Northwestern University and College Athletes Players Association (CAPA), Case No. 13-RC-121359
The AAUP filed an amicus brief with the National Labor Relations Board arguing that graduate assistants at private sector institutions should be considered employees with collective bargaining rights. The board invited amicus briefs in the Northwestern University football players’ case to address several important issues, including whether the board should modify or overrule its 2004 decision in Brown University, 342 NLRB 483 (2004), which found that graduate assistants were not employees and therefore did not have statutory rights to unionize. In its amicus brief, the AAUP argued that the board should overrule the test of employee status applied in Brown to graduate assistants, but did not take a position as to whether the unionization of college football players was appropriate.
This case arose when football players at Northwestern University sought to unionize. The university argued that the football players were not “employees” under the National Labor Relations Act (NLRA), and therefore did not have statutory rights to choose whether to be represented by a union. The regional director for the board had to determine whether players were “employees” as defined by the NLRA. The board normally applies the common law definition under which a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment, is an employee. The regional director found that under this common law test, the football players were employees under the NLRA.
The AAUP had previously filed amicus briefs before the board arguing that graduate assistants should be granted collective bargaining rights. Since the issue was raised by the board in the Northwestern University case, the AAUP filed an amicus brief arguing that the general rule established in Brown, that deprived graduate assistants of collective bargaining rights, should be overruled.
In its amicus brief, the AAUP took particular issue with the argument that academic freedom justified depriving graduate assistants of the right to unionize:
At its core, the Brown University test of employee status is based on an erroneous understanding of the relationship between academic freedom and collective bargaining. . . . Indeed, interim developments provide further support for the notion that collective bargaining is compatible with academic freedom. These include the NYU administration’s decision to voluntarily recognize its graduate assistant union and a new research study that is the first to provide a cross-campus comparison of how faculty-student relationships and academic freedom fare at unionized and non-unionized campuses.
Therefore, the AAUP concluded that “the board should overrule the test of employee status applied in Brown University and return to its well-reasoned NYU decision, which found collective bargaining by graduate assistants compatible with academic freedom.”