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NLRB Adopts DC Circuit Framework for Evaluating Managerial Status of College and University Faculty Subgroups, Rejects Subgroup Majority Status Rule
Practical Law Legal Update w-029-8121 (Approx. 4 pages)
NLRB Adopts DC Circuit Framework for Evaluating Managerial Status of College and University Faculty Subgroups, Rejects Subgroup Majority Status Rule
by Practical Law Labor & Employment
| Published on 23 Feb 2021 • USA (National/Federal) |
In Elon University, the National Labor Relations Board (NLRB) adopted the DC Circuit's framework for evaluating the managerial status of college and university faculty subgroups and rejected the "subgroup majority status rule."
On February 19, 2021, in Elon University, the panel (Board) heading the NLRB's judicial functions:
- Modified the Pacific Lutheran University standard for evaluating whether a petitioned-for faculty subgroup at a college or university is managerial to reflect the framework articulated by the DC Circuit in University of Southern California v. NLRB (361 N.L.R.B. 1404 (2014); 918 F.3d 126 (D.C. Cir. 2019)). Under this revised framework, a faculty subgroup will be found to be managerial only where the following conditions are satisfied:
- the faculty body exercises effective control over the five key areas of consideration identified in Pacific Lutheran (academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions); and
- based on the faculty's structure and operations, the petitioning faculty subgroup is included in that managerial faculty body.
- Rejected the bright-line "subgroup majority status rule" articulated in University of Southern California (365 N.L.R.B. No. 11, slip op. at 18 (Dec. 30, 2016)).
- Held that the university employer in this case failed to meet its burden of proof under the "structural inclusion" prong of the new test by establishing, based on the evidence as a whole, that the petitioned-for faculty members serve on any of the employer's committees overseeing the five areas of consideration under Pacific Lutheran. Accordingly, the faculty subgroup was not managerial and the Board found it unnecessary to consider the first prong of the new standard.
The Board's decision in Elon University refines the analytical framework used when determining the managerial status of college and university faculty subgroups. The Board noted that the second "structural inclusion" prong inherently incorporates consideration of several Pacific Lutheran factors, including the structure of university decision-making and where the faculty subgroup fits within that structure and the nature of the employment relationship held by the petitioned-for subgroup. Further, although it rejected a bright-line majority status rule, the Board nevertheless stated that it may continue to consider whether a specific petitioned-for subgroup holds a majority of seats on the employer's collegial faculty bodies, especially where the interests of the subgroup fundamentally diverge from the interests of the majority.