Court favors USC in employee union case

A D.C. appeals court ruled that non-tenure track employees at USC cannot form unions during a hearing last Tuesday. The National Labor Relations Board v. USC decision affirms the 1980 Supreme Court ruling in the NLRB v. Yeshiva University case, which stated that tenured and tenure-track faculty at universities essentially hold managerial positions, excluding them from forming unions with other workers.

NLRB previously decided in 2015 that full- and part-time non-tenure track employees in the Roski School of Art and Design had the right to form a union through a local chapter of the Service Employees International Union, despite USC’s objections, according to the decision. The University then appealed this decision in court.

According to the decision, NLRB argued that adjunct faculty at USC didn’t hold a managerial status based on vague guidelines created in a 2014 NLRB decision regarding Pacific Lutheran University.

“The court held that the National Labor Relations Board is not free simply to apply industrial models to higher education, but must accommodate the way shared faculty governance actually works,” Senior Vice President of Legal Affairs and Professionalism Carol Mauch Amir wrote in a statement to the Daily Trojan.  

The American Association of University Professors submitted an amicus brief on behalf of the NLRB. The brief argued that because university administrators have had more and more power in making decisions in the years since the Yeshiva ruling, the standards for determining if university employees hold managerial decisions must also change.

“In this changing context, the [NLRB] 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,’” the AAUP’s brief read.

The American Council on Education and seven other education organizations submitted amicus briefs in favor of USC. ACE’s brief claimed that the test NLRB created in the Pacific Lutheran University decision to determine if university employees can be considered managerial counters the idea of shared governance among faculty, staff and administrators in higher education because NLRB argued that faculty do not wield as much power in decisions as other leaders.

ACE’s brief argued that the Yeshiva decision showed that managerial roles for university faculty cannot be defined analogously to workers in other industries because these managerial relationships are far different.

“The heart of shared governance is the same today as it was in 1980 when the Supreme Court decided Yeshiva: shared managerial authority accomplished through collegial interchange,” the brief read.   

In a statement to the Daily Trojan, Provost Michael Quick said the court decision upholds USC’s “principle that tenured and untenured faculty are partners in shared governance.”

Mauch Amir wrote that the court decision is a victory for shared faculty governance for university faculties.

“Echoing the Supreme Court’s 1980 decision in the Yeshiva University case, the court held that ‘traditions of collegiality’ distinguish governance in a university from the management of a factory,” Mauch Amir wrote.   Both the AAUP and ACE declined to comment on the case and referred the Daily Trojan to their respective amicus briefs. The NLRB did not respond to multiple requests for comment.