University of Southern California,

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

University of Southern California and Service Employees International Union, Local 721, Petitioner. Case 31–RC–164868

December 30, 2016

ORDER DENYING REVIEW

BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN

The National Labor Relations Board has carefully considered the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election (pertinent portions of which are attached as an appendix), as well as the Petitioner’s opposition brief. The request for review is denied as it raises no substantial issues warranting review.¹

¹ We agree with the Regional Director that the Employer has not met its burden of demonstrating that the petitioned-for Roski School faculty possess managerial authority in any of the primary or secondary areas under Pacific Lutheran University, 361 NLRB No. 157 (2014). The Regional Director’s decision properly applied that precedent. We are not persuaded by the position of our dissenting colleague, who dissented as well in Pacific Lutheran.

Our colleague argues that the nature of the petitioned-for faculty’s employment relationship is irrelevant to the determination of their managerial status. We disagree. The Regional Director properly considered “the nature of the faculty’s employment” id. slip op. at 17, consistent with Pacific Lutheran. See id. slip op. at 19 fn. 40 (“[T]he structure of the university administration and the nature of the faculty’s employment relationship may well bear on whether the faculty in issue control or make effective recommendations for specific areas of university decision-making. To that extent, both the structure of the university administration and the nature of the faculty’s employment relationship will be relevant to our analysis.”).

Next, our colleague challenges the Regional Director’s analysis of how the university committees operate and the standard for assessing the petitioned-for faculty’s role in decision making. Here, too, the Regional Director correctly applied Pacific Lutheran, which reaffirmed the longstanding requirements that “the party asserting managerial status must demonstrate that faculty actually exercise control or make effective recommendations” and that “to be ‘effective,’ recommendations must almost always be followed by the administration.” Id. at 18.

Finally, our colleague questions the Regional Director’s focus on the role of nontenure track faculty, as opposed to faculty members generally, on university committees. This focus was consistent with Pacific Lutheran. See id. at 18 fn. 36, 24–25.

We also deny the Employer’s Request for Review of [the Regional Director’s] Order Denying Employer’s Motion to Reopen the Record and for Reconsideration of the Decision and Direction of Election (pertinent portions of which are attached to the appendix) as it raises no substantial issue warranting review. Contrary to our dissenting colleague, even assuming the Employer’s motion was timely and that the postelection testimony constitutes newly discovered evidence, the proffered evidence would not warrant a different result as to our determination that the Regional Director did not err in finding that the Roski

Dated, Washington, D.C. December 30, 2016

______________________________________

Mark Gaston Pearce, Chairman

______________________________________

Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

MEMBER MISCIMARRA, dissenting.

The Regional Director determined that the Employer’s nontenure track faculty are not managerial employees. In making this determination, the Regional Director questioned whether any USC faculty members exercise managerial control over any area of university governance, even when their recommendations are adopted regarding core academic matters such as USC’s curriculum. The Regional Director also found that if faculty members as a whole exercise managerial authority, such authority is not exercised by nontenure track faculty even though they participate on “the committees that comprise USC’s shared governance system.” In reaching these conclusions, the Regional Director relied in part on the testimony of Professor Kate Levin that she had no effective say on academic matters, but assigned no significance to Professor Levin’s contrary testimony during a postelection objections hearing. I believe that the request for review has raised substantial issues warranting review regarding each of these findings. Accordingly, I respectfully dissent.

Discussion

In NLRB v. Yeshiva University, 444 U.S. 672, 676 (1980), the Supreme Court held that university faculty who collectively determined the university’s “curriculum, grading system, admission and matriculation stand

School faculty are not managerial employees under Pacific Lutheran University.

Finally, in agreeing with the Regional Director’s rejection of the Employer’s challenge to the facial validity of the Final Rule, citing Pulau Corp., 363 NLRB No. 8 (2015), we note that in Chamber of Commerce v. NLRB, 118 F.Supp.3d 171 (D.D.C. 2015), the district court, granting summary judgment for the Board, found that the Rule did not violate the Act, the First Amendment, or due process under the Fifth Amendment. We further note that in Associated Builders & Contractors of Texas v. NLRB, No. 1-15-CV-026 RP, 2015 WL 3609116 (W.D. Tex. June 1, 2015), the district court found that the Rule did not violate the Act and was not arbitrary and capricious under the Administrative Procedures Act. That decision was affirmed by the U.S. Court of Appeals for the Fifth Circuit, 826 F.3d 215 (5th Cir. 2016).

365 NLRB No. 11

2

ards, academic calendars, and course schedules” were managerial employees exempt from the Act. The Court rejected the view that faculty authority could not be managerial because it was exercised collectively, and the equally untenable view that faculty could not have managerial authority unless it was final. Id. at 685 fn. 21. The Court made clear that managerial status exists not only “in the pyramidal hierarchies of private industry,” but also in the typical “mature” private university, where authority is divided between a central administration and one or more collegial bodies. Id. at 680.

More recently, the Board addressed the managerial status of university faculty in Pacific Lutheran University, 361 NLRB No. 157, slip op. at 20 (2014). There, the majority stated:

In sum, where a party asserts that university faculty are managerial employees, we will examine the faculty’s participation in the following areas of decisionmaking: academic programs, enrollment management, finances, academic policy, and personnel policies and decisions, giving greater weight to the first three areas than the last two areas. We will then determine, in the context of the university’s decision making structure and the nature of the faculty’s employment relationship with the university, whether the faculty actually control or make effective recommendation over those areas. If they do, we will find that they are managerial employees and, therefore, excluded from the Act’s protections.

I generally agreed with the Pacific Lutheran framework regarding managerial status, but I stated that the Board should not impose unrealistic burdens on parties to demonstrate the existence of control or the effectiveness of recommendations made by faculty members, which might “improperly confer ‘employee’ status on some faculty members who should be considered ‘managerial’ employees under Yeshiva and its progeny.”¹ For example, I indicated that the Board could not appropriately reject uncontroverted documentary evidence about faculty authority by dismissing such evidence as “mere paper authority.”² Similarly, I said that “it is unrealistic and inconsistent with the Act to regard faculty members as ‘managerial’ employees only if their recommendations are ‘almost always’ followed.”³

In the instant case, I believe the Board should grant review because substantial issues exist regarding these and other aspects of the Regional Director’s application of

¹ Id. slip op. at 27 (Member Miscimarra, concurring in part and dissenting in part).

² Id.

³ Id.

Pacific Lutheran, and I believe the Regional Director’s analysis may depart from Yeshiva. The following considerations, in particular, are relevant to my belief that the Board should grant review.

First, the Board defines managerial employees as those who “‘formulate and effectuate management policies by expressing and making operative the decisions of their employer.’” NLRB v. Bell Aerospace Co., 416 U.S. 267, 288 (1974) (quoting Palace Laundry Dry Cleaning Corp., 75 NLRB 320, 323 fn. 4 (1947)). Matters such as length of appointment, tenure rights, and benefits— though they may be important to faculty members—are irrelevant to a determination of managerial status. Accordingly, the Regional Director’s reliance on the limited duration of nontenure track faculty appointments, the fact that nontenure track faculty lack the job security tenured faculty enjoy, and the fact that faculty who work less than 50 percent of full time do not receive benefits as evidence that nontenure track faculty are not managerial employees alone warrants granting review.

Second, several all-faculty USC committees exercise effective decision-making powers in exactly the same areas that the Court found determinative in Yeshiva. For example, the USC University Committee on Curriculum (UCOC) is an all-faculty body that must approve every course offered for credit, every proposed new or modified program consisting of those courses, and every major or minor or new degree offered by USC, with the exception of the MD program....