Employment Law Daily NLRB ‘majority status rule’ to test managerial status of non-tenure track college faculty rejected
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Thursday, March 14, 2019

NLRB ‘majority status rule’ to test managerial status of non-tenure track college faculty rejected

By Ronald Miller, J.D.

Under Pacific Lutheran’s bright-line “majority status rule,” a faculty committee’s “actual control” or “effective recommendation” authority over a particular decision-making area may be ascribed to faculty only if they constitute a majority of that committee. This rule runs afoul of Yeshiva University.

The NLRB’s extension of Pacific Lutheran University’s “majority status rule” to faculty subgroups conflicted with the Supreme Court’s 1980 decision in NLRB v. Yeshiva University, the D.C. Circuit found, granting in part the University of Southern California’s petition for review of a Board order. Extension of the majority status rule to faculty subgroups reflects the NLRB’s belief that a subgroup, acting collectively, is unable to exercise managerial authority through a committee when the subgroup holds a minority of committee seats. However, in the circuit court’s view, the subgroup majority status rule rested on a fundamental misunderstanding of Yeshiva (University of Southern California v. NLRB, March 12, 2019, Tatel, D.).

In Yeshiva, the Court clarified for the first time that the NLRA covers university employees and provided guidance about when university faculties constitute managerial employees exempt from the NLRA’s coverage. For several decades following Yeshiva, the Board, when determining a given faculty’s managerial status, applied a totality-of-the-circumstances approach informed by the contours of the case. But in LeMoyne-Owen College v. NLRB, a 2004 decision, the D.C. Circuit found the Board’s approach inadequate. Although the Board’s totality-of-the-circumstances approach followed naturally from Yeshiva, the appeals court determined that the Board must delineate which factors were significant in its managerial-faculty determinations.

Pacific Lutheran framework. The Board endeavored to satisfy LeMoyne-Owen in Pacific Lutheran University. Pacific Lutheran concerned a faculty subgroup—specifically, full-time “contingent” (non-tenure eligible) faculty. The Board used Pacific Lutheran to launch a new test designed “to answer the question whether faculty in a university setting actually or effectively exercise control over decision making pertaining to central policies of the university such that they are aligned with management.”

Under the Pacific Lutheran framework, the Board organizes its review of faculty decision-making into five general areas: academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions. The Board classifies the first three as “primary” and the last two as “secondary.” The Board trains its focus on participation through service on university committees, which specialize in a given field and then propose policies to the full faculty or to the university’s administration.

Echoing Yeshiva, the Board then considers whether the faculty exercise “actual control or effective recommendation” authority over each of these five areas. For “effective” control, “recommendations must almost always be followed by the administration. Further, faculty recommendations are effective if they routinely become operative without independent review by the administration.” Under Pacific Lutheran, the Board looks at “both the structure of university decisionmaking and where the faculty at issue fit within the structure, including the nature of the employment relationship.”

Majority status rule.Pacific Lutheran sets a bright-line majority status rule under which a committee’s actual control or effective recommendation authority over a particular decision-making area may be ascribed to faculty only if they constitute a majority of that committee. Applying this framework to the situation in Pacific Lutheran, the Board determined that the contingent faculty were non-managerial. In considering whether faculty held a majority of committee seats, the Board left uncertain whether the majority status rule applied to the contingent faculty only or to the faculty as a whole.

Non-tenure-track faculty. In 2015, a union petitioned to represent full- and part-time non-tenure-track faculty at the University of Southern California’s school of art and design. USC contended that the non-tenure-track faculty were managerial, but the union disagreed. Applying the Pacific Lutheran framework, an NLRB regional director found the non-tenure-track faculty were non-managerial. She confirmed that to exercise control over a committee, the faculty subgroup seeking recognition—not just the faculty as a whole—must hold a majority of committee seats. The regional director also required that for a committee to exercise effective control, the administration must “almost always” accept the committee’s recommendations and those recommendations must “routinely become operative without independent review.”

Applying this interpretation of Pacific Lutheran, the regional director classified the non-tenure-track faculty as non-managerial. Most USC university-wide and school-specific committees are open to all faculty members, including non-tenure track. Looking at all committees relevant to each of the five decision-making areas, the regional director determined that USC failed to show that the faculty serving on these committees exercised effective control over any decision-making area.

Challenge to certification. Following the regional director’s decision, the non-tenure-track faculty voted to form a bargaining unit. USC refused to bargain, and challenged the certification on the grounds that Pacific Lutheran conflicts with Yeshiva, and that the non-tenure-track faculty in fact exercised managerial authority. In its petition for review, USC made three basic arguments. First, it argued that several elements of the Pacific Lutheran framework, as applied in this case, conflict with Yeshiva. Second, the Pacific Lutheran framework fails to provide a workable standard to determine the managerial status of faculty. Third, the regional director lacked substantial evidence to classify the non-tenure-track faculty as non-managerial.

Pacific Lutheran represents an “admirable effort” to tame a thicket of case law touching on numerous interrelated features of the faculty experience at universities, the D.C. Circuit noted, and for the most part, the Board was successful in its effort. However, the appeals court found that there is a major problem. Under Pacific Lutheran as interpreted by the Board in this case, a faculty subgroup seeking recognition exercises effective control over a decision-making area through its participation on a committee only when that subgroup constitutes a majority of the committee.

Faculty subgroups The D.C. Circuit observed that the extension of Pacific Lutheran’s majority status rule to faculty subgroups reflects the Board’s belief that a subgroup, acting collectively, is unable to exercise managerial authority through a committee when the subgroup holds a minority of committee seats. However, in the circuit court’s view, the Board’s subgroup majority status rule rested on a fundamental misunderstanding of Yeshiva.

The Yeshiva ruling drew a sharp distinction between “pyramidal” hierarchies characteristic of private industry and faculty “bodies” at universities. Second, the Supreme Court in that case repeatedly stressed the importance of collegiality at universities. Third, the High Court offered guidance on how the Board should approach situations where the faculty members seeking recognition constitute a subgroup. Employees may not be considered management and thus excluded from the NLRA’s coverage if their “decisionmaking is limited to the routine discharge of professional duties in projects to which they have been assigned.” Thus, the Court’s analysis turned on the role played by the faculty as a body.

The appeals court found that the Board’s subgroup majority status rule was unfaithful to the traditions of collegiality that continue to play a significant role at many universities. Given Yeshiva’s focus on the faculty as a body and emphasis on collegiality, the question that the Board must ask is not whether a particular subgroup can force policies through based on headcounts, but rather whether that subgroup is structurally included within a collegial faculty body to which the university has delegated managerial authority.

Accordingly, USC’s petition for review was granted in part, and the Board’s cross-application for enforcement was denied.

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