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D.C. Circuit Weighs In On NLRB Test For Adjunct Faculty Unionization

Colleges and universities should take note of the Court of Appeals for the D.C. Circuit’s recent decision in University of Southern California v. National Labor Relations Board, Case No. 17-1149 (D.C. Cir. Mar. 12, 2019) addressing whether non-tenure track faculty at universities are “employees” under the National Labor Relations Act (“NLRA”), giving them the right to form a union, or whether they are “managers” and thus exempt from coverage under the NLRA.

In its decision, the D.C. Circuit largely upheld the standard set forth in Pacific Lutheran University, 361 NLRB 1404 (2014), a 2014 decision by the Obama-era National Labor Relations Board (“NLRB” or “Board”). The D.C. Circuit took issue, however, with how the Board applied Pacific Lutheran to the University of Southern California’s (“USC”) facts. Specifically, the court rejected the Board’s treatment of a faculty subgroup (e.g., adjuncts) not holding a majority of seats on a university committee (e.g., curriculum committee), so that the subgroup could not be considered “managers” (the so-called “subgroup majority status rule”). It found that such a strict rule was “a major problem” and remanded the case back to the now Republican-controlled NLRB for reconsideration.

Background

The Supreme Court held in N.L.R.B. v. Yeshiva University, 444 U.S. 672 (1980) that the critical inquiry for analyzing whether university faculty are employees or managers under the NLRA is whether they exercise “effective control” over central university policies. In Pacific Lutheran, the Board established a “majority status rule” which measured such “effective control” based on an assessment of whether: (1) faculty were part of university committees; (2) the committees exercised decision-making power as to “central” university policies; (3) faculty constituted a majority of the committee’s membership; and (4) the committee’s recommendations “routinely” became “operative without independent review.”

The Pacific Lutheran Board also defined five key areas for evaluating whether university polices generated by faculty committees are considered “central,” three of which are considered “primary” and two of which are considered “secondary.” Primary decision-making areas include academic programs, enrollment management policies, and finances, while secondary areas include academic policies, and personnel policies and decisions.

NLRB Decision – University of Southern California

In 2016, the Regional Director in Los Angeles applied Pacific Lutheran’s “majority status rule” to a group of non-tenure track faculty at USC. The Regional Director did not analyze whether the faculty at large comprised a majority of university committees, but instead found that, specifically, non-tenure track faculty did not constitute such a majority—creating a “subgroup majority status rule” where the non-tenured subgroup had to make up a majority of the committees. Therefore, non-tenure track faculty were held to be “employees,” not “managers.” The Board adopted the Regional Director’s findings.

D.C. Circuit Decision – University of Southern California

On appeal, the D.C. Circuit affirmed the test articulated by the Board in Pacific Lutheran, but took issue with the Board’s application of the “majority status rule” to a “subgroup majority status rule.” The court stated that the Board erroneously “ignore[d] the possibility that faculty subgroups [e.g., tenured faculty and adjuncts], despite holding different status within the university, may share common interests and therefore effectively participate together” to exercise joint decision-making authority over university policies.

Thus, instead of focusing on whether subgroups, like adjuncts, make-up a strict majority of committees, the court held that the Board must engage in a two-step inquiry: (1) whether a faculty body as a whole exercises effective control based on the Pacific Lutheran factors; and (2) if so, whether the petitioning subgroup is included in that managerial faculty body. The court emphasized that the Board must treat the two steps of the Pacific Lutheran test separately, “and may not conflate them by asking whether the petitioning subgroup alone exercises effective control.”

The court remanded the case for the Board to reapply the D.C. Circuit’s modification of the Pacific Lutherantest to the non-tenure track faculty at issue in University of Southern California.

Takeaways

The Pacific Lutheran framework for determining the managerial status of university faculty lives on, but with the D.C. Circuit’s limiting gloss. The court’s rejection of the “subgroup majority rule” may make it more difficult for non-tenure track faculty to unionize because the pathway to “employee” status has been narrowed. But the full impact of the D.C. Circuit’s decision is yet unknown, as the Pacific Lutheran test could now be reconsidered by the Trump Board, which already has overturned several Obama-era decisions.

© 2019 Proskauer Rose LLP.

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Paul Salvatore, Proskauer, New York, Real Estate Lawyer, Construction
Partner

Paul Salvatore is a member of Proskauer’s Executive Committee and former co-chair of its global Labor & Employment Law Department, named by The American Lawyer as one of the top U.S. practices and recipient of the Chambers USA 2012 Award for Excellence. He is widely recognized as a leading U.S. labor and employment lawyer in such publications as Chambers (Band 1), US Legal 500 (Leading Lawyer) and Superlawyers. In 2010, The National Law Journal selected Paul as one of "The Decade's Most Influential Lawyers" – one of only...

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David Bayer, Proskauer, labor relations attorney, employment lawyer, NHL, NBA legal, sports counsel, collective action groups
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David L. Bayer is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations and Employment Litigation & Arbitration Groups. He represents a diverse range of clients across many industries, including professional sports leagues and teams, real estate and construction companies, private universities, financial institutions, retail companies, media outlets, not-for-profits and hospitals, among others. David has represented clients in all aspects of labor-management relations, including collective bargaining, administration of collective bargaining agreements, arbitration, matters before the National Labor Relations Board and related litigation. He has also advised clients on the labor and employment aspects of corporate transactions.

In addition, David has represented and counseled clients on a wide range of employment matters, including those involving claims of employment discrimination, sexual harassment, retaliation, wage and hour violations and breach of restrictive covenants. He has also assisted clients in workplace investigations, updating workplace policies and handbooks, providing antidiscrimination and antiharassment training and general advice and counsel on compliance with federal, state and local employment laws.

Prior to joining Proskauer, David interned in the Labor Relations Department of Major League Baseball and was also a legal intern at the Brooklyn Nets and Barclays Center. While in law school, David interned for the Honorable Michael H. Dolinger, U.S. Magistrate Judge in the Southern District of New York.

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Laura Franks, law clerk, labor and employment law
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Laura Franks is a law clerk in the Labor & Employment Law Department.

Prior to joining Proskauer, Laura graduated from University of Virginia Law School where she was the Executive Editor of the University of Virginia Sports & Entertainment Law Journal. Laura was also a member of the Innocence Project at the University of Virginia School of Law clinic and was President of the Virginia Sports Law Society. While in law school, Laura interned with the National Hockey League and the University of Virginia Office of the General Counsel. 

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