364 U.S.
479, 485–487 (1960), and Thomas v. Collins, 323 U.S. 516, 532 (1945).
10 For the reasons set forth by the Regional Director, we agree that
the Sackler graduate assistants and the few science department research
assistants funded by external grants are properly excluded from the
unit. Leland Stanford Junior Univ., 214 NLRB 621 (1974). The evi-
dence fails to establish that the research assistants perform a service for
the Employer and, therefore, they are not employees as defined in Sec-
tion 2(3) of the Act.
of the curriculum. Indeed, the graduate assistants have
completed their course work and are preparing their dis-
sertations while they are performing the work involved
herein.1
In short, the residents and interns perform their ser-
vices as a necessary and fundamental part of their medi-
cal education. By contrast, the graduate students in-
volved herein do not perform their services as a neces-
sary and fundamental part of their studies. Thus, I regard
the latter as employees who should have the right to bar-
gain collectively.

APPENDIX
DECISION AND DIRECTION OF ELECTION
Under a petition filed under Section 9(c) of the National La-
bor Relations Act, as amended, a hearing was held before
Nicholas Lewis, a hearing officer of the National Labor Rela-
tions Board.1
Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, the Board has delegated its authority in
this proceeding to the Regional Director, Region 2.
On the entire record in this proceeding,2 it is found that:
1. The hearing officer’s rulings are free from prejudicial er-
ror and hereby are affirmed.3
2. The parties stipulated and I find that New York Univer-
sity, “the Employer” or “NYU,” a not-for-profit corporation,
with its campus located in New York, New York, is an institu-
tion of higher education. Annually, in the course and conduct
of its operations, the Employer derives gross revenues in excess
of $1 million and purchases and receives goods and supplies
valued in excess of $50,000 at its New York facility, directly
from suppliers located outside of the State of New York.
Accordingly, I find that the Employer is engaged in com-
merce within the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction here.
3. The parties stipulated, and I find, that International Union,
United Automobile, Aerospace and Agricultural Implement
1 I recognize that there are a few departments where these facts do
not apply. However, I do not consider it appropriate to split the unit,
and I shall therefore be guided by what is true in the overwhelming
majority of departments.
1 The Employer filed a motion to dismiss the Petition on the ground
that extant Board law clearly held that graduate assistants were ex-
cluded from the definition of employee under the Act solely because
they were students, or in the alternative to stay the proceedings pending
the issuance of a decision in Boston Medical Center Corp., infra, which
was then pending. The motions were denied by me on May 28, 1999.
Appeal to the Board was denied on June 16, 1999.
2 Briefs filed by counsel to the Employer and the Petitioner have
been carefully considered.
3 Petitioner excepts to the hearing officer’s refusal to permit it to of-
fer evidence of collective bargaining by graduate assistants at other
universities. Even assuming that there is some relevance to the prof-
fered testimony, the hearing officer’s decision was within his discretion
which was properly exercised to avoid unduly prolonging the hearing.
Accordingly, the exception is denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1210
Workers of America, AFL–CIO, “the Petitioner” is a labor
organization within the meaning of Section 2(5) of the Act.
4. A question affecting commerce exists concerning the rep-
resentation of certain employees of the Employer within the
meaning of Section 9(c) and Section 2(6) and (7) of the Act.
5. The Petitioner seeks to represent employees in the follow-
ing unit:4

All full-time and regular part-time teaching assistants (includ-
ing teaching fellows), graduate assistants, research assistants,
graduate student graders and graduate student tutors who are
classified under codes 101, 111, 130, 131 (referred to collec-
tively as graduate assistants) employed by New York Univer-
sity, excluding all other employees, graduate assistants at the
Sackler Institute and research assistants in the Physics and Bi-
ology Departments, and guards and supervisors as defined by
the Act.

The Employer contends that the petitioned-for unit is inap-
propriate because it consists of individuals, graduate assistants,
who are “students,” and not “employees” as defined by the Act.
The Employer alternatively argues that even if the graduate
assistants come within the definition of Section 2(3) of the Act,
policy considerations should lead to their exclusion from statu-
tory coverage. Finally, the Employer asserts that if the gradu-
ate assistants are found to be employees and an election is di-
rected, the only appropriate unit would be a University-wide
unit and the graduate assistants in certain science departments
should not be excluded as Petitioner urges.
The Petitioner maintains that the graduate assistants are em-
ployees covered by the Act and that the unit sought is appropri-
ate. The petitioned-for unit, according to Petitioner, excludes
certain research assistants in the Biology and Physics depart-
ments and those classified as graduate assistants at the Sackler
Institute of Graduate Biomedical Sciences because these indi-
viduals are not employees under the Act. Even if these indi-
viduals were found to be employees, Petitioner argues, they do
not share a community of interest with those graduate assistants
in the unit sought.
NYU is a prestigious university comprised of 13 schools,
colleges or divisions. The Faculty of Arts and Sciences (FAS)
is an administrative unit that consists of (1) the College of Arts
and Sciences, and (2) the Graduate School of Arts and Science.
Further, there is the (3) School of Law, (4) School of Medicine
and (5) Post-Graduate Medical School, (6) College of Den-
tistry, (7) School of Education, (8) Leonard Stern School of
Business, (9) Tisch School of the Arts, (10) Gallatin School of
Individualized Study, (11) School of Social Work, (12) Wagner
School of Public Service, and (13) School of Continuing and
Professional Studies. Among the 13 schools there are at least
100 departments.
Approximately 35,000 students attend NYU. One-half of the
students are undergraduate students, while the other half are
graduate students seeking Masters, Ph.D.s (doctoral), or other
advanced degrees. To receive a Ph.D. degree, generally the
most advanced degree available, graduate students must spend
at least 5 years in pursuit of the degree. A typical progression

4 The unit description was amended at the hearing.
for a Ph.D. is 2 years of course work followed by a qualifying
exam or exams. The remainder of a doctoral student’s time in
pursuit of the degree is spent on completing a dissertation. A
Masters degree is more course-based, but students are also
required to complete a Masters thesis project or exam at the
conclusion of their studies. A Masters degree can be completed
in 1 to 3 years, but can also function as a pathway to a Ph.D.
program.
Of the approximately 17,500 graduate students attending
NYU, approximately 1700 serve as graduate assistants,5 grad-
ers, and tutors each year. The vast majority of graduate assis-
tants are doctoral students, with the remainder being graduate
students seeking Masters degrees. Most graduate assistants are
concentrated within the Faculty of Arts and Sciences (799), the
Stern School of Business (256), the School of Education (209),
and the Tisch School of the Arts (116).6 Graduate assistants
receive cash (normally called a stipend),7 full tuition remission
and a bookstore discount in exchange for services they provide
to NYU.8 The stipend is set forth as a gross amount for the
semester, and is paid in biweekly checks, through the university
payroll department. Federal, State, and city payroll taxes are
deducted.9 The graduate assistants are designated, for payroll
purposes, by the following codes—101 (GAs and TAs),
130/131 (RAs), 111 (grader or tutor), and 0200 (Sackler Gas—
all of whom are classified in the NYU Medical Center pay code
system).10
5 The term “graduate assistant” is used generally to describe those
classified as teaching assistants (TAs), research assistants (RAs), and
graduate assistants (GAs). Moreover, teaching assistants in one pro-
gram (the MAP program) are referred to as “preceptors” (described
below), and teaching assistants in the School of Education and the Stern
School are called “teaching fellows.” Research assistants in the School
of Education’s “Metro Center” are known as “tutors.” For purposes of
this decision, when the term “graduate assistant” is used, the reference
is to all of those individuals. If I am referring to those individuals
classified by the Employer as graduate assistants, I will refer to them as
GAs.
6 The Sackler Institute also has a large number of doctoral students
classified as GAs (174) but as discussed below, unlike the GAs in other
schools, those at Sackler have no specific assigned duties and are
funded by external research grants.
7 The amount of the stipend varies depending on department, but the
range is from a low of $6500 (Metro Center) to a high of approximately
$20,000 (science departments) per academic year.
8 Generally, graduate assistants do not receive any other benefits re-
ceived by other NYU employees (health and dental insurance, life
insurance, retirement plan, etc.). The Sackler Institute and the Center
for Neural Science (CNS) purchase health insurance for all of their
graduate students. Sackler GAs are also eligible to participate in
healthcare and dependent care spending accounts and tax-deferred
annuity programs. All graduate assistants are covered under NYU’s
Workers” Compensation insurance policy.
9 Under Sec. 3121(b)(10)(B) of the Internal Revenue Code, the Uni-
versity does not withhold FICA from the cash portion of the student’s
assistantship received by graduate assistants who maintain full-time
equivalent enrollment status, except that FICA is withheld from Sackler
GA stipends.
10 The Employer issued a report in February 1999, summarizing a
study of the status of graduate assistantships at NYU. The report de-
clared that as of September 1999, newly entering students who serve as
NEW YORK UNIVERSITY 1211
The most prevalent of graduate assistantships is the teaching
assistant (TA). Approximately 870 graduate students were TAs
in the spring of 1999, with an additional 153 classified as teach-
ing fellows.11 Many TAs assist faculty members in the teach-
ing of large introductory survey or lecture courses. While some
TAs are assigned to courses within the department they are
studying, others are placed in an undergraduate program known
as the Morse Academic Plan (MAP).12 MAP TAs, referred to
as “preceptors,” and other TAs assigned to assist in the large
lecture courses have similar duties.13 Typically, in such large
lecture courses, the faculty-member professor lectures the stu-
dents (usually numbering in the hundreds) once or twice a
week. In addition to the lecture component, undergraduate
students are assigned to small sections known as “recitation” or
“lab” sections, which the TAs conduct or teach.14 In conduct-
ing the recitation or lab sections, the TA engages in activities
that may include reviewing the lecture materials, teaching new
material related to the lecture, fostering discussions on the ma-
terial, answering student questions, and conducting exercises or
experiments that enhance the lecture material. In addition to
attending the lectures and conducting the recitation or lab sec-
tions, the TA is also expected to hold office hours. TA duties
also normally include preparing and/or grading exams or other
work assignments, proctoring exams, and arranging reserve
readings. TAs may also order books, photocopy materials, and
take attendance. In some cases, the TA will conduct one of the
lectures given during the semester, or fill in for the faculty
member if he or she is ill. The TA may also participate in the
development of the syllabus. In performing these duties, the
TA normally meets and consults with the faculty member in
charge of the class during the course of the semester.15 Many
other TAs act as the “stand-alone” teacher or the “teacher-of-

graduate assistants would be coded as follows: 101 (TA); 130
(GA),;and 131 (RA).
11 Each department at NYU is allocated money from the central ad-
ministration (obtained primarily from undergraduate tuition) to be used
for funding of teaching assistants.
12 MAP is the interdisciplinary core curriculum of the College of
Arts and Sciences and has four components, all of which are required
of all CAS students: (1) expository writing, (2) a humanities/social
science sequence called Foundations of Contemporary Culture (FCC),
(3) a mathematics natural sciences sequence called Foundations of
Scientific Inquiry (FSI), and (4) foreign language. A modified version
of MAP is required of School of Education and Stern School students.
While duties of the MAP preceptors for FCC and FSI courses are the
same or similar to other TAs assisting in introductory or lecture
courses, duties of expository writing and foreign language TAs differ in
that those TAs are the “stand-alone” teacher of the class, as discussed
infra.
13 A MAP preceptorship is considered somewhat more demanding
than other TAships, and MAP TAs receive additional compensation.
MAP TAs are advised by NYU of the demanding nature of this ap-
pointment and are told that they should not accept other employment.
Recently, in response to complaints, the workload of MAP preceptors
was reduced from three to two sections per semester.
14 A small number of TAs are assigned to help in lecture courses
which do not have recitation or lab sections associated with them.
15 In many cases the faculty member is the TA’s advisor or mentor.
record” for undergraduate courses.16 The Expository Writing
Program (EWP) component of MAP, required of all under-
graduate students in the College of Arts and Sciences and most
other undergraduates, is staffed almost entirely by TAs.17 The
EWP TAs teach the writing classes (two sections of 15 students
each per semester), grade assignments, hold individual confer-
ences, and hold office hours. They are directly supervised by
16 Both the Employer and the Petitioner conducted studies analyzing
the percentage of undergraduate instruction by TAs. Petitioner’s study
examined the number of College of Arts and Sciences (CAS) classes
where TAs were teachers-of-record (including recitation and lab sec-
tions) and concluded that TAs taught 933 of 1572 classes, or 59.3 per-
cent of classes. The Petitioner’s analysis of the percentage of CAS core
curriculum classes (required MAP classes which include foreign lan-
guage and EWP) concluded that TAs taught 82.4 percent of core un-
dergraduate courses. Petitioner used the CAS for its analysis, claiming
that CAS is the principal degree-conferring school in the University
undergraduate program. In analyzing the percentage of classes taught
by TAs in all NYU classes (graduate, undergraduate, and nondegree) of
all schools, the Petitioner concluded that TAs taught 20 percent of these
classes. This includes schools where TAs have few (School of Educa-
tion, Tisch) or no (School of Law and School of Social Work) assign-
ments as the stand-alone teacher in classes. Petitioner also did an
analysis based on number of hours of instruction and concluded that
TAs taught 55 percent of the class hours.
The Employer’s study was based on all schools, not just the CAS,
and different methodologies were used. First, the Employer looked at
the course coverage from a student perspective, and second, the course
coverage by department hours of instruction weighted by enrollment
(Petitioner also did an analysis based on hours of instruction, not
weighted by enrollment, and concluded that 55 percent of the class
hours were taught by TAs). In analyzing the course coverage from the
student perspective, the Employer looked at the amount of time a stu-
dent would spend with faculty members and TAs. In doing so, the
Employer calculated it based on what percentage of time a student
would spend with a faculty and TA if the student were to take every
course offered by the university. Based on this methodology, a student
would see a TA in a lecture, seminar or studio 5 percent of the time
they spent in those classes, and 20.1 percent of the time spent in a reci-
tation or lab section (for all classes, a student would spend 6.6 percent
of their time in a class with a TA and 89.5 percent with a faculty mem-
ber). In the Employer’s second methodology, the hours of instruction
were weighted, such that it takes into account the length of the class
and number of students in the class. For example, if an introductory
physics class consisted of a 1-hour lecture by a faculty-member given
to 100 students, and ten recitation sessions of ten students each, each
led by a different TA, the lecture component would be counted as 6000
minutes of undergraduate instruction (60 minutes X 100 students),
whereas one recitation section would be counted as 600 student minutes
(60 minutes X 10 students). Only one of the 10 recitation sections
would be counted as TA instruction time, because from the student’s
perspective, they would be attending one lecture and one recitation
session. Based on this weighted by enrollment methodology, the Em-
ployer’s study concluded that TAs teach 8.9 percent of the teaching
hours of lectures, seminars, and studios; 48.4 percent (faculty 48.75
percent) of the weighted teaching hours of recitations and labs, and for
all types of classes combined, TAs teach 13.9 percent of the weighted
hours, as opposed to 84.2 percent taught by faculty.
17 TAs teach approximately 95 percent of the Expository Writing
Program classes (some are taught by adjuncts). There are 118 to 128
EWP TAs each semester, depending on the number of undergraduate
students. In the course-offering catalog, the EWP TAs and Adjuncts
are referred to as “staff.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212
mentors, who are also graduate assistants, and the program is
overseen by five Director-faculty members. EWP TAs apply to
the EWP program, as opposed to being selected by their own
departments or advisors. Part of the application process in-
volves editing a student writing and answering questions on
dealing with classroom situations. EWP TAs must have either
a Masters or 1 year of study towards a Ph.D. in order to be
eligible, and must commit to teach in the program for at least 2
years (they receive letters which state that they are appointed
for two semesters, and that the assistantship is renewable for
three years). After teaching for 3 years, EWP TAs are eligible
to become EWP TA mentors.
Foreign language instruction, also an undergraduate MAP
requirement, is also primarily provided by TAs. TAs teach
several classes a week, prepare lessons and exams, correct
homework, grade exams, and hold office hours. Language TAs
may also be assigned to handle student tutorial sessions, assist
with special events and newsletters or help faculty members in
their research. Teaching assignments are made in part based on
linguistic ability. Many language TAs are native speakers of
the languages they are teaching.
TAs in the School of Education oversee undergraduate (and
some graduate) students who are participating in field place-
ments as student teachers as part of their educational programs.
This involves the observation of the NYU student while the
student teaches classes to public school students, mentoring the
NYU student, and consulting with the classroom teacher on-site
and the professor in charge of the program. These field super-
vision functions are performed almost entirely by TAs, al-
though adjuncts are also hired to perform these functions. The
TA may be the only NYU representative observing a student
teacher in the classroom. There are other TAs within the
School of Education who conduct recitation sections associated
with introductory courses and others who assist or teach other
types of classes, such as seminars.
In addition to the TAships in the College of Arts and Sci-
ences and in the School of Education, TAships are also avail-
able in other schools, primarily Tisch and Stern. Tisch TAs are
assigned to undergraduate introductory courses and are ex-
pected to perform the traditional TA duties described above,
including conducting the recitation sessions. Tisch graduate
students who hold a Masters degree may also apply to be an
EWP TA. Stern TAships, referred to as “teaching fellowships,”
are available to second year MBA students and to Ph.D. stu-
dents, and also involve carrying out the TA duties described
above.
All TAs attend a mandatory 2-day university-wide training
seminar. The training, led by faculty and former TAs, covers a
variety of issues including teaching techniques, classroom
management, and university policies. TAs also receive the
“NYU Handbook for Teaching Assistants” which includes tips
on teaching and sets forth university policies applicable to the
undergraduates regarding registration, adding and dropping
courses, the pass/fail option, incompletes and grading, as well
as policies dealing with issues such as sexual harassment, be-
havioral problems and medical conditions of students. There is
TA training within departments and TA duties and responsibili-
ties are also often spelled out in departmental handbooks.
There is specific training for MAP preceptors, EWP TAs, and
foreign language TAs (a weeklong course for French, Spanish,
Italian, and German).
Other training programs include the International Teaching
Assistant Training Program, which is required for TAs for
whom English is a second language. In the Physics department
a teaching practicum was developed for TAs in response to
complaints by undergraduates regarding the quality of the TA
instruction and the TAs’ grasp of the English language. This is
a mandatory for-credit course for Physics TAs. Other depart-
ments have workshops and seminars throughout the semester
for its TAs. Finally, there is the EQUAL program, which or-
ganizes events and services for faculty and TAs on issues of
teaching. For example, the program organizes symposia on the
philosophical foundations of pedagogy, multiculturalism, and
teaching social justice. The EQUAL program also facilitates
teaching observation and video work.
Serving as a TA is a requirement of obtaining a doctoral de-
gree in NYU’s Physics, Biology and Psychology departments,
the Stern School of Business and in the Center for Neural Sci-
ence (CNS).18 All of these departments guarantee full funding
to all entering doctoral candidates for the duration of their stud-
ies. While these students are serving as TAs, they receive sti-
pends and tuition remission in the same manner as other TAs,
but at other times are funded through other various sources.
Serving as a TA for 2 years is required of students receiving
MacCracken fellowships, which provide tuition remission and
stipends for graduate students for 5 years of study (discussed
further below).
Graduate assistants who do not teach or assist in teaching are
classified as either graduate assistants (GAs) or research assis-
tants (RAs). As in the case of the TAs, GAs and RAs are re-
quired to perform certain services in exchange for their stipend
and tuition remission.19 RAs in the social sciences and humani-
ties generally perform duties associated with assisting a profes-
sor in his or her research, such as checking references, doing
bibliographic work, obtaining research materials, proofreading,
and performing archival work. In departments where profes-
sors are involved in experimental research (Economics, Stern,
Psychology, some departments in the School of Education),
RAs recruit subjects for experiments, collect and analyze data,
and enter data onto computers. The faculty member to whom
the RA is assigned informs graduate students holding these
RAships of the expectations and requirements of the position.
Departmental handbooks also set forth RA duties. For exam-
ple, one of the Stern School handbooks provides a list of possi-
ble tasks to be performed, but RAs are advised that the kind of
work assigned will depend on the projects of the professor to
whom they are assigned.

18 Petitioner disputes that there is a teaching requirement in the Biol-
ogy Department and claims that it is merely an expectation. The
graduate student handbook for the Department of Biology indicates that
graduate students programs will “most often” require a TAship.
19 Those classified as RAs in the science departments who are
funded by external faculty research grants (Biology, Physics, Chemistry
and the Center for Neural Science (CNS)) and the GAs in the Sackler
Institute are not required to perform any specific services for NYU, as
discussed infra.
NEW YORK UNIVERSITY 1213
The services of other GAs and RAs vary widely, and the title
given to a particular position may not always match the ser-
vices performed.20 For example, the School of Education ap-
points individuals referred to as “tutors” to a program known as
the Metropolitan Center for Education (Metro Center).21 Tutors
are coded as research assistants (code 131), although one could
argue they could be classified as GAs. Metro Center tutors,
appointed for 1-year periods, participate in tutoring and mentor-
ing projects in the New York City public schools, which pro-
vide extra academic assistance to students. There are also some
individuals classified as GAs who perform mostly research
functions (in one instance, a position in the Department of
Comparative Literature was referred to as a “Research GA”).
The duties of others classified as GAs throughout the univer-
sity vary widely. For example, some GAs in the Psychology
Department counsel undergraduates in clinical training. GAs in
the School of Education’s Department of Music have varied
responsibilities such as coordinating jazz ensembles and orga-
nizing a high school jazz tour; serving as a liaison for guest
composers; or functioning as Director of an NYU company—
Village Records. GAs also serve as assistants to directors of
academic programs and there are GAs assigned to recruitment
and admissions functions. GAships may entail responsibilities
such as organizing workshops, symposia, lecture series and
special events; administering video, slide, film and book collec-
tions; or performing editorial and production work, in some
cases having responsibility for journals and newsletters. Some
GAships have included the assignment of clerical functions.
GAs in the Tisch School, which is comprised of 12 depart-
ments in performing and cinematic arts, also perform specific
services in exchange for stipends they receive. Tisch itself
confers undergraduate Bachelors of Fine Arts (BFAs) and Mas-
ters of Fine Arts (MFAs) in departments which train artists for
professional careers. Ph.D.’s in cinema studies and perform-
ance studies are also available, and these degrees are conferred
through GSAS. Both the artistic programs and the scholarly
programs have a number of GAships, and the scholarly Ph.D.
programs such as Cinema Studies offer TAships as well.22 The

20 The February 1999 report issued by NYU summarizing a study
done on graduate assistantships declared that henceforth graduate assis-
tantships would be classified so as to correspond to the title, i.e., TAs
would be those whose duties focus on teaching skills, RAs would be
those focusing on research and GAs would be those focusing on a
variety of professional and technical skills. The report further stated
that certain graduate assistantships would no longer be considered
graduate assistantships if the positions did not comport with NYU’s
“commitment to provide assistantship experiences that are directly
relevant to students’ academic pursuits and career development.”
21 Although called tutors, these are not the same “tutors” classified
under Code 111 along with “graders.”
22 There were 82 Tisch GAships and TAships for the 1998–1999
year in the following departments: graduate film, dramatic writing,
performance studies, cinema studies, drama, dance, design, graduate
acting, interactive telecommunications, musical theatre, the student
affairs office, and the dean’s office. Thirty-two of these were 100
percent funded by the particular department. All other GAships were
partially funded through Federal workstudy funds—providing that the
department pays 35 percent of the stipend and the government 65 per-
cent. Financial need must be demonstrated in order to receive a
GAships vary greatly. Written job descriptions exist for many
Tisch GAships for positions such as “Scene Shop De-
signer/Master Carpenter,” “Production Office Assistant,” “Cos-
tume Shop Assistant,” “Scene Shop Assistant/Scenic Artist,”
and “Stage Lighting Assistant/Master Electrician.” The Dra-
matic Writing Program also offers a variety of GAships, some
of which fill administrative needs of a particular program.
The Stern School of Business graduate programs include a
very large MBA program, and a Ph.D. program with a total of
approximately 110 Ph.D. candidates. A full-time MBA candi-
date normally completes the program in 2 years. Second year
MBA students are eligible to compete for a TA position (re-
ferred to as a “teaching fellow”) or a GAship in return for
which they can receive partial tuition remission.23 The teaching
fellow is similar to a traditional TAship as described above and
the GAship is a position with specific duties and requirements.
The Stern Ph.D. program, which like other Ph.D. programs has
a target completion time of 5 years, provides full funding for its
doctoral students for up to 5 years. In exchange for this fund-
ing Stern doctoral students are required to serve as RAs during
their first 4 years of study and as a TA in the fifth year (the time
commitment is 10 hours a week for the first year, and 20 a
week thereafter).24
Almost all graduate assistantships require a 20-hour a week
time commitment,25 and graduate assistants are generally pre-
cluded from seeking other employment. The Graduate School
of Arts and Science Bulletin states that graduate assistants
“may not accept employment or engage in any other occupation
without the permission of the department or the Dean.” Many
graduate assistants must sign a document referred to as the
“Conditions of Award,” which sets forth requirements of their
positions.
While there is no formalized universitywide training for GAs
and RAs as there is for TAs, GAs, and RAs may receive train-
ing in the department in which they work, or they learn on-the-
job. As mentioned above, many departments issue handbooks
that contain information regarding graduate assistant responsi-
bilities and duties, as well as terms and conditions of the posi-
tion. The Department of Politics graduate handbook, for exam-
ple, states that RAs are expected to work 20 hours a week per-
forming duties that may consist of “library work, xeroxing of
research materials, computer work, and other related matters.”

workstudy position. According to Tisch’s Dean Mary Campbell, some
of the positions classified as 100 percent departmentally funded
GAships were converted to work study positions for the 1999–2000
year because the administrative or clerical nature of the job no longer
qualified them as GAships pursuant to NYU’s new guidelines regard-
ing GAships.
23 Tuition remission for Stern MBA graduate assistants ranges from
$5000 to $18,000 per year (tuition is approximately $25,000), but no
stipends are given.
24 The Stern Ph.D. program requires RAships and/or TAships be-
cause, according to the Employer, unlike the MBA program, Ph.D.
students are not training for a business career; rather they aspire to
teaching and research positions.
25 There are a few graduate assistantships that require fewer hours,
such as the first-year Stern RAship. The evidence in the record re-
vealed that graduate assistants often (especially with regard to TAs)
devote more than 20 hours a week to their duties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1214
Other departments have written job descriptions. The written
job descriptions that exist for the Tisch GAs set forth the re-
sponsibilities of the job, the chain of command to be followed
on the job, and the time commitment expected (an average of
20 hours). The job descriptions also state that any outside work
must be approved and that any hours of work missed must be
made up. Costume Shop GAs are given a schedule of GA work
time and advised in writing that if a holiday falls on a day nor-
mally worked, the time must be made up. The Dramatic Writ-
ing Program GAs are required to attend mandatory staff meet-
ings, attend departmental events, and work at the front desk.
The Dramatic Writing GAs are advised in writing that their
“job performance” is reviewed from year to year.
Stern teaching fellows and GAs are presented with a “con-
tract” which sets forth the terms and conditions of the appoint-
ment, such as the time commitment required, and a requirement
that any missed hours must be made up. The Stern Ph.D. hand-
book specifies that the doctoral student’s stipend is contingent
on satisfactory performance as a RA, and that an RAship can be
terminated. As with most graduate assistantships, outside work
must be approved.26 Stern RAs are told to keep track of their
hours.
Tutors in the Metro Studies program are issued the “Team
Success Resource Book” which sets forth the specific require-
ments of tutors such as “Terms of the Appointment” (20 hours
required—no outside employment permitted); “Attendance”
(each tutor is allowed 3 sick days and 3 absences); and “Work
Schedule” (the project director will approve work hours, sched-
ule and reschedule work deadlines, assign tasks, and monitor
work progress and performance). Metro Center tutors are re-
quired to punch time cards. GAs in the Ettinghausen Library
are issued specific guidelines regarding their duties in staffing
the library. These GAs are the only NYU representatives re-
sponsible for staffing the library, and are each charged with
opening and running the library for 15 of their 20 hours re-
quired of the GAship.
In addition to being informed of the expectations and rules
applicable to the graduate assistantships, graduate assistants are
advised of the consequences of poor performance. EWP TAs
are told, in writing, that they can be put on probation or re-
placed if not performing up to par. According to the testimony
of one professor, a graduate assistant who is not performing
satisfactorily could lose his or her stipend, while not being ter-
minated from the doctoral program (this has not occurred).
Other professors testified that if a TA were to perform poorly in
the classroom, he or she might be reassigned to perform other
services for NYU, but there would be no academic reprisals.
The School of Education’s Metro Center program advises its
graduate assistants that their appointments are contingent on
satisfactory performance and attendance. Graduate assistants at
Stern are also advised in writing that their assistantship can be
terminated.
In addition to the GAs or RAs performing specific services
in exchange for their stipends and tuition remission in the vari-
ous departments as described above, there are graduate students

26 Stern students are permitted to earn up to $3000 in other NYU po-
sitions, such as a grader.
in certain science departments classified as RAs or GAs who
receive stipends from monies derived from external faculty
research grants. Most of these grants are obtained from the
National Institute of Health (NIH) or the National Science
Foundation (NSF). There are a small number of individuals
classified as RAs in the Biology, Physics and Chemistry De-
partments and the Center for Neuroscience (CNS) who are
funded by these external faculty research grants.27 The evi-
dence revealed that students classified as RAs in these depart-
ments are performing the research required for their disserta-
tion, which is the same research for which the professor has
obtained an outside grant.28 No specific services are required
of these Ras—the students are simply expected to progress
towards their dissertation. RAs in these departments do not
specifically apply for these positions (these departments are
fully funded). Instead, the positions are awarded to them.
Similarly, graduate students performing research for their
dissertation in the Sackler Institute29 receive stipends from
27 There are approximately 5 such students in Biology (out of 56
doctoral students), 4 in Physics (out of 45-50 doctoral students), and 7
in CNS (out of 29 doctoral students). There was also testimony that
there are approximately 10–15 similarly situated RAs in the Chemistry
Department. The other doctoral students in these departments may
hold TAships requiring specific services, or they may be funded
through other sources, such as fellowships.
28 Students chose their dissertation topics after becoming familiar
with the focus of the research being conducted in the various labs, and
by meeting the professors who run each lab.
29 The Sackler Institute of Graduate Biomedical Sciences is the um-
brella organization for all graduate programs at the Medical School.
There are approximately 140 Ph.D. candidates and 78 students pursuing
a combined MD/Ph.D. Although Sackler is a division of GSAS, it is
funded under the Medical School budget, except that some recruiting
resources are obtained from the GSAS (FAS). Although the Employer
claims that Sackler is not part of the Medical School (see fn. 317 of the
Employer’s brief), Sackler Director Dr. Oppenheim’s testimony estab-
lished that Sackler is the Institute of all graduate programs at the Medi-
cal School. Sackler’s publication listing its research faculty states,
“School of Medicine” on its cover. The evidence also established that
the seven departments in Sackler are departments of the Medical
School, that most faculty for Sackler are Medical School faculty, and
Sackler’s administrative offices, classrooms and laboratories are lo-
cated at the Medical School. Sackler students take most classes at the
Medical School, although they may occasionally take classes at other
locations.
The Medical School is located at 33rd Street and 1st Avenue, adja-
cent to what was previously known as the NYU Hospital (Tisch Hospi-
tal) and the Rusk Institute. Prior to July 1998, the Medical School,
NYU Hospital (Tisch) and the Rusk Institute together were known as
the NYU Medical Center. In 1998, the NYU Hospitals (Tisch Hospital
and the Rusk Institute) split off and merged with certain Mt. Sinai
entities, becoming the NYU/Mt. Sinai Health System Organization
(HSO). The Medical School remains as an NYU institution and is one
of its 13 schools. The Sackler GAs conducting research in Medical
School laboratories are supported by faculty research grants that also
support research fellows and postdoctoral fellows working in those
labs. Also working in the labs are research technicians and post-
doctorate researchers who are Medical School employees. Prior to the
dissolution of the NYU Medical Center in 1998, the NYU Medical
Center Human Relations Department handled employment relations
matters (including payroll and benefit administration) for Medical
School employees, and for Sackler GAs. Since July 1998 when the
NEW YORK UNIVERSITY 1215
external faculty grants from the NIH and the NSF. For some
reason, Sackler doctoral students are classified as GAs, not
RAs, even though research is the focus of their degree.30 Each
and every Sackler doctoral student is classified as a GA and
receives funding through outside grants, whereas not all doc-
toral students in the other sciences (Biology, Chemistry, Phys-
ics and CNS) are RAs funded through external NIH or NSF
grants—some hold traditional TA positions or are funded
through other sources. The record revealed that being classi-
fied as a GA in Sackler is co-extensive with being a graduate
student and there are no duties required of a GA. Sackler doc-
toral students do not apply to be a GA; they are simply ap-
pointed as such upon their admission into Sackler. The letter
advising students of their admission to Sackler does not advise
students that they are GAs. It simply states that the student has
received a “scholarship” providing for a yearly stipend, as well
as guaranteed housing in university owed apartments and health
insurance coverage. Students are told that satisfactory aca-
demic performance is the only requirement of receipt of the
“scholarship” and continuation in the program. The Sackler
students are supported during their first year through the School
of Medicine budget. By the second year, all Sackler students
are supported by the NIH or NSF research grants held by the
GA’s research mentor.
Graduate assistants are selected primarily on the basis of the
merit of the applicant as opposed to financial need.31 Many of
the graduate assistant positions require specific experience to
suit the needs of that position. The MAP program specifically
seeks applicants with prior teaching experience and competence
with respect to the material to be taught. Being a TA for the
EWP program requires demonstrated writing and editing abil-
ity. Graduate assistant applications often ask for details regard-
ing previous work experience. Some written job descriptions
for Tisch GAs specifically set forth the experience and back-
ground needed for the position.
Graduate students in most departments are eligible to receive
what are known as MacCracken fellowships.32 The selection
of MacCrackens is based on academic merit. Those students

HSO was created, the HSO, pursuant to an agreement with NYU, ad-
ministers the payroll and benefits for Sackler GAs and for medical
school employees such as research technicians and post-doctorate re-
searchers. Responsibility for human resources functions for these
employees will eventually be taken over by NYU, according to a transi-
tion plan in place. Benefits and payroll for faculty and post-doctorate
fellows who work in the labs with the Sackler GAs are handled by
NYU, not the HSO. Employees of the Medical School have histori-
cally not been included in collective-bargaining units of other NYU
employees (the collective-bargaining agreements for clerical employ-
ees, maintenance employees and security guards all specifically ex-
clude Medical School employees and this was usually by agreement
between the parties).
30 The payroll code for Sackler GAs is not either 101, 111, or 130 as
it is for other GAs. It is “0200” which emanated from the NYU Medi-
cal Center coding system.
31 An exception to this practice is that some Tisch GAships are par-
tially funded by government workstudy funds, which require a showing
of need (see fn. 20).
32 Sackler, CNS, and Tisch graduate students are not eligible for
MacCrackens.
accepted as MacCrackens are guaranteed 5 years of funding,
which consists of tuition remission and a stipend.33 Of course,
tuition remission is applicable for the course work period only,
which for most Ph.D. students is 2 years. As a requirement of
receiving a MacCracken fellowship, the recipients must serve
as a TA for 2 years. When a MacCracken recipient functions as
a TA, he or she is functioning in the same way a TA who is not
a MacCracken recipient is functioning. During the 2 years that
the recipient is a TA, the stipend received is classified in the
departmental budget as a “personnel” expense, as is the case
with all TAships. The MacCracken fellowships are funded by
NYU.34
While many graduate assistantships are assigned on a semes-
ter basis, some programs require service for an academic year,
and others seek longer commitments. For example, EWP TAs
must commit to 2 years of TA work, but many serve from 3 to
5 years.35 Metro Center tutors are appointed for an academic
year. MacCracken recipients are required to serve as TAs for 2
years. A study conducted by the Employer concluded that on
average, graduate students who serve as graduate assistants do
so for at least 3 years (six semesters) which is half of the aver-
age time they attend NYU. Most of the graduate student wit-
nesses who testified in this matter served as a graduate assistant
for at least four semesters and many for six or more semesters.
As mentioned above, only about 1700 of the 17,000 graduate
students obtain graduate assistantships each year. Other gradu-
ate students may receive scholarships, fellowships, loans or
other types of funding in order to assist them financially during
their graduate education. While stipends paid to graduate assis-
tants are processed through the NYU payroll department as
mentioned above, stipends paid to students receiving fellow-
ships are processed through the general accounting office and
payments made to graduate students on scholarships are paid
though the financial aid office. Graduate assistants are required
to complete IRS W-4 and INS I-9 forms—these forms are not
required for students receiving funds under a fellowship or
scholarship. Payroll taxes are deducted on amounts received by
graduate assistants, but not for amounts received pursuant to a
fellowship or scholarship. Graduate assistant stipends are des-
ignated in departmental budgets as “personnel” costs (this in-
33 Almost all MacCrackens are awarded to Ph.D. candidates.
34 On the last day of hearing in this matter, NYU submitted evidence
that it is restructuring the manner in which GSAS graduate students are
funded. According to a memorandum from Jess Benhabib, Interim
Dean of FAS and Catherine Stimpson, Dean of GSAS, all doctoral
students who enroll in GSAS in 2000–2001 and thereafter will be Mac-
Cracken Fellows and will be guaranteed a minimum annual (9-month)
stipend of $13,000 for either 4 or 5 years (MacCracken recipients
currently constitute 20–25 percent of GSAS doctoral students).
MacCrackens will be required to teach a minimum of two semesters,
but no more than six semesters. According to the memo, this new
framework does not apply to programs in Sackler, Cinema Studies,
Performance Studies, and the Institute of Fine Arts. The memo states
that the new program assures that all GSAS doctoral students will have
teaching experience. According to the Employer, this new financial
structure will result in the elimination of virtually all GSAS positions
previously classified as GAs.
35 EWP TAs are told that requests for leaves of absence will be
granted only in exceptional circumstances.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1216
cludes the TA semesters of a MacCracken). Fellowship and
scholarship amounts are listed in the budget under the “finan-
cial aid” category. Tuition remission for graduate assistants is
reflected in the Faculty of Arts and Sciences budget as “fringe
benefits.”36
The graders and tutors included in the petitioned-for unit are
graduate students whose responsibilities typically involve grad-
ing for courses and tutoring of students. Typically, students in
these categories receive an academic appointment with the title
“grader” or “tutor.” While the petition only includes graduate
tutors and graders, both graduate and undergraduate students
receive such assignments, generally on a nonrecurring basis,
with appointments lasting from 1 week to one semester. Stu-
dents may receive more than one assignment prior to gradua-
tion. Generally, assignments are made at the discretion of each
department without admissions committee review of a student’s
academic merit. These assignments are conferred without tui-
tion remission.
Typically, graders and tutors are expected to devote 8–10
hours per week to grading and tutoring activities. Cash dis-
bursements related to these activities vary according to aca-
demic department policy. In some cases, students receive a
fixed amount. In other cases, disbursements are formulaic, tied
to the number of students graded or tutored. Payments for
these services appear on the budget under the personnel payroll
code of 111.
Analysis
The initial issue to be addressed is whether the individuals in
the petitioned-for unit are employees within the meaning of the
Act. Section 2(3) states that the term “employee” is meant “to
include any employee…unless the Act explicitly states other-
wise” (emphasis added). In NLRB v. United Insurance Co., 390
U.S. 254 (1968), the Supreme Court stated that common law
agency principles are to be applied when determining who is an
employee under the Act (using common law agency test to
distinguish between “employee” and “independent contractor”).
See also Community for Creative Nonviolence v. Reid, 490 U.S.
730 (1989), where the Court emphasized the multi-factor analy-
sis by specifically relying on the Restatement (Second) of
Agency, Section 720, the definition of servant.37 In Sure-Tan,

.

36 Tuition remission is nontaxable.
37 The Restatement provides, in pertinent part:

(1) A servant is a person employed to perform services in the
affairs of another and who with respect to the physical conduct in
the performance of the services is subject to the other’s control or
right of control.
(2) In determining whether one acting for another is a servant
or an independent contractor, the following matters of fact, among
others, are considered.
(a) The extent of control which, by the agreement, the master
may exercise over the details of the work.
(b) Whether or not the one employed is engaged in a distinct
occupation or business.
(c) The kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the em-
ployer or by a specialist without supervision.
(d) The skill required in the particular occupation.
Inc., 467 U.S. 883 (1984), the Court noted that the “breadth of
§2(3) is striking. . . .” holding that undocumented aliens
“plainly come within the broad statutory definition of em-
ployee.”
More recently, in NLRB v. Town & Country, 516 U.S. 85
(1995), the Court stated that a broad and literal interpretation of
the word “employee” is consistent with the legislative history
and with the Act’s stated purpose of “encouraging and protect-
ing the collective bargaining process.” In Town & Country, the
Court, using a common law test, reasoned that although some-
one may be paid by a Union to organize a company, this indi-
vidual is still an “employee” if he or she is working for the
Employer for compensation. The Court stated, “[i]n the past,
when Congress has used the term ‘employee’ without defining
it, we have concluded that Congress intended to describe the
conventional master-servant relationship as understood by
common-law agency doctrine.”38 After looking to the defini-
tion of “employee” in the American Heritage Dictionary (“any
person who works for another in return for financial or other
compensation”) and Black’s Law Dictionary (“a person in ser-
vice of another under any contract of hire, express or implied,
oral or written, where the employer has the power or right to
control and direct the employee in the material details of how
the work is to be performed”), the Town & Country Court con-
cluded that, “[t]he phrasing of the Act seems to reiterate the
breadth of the ordinary dictionary definition for it says, ‘[t]he
term “employee” shall include any employee.’” 28 U.S.C. §
152(3) (1988 ed.) (emphasis added). Thus, the Supreme Court
has repeatedly noted that the Board’s historic reading of the
definition of “employee” under the Act has been literal and
broad.
Recently, the Board used the common law definition of em-
ployee in WBAI Pacifica Foundation, 328 NLRB 1273 (1999).
In WBAI, the Board cited to the dictionary definitions set forth
in Town & Country, such as a “person in the service of another
. . . where the employer has the power or right to control and
direct the employee” and “a person who works for another in
return for financial or other compensation.” Finding that
volunteers did not satisfy the common law requirement of
“compensation,” the Board found these individuals not to be
employees covered by the Act. In doing so, it noted that, “[a]t
the heart of each of the Court’s decisions is the principle that
employee status must be determined against the background of
the policies and purposes of the Act.” Id at 4
However, even if students could meet the statutory definition
of employee, for many years the Board excluded from em-
ployee status medical interns and certain graduate research

(e) Whether the employer or the workman supplies the in-
strumentalities, tools and the place of work for the person doing
the work.
(f) The length of time for which the person is employed
(g) The method of payment whether by the time or by the job.
(h) Whether the work is part of the regular business of the
employer.
(i) Whether the parties believe they are creating the relation
of master and servant.
Whether the principal is or is not in business.
38 Town & Country Electric, infra at 94.
NEW YORK UNIVERSITY 1217
assistants. In Cedars-Sinai Medical Center, 223 NLRB 251
(1976), the Board concluded that medical interns and residents
(referred to as “housestaff”) who worked at the hospital in or-
der to complete the clinical portion of their medical education
were primarily students and therefore not employees. In St.
Clare’s Hospital, 229 NLRB 1000 (1977), the Board further
explained that since the medical interns work was an integral
part of their educational program, their relationship with the
hospital was more academic than economic, and that an aca-
demic relationship was not adaptable to the collective-
bargaining process. In Leland Stanford Junior University, 214
NLRB 621 (1974), the Board held that the university’s graduate
research assistants in the Physics department, who received
non-taxable stipends for conducting research that was required
for their dissertations, were not employees under the Act.39
In dissent to the majority opinion in Cedars-Sinai, Board
Member Fanning argued that the fundamental question should
always be whether one is an “employee,” regardless of whether
one is “primarily a student.” Fanning, seeing no basis adminis-
tratively to create an exception to the statutory definition of
employee, stated that the decision was “not grounded in the
statute, the law, or reason.”40 He wrote that “simply because an
individual is ‘learning’ while performing this service cannot be
said to mark that individual as ‘primarily a student and there-
fore not an employee’ for purposes of our statute.” Id. at 256.
Recently, the Board, in Boston Medical Center Corp., 330
NLRB 152 (1999), overruled Cedars-Sinai Medical Center and
St. Clare’s Hospital & Health Center, and held that the
housestaff employed by a hospital are “employees” within the
meaning of Section 2(3) of the Act, even though at the same
time they are employed, they are students learning their chosen
medical craft. After many years of excluding those interns and
residents who otherwise fit the definition of “employee” under
common law because they were also students, the Board
adopted former Member Fanning’s view in his dissent in Ce-
dars-Sinai.
The Employer contends that Board law clearly establishes
that all graduate teaching and research assistants are excluded
from the definition of employee in the statute and that Boston

39See also San Francisco Art Institute, 226 NLRB 1251 (1976),
where the Board held that undergraduate student janitors working for
their educational institution were not entitled to the Act’s protections
because they were primarily students. The Board in San Francisco Art
also analogized the student janitors to temporary or casual employees.
40 It is also noted that in Physicians House Staff Assn. v. Fanning,
642 F. 2d 492 (D.C. Cir. 1980), the Court of Appeals, in reviewing the
Board’s decision to exclude medical interns and residents from cover-
age under the Act, four members of the panel stated in dissent that the
legislative history of the Act clearly demonstrated that house staff were
employees of the Act. In their view, the Board’s majority decision in
Cedars-Sinai was so contrary to the Act that judicial review was war-
ranted under the extraordinary Leedom v. Kyne exception to the normal
rule of nonjudicial review of representation case decisions. While the
majority held that the Leedom v. Kyne exception was not applicable, it
did not endorse the Board’s exclusion of all housestaff from the defini-
tion of employee. Housestaff, therefore, continued to be excluded from
the Act’s coverage until the Board recently reconsidered this exception
to its usual application of the broad common law definition of em-
ployee.
Medical did not alter the Board’s decision in this regard. In
support of its position the Employer relies on Adelphi Univ.,
195 NLRB 639 (1972) and Leland Stanford Junior Univ., 214
NLRB 621 (1974), as well as on the rationale in Cedars-Sinai
Med. Ctr., supra. While there is some language in these deci-
sions to support the Employer’s contention, it appears that the
holdings are not as broad as the Employer suggests. Thus, the
issue in Adelphi was whether the graduate assistants should be
included in the unit with non-student faculty. The Board de-
clined to do so based on a community of interest considera-
tions. In Leland Stanford, the Board held that the graduate re-
search assistants in that case were not employees under the Act.
There, the research assistants’ relationship with the University
was not grounded on the performance of a given task where
both the task and the time of its performance was designated
and controlled by the employer. Rather, the Board found it was
a situation of students within certain academic guidelines hav-
ing particular projects on which to spend the time necessary, as
determined by the project’s needs. Moreover, any reliance on
Cedars-Sinai is misplaced as its rationale is no longer consis-
tent with Board law. It is also noted that in Service Employees
International Union, Local 254, AFL–CIO (Massachusetts
Institute of Technology), 218 NLRB 1399 (1975), enfd. 535
F.2d 1335 (1st Cir. 1976),41 the Board found graduate assistants
to be employees although the issue was not specifically raised.
Thus, I am unable to conclude, as the Employer asserts, that
Board law by which I am bound, excludes all graduate and
research and teaching assistants from the statutory definition of
employee on the sole basis that they are also students. Even if I
were to accept the Employer’s broad interpretation of the hold-
ings in Adelphi and Leland Stanford, the rationale in Boston
Medical essentially undermines this interpretation and pre-
cludes the automatic exclusion of students from the definition
of employee. Thus, it appears that the particular nature of the
relationship must be examined to determine employee status.
In applying the common law agency definition of employee
to the graduate assistants at issue here, it would appear that they
clearly fall within that definition. The graduate assistants per-
form services under the control and direction of the Employer,
in exchange for compensation. The Employer has specific
expectations of graduate assistants that are often spelled out in
departmental or program handbooks, by job descriptions, or by
NYU representatives. NYU representatives supervise the work
of the graduate assistants. The Employer provides the supplies
and the place of work for the graduate assistants. In the case of
TAs, NYU provides extensive training as to the nature of the
services to be provided, including training on the application of
NYU policies to the undergraduates. As for their compensa-
tion, graduate assistants’ stipends are treated like any other
personnel salary in that they are processed through the payroll
department and distributed in biweekly checks. The IRS treats
41 See also Yale University, 330 NLRB 246 (1999), where the Board
remanded to the ALJ the issue of whether graduate assistants were
statutory employees, an action that would not appear necessary if the
issue was foreclosed by extant Board law. Similarly, the Board denied
the special appeal in the instant case on the same issue. See note 1
above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1218
the stipends as taxable income or “salary for services ren-
dered.” Graduate assistants must complete certain forms, such
as the INS I-9 form, which are required of employees, but
which are not required of other graduate students. Finally,
graduate assistants are subject to removal or transfer. Based on
the foregoing, it is clear that the graduate assistants sought by
the Petitioner meet the statutory definition of employee under
Section 2 (2) of the Act.
Having reached the decision that the petitioned-for unit con-
tains individuals who meet the statutory definition of employ-
ees, it must next be determined if, as the Employer suggests,
policy reasons exist to create an exception for graduate teaching
and research assistants sought to be represented in the instant
petition. NYU does not dispute that it is an employer engaged
in commerce within the meaning of the Act or that graduate
assistants perform services for which they receive stipends and
tuition remission in exchange for these services. The Employer
argues, however, that the services performed by the graduate
assistants are so integrated with the academic programs of the
students (and sometimes required by the programs) that the
graduate assistants services are simply part of their education.
Further, NYU claims that the graduate assistants are not “com-
pensated” for these services, rather the stipends and tuition
remission they receive is part of an integrated financial aid
system.42 The Employer notes that when a relationship is
guided by business considerations and characterized as a typi-
cally industrial relationship, statutory employee status has been
found. When, however, the relationship is primarily rehabilita-
tive and working conditions are not typical of the private sector
working conditions, the Board has not found employee status.
See, e.g., Goodwill Industries of Denver, 304 NLRB 764
(1991). Here, the Employer contends, the relationship is not
guided by business considerations and is more analogous to
those cases in which employee status has not been found.
The Employer contends, in furtherance of its assertion that
graduate assistantships are merely a part of an academic pro-
gram, that graduate assistants are students receiving training,
under the guidance of experienced faculty members, as part of
their educational programs leading to graduate degrees. For
example, with respect to TAs, the Employer asserts that it runs
the graduate teaching program for the benefit of the graduate
students and not to facilitate its teaching of undergraduates.
The Employer also argues that the fact that graduate assistant-
ships are required as a part of some graduate programs supports
its argument that the assistantship is an integral part of the aca-
demic program. On the other hand, Petitioner asserts that
graduate assistantships, which are only required by a few of
NYU’s 100 departments, are not related to graduate students’

42 In support of its claim that the monies received by the graduate as-
sistants is “financial aid” rather than compensation for services, the
Employer argues that students in the fully funded departments receive
the same amount of financial aid regardless of whether they are provid-
ing services to NYU. They also claim that stipend levels are based on
the amount necessary to attract and retain the most qualified students
(and that the amount provided is far above the market rate), and that the
number of graduate assistants is not based on the needs of the Univer-
sity. None of these arguments persuade me that the graduate assistants
are not receiving compensation in exchange for services rendered.
own academic programs because TAs often teach outside of
their areas of academic concentration and because they teach
courses or perform duties which involve skills and content with
which they are already fully versed. Petitioner further argues
that TAs are rarely observed and evaluated by faculty members;
that the training that they receive is job related as opposed to
career related; that the graduate assistantships often interfere
with rather than enhance the graduate students’ academic pro-
grams and that graduate students accept graduate assistantships
generally because they need the money. Petitioner concludes
that Boston Medical is controlling here and the same finding of
employee status must be made.
The Employer asserts that Boston Medical is not dispositive
of the issue here since the NYU graduate assistants have not yet
received their graduate degrees and are enrolled as students in a
“traditional academic setting.” In Boston Medical, on the other
hand, the house staff have completed their graduate degrees and
are pursuing post-graduate training. The Employer also at-
tempts to distinguish Boston Medical by noting that the house
staff described in Boston Medical spend 80 percent of their
time providing services (patient care) for the Employer,
whereas graduate assistants normally spend 15 percent of their
time performing graduate assistant duties (and 85 percent on
their studies). Finally, the Employer notes that house staff
work full time (year round) for 3–5 years, whereas graduate
assistants, on average, hold graduate assistantships for one-half
of the semesters (14- to 15-week semesters) they are in gradu-
ate school. 43
While describing a potential distinction between housestaff
and those students in a “traditional academic setting,” the
Board in Boston Medical noted that the housestaff it was find-
ing to be employees, do not pay tuition or student fees, do not
take typical examinations in a classroom setting, or receive
grades. These factors supporting a finding of employee status
are applicable with respect to the graduate assistants at issue
here. The graduate assistants are matriculated students, but do
not pay tuition, and for the most part are serving as graduate
assistants after the completion of their course work and exami-
nations.44 While it is true that in some graduate assistantships
the graduate assistants’ work experience is also a learning ex-
perience relevant to their academic career development, Boston
Medical also noted that house staff’s “education and student
status is geared toward gaining sufficient experience and
knowledge to become Board-certified in a specialty,” id. at 10,
making it clear that just because educational benefits are de-
rived from employment a finding of employee status is not
precluded.
While the Employer asserts that the graduate teaching pro-
gram is run for the benefit of the graduate students and not to
43 Whether the employment is full-or part-time is simply not relevant
to whether individuals are afforded the Act’s protections as “employ-
ees.” The Employer conceded that, on average, graduate assistants
work for at least 3 years—a substantial period of employment and
clearly sufficient to establish employee status.
44 In some cases, a graduate student may hold a graduate assistant-
ship while still taking courses and preparing for exams, but any duties
performed or academic material that may be part of the graduate assis-
tantship is not part of the course requirements or exam coverage.
NEW YORK UNIVERSITY 1219
facilitate its teaching of undergraduates, it is clear that TAs
“play a large role in the undergraduate educational experience
at NYU.”45 Under either the Petitioner’s or the Employer’s
analysis, (see fn. 16), TAs teach a significant number of NYU’s
courses.46 Most of the courses TAs teach are the core under-
graduate courses. The evidence also revealed that the number
of TA positions available is tied to undergraduate enrollment,
not graduate enrollment.47 Moreover, the Employer’s argument
is undermined by the fact that being a graduate student is not
synonymous with being a graduate assistant. Notably, the
many graduate students who are not classified as either GAs,
Ras, or TAs do not perform services for NYU in exchange for
compensation as part of their academic program. Finally, there
is evidence that graduate assistants are subject to removal or
transfer. For example, the evidence revealed that a poorly per-
forming TA would be removed from the classroom, but that
there would be no academic reprisals for poor teaching.
While it is a not-for-profit institution, the Employer is en-
gaged in commerce within the meaning of the Act [Cornell
University, 183 NLRB 329 (1970)] and is competing with other
schools of higher learning for student enrollment. The under-
graduate students at NYU, qua customers, pay for the services
they receive, which are provided to a large degree by the
graduate assistants sought by the instant petition. If the ser-
vices were not provided by the graduate assistants, they would
be provided by instructors who may be statutory employees.
The graduate assistants are evaluated on the quality of their
work performance under direction and control by the Employer.
These essential elements establish the relationship akin to that
in a traditional business environment. It is not analogous, as
the Employer suggests, to the relationship in a rehabilitation
setting where the trainees are allowed to work at their own pace
and are not subject to production quotas and other standards of
performance. Cf. Goodwill Industries of Denver, supra and
Arkansas Lighthouse for the Blind, 284 NLRB 1214 (1987).
Moreover, the fact that individuals are learning aspects of their
trade or profession is not a basis for an exception to employee
status. See UTD Corp., 165 NLRB 346 (1967) and General
Electric Co., 131 NLRB 100 (1961). While the cited cases
involve nonprofessional employees, no legitimate basis has

45 The NYU “Handbook for Teaching Assistant.”
46 Further evidence of NYU’s reliance on TAs for undergraduate in-
struction is its creation of a special for-credit course for physics doc-
toral students on how to be a TA. This came about as a result of com-
plaints by undergraduate regarding the TAs’ abilities, as well as their
English skills.
47 A 1995 NYU document planning the implementation of the MAP
program stated that TAs would play a key role—”it is assumed that
they will each conduct two recitation sections per term, at least initially.
Given that load, an increase in the total number of teaching assistant-
ships in FAS will be necessary. Teaching assistants will be drawn
mainly from the ranks of advanced graduate students, including Mac-
Crakens, but in some areas M.A. students, adjuncts, and post-docs may
be suitable as well.” The NYU “Handbook for Teaching Assistants”
states that TAs are used to “help professors to maintain high levels of
undergraduate teaching as well as easing the time burden on faculty,
allowing faculty to devote more time to research interests.” The Uni-
versity employs approximately 450 TAs each year, which is also about
the number of full-time professors in the Faculty of Arts and Sciences.”
been offered why those in a professional learning environment
should be treated differently for purposes of collective bargain-
ing particularly where the statute specifically includes profes-
sionals in the definition of employee. Section 2(12). In this
regard, see Wurster, Bernardi & Edmmons, Inc., 192 NLRB
1049 (1971), describing the licensing process for graduates of
architecture schools who were professional employees as de-
fined in the statute.
Similarly, the fact that some departments require service as a
graduate assistant as part of the academic program is not a basis
to deny them collective-bargaining rights. Just as in Boston
Medical, the interns, residents and fellows were required to
complete their internship, residency, or fellowship as part of
their medical training. Here the doctoral students in certain
departments at NYU are required to serve as a TA in order to
obtain a Ph.D. (Biology, Physics, CNS, Psychology, and the
Stern School all have a teaching requirement). These happen to
be the same departments that offer full funding for their stu-
dents during the course of their doctoral studies, with service as
a TA as a condition of that funding. Further, MacCracken fel-
lowship recipients, who can be from any department, must also
serve as a TA for 2 years in order to receive the 5 years of fund-
ing provided by a MacCracken.
Finally, the Employer argues the policy considerations relat-
ing to the particular nature of the university setting justify the
denial of collective-bargaining rights to all graduate assistants
even if they are not excluded from the statutory definition of
employee.48 In this regard, the Employer argues that if it is
required to engage in collective bargaining over the graduate
assistants’ working conditions, “the freedom that NYU pres-
ently has to introduce . . . a program based on educational pol-
icy will be lost. In the future, any such program would have to
be bargained with the Union.” (Emp. Br. 302.) NYU also as-
serts that collective bargaining with graduate assistants will
discourage mentoring relationships between graduate students
48 The Employer claims in its brief that “it is well established that
persons who otherwise fall within the definition of ‘employee’ under
the Act may nonetheless be denied collective bargaining rights where
there are pervasive policy reasons for doing so.” The Employer cites to
NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) (managerial employ-
ees excluded from coverage) and Allied Chem. & Alkali Workers v.
Pittsburg Plate Glass, (retirees) 404 U.S. 157 (1971) for this proposi-
tion. However, as the dissent noted in Physicians National House Staff
Association v. Fanning, 642 F.2d 492 (1980), these decisions did not
rest on “policy reasons,” but instead were based upon a careful exami-
nation of the legislative history of the Act. In fact, the court reasoned
in Allied Chemical in finding that retirees are not covered by the Act,
that the term “employee” must be read literally and by its plain mean-
ing as “those who work for another for hire.” 404 U.S. at 166. Further,
the dissent in Physicians National House Staff Association pointed out
that the Act requires the Board to cover “any employee” and if it is free
to decide that housestaff, although like employees, are “primarily stu-
dents” and therefore not covered, it would also be free to decide that
“. . . plumbers or carpenters, although they ‘possess certain employee
characteristics’ are ‘primarily’ artisans and therefore not employees
within the meaning of the Act.” Id. at 511. Although an extreme ex-
ample, it demonstrates the danger of the Board relying on “policy rea-
sons” to exclude from the Act’s coverage those who otherwise fall
within the Act’s broad definition of “employee”.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1220
and their faculty advisors. According to the Employer, “anyone
with experience in collective bargaining knows that the intro-
duction of bargaining here will have a chilling effect on such
relationships.”49 The Employer argues that collective bargain-
ing will interfere with the four essential academic freedoms of
“who may teach, what may be taught, how it shall be taught
and who may be admitted to study.” Sweezy v. New Hamp-
shire, 354 U.S. 234 (1957).
Although the mission of a university is clearly different than
that of an economically motivated business, this distinction is
not a valid basis to exclude teachers from the definition of em-
ployee. It is only when the faculty is found to have managerial
status has employee status been denied. Compare NLRB v.
Yeshiva University, 444 U.S. 672 (1980), and Boston Univer-
sity, 281 NLRB 798 (1986), to University of Great Falls, 325
NLRB 83 (1997), and Cooper Union of Science & Art, 273
NLRB 1768 (1985). The conclusion that graduate assistants
are employees entitled to engage in collective bargaining, of
course, does not imply that the four essential elements of aca-
demic freedom referred to by the Employer are necessarily
mandatory subjects of collective bargaining. Indeed, it is pre-
cisely because collective-bargaining negotiations can be limited
to only those matters affecting wages, hours, and other terms
and conditions of employment that the critical elements of aca-
demic freedom need not be compromised. And, of course, the
obligation to bargain does not involve the obligation to concede
significant interests.
It thus appears that the underlying rationale of the Em-
ployer’s contention that academic freedom will be compro-
mised by the obligation to engage in collective bargaining is
essentially a rejection of the appropriateness of graduate stu-
dents speaking through a common voice for even under current
circumstances, the University must negotiate with graduate
assistants individually over their terms and conditions of their
employment. Graduate assistants who refuse to accept the terms
of the Employer’s offer of employment are free to reject them.
The limitation on academic freedom the Employer anticipates,
therefore, is not the obligation to offer employment conditions
on terms the graduate assistants are willing to accept (i.e. nego-
tiate with the graduate students as individuals), but the obliga-
tion to do so collectively. The asserted anticipated interference
with academic freedom essentially appears to be a fear that
collective action over graduate students conditions of employ-
ment will be more influential and powerful than individual
action. The issue thus framed is whether the NLRB should
deny collective-bargaining rights to employees because of this

49 The Employer raises several other arguments as to why collective
bargaining would not work in the academic setting. For example, it
asserts that in departments where graduate students are fully funded and
students all receive the same level of funding regardless of whether
they are graduate assistants or whether they receive a scholarship, col-
lective bargaining could result in the graduate assistants receiving
higher stipends than the other students. This is speculative on the part
of the Employer, but I fail to see the danger in higher stipends for cer-
tain students who happen to be providing services to NYU in addition
to focusing on their own studies. In fact, most departments currently
have graduate students receiving widely varying amounts of funding. In
some it is primarily the graduate assistants who have any income at all.
anticipated impact of collective bargaining. This suggestion
runs directly contrary to the express purposes of the Act set for
in the preamble wherein it states:
It is declared to be the policy of the United States to elimi-
nate the causes of certain substantial obstructions to the free
flow of commerce and to mitigate and eliminate these obstruc-
tions when they have occurred by encouraging the practice and
procedure of collective bargaining and by protecting the exer-
cise by workers of full freedom of association, self-
organization, and designation of representatives of their own
choosing, for the purpose of negotiating the terms and condi-
tions of their employment or other mutual aid or protection.
As the Board noted in Boston Medical, “the parties can iden-
tify and confront any issues of academic freedom as they would
any other issue in collective bargaining. The parties in this case
are not novices to collective bargaining . . . if there is anything
we have learned in the long history of this Act, it is that union-
ism and collective bargaining are dynamic institutions capable
of adjusting to new and changing work contexts and demands
in every sector of our evolving economy.” Id. at 13, 14.
Accordingly, absent specific exception in the statute or in
Board law, I must conclude that there is simply no basis to deny
collective-bargaining rights to statutory employees merely be-
cause they are employed by an educational institution while
enrolled as a student.
The Sackler GAs and the few RAs in the sciences (Biology,
Physics, Chemistry and CNS) funded by external grants, must
be separately considered. These GAs and RAs have no expecta-
tions placed upon them other than their academic advancement,
which involves research. They receive stipends and tuition
remission as do other GAs, RAs, and TAs, but are not required
to commit a set number of hours performing specific tasks for
NYU.50 The research they perform is the same research they
would perform as part of their studies in order to complete their
dissertation, regardless of whether they received funding. The
funding for the Sackler GAs and the science RAs, therefore, is
more akin to a scholarship.
As noted above, in Leland Stanford Junior University, supra,
which remains Board law, it was held that research assistants in
the school’s physics department were not employees. As is the
case here with the RAs in the sciences and the GAs in Sackler,
the RAs in Leland were funded by external grants and were
performing research on their dissertation topics as opposed to
being required to perform specific research tasks. The Board
concluded that “the relationship of the RA and Stanford is not
50 The Employer asserts that these GAs and RAs do perform services
for the University in that they help NYU fulfill its obligations under the
research grant. NYU further claims that it benefits from the RAs re-
search because the publications that result from the research increase
the faculty member’s stature and reputation and the faculty member is
better able to attract future research grants, or to continue existing
grants. This, in turn, leads to attracting more students, expansion of
areas in which to research, attracting donors and otherwise enhancing
NYU’s reputation as a research university. While all of this may be
true, it is not directly relevant to the inquiry of whether or not an indi-
vidual is providing services to the Employer under its control in ex-
change for compensation, and I have concluded that these particular
individuals classified as RAs and GAs do not.
NEW YORK UNIVERSITY 1221
grounded on the performance of specific tasks where both the
task and the time of its performance is designated and con-
trolled 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. Former Board Member Fan-
ning later noted in his Cedars-Sinai dissent that the Leland
Physics RAs were not being excluded from coverage because
they were students, but because, “they do not work or perform a
service for an employer.” Cedars-Sinai at 255 (emphasis in
original). The same is true of the RAs in the sciences and the
Sackler GAs here who are supported by outside grants.51 Based
upon all of the facts and the applicable standard, I must con-
clude that the Sackler GAs and the Biology, Physics and CNS
RAs are not employees under the Act.52 While Petitioner only
seeks to exclude the Biology and Physics RAs from the unit, it
appears from the record that CNS RAs and RAs in the Chemis-
try Department also work under external NIH and NSF grants
and are not required to perform specific services. Accordingly,
they also are excluded from the unit.
I also find that the graduate students who act as “graders”
and “tutors” should not be included in the unit. There is little
record evidence regarding the graders and tutors, but the parties
stipulated that they receive appointments lasting from 1 week to
one semester and that cash disbursements related to these ac-
tivities vary according to academic department policy. In some
cases, students receive a fixed amount, while in other cases,
disbursements are formulaic and tied to the number of students
graded or tutored. While graders and tutors perform services at
the direction of the Employer in exchange for compensation,
their employment is sporadic and irregular. The varying as-
signments (from 1 week to one semester) are for relatively
small, finite periods of time, and there was no evidence that
graders and tutors can anticipate a string of assignments or the
same assignment one semester after another. Thus, graders and
tutors are temporary employees. Where employees are em-
ployed for one job only, or for a set duration, or have no sub-
stantial expectancy of continued employment, such employees
are excluded as temporary. Indiana Bottled Gas Co., 128
NLRB 1441 fn. 4 (1960); Owens-Corning Fibergalss Corp.,
140 NLRB 1323 (1963); Sealite, Inc., 125 NLRB 619 (1959),
E.F. Drew & Co., 133 NLRB 155 (1961).
Based on the foregoing, I find that the following employees
constitute an appropriate unit for collective bargaining within
the meaning of Section 9(b) of the Act:

51 The Employer notes that there are RAs in Psychology, Economics
and the Stern School whose stipends are also funded by faculty re-
search grants. However, it appears from the record that the RAs in
these departments are assigned specific tasks, and that they work under
the direction and control of the faculty member, as opposed to the
Sackler GAs and the science RAs who are working on their own disser-
tation.
52 Sackler GAs have FICA and Workers’ Compensation deducted
from their stipends, as well as the standard payroll taxes, but the pres-
ence of these factors are not dispositive of employee status. Further, all
Sackler GAs and CNS doctoral students receive paid health insurance,
which they receive as students not because they are graduate assistants
(non-RA CNS students also receive this benefit).
Included: All teaching assistants, graduate assistants, research
assistants, (including teaching fellows, research fellows,
Metro Center tutors, and preceptors), who are classified under
codes 101, 130, 131 (referred to collectively as graduate assis-
tants) employed by New York University.53

Excluded: All other employees, graders and tutors, graduate
assistants at the Sackler Institute and those research assistants
funded by external grants in the Physics, Biology, Chemistry
and the Center for Neuroscience (CNS) Departments, and
guards and supervisors as defined by the Act.
DIRECTION OF ELECTION
An election by secret ballot shall be conducted by the Re-
gional Director, Region 2, among the employees in the unit
found appropriate at the time and place set forth in the notice of
election to be issued subsequently, subject to the Board’s Rules
and Regulations.54 Eligible to vote are those in the unit who
were employed during the payroll period ending immediately
preceding the date of the Decision, including employees who
did not work during that period because they were ill, on vaca-
tion or temporarily laid off. Also eligible are employees en-
gaged in an economic strike which commenced less than 12
months before the election date and who retained their status as
such during the eligibility period and their replacements. Those
in the military services of the United States who are in the unit
may vote if they appear in person at the polls. Ineligible to vote
are employees who have quit or been discharged for cause
since the designated payroll period, employees engaged in a
strike who have been discharged for cause since the com-
mencement thereof and who have not been rehired or reinstated
before the election date, and employees engaged in an eco-
nomic strike which commenced more than 12 months before
the election date and who have been permanently replaced.55
53 Petitioner indicated on the record that it would proceed to an elec-
tion in any unit found appropriate.
54 Please be advised that the Board has adopted a rule requiring that
election notices be posted by the Employer “at least 3 full working days
prior to 12:01 a.m. of the day of the election.” Section 103.20(a) of the
Board’s Rules. In addition, please be advised that the Board has held
that Section 103.20 (c) of the Board’s Rules requires that the Employer
notify the Regional Office at least 5 full working days prior to 12:01
a.m. of the day of the election, if it has not received copies of the elec-
tion notice. Club Demonstration Services, 317 NLRB No. 52 (1995).
55 In order to assure that all eligible voters may have the opportunity
to be informed of the issues in the exercise of their statutory right to
vote, all parties to the election should have access to a list of voters and
their addresses which may be used to communicate with them. North
Macon Health Care Facility, 315 NLRB 359 (1994); Excelsior Under-
wear, Inc; 156 NLRB 1236 (1966); NLRB v. Wyman Gordon Co., 394
U.S. 759 (1969). Accordingly, it is hereby directed that within 7 days
of the date of this Decision, 3 copies of an election eligibility list, con-
taining the names and addresses of all eligible voters, shall be filed by
the Employer with the Regional Director, Region 2, who shall make the
list available to all parties to the election. In order to be timely filed,
such list must be received in the Regional Office at the address below,
on or before April 10, 2000. No extension of time to file this list may
be granted, nor shall the filing of a request for review operate to stay
the filing of such list, except in extraordinary circumstances. Failure to
comply with this requirement shall be grounds for setting aside the
election whenever proper objections are filed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1222
Those eligible shall vote whether they desire to be represented
for collective-bargaining purposes by International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL–CIO.56

56 Under the provisions of Section 102.67 of the Board’s Rules and

Regulations, a request for review of this Decision may be filed with the
National Labor Relations Board, addressed to the Executive Secretary,
1099 Fourteenth Street NW, Washington, D.C. 20570–0001. This
request must be received by the Board in Washington by no later than
April 17, 2000.