AAUP Submits Amicus Brief on Behalf of USC Faculty

POSTED BY HANK REICHMAN

The following is taken from the AAUP’s website:

The AAUP submitted an amicus brief December 28 to the US Court of Appeals for the District of Columbia Circuit urging the Court to uphold the National Labor Relations Board’s (NLRB) determination that non-tenure-track faculty at the University of Southern California (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 the Service Employees International Union (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 (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.

The following is the text of the brief’s “summary of argument”:

In NLRB v. Yeshiva University, 444 U.S. 672 (1980), the Supreme Court created a multi-factor test for determining whether university2 faculty are managerial employees under the National Labor Relations Act (NLRA). 29 U.S.C. § 151 et seq. At the same time, the Court recognized that analyzing faculty employment status is a dynamic process. The factors the Court relied on provide “a starting point only, and…other factors not present here may enter into the analysis in other contexts.” 444 U.S. at 690, n. 31. As this Court has explained, “[C]ontext is everything…. The key inquiry is ‘how a faculty is structured and operates.’” Point Park University v. NLRB, 457 F.3d 42, 48 (D.C. Cir. 2006), quoting, Yeshiva, 444 U.S. at 690, n. 31.

In the case at hand, the NLRB followed its 2014 legal framework in Pacific Lutheran University, which provides “a more workable, more predictable analytical framework to guide employers, unions, and employees alike,” 361 N.L.R.B. 1404, 1419 (2014), to find that non-tenure track faculty in a bargaining unit at the University of Southern California (USC) are not managerial employees under the NLRA. Consistent with, and explicitly referring to Yeshiva, the Board’s framework examines “both the breadth and depth of the faculty’s authority at the university,” Id. at 1419, to determine whether faculty members “‘substantially and pervasively’ operated the university by exercising extensive control over decision-making and playing a ‘crucial role… in determining…central policies of the institution.’” Id., quoting, Yeshiva, 444 U.S. at 679. The Board, therefore, places the greatest weight on three factors where “faculty exercise actual or effective decision making authority over policies for the university as a whole,” as areas where faculty “interests begin to align with management, thereby creating the problem of divided loyalty that the managerial employee exception seeks to avoid.” 361 N.L.R.B. at 1419, citing, Yeshiva, 444 U.S. at 690.

The Pacific Lutheran factors are context-sensitive. The three primary and two secondary factors may be applied in the specific context of the university in a particular case. Further, the factors reflect the Board’s consideration of the context of the changing nature of higher education institutions in the almost four decades since Yeshiva was decided. As the NLRB explains, “Indeed, our experience applying Yeshiva has generally shown that colleges and universities are increasingly run by administrators, which has the effect of concentrating and centering authority away from the faculty in a way that was contemplated in Yeshiva, but found not to exist at Yeshiva University itself.” 361 N.L.R.B. at 1422. In this changing context, the Board appropriately emphasizes that the party asserting managerial status must prove that the breadth of faculty authority extends to policy making that affects the university as a whole and that the depth of faculty effective recommendations or control demonstrates “actual—rather than mere paper—authority.” Id. at 1421.

AAUP believes that the NLRB’s approach in this case led to the correct result, including the Board’s analysis of the relationship between administration and faculty in deciding whether USC non-tenure track faculty are managerial employees. This amicus brief addresses the structural and operational changes in universities that have altered administration-faculty relationships, resulting in reduced faculty authority in university policy making and a divergence in the interests of faculty and university administrations. These institutional changes are: increased top-down management of the university by the growing ranks of administrators; expansion of non-tenure track faculty positions and the corresponding reduction of tenure-track/tenured faculty positions; increased conflict between the university administration and faculty; and the influence of external market forces on university administrators’ decision making.

Much of the 43-page brief is devoted to a discussion of changes in college and university structures since Yeshiva.  The following are excerpts from that discussion, with citations and footnotes removed:

Yeshiva contrasted the system of “‘shared authority’ in the typical ‘mature’ private university” with “the type of management-employee relations that prevail in the pyramidal hierarchies of private industry.”  The AAUP has long advocated for “shared governance” and collective bargaining as positive ways for faculty to participate in university policy making that affects the interests of the faculty. The existence of shared governance is not, however, equivalent to a legal finding of managerial status under the NLRA. Faculty often engage in shared governance as part of their non-managerial responsibilities as professional employees under Section 2(12) of the NLRA. Under Yeshiva, faculty are considered managerial employees only when they “exercise discretion within, or even independently of, established employer policy and [are] aligned with management…by taking or recommending discretionary actions that effectively control or implement employer policy.”

In the thirty-seven years since Yeshiva was decided, there have been significant changes in the university structure and management model relevant to determining whether faculty are Section 2(12) professional employees with Section 7 rights or whether they are managerial employees excluded from the protections of the NLRA. As the NLRB explains in Pacific Lutheran, major changes in the context of university administrative structures and employment practices have undermined the actual breadth and depth of faculty authority . . . .

Rather than relying on faculty expertise and recommendations, the growing ranks of administrators increasingly make unilateral decisions on university policies and programs, often influenced by considerations of external market forces and revenue generation. Administrators have become more top-down in managing the university faculty, 70 percent of whom are now non-tenure track contingent faculty. These structural changes in the distribution and exercise of authority in the university have altered the relationship between the administration and the faculty to one in which their interests are not aligned. The divergence between administration and faculty is captured by a statement in 2011 by Andrew Meyer, the chairman of Suffolk University’s Board of Trustees: “Suffolk has gone through a transition. This is a new chapter in the history of the university. We need people who understand that running an institution of higher education today means running a business.” . . .

The influence of the corporate business model on universities has led to a major expansion of university administration, accompanied by greater top-down authority exercised by high-level administrators. Between the years of 1976 and 2015, the number of full-time executives and managers grew by 140 percent, while full-time faculty grew by 86 percent. . . . The expansion of administration has occurred not simply in public university systems featuring multiple campuses throughout the state, but also in private universities with a single campus location. For example, at USC, in addition to the President and Provost, there are seven Senior Vice Presidents and nineteen Deans.  At the college level of universities, the administration has expanded through a proliferation of associate deans, assistant deans, and directors. . . .

As expenditure on instruction has gone down, the ranks of lower-wage non-tenure track faculty have increased dramatically to the current national rate of 70 percent of all faculty positions. This is nearly the reverse of the proportions in 1969, when 78 percent of faculty positions were tenured and tenure-track. As the NLRB noted in Pacific Lutheran, “‘[T]he increasing use of contingent faculty, to the point where the faculty itself can be described as contingent, clearly comprises a major component of a fundamental change in the nature of higher education institutions and their role in a democratic society.’” . . .

These fundamental changes in the employment model have created an increasingly stratified employment structure in the university. The highest level administrators (e.g. president, provost, senior vice-provosts) sit at the top of the hierarchy, with the next level occupied by an expanding number of high-ranking administrators (e.g. associate provosts, vice-provosts). The faculty are at the lowest levels, with tenure-track/tenured faculty positions steadily replaced by the growing ranks of non-tenure track/contingent faculty at the very bottom. This stratified system funnels authority over policy making away from the faculty. . . .  As a result, faculty authority over decisions about university policies and programs has diminished, often placing faculty in the position of simply providing input to the administration or merely being notified of decisions unilaterally reached by the administration. Further, unilateral decisions about academic programs have a direct impact on faculty control over their courses and curriculum, as top-down administrative changes in academic programs force faculty to alter their course offerings to fit the new shape of academic programs. . . .

The stratified employment structure that has evolved in universities since 1980 is a far cry from the collegial shared governance model that the Yeshiva Court imagined. The proliferation of high-level administrators has solidified a class of career university administrators who could be called “managerial professionals,” in contrast to the rest of the faculty, who remain “practicing professionals.” . . .

In this increased stratification, the growing number of “managerial professionals” in the administration possess enhanced authority and power over policies and programs in ways that erode control or effective recommendations by the “practicing professionals” in the faculty. While “managerial professionals” in the university administration would be excluded from the NLRA as managerial employees, faculty serving as “practicing professionals” should be protected professional employees under Section 2(12) of the NLRA. . . . As the Tenth Circuit explained, “The availability of this expertise within the ranks of the administration obviates the College’s need to rely extensively on the professional judgment of its faculty in determining and implementing academic policy. Under these circumstances while significant faculty input undoubtedly remains beneficial to the College, it is not necessary that the faculty be ‘aligned with management’… [and] presents no problem of divided loyalty equivalent to that found in Yeshiva.” . . .

Managerial status should be assessed within the context of the current reality of the structure and operation of the university. This is why the Board’s emphasis on actual control and effective recommendations is so crucial. As university restructuring shifts power and authority upward to the administration, the legal principles of employee status, as defined in Yeshiva, must be applied to evidence of “authority in practice.” . . .

The corporate business model of top-down management and the corresponding erosion of faculty authority has led to increased conflict between university administrations and faculty. Faculty governance bodies, including committees, senates, and councils, have protested administrative failures to consult with them or administrative decisions overriding faculty governance recommendations. . . .

Amicus AAUP has documented conflicts resulting from administrators’ failure to respect faculty governance. For example, at Bennington College, the Bennington Academic Freedom Committee and the AAUP protested the administration’s unilateral actions in 1994 to abolish its “presumptive tenure” system.  At Rensselaer Polytechnic Institute, in 2006, the Provost unilaterally suspended the Faculty Senate for failing to comply with the Board of Trustees’ order to revoke its amendment to expand Senate membership to include clinical faculty. The administration also took control of the election process for faculty committees (including the curriculum committee) and for the responsibility over the contents of the Faculty Handbook.

Faculty perceptions reflect the conflict resulting from the increased use of a corporate business model. The results from a 2007 international survey reveal that most U.S. faculty perceive that they have little influence over key academic policies at the level of their college and in the central university administration. Seventy-three percent of faculty responded that they are very or somewhat influential in helping to shape key academic policies at their departmental level. That percentage drops at the school/college-level to 37 percent and even further at the university level, where 21 percent responded that they are very or somewhat influential in shaping key academic policies. Sixty-four percent of faculty agreed that “there is a top-down management style” in their university, while only 31 percent agreed that “there is collegiality in decision-making processes” and only 30 percent agreed that “there is good communication between management and academics.” These data support a conclusion that the shifts toward top-down management contribute to faculty perceptions that faculty and administrative interests are not aligned.. . .

In applying the corporate business model, university administrators have relied increasingly on external market forces to make decisions based on revenue-generating potential of academic programs. This has eroded shared governance and faculty authority by shifting control and influence over academic policy and programs from the faculty to the administration. . . As universities face continuing financial pressures, administrators control decisions about finances and the budget, with a marked reduction of faculty participation in setting budget policies that affect academic matters.

Faculty control has been reduced, as well, by the growth of university agreements giving corporate donors unprecedented access to university departments in exchange for large-scale corporate funding. Such access includes corporate representatives on panels making decisions about whether to fund faculty research proposals, a function which had traditionally been reserved for faculty peer review. Corporate donors also influence the dissemination of research results through arrangements for non-exclusive or exclusive licensing of patented academic research results. . . .

The university’s growing identity as a business and market actor has altered the unique academic culture of the university. The extent to which the administration makes academic decisions based on market potential or an external industry partner’s interests reduces faculty authority to make “effective recommendations” about university market ventures, including university-industry agreements.

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