CLIENT UPDATE

Putney, Twombly, Hall & Hirson LLP
521 Fifth Avenue
New York, NY 10175
Tel: (212) 682-0020

 

January 6, 2017

Faculty as Managers: What Will Become of Yeshiva under the Trump Administration?

For the past 35 years, the National Labor Relations Board (the “Board”), the federal courts, and colleges and universities across the country have struggled with how to determine whether faculty are managers and therefore excluded from coverage of the National Labor Relations Act (the “Act”).  The upcoming change in administration will undoubtedly further change this dynamic situation.  A recent – and very brief – opinion of the Board involving the University of Southern California (“USC”) may however provide a glimpse on how the Board will determine the managerial status of college faculty.

On December 30, 2016, the Board ruled a petition filed on behalf of adjunct professors at USC should proceed. University of Southern California, 365 NLRB No. 11 (2016), accessible at http://apps.nlrb.gov/link/document.aspx/09031d45822fae05. In doing so, the Board denied USC’s request to review the Regional Director’s Decision and Direction of Election in which the Regional Director determined that USC’s adjunct faculty were not managerial employees under the Act. Instead, the Board found that the Regional Director had properly applied the standard for determining managerial status, as set forth in Pacific Lutheran University, 361 NLRB No. 157 (2014).

Framework for Analyzing Whether Educational Faculty are “Managerial” Employees

In Pacific Lutheran, the Board was presented with the question whether contingent, full-time faculty were managers, and therefore outside the protection of the Act. In doing so, the Board revisited the “Yeshiva doctrine” derived from the Supreme Court’s decision holding that managers in the university setting are those who “formulate and effectuate management policies by expressing and making operative the decisions of their employer.” NLRB v. Yeshiva University, 444 U.S. 672, 682 (1980) (citing NLRB v. Bell Aerospace Co., 416 U.S. 267, 288 (1974)).  Since Yeshiva, the Board evaluated proposed units on a case-by-case basis without articulating a clear standard by which faculty may be classified as managerial.
        
         In Pacific Lutheran, the Board announced a two-part framework to analyze if a proposed faculty unit consists of managerial employees and is therefore excluded from the Act’s protections. First, the Board examines the proposed faculty unit from the perspective of three “primary” and two “secondary” areas of decision-making:

Primary Areas of Decision-making

  • Academic Programs. This area includes curriculum, research, offering of majors, minors and certificates and the requirements necessary to satisfy those offerings.
  • Enrollment Management. This area relates to the size, scope and make-up of the student body.

 

  • Finances. This area relates to the power to control or make effective recommendations as to expenditures, such as net tuition (tuition less financial assistance).

Secondary Areas of Decision-making

  • Academic Policy. This area includes teaching and research methods, grading policy, academic integrity policy, syllabus policy, research policy and course content policy.

 

  • Personnel Policy and Decisions. This area includes hiring, firing, promotion, tenure, leave and dismissal.

Then, the Board determines, “in the context of the university’s decision making structure and the nature of the faculty’s employment relationship with the university, whether the faculty actually control or make effective recommendation over those areas.” Opinion at 2.

Actual Control

  • Does the faculty actually exercise authority – as demonstrated through specific evidence or testimony regarding the nature and number of faculty decisions or recommendations in a particular area and the subsequent review of those decisions or recommendations by university administration – or does the faculty merely have paper authority?

 

Effective Recommendation

  • Are faculty recommendations “almost always … followed by the administration”? Opinion at 18.

 

Ultimately, the Board found that Pacific Lutheran University failed to demonstrate that the full-time, contingent faculty controlled or made effective recommendations. The members of the proposed faculty unit were not managers and were therefore protected under the Act.

 

The Decision and Dissent in University of Southern California

         In USC, a majority of the Board agreed with the Regional Director’s finding that the university had not met its burden of demonstrating that the petitioned-for non-tenure track faculty possessed managerial authority in any of the primary or secondary areas under Pacific Lutheran. The Order did not however analyze the Regional Director’s Decision aside from a single, lengthy footnote in which it briefly addressed each of the dissent’s points. In the footnote, the majority found, inter alia, that the Regional Director had properly applied Pacific Lutheran in analyzing the standard for assessing the petitioned-for faculty’s role in decision-making and considering the “nature of the faculty’s employment.” The majority consisted of the two Democrats on the Board, Chairman Mark G. Pearce and Member Lauren McFerran.

In his dissent, Member Phillip A. Miscimarra – the Board’s only Republican Member – stated that the Board should grant review because he found several substantial issues with the Regional Director’s application of Pacific Lutheran.  First, Member Miscimarra’s took issue with the Regional Director’s reliance on USC’s nontenure track faculty’s limited duration of appointments, lack of job security and limited benefits as evidence that such faculty were not managerial employees. Member Miscimarra found that these matters were irrelevant to a determination of managerial status. The “Yeshiva doctrine” defined managerial employees as those who “formulate and effectuate management policies” and made no mention of these other factors. Yeshiva, 444 U.S. at 682 (1980).

         Second, Member Miscimarra found that the Regional Director dismissed evidence that suggested several all-faculty USC committees exercise effective decision-making powers “in exactly the same areas that the Court found determinative in Yeshiva.” Dissent at 2. For example, the USC University Committee on Curriculum (UCOC), an all-faculty body, must approve every course offered for credit, every proposed new or modified program consisting of those courses, and every major or minor or new degree offered by USC, besides the MD program. Although the UCOC’s decisions are considered recommendations to the provost, they are not independently investigated, and once accepted by the provost or vice provost, they are implemented in the USC course catalog. However, the Regional Director dismissed this evidence, stating that “it is not clear what kind of review is conducted.” Id. The Regional Director also questioned whether the UCOC or any of USC’s faculty committees exercised actual or effective control over USC’s academic programs.

Member Miscimarra determined that the Regional Director’s analysis was based on the incorrect premise that faculty members cannot be considered managerial under the Act unless they have “unreviewable authority.” Member Miscimarra found that there was a lack of clarity on the burden of proof required to determine whether faculty have no collective authority over academic programs. Thus, full Board review was warranted.

         Third, Member Miscimarra disputed the Regional Director’s conclusion that “even if managerial authority was exercised by the faculty committees referenced above, the non–tenure track faculty members cannot be deemed managerial because ‘they do not constitute a majority’ of the committees.” Dissent at 3. Member Miscimarra found that this “newly fashioned ‘majority status’ requirement” contradicted the principle of “collegial managerial authority” that the Supreme Court recognized in Yeshiva. The Supreme Court held that a faculty member could have “collegial management authority” even though he or she cannot individually establish policy separate from the committees on which he or she serves. Likewise, faculty members in a department may be managerial, even if as a group they are a minority of the total faculty and are outnumbered and outvoted on every issues. According to Member Miscimarra, the Regional Director’s “majority status” requirement cannot be reconciled with the Court’s holding in Yeshiva.

         Finally, Member Miscimarra believed the Board should have granted review of the Regional Director’s order denying USC’s motion to reopen the record and for reconsideration on the basis that the union’s witness gave inconsistent testimony in her preelection and postelection testimony regarding the role and authority of UCOC. During the preelection hearing, the witness “minimized its authority in support of the Union’s position that nontenure track faculty are not managerial employees.” Dissent at 4. However, during a postelection hearing on union objections, “she testified to UCOC’s importance in support of the Union’s argument that the Employer interfered with the election by telling employees ‘that if they voted to form a union they would lose the opportunity to participate in faculty governance.’” Id. Member Miscimarra found, at a minimum, that these circumstances warranted reopening the record because “the relevant issue is not whether [the witness’] post-election testimony alone warrants a different result with regard to faculty managerial status, but whether the determination that the petitioned-for faculty are not managerial can stand without [her] preelection testimony.”

The Future of Yeshiva and Pacific Lutheran
      
Member Miscimarra’s dissent in USC highlights several issues that the Board will continue to encounter in reviewing whether proposed faculty units consist of managerial employees under the framework set forth in Pacific Lutheran. However, as the White House transitions from President Barack Obama to President-elect Donald Trump, the ideological complexion of the Board will likely change.

The Board currently has two vacancies yet to be filled after Member Harry I. Johnson III’s term expired on August 27, 2015 and Member Hirozawa’s term expired on August 27, 2016. Historically, Presidents have appointed both Republicans and Democrats to the Board in an act of bipartisanship. Whether a Trump administration will follow this tradition is of course unknown.

With a Republican majority, it is possible that the Board’s position could overturn Pacific Lutheran and its two-part framework and return to a case-by-case determination under Yeshiva. Member Miscimarra’s dissent in USC suggests a more nuanced approach, tweaking the application of Pacific Lutheran.

In Pacific Lutheran, Member Miscimarra stated he “generally agreed with the Pacific Lutheran framework regarding managerial status, but … the Board should not impose unrealistic burdens on parties to demonstrate the existence of control or the effectiveness of recommendations made by faculty members.” Slip op. at 27 (Member Miscimarra, concurring in part and dissenting in part). For example, Member Miscimarra found the framework inconsistent with the Act when the framework regards faculty members as “managerial” employees only if their recommendations are “almost always” followed. Similarly, he disagreed with the framework to the extent that uncontroverted documentary evidence on faculty authority could be dismissed as “mere paper authority.”

If the Board leaves the framework intact, but reduces the burdens outlined by Member Miscimarra, colleges and universities will face a far less difficult task to prove that their faculty are managerial employees. Until then, colleges and universities should heed the concerns raised by the majority in USC. To the extent practicable, schools should seek to broaden the extent to which their faculty have actual control or make clear that faculty are able to make effective recommendations over decision-making in the primary and secondary areas outlined by the Board in Pacific Lutheran.

*       *       *

         If you have any questions regarding these decisions, the future of the Board or its framework for analyzing the existence of “managerial” employees, please do not hesitate to contact us.