The New School

National Labor Relations Board - Unpublished Board Decisions

Jul 6, 2017

02-RC-143009 (N.L.R.B. Jul. 6, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
THE NEW SCHOOL
Employer
and Case 02-RC-143009
STUDENT EMPLOYEES AT THE
NEW SCHOOL—SENS UAW
Petitioner
ORDER
The Employer Request for Review of the Regional Director’s Second Supplemental
Decision and Direction of Election is denied as it raises no substantial issues warranting review.1
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., July 6, 2017.
Chairman Miscimarra, dissenting:
I dissent from the denial of the Employer’s Request for Review. I would grant review on
the basis that substantial issues exist regarding the extent to which the bargaining unit consists of
students whose positions are closely related to their education, similar to unit members in
Columbia University, 364 NLRB No. 90 (2016) (Board majority approves single, university-
wide bargaining unit consisting of student assistants), and Yale University, 365 NLRB No. 40
(2016) (Board majority approves nine bargaining units, each consisting of student assistants in a
single academic department). To the extent that the students are similar to the unit members in
Columbia University and Yale University, I believe the Board should find that the unit is
inappropriate for the reasons expressed in my dissenting opinions in Columbia University, slip
op. at 22-34, and Yale University, slip op. at 1-2.
Moreover, I believe the Board should grant review based on substantial issues that exist
regarding material differences between the petitioned-for student assistants in this case and the
bargaining-unit members in Columbia University (involving a university-wide unit of student

1 Contrary to our dissenting colleague, we agree with the Regional Director’s finding that the
petitioned-for employees, all of whom perform similar duties for the Employer and are employed
for a finite period of time, share a community of interest and constitute a stable bargaining unit
that is capable of engaging in meaningful collective bargaining. See Columbia University, 364
NLRB No. 90, slip op. at 20-21 (2016).
assistants) and Yale University (involving nine separate units of student assistants). Specifically,
this case raises substantial issues regarding petitioned-for individuals whose student assistant
work was temporary or casual to a degree that warrants their exclusion from the unit. For
example, the unit found appropriate by the Regional Director includes many individuals who
occupy student assistant positions on an irregular basis, some with “semester-long gaps between
assignments,”1 and others who held a student assistant position for one semester without ever
holding another.2 More than any other case in which the Board has permitted an election among
student assistants, the instant case involves a bargaining unit that errs on the side of placing
everybody in, with the Employer bearing the burden of challenging and litigating, ballot by
ballot, student voters who “have graduated or are pending graduation, definitively have no
prospect of future employment,” or “have not actually performed teaching, instructionally-
related or research services.”3 As I stated in Columbia University, “I do not believe the Board
can appropriately recognize a single bargaining unit that combines course assistants who work a
few intermittent hours with doctoral candidates who may teach for several years.”4 I believe the
Board poorly serves all parties by refusing even to pass on the standards that should govern
eligibility questions among disparately situated students like those in the instant case.
Accordingly, I respectfully dissent.
PHILIP A. MISCIMARRA, CHAIRMAN

1 Second Supplemental Decision and Direction of Election (Second Supplemental D&DE) at 7.
2 The unit includes individuals who held a student assistant position for only a single semester
over a four-semester period.
3 Second Supplemental D&DE at 7 fn. 5.
4 Columbia University, 364 NLRB No. 90, slip op. at 33 (Member Miscimarra, dissenting).