University of Southern California v. National Labor Relations Board, No. 17-1149 (D.C. Cir. March 12, 2019)

On March 12, 2019, the District of Columbia Circuit Court of Appeals issued a decision in this case. On December 28, 2017, the AAUP submitted an amicus brief, written primarily by AAUP General Counsel Risa Lieberwitz, to the US Court of Appeals for the DC Circuit urging the court to uphold the NLRB’s determination that non-tenure-track faculty at USC are not managerial employees. The brief supported the legal framework established by the NLRB in Pacific Lutheran University and describes in detail the significant changes in university hierarchical and decision-making models since the US Supreme Court ruled in 1980 that faculty at Yeshiva University were managerial employees and thus ineligible to unionize under the National Labor Relations Act. In its decision, the DC Circuit Court generally upheld the Pacific Lutheran University framework, but found that the board erred when it held that the “subgroup” of non-tenure-track faculty in the proposed unit must constitute a majority of a university committee to exercise managerial control.

This case arose when SEIU filed a petition to represent non-tenure-track full-time and part-time faculty in two colleges within USC. USC objected to the petition, arguing that the faculty were managers under Yeshiva. The Board applied the test established in Pacific Lutheran University, 361 NLRB 1404 (2014) (in which AAUP had also filed an amicus brief) and found that the faculty in the USC units were not managerial and therefore were eligible to unionize. One key factor in this finding was that the NTT faculty did not constitute a majority of university committees and therefore did not exercise effective control over the committees. After the union won the election in the Roski School of Art and Design, USC refused to bargain, citing its objection, and the board ordered USC to bargain. USC appealed to the US Court of Appeals for the DC Circuit, arguing that the faculty had no right to unionize as they were managerial employees. 

The DC Circuit held that the board had appropriately followed the instructions of the courts in creating a more detailed and specific test for determining whether faculty were managerial. The court upholds the Pacific Lutheran’s “demanding” standard for “effective” control as requiring proof that “faculty recommendations must almost always be followed by the administration” and are “‘routinely’ adopted ‘without independent review’” by the administration. The court agrees that this new standard “setting a high bar for effective control is necessary to avoid interpreting the managerial exception so broadly that it chips away at the NLRA’s protections.” The court upholds, further, the board’s categorization of academic programs, enrollment management policies, and finances as primary areas to consider in determining whether faculty exercise effective control.

However, the court focused on one particular factor in overturning the board’s decision: namely, whether the faculty in the petitioned for unit (called a “subgroup”), not just the faculty as a whole, exercised control over committees by constituting a majority on the committees. Instead the court said “the focus should be whether the faculty body writ large exercised effective control, and whether the particular subgroup seeking certification was included in that faculty body.” Thus, it stated “the question the Board must ask is not a numerical one—does the subgroup seeking recognition comprise a majority of a committee—but rather a broader, structural one: has the university included the subgroup in a faculty body vested with managerial responsibilities?” The court recognized that non-tenure track faculty might not exercise managerial control where they do not actually participate in committees or have conflicts with other faculty. Thus, the court summarized the board’s error and its understanding of an appropriate standard.

Pacific Lutheran, as interpreted by the Board in this case, runs afoul of Yeshiva by using . . . a determination focused on whether the petitioning subgroup alone exercises effective control. The Board should instead, as required by Yeshiva, think of this analysis as having two distinct inquiries: whether a faculty body exercises effective control and, if so, whether, based on the faculty's structure and operations, the petitioning subgroup is included in that managerial faculty body. Only as part of the latter analysis should the Board dig into whether a subgroup's actual interests diverge so substantially from those championed by the rest of the faculty that holding a minority of seats on the relevant committees is akin to having no managerial role at all, or whether a subgroup's low participation rates stem from a tenuous employment relationship that vitiates any managerial role the university expects the subgroup to perform.

The court also addressed the arguments advanced by the AAUP.

A final observation: in Pacific Lutheran, the Board emphasized that since the Court decided Yeshiva some four decades ago, universities "are increasingly run by administrators" and rely more and more on non-tenure-track faculty "who, unlike traditional faculty, have been appointed with no prospect of tenure and often no guarantee of employment." Pacific Lutheran, 361 N.L.R.B. at 1422. According to the Board, these trends "ha[ve] the effect of concentrating and centering authority away from the faculty." Id. Building on this point, amicus American Association of University Professors points out that "[r]ather than relying on faculty expertise and recommendations, the growing ranks of administrators increasingly make unilateral decisions on university policies and programs, often influenced by considerations of external market forces and revenue generation." American Association of University Professors' Br. 10. By contrast, the American Council on Education, though acknowledging these trends, emphasizes "the continued primacy of shared governance." ACE Br. 13. This is an interesting debate, and it may even be relevant. Regardless of national trends, however, the Board must not lose sight of the fact that the question before it in any case in which a faculty subgroup seeks recognition is whether that university has delegated managerial authority to a faculty body and, if so, whether the petitioning faculty subgroup is a part of that body. As we explained in Point Park, this requires "an exacting analysis of the particular institution and faculty at issue." 457 F.3d at 48 (emphasis added).

The court remanded the case to the board to “reconsider the case afresh under the proper legal standard” that does not use a “bright-line” rule for evaluating managerial status based on whether the “subgroup” of non-tenure-track faculty constitute a majority on faculty committees.