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Appeals court slams the brakes on faculty unionizing under ‘crude’ agency test

More likely that faculty ‘will be denied their rights in the workplace’

Four years after the National Labor Relations Board threw the doors open to contingent faculty unionizing at private universities – even religious institutions – a federal appeals court has closed those doors a little.

It overturned the NLRB’s rule that a particular “subgroup” of faculty, such as contingents, can unionize when they don’t have “majority status” on university committees that have “managerial” duties.

The board created a new test for determining if faculty are managerial, and thus exempt from national labor law, when it ruled in 2014 that Pacific Lutheran University couldn’t stop its contingents from unionizing by citing its “religious educational environment.”

Even as it struck down the board’s majority-status rule, the U.S. Court of Appeals for the D.C. Circuit upheld much of the NLRB’s 2014 outline for determining if faculty have managerial status.

The case concerns “full- and part-time non-tenure-track faculty” in the University of Southern California’s art and design department, known as the Roski School. When those faculty voted to unionize and the NLRB upheld the vote, USC challenged the board’s majority-status rule in court, saying it contradicts Supreme Court precedent.

MORE: Feds throw open the door to adjunct faculty unionizing

The unanimous D.C. Circuit sent the case back to the NLRB, saying it was “uncertain whether the Board would have reached the same conclusion” about the Roski School faculty “absent” the majority-status rule.

The American Association of University Professors is not happy about the court-ordered narrowing of the paths for adjunct and non-tenure track faculty to collectively bargain.

“The University of Southern California has refused to come to an agreement with its adjunct faculty and has instead spent its resources trying to strip them of their right to bargain collectively if they so choose,” Gwendolyn Bradley, director of external relations for the association, told The College Fix in an email.

“This ruling makes it more likely that these and non-tenure-track faculty at other institutions will be denied their rights in the workplace,” she wrote.

‘Nontenure track faculty do not constitute a majority’

Both the board and D.C. Circuit were interpreting a 1980 Supreme Court ruling involving Yeshiva University.

Though the Supreme Court agreed the board can extend the National Labor Relations Act to the faculty of private universities, it said the Yeshiva faculty qualified as exempt managerial employees.

The Supreme Court told the NLRB how to identify these employees: Faculty must exercise “effective recommendation or control” over central university policies, meaning the university “depends on the [faculty’s] professional judgment … to formulate and apply crucial policies constrained only by necessarily general institutional goals.”

In practice, this describes shared governance. The court also said universities could draw a “rational line” between tenured and untenured faculty, since “non-managerial subsets” may be part of a faculty body that is overall managerial.

The D.C. Circuit warned the NLRB in 2004 that its rulings were not transparent, telling the board that it needs to delineate “which factors are significant and which less so, and why” when it determines whether faculty are managerial.

The board answered in 2014 with the PLU decision, which set forth “five general areas” for making that determination, based on faculty participation in university committees. Faculty involvement in academic programs, enrollment and finances are “primary” considerations for the board, while involvement in academic policies and personnel are “secondary.”

The regional director for the NLRB, however, leaned heavily on the board’s subgroup majority status rule in determining the USC Roski School faculty weren’t managerial. Even if faculty as a whole exerted effective control over the university committees, “nontenure track faculty do not constitute a majority” of those committees, the director noted.

MORE: NLRB stops Catholic college faculty from unionizing

NLRB puts ‘crude headcounts’ over ‘collegiality’

Whle the PLU framework “for the most part … succeeds” in being workable, the D.C. Circuit said, it has a “major problem.”

The NLRB believes that “a subgroup, acting collectively, is unable to exercise managerial authority through a committee when that subgroup holds a minority of committee seats.” But this ignores the Supreme Court’s discussion of how faculty “bodies” differ from “pyramidal” hierarchies in the private sector, according to the opinion, written by Judge David Tatel.

“Take the [Supreme] Court’s discussion of the bedrock principle underlying the managerial exception: that employers deserve the loyalty of employees who exercise discretionary authority over central employer policies,” Tatel wrote.

By ignoring the “importance of collegiality,” the NLRB’s focus on majority status for contingent faculty is oblivious to the potential for faculty subgroups to “share common interests and therefore effectively participate together as a body on some or all” issues relevant to managerial status. Tatel provides the example of full-time contingents agreeing with tenure-track faculty on “course offerings, academic integrity, and grading policies.”

MORE: Feds trample religious freedom by letting adjuncts unionize

The board’s ironclad rule also “assumes that minority subgroups can never work out their differences with the majority” on issues where their interests may diverge, “such as with respect to promotion and salary,” the opinion continues. “That, however, is precisely where the concept of collegiality comes into play.”

The NLRB needs to get over its attachment to “crude headcounts” and instead consider whether a faculty subgroup is “structurally included within a collegial faculty body to which the university has delegated managerial authority,” Tatel said:

Put another way, 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?

This requires the board to determine how the faculty is “structured” and “operates” as well as its “assigned” duties, such as whether faculty are required to participate in committees.

‘This is an interesting debate,’ but stick to each case

Not only did the board ignore the “inconsistency” of its majority-status rule with its ongoing precedent – that even “minority employee shareholders” can exercise effective control – but it failed to come up with a workable rule, Tatel said.

He cited USC’s opposition to the board’s ruling, which noted that a “one- or two-person swing on a committee roster” could suddenly remove the managerial status for faculty. One of the dissenting board members also noted that faculty can be divided up “by tenure status, school, seniority” to the point where they qualify as non-managerial, even when they “indisputably” have managerial authority.

The board first must determine that a faculty subgroup is included in the managerial faculty body. At that point, it should “dig into whether a subgroup’s actual interests diverge so substantially” from all others that its minority status on committees or “tenuous employment relationship” nullifies any practical managerial role, Tatel said.

The D.C. Circuit also warned the NLRB not to get sidetracked by its conclusion, in the PLU case, that the increasing role of administrators in college decisions has rendered contingent faculty less important in governance across higher education.

“This is an interesting debate, and it may even be relevant,” Tatel wrote, but the board “must not lose sight” of the particular facts of any given case.

The D.C. Circuit’s decision is “very narrow, procedural in nature,” and simply remands the case to the NLRB “for further consideration,” an expert in faculty unions told The Fix.

“The decision did not reverse the National Labor Relations Board’s finding that the non-tenure faculty at the University of Southern California have a right to union representation,” said Hunter College’s William Herbert, executive director of  the National Center for the Study of Collective Bargaining in Higher Education and the Professions.

“The high evidentiary standard” a university must meet to deem its faculty managerial “is appropriate particularly for adjunct faculty who do not have job security,” he told The Fix.  “Collective bargaining is a necessary means for non-tenure track and adjunct faculty to attain contractual due process protections against discipline and retaliation.”

USC Provost Michael Quick and employment law attorney Joe Ambash did not respond to Fix queries.

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About the Author
Autumn Berend -- Portland State University