Federal Appeals Court Reworks Legal Test To Determine Faculty's Union Status

In a unanimous opinion, a federal appeals court just rejected the National Labor Relations Board's "subgroup majority status rule" for determining when college and university faculty members are to be deemed managers and therefore excluded from coverage under the National Labor Relations Act (University of Southern California v. NLRB). The rule, first articulated in the Board's 2014 Pacific Lutheran decision, required that a faculty subgroup (e.g. nontenure faculty) seeking to organize must have majority control of any committee that made managerial decisions before the Board would find that subgroup to be managers.

By rejecting the Board's "subgroup majority status rule," yesterday's D.C. Circuit Court of Appeals decision dispensed with the Board's reliance on "crude headcounts" and held that the proper test is for the Board to assess whether the faculty members at issue are "structurally included within a collegial faculty body to which the university has delegated managerial authority." Colleges and universities should familiarize themselves with this decision and its potential impact on faculty bargaining units.

In Or Out: Faculty Managerial Status Under Pacific Lutheran

In 1980, the Supreme Court held in Yeshiva University that faculty members who exercise "effective recommendation or control" over university policies are "managerial" and therefore excluded from coverage under the Act. Following many years of unclear guidance as to what types of faculty were managerial, the Board endeavored to create a more predictable framework in Pacific Lutheran.

There, the Board articulated that its review of faculty-decision making would look at five general areas: (1) academic programs; (2) enrollment management policies; (3) finances; (4) academic policies; and (5) personnel policies and decisions. Of the five, the first three were considered "primary" and the final two "secondary." The Board's analysis of each of the five areas was largely driven through an analysis of faculty participation on university committees.

Where faculty committees exercised "actual control or effective recommendation" over decision-making in the areas of inquiry, faculty members were more likely to be managerial. Underpinning the Board's analysis, however, was a bright-line rule requiring the challenged faculty subgroup to constitute a majority of a committee: "if faculty members do not exert majority control, the Board will not attribute the committee's conduct to...

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