Research Foundation of the City University of New York

National Labor Relations Board - Board Decisions

Jun 29, 2007

350 N.L.R.B. 201 (N.L.R.B. 2007)

RESEARCH FOUNDATION-CUNY
350 NLRB No. 19
201
The Research Foundation of the City University of
New York and Professional Staff Congress of
New York. Case 2–RC–22721
June 29, 2007
DECISION ON REVIEW AND
ORDER REMANDING
BY CHAIRMAN BATTISTA AND MEMBERS KIRSANOW
AND WALSH
On March 29, 2005, the Regional Director for Region
2 issued a Supplemental Decision and Direction of Elec-
tion finding that the petitioned-for research assistants
(RAs) employed by the Research Foundation of the City
University of New York at the Graduate Center of the
City University of New York (CUNY) are employees
within the meaning of Section 2(3) of the Act. The Re-
gional Director found that the Board’s decision in Brown
University, 342 NLRB 483 (2004), which found that
graduate student assistants are not statutory employees, is
inapposite to this case. The Regional Director also reaf-
firmed her June 29, 2004 Decision and Direction of Elec-
tion, in which she found that the single-facility presump-
tion as applied to the Graduate Center has not been rebut-
ted, that the classifications in the petitioned–for unit con-
stitute an appropriate unit, and that the RAs are not tem-
porary employees. The Regional Director also reaf-
firmed her earlier findings regarding the supervisory
and/or managerial status of certain individuals in the pe-
titioned-for unit.
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Employer filed a
timely request for review of the Regional Director’s
Supplemental Decision and Direction of Election. The
Petitioner filed an opposition.
By Order dated September 20, 2005, the Board1
granted the Employer’s request for review of the Re-
gional Director’s finding that the RAs are employees
within the meaning of Section 2(3) of the Act. The Or-
der stated that the Employer’s request for review regard-
ing the scope and composition of the unit and the super-
visory, managerial, and temporary status of the employ-
ees included in the unit would be held in abeyance pend-
ing the resolution of the employee status of the RAs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record, we af-
firm the Regional Director’s finding that the RAs are
employees within the meaning of Section 2(3) of the Act.
As we explained in Research Foundation of the State
University of New York, 350 NLRB 197 (2007), issued

1 Chairman Battista, Members Liebman and Schaumber.
today, research project assistants (RPAs) employed by
that employer, which serves the same function for the
State University of New York (SUNY) that the Employer
in this case serves for CUNY, are statutory employees
within the meaning of Section 2(3) of the Act. We found
that the Board’s decision in Brown did not apply be-
cause, unlike Brown, the employer in Research Founda-
tion of the State University of New York is not an educa-
tional institution, and the RPAs have a primarily eco-
nomic and not a primarily educational relationship with
their employer. We reach the same result here for the
same reasons: the Employer is not an educational insti-
tution, and the RAs have an economic and not an educa-
tional relationship with the Employer.2
With regard to the issues held in abeyance, the Em-
ployer’s request for review raises substantial issues
solely with regard to the supervisory status of Diana Cas-
sells, Gregory Umbach, Carl Skoggard, Andre Balog,
Ken Yarmy, Tatiana Carayannis, and Barbara Leopold,
and the supervisory and managerial status of Lawrence
Cowen and Sarah Dwyer. We conclude, however, that
these issues can best be resolved through the challenge
procedure. Accordingly, the Supplemental Decision is
amended to permit Cassells, Umbach, Skoggard, Balog,
Yarmy, Carayannis, Leopold, Cowen, and Dwyer to vote
by challenged ballot, and the Employer’s request for re-
view is denied in this and all other respects.
ORDER
The Regional Director’s finding that the research assis-
tants are statutory employees is affirmed. The Supple-
mental Decision is amended to permit Cassells, Umbach,
Skoggard, Balog, Yarmy, Carayannis, Leopold, Cowen,
and Dwyer to vote by challenged ballot, and the Em-
ployer’s request for review is denied in this and all other
respects. This case is remanded to the Regional Director
for further appropriate action.
CHAIRMAN BATTISTA, concurring.
I agree with my colleagues that the research assistants
(RAs) are statutory employees, because their relationship
with the Employer is primarily economic rather than
educational. However, my reasons differ from those of
my colleagues.
My concurrence is grounded in Brown1 and in my dis-
senting opinion in Research Foundation of the State Uni-
versity of New York (SUNY), 350 NLRB 197 (2007). In

2 Member Walsh dissented in Brown and, for the reasons stated in
that dissent, would find the RPAs in Research Foundation of the State
University of New York, as well as the RAs in this case, to be statutory
employees in any event. He nevertheless agrees that Brown is distin-
guishable from this case.
1 Brown University, 342 NLRB 483 (2004).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD202
that case, I found that the research project assistants
(RPAs) were not employees. The instant case had some
similarities to that case. Like the employer in Research
Foundation of SUNY, the Employer here is an “educa-
tional corporation.” Its mission must be “in keeping with
the educational purposes and objects of [CUNY].”
However, unlike the employer in Research Foundation
of SUNY, some of the RAs here are enrolled at universi-
ties other than the City University of New York
(CUNY). That is, status as a CUNY student is not a req-
uisite for working for the Employer. In addition, the
RAs perform administrative and editorial work that is
typically unrelated to their studies. Although their work
is overseen by a grant recipient on the CUNY faculty,
that faculty member does not also act as the dissertation
adviser. Moreover, the RAs here work with nonstudents
who are assigned the same work, and they are paid on an
hourly basis at a rate similar to the nonstudents. Rather
than financial support for their graduate studies, their
compensation thus represents payment in consideration
for hours worked. In fact, for financial aid purposes,
work as an RA is treated as outside employment.
On this basis, I agree with my colleagues that the rela-
tionship between the RAs here and the Employer is pri-
marily economic, and that the RAs are employees under
Section 2(3) of the Act.