University of Southern California v. National Labor Relations Board, No. 17-1149 (D.C. Cir. 2017)

The AAUP submitted an amicus brief December 28 to the US Court of Appeals for the DC Circuit urging the Court to uphold the NLRB’s determination that non-tenure-track faculty at USC are not managerial employees. The brief supports the legal framework established by the NLRB in Pacific Lutheran University and describes in detail the significant changes in university hierarchical and decision-making models since the US Supreme Court ruled in 1980 that faculty at Yeshiva University were managerial employees and thus ineligible to unionize under the National Labor Relations Act.

This case arose when SEIU filed a petition to represent non-tenure-track full-time and part-time faculty in two colleges within USC. USC objected to the petition arguing that the faculty were managers under Yeshiva. The Board applied the test established in Pacific Lutheran University, 361 NLRB 1404 (2014) (in which AAUP had also filed an amicus brief) and found that the faculty in the units were not managerial and therefore were eligible to unionize. After the union won the election in the Roski School of Art and Design, USC refused to bargain citing its objection, and the Board ordered USC to bargain. USC appealed to the US Court of Appeals for the DC Circuit arguing that the faculty had no right to unionize as they were managerial employees. 

The AAUP amicus brief supports the Board’s position that Pacific Lutheran University creates an appropriate standard, which was properly applied in this case to find the faculty non-managerial. Specifically, the Board concluded that USC had not proven that non-tenure-track faculty actually exercise control or make effective recommendations about policies that affect the university as a whole. The AAUP brief focused on the fundamental structural and operational changes in universities during the more than three decades since NLRB v. Yeshiva University. Universities have adopted a corporate model of decision-making and employment relations that has reduced faculty authority in university policy-making and has created conflicts of interests between faculty and university administrations. Rather than relying on faculty expertise and recommendations, the growing ranks of university administrators have engaged increasingly in unilateral top-down decision-making, often influenced by considerations of external market forces and revenue generation. At the same time, universities have cut back on tenure-track/tenured positions and greatly expanded non-tenure-track faculty positions. Under these conditions, universities’ assertions that faculty are managerial are often based only on “paper authority” rather than actual authority or effective recommendations by faculty in university policy-making.