Understanding How Employees' Rights to Organize under the NLRA Have Been Limited: The Case of Brown University

The National Labor Relations Board's (NLRB's) 2004 Brown University decision held that graduate student teaching and research assistants were not employees, and therefore, were not protected by the National Labor Relations Act (NLRA). Deciding whether individuals are employees as defined by the NLRA is critical to labor law, as it determines whether individuals have a protected right to engage in freedom of association, self-organization, collective bargaining, and acts of mutual aid or protection. This article explains and critiques the Brown decision as a departure both from precedent as well as from the central purposes of the NLRA. It also examines how Brown University "foreshadowed other cases in which the Board would ignore precedent and the policies underlying the NLRA." The piece advises readers about the importance of precision in criticizing such decisions, because "if that criticism is not targeted to the specific wrong, it can do damage." It further cautions that, while criticizing specific failures to enforce NLRA rights is essential, it is important to not wholly abandon the NLRA as a vehicle for protecting such rights, stating "We must insist that the promise of the NLRA to actively promote freedom of association in order to create equality of bargaining power between employers and employees . . . is kept."