370 NLRB No. 91
Elon University
370 NLRB No. 91
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
Elon University and SEIU Workers United Southern
Region. Case 10–RC–231745
February 19, 2021
DECISION ON REVIEW
BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN,
EMANUEL, AND RING
The issue presented in this case is whether the Em-
ployer’s nontenure-track faculty members, who are eligi-
ble to participate in some of the university faculty groups
vested with decision-making authority, are managerial
employees under the Act. The Acting Regional Director,
applying the “subgroup majority status rule” set forth in
Pacific Lutheran University, 361 NLRB 1404 (2014) (Pa-
cific Lutheran), found that the nontenure-track faculty
members do not possess the requisite managerial control
because they do not constitute a majority subgroup within
any of those faculty groups.
Following the Acting Regional Director's initial deci-
sion in this matter, the United States Court of Appeals for
the District of Columbia Circuit issued its decision in Uni-
versity of Southern California v. NLRB, 918 F.3d 126
(D.C. Cir. 2019) (USC). In USC, the court rejected the
“subgroup majority status rule” set forth in Pacific Lu-
theran, finding that the rule conflicted with NLRB v. Ye-
shiva University, 444 U.S. 672 (1980), where the Supreme
Court identified factors relevant in determining the mana-
gerial status of college or university faculty. With this
case now before us on review, we agree with the D.C. Cir-
cuit that the “subgroup majority status rule” cannot be rec-
onciled with Yeshiva.
Accordingly, we have decided to modify Pacific Lu-
theran in relevant part and to adopt the alternative frame-
work articulated by the D.C. Circuit in USC. Under this
framework, the determination of the managerial status of
a subgroup of faculty members, based on their participa-
tion in a collegial faculty body, involves two distinct in-
quiries: first, “whether a faculty body exercises effective
control” over areas of decision-making discussed herein,
and second, “whether, based on the faculty’s structure and
operations, the petitioning subgroup is included in that
managerial faculty body.” 918 F.3d at 139. If both inquir-
ies are satisfied, then the faculty members in the subgroup
at issue constitute managerial employees, regardless of
whether they exert majority control within specific faculty
bodies. Applying this framework here, we find that the
1 The request for review was denied in all other respects.
Employer has not met its burden to prove that the peti-
tioned-for nontenure-track faculty members are structur-
ally included in the Employer’s faculty bodies. We there-
fore affirm the Acting Regional Director and find that the
petitioned-for faculty members are not managerial em-
ployees.
I. PROCEDURAL HISTORY
On November 29, 2018, SEIU Workers United South-
ern Region (the Petitioner) filed a petition to represent a
unit of all nontenure-track faculty members, including all
visiting faculty, limited-term faculty, and adjunct faculty
teaching at least one credit-bearing undergraduate course
at the Employer’s College of Arts and Science, School of
Communications, School of Education, or the Martha &
Spencer Love School of Business. On February 5, 2019,
the Acting Regional Director issued a Decision and Direc-
tion of Election in which he found that the petitioned-for
faculty members are not managerial and that the peti-
tioned-for unit constitutes an appropriate unit under the
Board’s community-of-interest test.
The Region then conducted a mail-ballot election, com-
mencing on March 12, 2019, in which the Petitioner pre-
vailed. The Employer filed objections, and the Acting Re-
gional Director subsequently issued a Decision and Certi-
fication of Representative on September 3, 2019, overrul-
ing the Employer’s objections and certifying the unit.
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Employer filed a
timely request for review of both the Acting Regional Di-
rector’s Decision and Direction of Election and his Deci-
sion and Certification of Representative. The Petitioner
filed an opposition to the request.
On April 13, 2020, the Board granted the Employer’s
Request for Review solely with respect to the managerial
status of the petitioned-for employees, as it raised a sub-
stantial issue “with respect to the continued application of
the Board’s ‘majority status rule’ as articulated in Pacific
Lutheran.”1 Thereafter, the Employer and Petitioner filed
briefs on review.
II. FACTS
The Employer operates a private, nonprofit university
in Elon, North Carolina, and it employs about 577 faculty
employees. The Petitioner is seeking to represent a sub-
group of those employees: all nontenure-track faculty em-
ployees teaching at least one credit-bearing undergraduate
course in one of the university’s four undergraduate
schools. The nontenure-track classifications in the peti-
tioned-for unit include visiting faculty, limited-term fac-
ulty, and adjunct faculty (collectively, the petitioned-for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
nontenure-track faculty) and exclude tenured faculty, ten-
ure-track faculty, continuing-track faculty, and lecture-
track faculty (collectively, the excluded faculty). Of the
approximately 181 petitioned-for faculty members, about
134 are adjunct faculty members, about 42 are limited-
term faculty members, and only 2 are visiting faculty
members.
In comparison to the excluded faculty, the petitioned-
for nontenure-track faculty have substantially less expec-
tation of continued employment. Adjunct faculty have
contracts that are renewed on a semester-to-semester ba-
sis. Limited-term faculty have their contracts reevaluated
on a yearly basis and are barred from serving for more than
4 years. Similarly, visiting faculty have their contracts re-
newed on a yearly basis, usually for a term of up to 3 years,
with a potential extension up to 6 years. At any point dur-
ing the contract renewal process, visiting faculty may be
converted to a tenure-track or lecture-track position,
should the university wish to keep them on permanently;
limited-term and adjunct faculty cannot be converted in
the same manner. While adjunct faculty have no mini-
mum number of hours they are expected to teach per year,
visiting and limited-term faculty teach full course loads of
24 credit hours per year. Finally, visiting, limited-term,
and adjunct faculty do not have the same scholarly and
service duties as do the excluded faculty classifications.
Unlike the excluded faculty, who go through rigorous
evaluations with respect to their teaching, scholarly, and
service duties, the petitioned-for faculty are evaluated
based solely on their student evaluations and the depart-
ment chair’s observation of their teaching. Further, alt-
hough the excluded faculty may be promoted based on
positive evaluations, the petitioned-for faculty are not eli-
gible for promotions based on their performance.
Under the Employer’s “shared governance” system, as
described in the faculty handbook, members of the faculty
may sit on committees that determine courses of study, re-
quirements for admission, and standards of performance;
determine and recommend to the Board of Trustees stand-
ards for selection, promotion, and tenure of faculty mem-
bers; and define ethical and professional standards for
members of the faculty, among other functions. These
powers are granted to the faculty by the university’s pres-
ident and are reviewed and approved by the Board of Trus-
tees. The president and Board of Trustees always retain
the right to review and approve the decisions made by the
shared governance committees.
2 In this regard, the faculty handbook states that “[d]ivisional and
school representatives must hold the rank of Senior Lecturer, Associate
Professor, or above; at-large members must hold the rank of Lecturer,
Assistant Professor, or above.” The handbook further clarifies that, to
serve as a voting member on the Academic Council in any seat, a faculty
Dr. Steven House, who served as the Employer’s Prov-
ost/executive vice president at the time of the hearing, tes-
tified that, although the university’s curriculum is primar-
ily dictated by the faculty, “strategic planning and budget
are primarily the role of the administration.” Two tenured
faculty members sit on the budget committee, along with
four administrators. The budget committee is responsible
for matters such as tuition rates, salaries, and distributing
revenue to the different schools and programs. The uni-
versity operates in accordance with a 10-year strategic
plan, consisting of several concrete goals, and this plan is
generated by the strategic planning committee. In addi-
tion, a long-range planning committee, which consists of
administration officials (including Provost House) and ex-
perienced full-time faculty, is responsible for ensuring that
the strategic plan is fulfilled, assessed, and reported. No
faculty members from the petitioned-for classifications sit
on the long-range planning committee, strategic planning
committee, or budget committee.
As mentioned above, the Employer’s faculty commit-
tees are largely responsible for determinations regarding
academic and faculty matters. For example, the Em-
ployer’s Academic Council is a 19-member committee
that makes recommendations to the Board of Trustees re-
garding the Employer’s overall educational program.
Generally speaking, the Academic Council advises the
president; coordinates faculty activities; runs faculty
meetings, along with the president and provost; maintains
the faculty handbook and bylaws; and writes and enforces
the university’s statement of professional standards. The
Academic Council has been involved in changes to the
Employer’s bylaws, revisions to the Employer’s mid-se-
mester grading policy (which is part of the faculty hand-
book), and the creation of various majors and minors, such
as the engineering major. The Academic Council includes
one staff person (who is not a member of either the peti-
tioned-for or excluded faculty classifications); three at-
large members, who are voted in via a faculty meeting
vote; around 15 rotating members from the different
schools and colleges; one seat reserved for limited-term or
adjunct faculty; and the dean, the provost, and the presi-
dent, who sit on the Academic Council as non-voting
members. Aside from the one seat reserved for limited-
term or adjunct faculty and the three at-large seats, only
tenure, tenure-track, continuing-track, lecture-track, and
visiting faculty are eligible to serve on the Academic
Council, due to restrictions on certain seats.2
member must have served for at least 2 years at the university and have
voting privileges at faculty meetings, which requires teaching at least 18
credit hours per year. As discussed below, the majority of adjunct fac-
ulty, and over half of the petitioned-for unit, are ineligible to serve on the
ELON UNIVERSITY
3
The record identifies only two individuals in the peti-
tioned-for classifications who have ever served on the Ac-
ademic Council: adjunct faculty member Billy Summers,
who began serving as the adjunct and limited-term faculty
representative when the seat was created in 2011 and is
the current representative, and adjunct faculty member
Leigh Ann Whittle, who held that same seat for a brief
period in 2016 and 2017. Whittle did not complete her
full 2-year term on the Academic Council because she left
for another university. In this regard, Provost House
acknowledged that, because limited-term and adjunct fac-
ulty do not have the same year-to-year expectation of em-
ployment as other faculty, it presents a “practical hurdle”
to serving on committees such as the Academic Council.
The Employer has 14 standing committees that review
and recommend changes to specific academic areas: the
Academic Standing Committee, Academic Technology
and Computing Committee, Admissions Committee, Ath-
letic Committee, Curriculum Committee, Core Curricu-
lum Committee, Faculty Research and Development
Committee, Global Education Curriculum Committee,
Graduate Council, Library Committee, Post-Probationary
Faculty Development Review Committee, Promotion and
Tenure Committee, Religious and Spiritual Life Commit-
tee, and Student Life Committee. With respect to mem-
bership on the standing committees, the Employer’s by-
laws create a distinction between “teaching faculty” and
“faculty.” A seat reserved for “teaching faculty” employ-
ees may only be filled by a faculty employee that the Em-
ployer considers “permanent,” such as a tenure-track, lec-
ture-track, or visiting faculty member; “faculty” seats,
which exist on five of fourteen standing committees (Ac-
ademic Technology and Computing, Admissions, Athlet-
ics, Religious and Spiritual Life, and Student Life), may
be filled by any faculty member, including limited-term
and adjunct faculty members.
Although the by-laws provide that a faculty member in
the petitioned-for faculty classifications may serve on a
standing committee, the record does not establish that any
such member ever has. Provost House, who testified that
“[v]ery few part-time [faculty] get appointed to these
types of committees, but it is possible,” was unable to
identify any adjunct or limited-term faculty member who
had served on a standing committee. With respect to vis-
iting faculty, House testified that one of the two visiting
faculty members had served on faculty committees “when
she was a staff member” (and before she became a visiting
faculty member), but he did not identify the specific com-
mittees; he further acknowledged that she had not served
Academic Council at all because they do not have voting privileges at
faculty meetings.
on any committees since becoming a visiting faculty
member, which had occurred only a few months before the
hearing. Provost House was not aware if the other visiting
faculty member had ever served, or currently served, on
any standing committee.
The Employer’s individual schools or departments may
also have their own committees and subcommittees. For
example, the university’s engineering, public health, as-
tronomy, and music production and recording arts majors
all originated in the curriculum committee for a particular
school before moving through a broader approval pro-
cess.3 Marna Winters, a department chair in the School of
Education, testified that she volunteered for departmental
committees when she was an adjunct faculty member be-
tween 2008 and 2011. These committees included the
“curriculum resource advisory committee,” which over-
saw how allotted funding was spent for the School of Ed-
ucation library, and a “core design team,” established in
connection with a new early childhood education major
and minor. Winters testified that the core design team in-
cluded two other adjuncts and three full-time faculty
members, but she did not identify any of those individuals.
In fact, the record does not identify any specific visiting,
limited-term, or adjunct faculty member who currently
serves, or has ever served, on a school or departmental
committee. To the contrary, assistant professor Dr. Cath-
erine Bush, who served as an adjunct faculty member from
2012 to 2018 and became a limited-term faculty member
in 2018, testified that she has never served on any com-
mittee, departmental or otherwise. Adjunct faculty mem-
ber Sharon Eisner, who works in the School of Communi-
cations, similarly stated that, while she tried to attend de-
partmental meetings, she was “not a part of the voting pro-
cess.” She further testified that, when she tried to join de-
partmental committees, she was told that they were “not
for adjuncts.”
In addition, the Employer also has a variety of task
forces, working groups, and advisory committees set up to
address discrete issues, such as a task force for black stu-
dents, staff, and faculty; a working group on high quality
teaching; the experiential education advisory committee;
the teaching fellow advisory committee; and the univer-
sity environmental advisory council. The Employer pro-
vided no evidence that any members of the petitioned-for
3 This broader approval process includes, but is not necessarily lim-
ited to, approval from the Academic Council and Board of Trustees, as
well as passing a faculty vote.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
faculty classifications currently serve or have served on
these working groups or advisory committees.4
Besides committees and working groups, the Employer
holds about three faculty meetings a semester at which
faculty members may vote on specific agenda items, such
as curriculum changes or changes to the faculty hand-
book/bylaws. For example, the full faculty voted on (and
passed) a change to the faculty handbook’s mid-semester
grading policy after it was approved by the Academic
Council. Similarly, the faculty has approved changes,
proposed by the Post-Probationary Faculty Development
Review Committee, designed to provide enhanced oppor-
tunities for sabbaticals for post-probationary (e.g., tenure-
track) faculty, to streamline the sabbatical process, and to
create eight new permanent faculty positions. The faculty
has also voted on the creation of new majors and minors,
such as the engineering major. Proposals from the budget
committee do not go to a faculty vote; rather, they are ap-
proved solely by the president and the Board of Trustees.
Although all faculty members may attend faculty meet-
ings, only faculty members who teach more than 18 credit
hours per year are eligible to vote. This includes all of the
visiting-track and limited-term faculty, but only a portion
of the adjunct faculty (30–40 of approximately 134 ad-
juncts). As a result, only 74–84 of 181 faculty members
in the petitioned-for unit are eligible to vote at faculty
meetings. Additionally, faculty members may only vote
if they physically attend the meeting. A measure automat-
ically passes, without a vote, if no faculty member raises
a question relating to the measure. Limited-term professor
Dr. Catherine Bush testified that she has attended only one
faculty meeting in almost 7 years, predominantly because
she felt that people were “very surprised” to see her there
and concluded that there was “no point” in attending fu-
ture meetings. Similarly, adjunct faculty member Sharon
Eisner testified that she attended one faculty meeting in
the last 11 years.
III. THE ACTING REGIONAL DIRECTOR’S DECISION
In determining that the petitioned-for non-tenure-track
faculty classifications are not managerial employees, the
Acting Regional Director applied the test set forth in Pa-
cific Lutheran University, 361 NLRB 1404 (2014). Under
4 In this regard, both the Employer and Petitioner attempted to pro-
vide lists of the Employer’s current committees, including the Academic
Council, standing committees, school and departmental committees, and
advisory committees and working groups. While these lists identified
the individual members of each committee by name, title, and position,
they did not identify the members by classifications. Because faculty
members have titles and positions that can encompass several different
classifications, these lists do not provide meaningful information about
the composition of the relevant committees, at least in terms of faculty
classifications. And although the Employer suggests that the “descrip-
tions of position” included on the lists indicate that a fair number of spots
Pacific Lutheran, in determining whether university fac-
ulty are managerial employees, the Board considers the
faculty’s participation in five areas of decision-making:
academic programs, enrollment management policies, fi-
nances, academic policies, and personnel policies and de-
cisions. Id. at 1417. The Board gives greater weight to
the first three “primary” areas of consideration “as they
affect the [u]niversity as a whole,” and less weight to the
“secondary, i.e., less important” areas. Id. at 1417, 1420.
The Board conducts this examination “in the context of
the university’s [decision-making] structure and adminis-
trative hierarchy, as well as the nature of the employment
relationship of the faculty in issue.” Id. at 1417. Finally,
the party asserting managerial status “must demonstrate
that faculty actually exercise control or make effective
recommendations” over these primary and secondary ar-
eas of consideration. Id. at 1421.
Here, the Acting Regional Director’s analysis began
and ended with what the D.C. Circuit termed the Pacific
Lutheran “subgroup majority status rule,” which holds
that a particular faculty subgroup cannot exercise effective
or actual control over an area of consideration if it does
not hold the majority of seats on the committees that gov-
ern that area of consideration. USC, 918 F.3d at 135; Pa-
cific Lutheran, supra at 1421 fn. 36. The Acting Regional
Director found that the Employer failed to prove that the
petitioned-for faculty constitute a “controlling majority”
on any of its shared governance committees, including at
faculty meetings, and noted that they were categorically
barred from serving on a number of the Employer’s com-
mittees. He accordingly concluded that “[s]ince the Em-
ployer has failed to prove that the petitioned-for faculty
employees exert majority control at any level, there is no
danger that their loyalty will be divided between Petitioner
and the Employer,” and, therefore, it was “unnecessary for
[him] to evaluate the Employer’s Academic Council or
university and school-specific committees under Pacific
Lutheran’s five-factor test.”
on these committees are, at least theoretically, open to “faculty” (includ-
ing the petitioned-for classifications) instead of “teaching faculty,” the
descriptions in the lists are inconsistent with the testimony elicited at the
hearing and with the faculty handbook. For example, the list of Aca-
demic Council members includes 17 individuals with a “description of
position” stating “faculty member” (as opposed to “teaching faculty”),
even for seats that are not open to limited-term and adjunct faculty mem-
bers. Similarly, the membership lists for several standing committees
identify certain members only as “faculty” when, according to the hand-
book, these committees are reserved for “teaching faculty” only.
ELON UNIVERSITY
5
IV. ANALYSIS
A. Why the “Subgroup Majority Status Rule” of Pacific
Lutheran Must Be Reconsidered
In NLRB v. Yeshiva University, 444 U.S. 672 (1980), the
Supreme Court found that full-time faculty members at
Yeshiva University constituted managerial employees.
As the Supreme Court observed, managerial employees
are those who “‘formulate and effectuate management
policies by expressing and making operative the decisions
of their employer.’” Id. at 682 (quoting NLRB v. Bell Aer-
ospace Co., 416 U.S. 267, 288 (1974)). “[N]ormally an
employee may be excluded as managerial only if he rep-
resents management interests by taking or recommending
discretionary actions that effectively control or implement
employer policy.” Id. at 683. The Court determined that
the faculty members at Yeshiva “exercise[d] authority
which in any other context unquestionably would be man-
agerial” by deciding what courses would be offered, when
they would be taught, and who would be teaching them;
which students would be admitted, retained, and gradu-
ated; and what teaching standards would be applied. Id.
at 686. By virtue of these activities, the faculty “deter-
mine[d] within each school the product to be produced, the
terms upon which it [would] be offered, and the customers
who [would] be served.” Id. Accordingly, the Court rea-
soned that finding the faculty members to be managerial
would “ensure that employees who exercise discretionary
authority on behalf of the employer will not divide their
loyalty between employer and union.” Id. at 687–688.
“The problem of divided loyalty is particularly acute for
a university like Yeshiva,” the Court explained, “which
depends on the professional judgment of its faculty to for-
mulate and apply crucial policies constrained only by nec-
essarily general institutional goals.” Id. at 689. In this
regard, the Court took great pains to emphasize the system
of “shared authority” at Yeshiva and similarly structured
colleges and universities. As the Court observed, this
“shared authority” does not fit squarely with the Act,
which “was intended to accommodate the type of manage-
ment-employee relations that prevail in the pyramidal hi-
erarchies of private industry.” Id. at 680. In contrast to
industrial decision-making, this shared authority system
“is divided between a central administration and one or
more collegial bodies.” Id. This model works in the aca-
demic world because the faculty and institution ultimately
share the same interest: the “policy” of “academic excel-
lence and institutional distinction.” Id. at 688. Academic
5 The Board’s decision in Pacific Lutheran also set forth another test,
addressing whether the Board may exercise jurisdiction over religious
institutions of higher education. In Bethany College, 369 NLRB No. 98
(2020), the Board recently overruled Pacific Lutheran’s test for religious
excellence benefits the university as an institution because
“[t]he ‘business’ of a university is education, and its vital-
ity ultimately must depend on academic policies that
largely are formulated and generally are implemented by
faculty governance decisions”; simultaneously, the faculty
can “enhance their own standing and fulfill their profes-
sional mission by ensuring that the university’s objectives
are met.” Id. Thus, a shared authority system naturally
aligns the interests of the faculty with the interests of man-
agement. And, since “traditional systems of collegiality
and tenure insulate the professor from some of the sanc-
tions applied to an industrial manager who fails to adhere
to company policy,” “[t]he large measure of independence
enjoyed by faculty members can only increase the danger
that divided loyalty will lead to those harms that the Board
traditionally has sought to prevent.” Id. at 689–690.
The Supreme Court cautioned, however, that it was “not
suggesting an application of the managerial exclusion that
would sweep all professionals outside the Act in deroga-
tion of Congress’s expressed intent to protect them,” and
that “[o]nly if an employee’s activities fall outside the
scope of the duties routinely performed by similarly situ-
ated professionals will he be found aligned with manage-
ment.” Id. at 690. For example, “[i]t is plain . . . that pro-
fessors may not be excluded [from the protections of the
Act] merely because they determine the content of their
own courses, evaluate their own students, and supervise
their own research.” Id. at 690 fn. 31. The Court further
commented that “it may be” that rational lines can be
drawn between faculty groups (such as tenured and unten-
ured faculty members) “depending upon how a faculty is
structured and operates,” although it did not express an
opinion on such questions because the petitioned-for unit
in Yeshiva was too broad to implicate them. Id.
After several decades of applying Yeshiva on a case-by-
case basis, the Board in Pacific Lutheran set forth its cur-
rent framework for analyzing whether faculty members at
a college or university are managerial.5 As discussed
above, faculty will be found to be managerial employees
under the Pacific Lutheran standard if they exercise actual
control over or make effective recommendations regard-
ing the primary and secondary areas of consideration. 361
NLRB at 1421. The Board clarified that a finding of ac-
tual control or effective recommendation requires “spe-
cific evidence or testimony regarding the nature and num-
ber of faculty decisions or recommendations in a particu-
lar decision-making area, and the subsequent review of
those decisions or recommendations, if any, by the
jurisdiction by adopting the jurisdictional test announced by the United
States Court of Appeals for the District of Columbia Circuit in University
of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6
university administration prior to implementation, rather
than mere conclusory assertions that decisions or recom-
mendations are generally followed.” Id. Thus, effective
recommendations are those that “must almost always be
followed by the administration,” such that they “routinely
become operative without independent review by the ad-
ministration.” Id. Moreover, the Board observed that its
inquiry into actual control and effective recommendation
must consider “both the structure of university decision-
making and where the faculty at issue fit within that struc-
ture, including the nature of the employment relationship
held by such faculty (e.g., tenured vs. tenure eligible vs.
nontenure eligible; regular vs. contingent).” Id. at 1421–
1422.
Most significantly for purposes of the present dispute,
the Pacific Lutheran decision included a footnote stating
that “[i]n those instances where a committee controls or
effectively recommends action in a particular decision-
making area, the party asserting that the faculty are man-
agers must prove that a majority of the committee or as-
sembly is faculty. If faculty members do not exert major-
ity control, we will not attribute the committee’s conduct
to the faculty.” Id. at 1421 fn. 36. In drawing this bright-
line rule, the Board cited prior cases in which the Board
had found that petitioned-for faculty members were not
managerial, in part because faculty members as a whole
(as opposed to one particular subgroup) did not constitute
a majority of members on the employer’s committees,
which were dominated by administrative officials.6
The Board, however, later extended its application of
the “majority status rule” in University of Southern Cali-
fornia, 365 NLRB No. 11, slip op. at 18 (2016), where the
Board denied review of the Regional Director’s determi-
nation that petitioned-for non-tenure-track faculty were
not managerial employees. As in the present dispute, the
Regional Director applied the “majority status rule” to a
6 See University of Great Falls, 325 NLRB 83, 95 (1997) (“While
there are several committees on which faculty comprise a minority, it is
with the influence of these faculty-dominated committees that I am pri-
marily concerned in resolving the issue of faculty's managerial status.
Decisions or recommendations made by committees only a minority of
whose members consist of faculty representatives cannot be said to be
faculty decisions or recommendations.”); see also Elmira College, 309
NLRB 842, 849 (1992) (concluding that “the nature of faculty involve-
ment with respect to academic matters conclusively establishes their sta-
tus as managerial employees” where “the faculty committees [] which
deal with [academic] matters are comprised predominantly, and, in some
cases, exclusively, of faculty representatives”); Cooper Union of Science
& Art, 273 NLRB 1768, 1775 (1985) (declining to find managerial status
where “full-time faculty . . . members constitute a numerical minority on
most of the governance committees and constitute something less than a
voting majority on about half of them”), enfd. 783 F.2d 29 (2d Cir. 1986),
cert. denied 479 U.S. 815 (1986).
subgroup of certain faculty classifications, as opposed to
the faculty as a whole. In doing so, the Regional Director
found that, even assuming the employer’s collegial bodies
exercised actual control or effective recommendation over
the Pacific Lutheran areas of consideration,7 such control
or recommendation could not be attributed to the faculty
subgroup at issue because “[d]espite the fact that nonten-
ure track faculty constitute a majority of the faculty body,
they are consistently in the minority on the dozens of fac-
ulty committees that comprise USC’s shared governance
system.”8 Id., slip op. at 18. Accordingly, by denying re-
view, the Board majority sanctioned a view of the “major-
ity status rule” under which a petitioned-for faculty sub-
group will be found non-managerial simply because the
members of that subgroup do not constitute a majority of
the members on the university’s committees, even if the
committees at issue are exclusively composed of faculty
members.9
After the Board denied review in University of Southern
California, the employer refused to bargain with the un-
ion, resulting in an unfair labor practice finding. See Uni-
versity of Southern California, 365 NLRB No. 89 (2017).
The employer petitioned the United States Court of Ap-
peals for the District of Columbia Circuit for review, ar-
guing that the Board had incorrectly resolved the manage-
rial-status issue, and the Board cross-applied for enforce-
ment. As mentioned above, the D.C. Circuit denied en-
forcement of the Board's order in University of Southern
California, concluding that the “subgroup majority status
rule" was inconsistent with the Supreme Court's Yeshiva
decision. USC, 918 F.3d at 127, 136–140. The court reit-
erated Yeshiva’s sharp distinction between the “pyramidal
view” of decision-making that occurs in the industrial sec-
tor and the “collegial” mode of decision-making that oc-
curs in bodies like university faculty, as well as its warn-
ing that the principles developed in the industrial setting
7 The Regional Director further found that the relevant committees
did not, in fact, exercise actual control or make effective recommenda-
tions.
8 The Regional Director also cited additional considerations, includ-
ing that the petitioned-for faculty were often unaware of the committees
available to them; did not receive “feedback or guidance about their role
or responsibilities, support for their other academic or artistic endeavors,
or, in the case of part-time faculty members who work less than 50 per-
cent of full-time, benefits such as health insurance”; and, with respect to
the part-time nontenure faculty, were likely ineligible to serve on com-
mittees requiring multiyear terms because of their semester-to-semester
or year-to-year appointments. Id., slip op. at 18.
9 Then-Member Miscimarra dissented from the majority’s denial of
review, observing that, under Yeshiva, “a faculty member may possess
managerial authority even though he or she cannot individually establish
policy separate from the committees on which he or she serves,” and
suggested that the “majority status rule” could improperly preclude the
Board from finding managerial status where it would otherwise be found.
Id., slip op. at 3.
ELON UNIVERSITY
7
“cannot be imposed blindly on the academic world.” Id.
at 136 (internal quotation marks omitted). According to
the court, the Supreme Court’s “collegial” view of deci-
sion-making that prompted its decision in Yeshiva “turned
not on an aggregation of the power delegated to a series of
individuals or a mosaic of subgroups—the focus of the
Board’s subgroup majority status rule—but rather on the
role played by the faculty as a body.” Id. at 137. In this
regard, the court held that the subgroup majority status
rule “ignores the possibility that faculty subgroups, de-
spite holding different status within the university, may
share common interests and therefore effectively partici-
pate together as a body on some or all of the issues rele-
vant to managerial status,” and improperly assumes “that
minority subgroups can never work out their differences
with the majority.” Id. “Taken together,” the court ex-
plained, “these two themes of Yeshiva—a focus on the fac-
ulty as a body and an emphasis on collegiality—demon-
strate that the question the Board must ask is not whether
a particular subgroup can force policies through based on
crude headcounts, but rather whether that subgroup is
structurally included within a collegial faculty body to
which the university has delegated managerial authority.”
Id.10
Although the court rejected the “subgroup majority sta-
tus rule,” it found that other elements of the Pacific Lu-
theran framework—specifically, its standard for “effec-
tive recommendation” and the division between “primary
and secondary” areas of consideration—did not contradict
Yeshiva. Id. at 140–142.11 It follows, therefore, that, un-
der the test set forth in USC, if a minority subgroup is
“structurally included” within a collegial faculty body,
then the employees must be found to be managerial if, and
only if, that faculty body exercises “effective control” over
the primary and secondary areas of consideration. See id.
at 137–139.12
Moreover, the court allowed that the question of major-
ity membership in a collegial faculty body can be relevant
to a particular subgroup’s “structural inclusion” in that
body, even without the bright-line “subgroup majority sta-
tus
rule.”
Referencing
the
Supreme
Court’s
10 Aside from these key themes, the D.C. Circuit also relied on “two
additional considerations.” First, it noted that the “majority status rule”
was inconsistent with Board precedent, cited in Yeshiva, excluding mi-
nority employee shareholders from bargaining units because they
“owned enough stock to give them, as a group, a substantial voice in the
employer’s affairs to exercise effective control, even absent majority
control.” Id. at 138 (quoting Yeshiva, 444 U.S. at 685 fn. 21). Second,
it pointed to the practical problems of applying the majority status rule,
given that the faculty subgroup that holds a majority on a committee
could change from year to year, and that otherwise undisputedly mana-
gerial individuals might be found to be employees should they fall into
the minority. Id.
acknowledgement in Yeshiva that the Board might reason-
ably draw lines between faculty subgroups based on how
those subgroups operate, the court explained that “deter-
mining whether a subgroup holds a decisive bloc of com-
mittee seats may be necessary where a subgroup’s inter-
ests fundamentally diverge from those of the majority,” as
“there may well be issues on which the interests of the
subgroup and the faculty as a whole differ so significantly
that they cannot be reconciled even through collegial com-
promise.” Id. at 138. Under these circumstances, an ex-
amination of how a particular faculty group “actually
functions” may support a finding that the group “cannot
exercise effective control unless it constitutes a majority
of the relevant committees.” Id. Similarly, the court ob-
served that “if a subgroup that the university expects to
participate in a committee nonetheless fails to do so, this
may signal the presence of structural barriers to that
group’s participation.” Id. Although the court acknowl-
edged that Pacific Lutheran considers these factors, it con-
cluded that Pacific Lutheran "runs afoul of Yeshiva by us-
ing these factors as part of a determination focused on
whether the petitioning subgroup alone exercises effective
control,” as opposed to considering them as part of a sep-
arate inquiry into whether the subgroup at issue is struc-
turally included in a particular faculty body. Id. at 139.
B. The Modified Standard to Be Applied
We agree with the D.C. Circuit that the “subgroup ma-
jority status rule” does not comport with Yeshiva and
poses practical problems that unnecessarily muddle the
Board’s inquiry into the managerial status of faculty sub-
groups at colleges and universities. As we explained
above, there is little support in Board precedent, including
in Pacific Lutheran itself, for the expanded reading of the
“majority status rule” articulated in University of Southern
California. Although the Board has historically consid-
ered whether a particular committee is composed primar-
ily of faculty or administrative officials, the expanded ver-
sion of the majority status rule does something entirely
different: it breaks down the faculty into subgroups and
mathematically weighs them against each other, imposing
11 Concerning the Pacific Lutheran requirement that effective recom-
mendations are those that “must almost always be followed by the ad-
ministration,” such that they “routinely become operative without inde-
pendent review by the administration,” the D.C. Circuit clarified that alt-
hough demanding, this standard “leaves room for some administrative
review” and cautioned the Board to apply it “with sensitivity to the no-
tion of collegial managerial authority,” as recognized in Yeshiva. Id. at
140-141.
12 Otherwise stated, the court explained that “the question the Board
must ask is not a numerical one—does the subgroup seeking recognition
comprise a majority of a committee—but rather a broader, structural one:
has the university included the subgroup in a faculty body vested with
managerial responsibilities?” Id. at 137.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8
a bright-line rule that can completely preclude the Board
from finding that a particular subgroup has managerial sta-
tus based solely (as the court put it) on “crude head-
counts.” See USC, 918 F.3d at 137.
Under certain circumstances, this bright-line approach
could lead to unpredictable, or even manifestly incorrect,
results. As the court observed, changes to committee com-
position from year to year could lead to inconsistent or
fluctuating determinations with respect to which sub-
groups constitute managerial employees, and the “sub-
group majority status rule” could incentivize the “strategic
division of faculties” to influence determinations of fac-
ulty managerial status. See id. at 138. And even where a
committee’s membership remains relatively stable, a sub-
group of otherwise undisputedly managerial employees
could nevertheless be found to be statutory employees
based solely on their minority status within the relevant
decisional body or bodies. For example, fully tenured fac-
ulty often constitute a minority of a university’s total fac-
ulty complement, and may not make up a mathematical
majority on most committees; however, they also repre-
sent the faculty with the most experience in formulating
academic policy, have their professional interests tied
most closely to the success of the university, and enjoy the
greatest degree of protection and independence from the
college administration—all factors that the Supreme Court
highlighted in Yeshiva as supporting a finding that the fac-
ulty members there were managerial. See 444 U.S. at 688-
690. Nevertheless, the “subgroup majority status rule”
could easily deem a unit of fully tenured faculty members
statutory employees even though their minority status at
the university is due, in part, to the very factors that render
them managerial. Nor is it difficult to conceive of a situ-
ation in which committees are exclusively composed of
multiple faculty subgroups with no one subgroup holding
a majority. As then-Member Miscimarra noted in Univer-
sity of Southern California, “even faculty who indisputa-
bly exercise managerial authority on a university-wide ba-
sis could be treated as nonmanagerial if organized in sep-
arate departmental units, each of which was a minority on
any given governance body.” 365 NLRB No. 11, slip op.
at 4 fn. 7.
We further agree with the court that the “majority status
rule,” as expanded in University of Southern California,
incorporates an overly rigid view of the decision-making
13 Indeed, Pacific Lutheran itself seems to endorse a more holistic
view than the majority status rule permits, given its statement that “an
evaluation of whether faculty actually exercise control or make effective
recommendations requires our inquiry into both the structure of univer-
sity decision-making and where the faculty at issue fit within that struc-
ture, including the nature of the employment relationship held by such
faculty (e.g., tenured vs. tenure eligible vs. nontenure eligible; regular vs.
authority of particular faculty subgroups, largely for the
reasons set forth by the court in USC. In Yeshiva, the Su-
preme Court found that faculty members can be deemed
managerial via membership in a university’s collegial
bodies, even though each individual faculty member con-
stitutes only one vote. Theoretically speaking, any single
faculty member serving on a committee can be outvoted
on a given issue, but this does not, under Yeshiva, render
that faculty member nonmanagerial because the collegial
nature of the decision-making body gives that individual
an opportunity to shape policy on equal footing with the
other members of the committee. Such a rationale paral-
lels the Board’s precedent with respect to employee stock-
holders, who are excluded from bargaining units where
“their stockholding interest gives them an effective voice
in the formulation and determination of corporate policy.”
See Red and White Airway Cab Co., 123 NLRB 83, 85
(1959).
The question, therefore, is not whether a particular fac-
ulty subgroup at a university has a mathematical majority
in some relevant part of the university’s decision-making
apparatus, but rather whether the subgroup has an “effec-
tive voice in the formulation and determination of [the uni-
versity’s] policy”—i.e., whether it is structurally included
in a collegial, managerial body. Necessarily then, the ap-
propriate analysis has “two distinct inquiries: whether a
faculty body exercises effective control and, if so,
whether, based on the faculty’s structure and operations,
the petitioning subgroup is included in that managerial
faculty body.” USC, 918 F.3d at 139. Only where both
inquiries are answered in the affirmative can the faculty
members at issue be deemed managerial. As the D.C. Cir-
cuit recognized, factors such as the majority status of a
particular faculty subgroup, the structure of the relevant
bodies, and the nature of the employment relationship are
more relevant to whether particular faculty classifications
are structurally included in a particular collegial body than
to whether the collegial body itself is managerial—a dis-
tinction that the original Pacific Lutheran framework
failed to draw, even though it recognized that the Board
should consider these factors.13 Id. The court further rec-
ognized that making majority status the sole determinative
factor when it comes to structural inclusion unnecessarily
restricts the Board’s inquiry and precludes a more holistic
consideration of whether the faculty classification at issue
contingent).” 361 NLRB at 1421–1422. These factors are implicitly
aimed at the very same issue that the D.C. Circuit emphasized: whether
the petitioned-for employees are structurally included in the managerial
bodies of the university. However, the Pacific Lutheran framework sub-
sumes them under the question of actual control or effective recommen-
dation, without recognizing that they speak to the issue of structural in-
clusion.
ELON UNIVERSITY
9
is structurally included in a faculty body that “exercises
effective control” over a university’s managerial preroga-
tives. See id. at 136–139 (“The [Yeshiva] Court’s analysis
turned not on an aggregation of the power delegated to a
series of individuals or a mosaic of subgroups—the focus
of the Board’s subgroup majority status rule—but rather
on the role played by the faculty as a body.”).
We therefore adopt the D.C. Circuit’s proposed frame-
work for evaluating whether a faculty classification at a
college or university is managerial, including its rejection
of the “subgroup majority status rule.” This framework
represents a commonsense restructuring of Pacific Lu-
theran, retaining and refining Pacific Lutheran’s substan-
tive elements while more clearly adhering to the Supreme
Court’s rationale in Yeshiva. Under this test, the Board
will analyze “whether a faculty body exercises effective
control” over the Pacific Lutheran areas of consideration,
and, “if so, whether . . . the petitioning subgroup is in-
cluded in that managerial faculty body.” See 918 F.3d at
139. If both prongs of the test are met, then the faculty
subgroup at issue is managerial. As discussed above, this
second “structural inclusion” prong naturally incorporates
a number of the Pacific Lutheran factors, including “the
structure of university decision-making and where the fac-
ulty at issue fit within that structure, including the nature
of the employment relationship held by such faculty (e.g.,
tenured vs. tenure eligible vs. nontenure eligible; regular
vs. contingent).” Pacific Lutheran, supra at 1421-1422;
see also USC, supra at 138-139 (acknowledging that the
Board may consider the number of seats a particular sub-
group holds on a committee, the potentially divergent in-
terests of that subgroup, and the nature of their employ-
ment). Accordingly, under the modified standard, the
Board may continue to consider whether the petitioned-
for faculty subgroup holds a majority of seats on the uni-
versity’s collegial faculty bodies, especially where the in-
terests of the petitioned-for group “fundamentally diverge
from those of the majority.” The fact that the petitioned-
for subgroup does not constitute a majority of a given fac-
ulty body, however, will not preclude finding that the
members of the subgroup are managerial employees.
USC, supra at 138–139.
C. Application of This Standard to the Present Dispute
Applying the Pacific Lutheran standard, as modified by
USC, to the present dispute, we find that the managerial
status of the petitioned-for nontenure-track faculty can be
resolved solely on the basis of the structural inclusion
prong.14 As the court acknowledged in USC, “it may be
14 For this reason, we do not address Pacific Lutheran’s effective rec-
ommendation standard or the areas of consideration here. We observe,
however, that these topics have been the subject of some debate, see, e.g.,
unnecessary for the Board to consider whether a manage-
rial faculty body exists because, even assuming one did,
the petitioning subgroup is so clearly not included in it—
because, for example, university rules prohibit its partici-
pation in committees.” 918 F.3d at 139.
In this matter, the Employer has failed to meet its bur-
den to establish that the petitioned-for faculty members
serve on any of the Employer’s committees that oversee
the five areas of consideration under Pacific Lutheran.
Limited-term and adjunct faculty, who constitute 176 of
the approximately 181 petitioned-for faculty members, are
categorically barred from serving on 9 of the Employer’s
14 standing committees. Although limited-term and ad-
junct faculty are technically permitted to serve on the re-
maining five standing committees, and the two visiting
faculty members are technically permitted to serve on all
14 of the standing committees, the Employer has failed to
show that any members of the petitioned-for faculty cur-
rently serve—indeed, have ever served—on any of the
Employer’s standing committees. And, although the Em-
ployer’s 19-seat Academic Council would appear to play
an important role in the Pacific Lutheran areas of consid-
eration, only one seat on the Academic Council may be
filled by a member of the petitioned-for unit.
More specifically, with respect to academic programs,
limited-term and adjunct faculty cannot serve on any of
the relevant standing committees: the Academic Standing
Committee, Curriculum Committee, Core Curriculum
Committee, and Global Education Curriculum Commit-
tee. While there are departmental committees that address
curriculum—notably, committees that propose new ma-
jors and minors—the Employer provided evidence of only
a single adjunct faculty member, now a department chair,
who has ever served on a departmental curriculum com-
mittee and who last served in that capacity in 2011. With
respect to enrollment management policies, all of the pe-
titioned-for faculty are eligible to serve on the standing
Admissions Committee, although Provost House con-
ceded that no petitioned-for faculty members currently do
so, and he did not identify any individuals in the peti-
tioned-for faculty classifications who have served on that
committee in the past. The Employer provided no evi-
dence that the petitioned-for classifications play any other
role in the admissions process. Turning to finances, Prov-
ost House testified that the matters of strategic planning
and budget are “primarily the role of the administration.”
Only full-time, and presumably tenured, faculty members
have seats on these committees, and in the case of the
budget committee they serve as a clear minority in
Pacific Lutheran, supra at 1430, 1441–1444 (Members Miscimarra and
Johnson, concurring in part and dissenting in part). We may consider
whether to adhere to these standards in a future appropriate proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10
comparison to administrative officials. Moreover, the pe-
titioned-for adjunct and limited-term faculty are categori-
cally barred from serving on the standing committees that
would appear to deal with personnel policies and deci-
sions, including the Faculty Research and Development
Committee, Post-Probationary Faculty Development Re-
view Committee, and Promotion and Tenure Committee.
Indeed, Billy Summers appears to be the only current pe-
titioned-for faculty member who has played a role con-
cerning any of the Pacific Lutheran areas of consideration,
and only via his singular seat on the Academic Council.
In Pacific Lutheran, the Board relied on almost identi-
cal factors to find that the employer there did not meet its
burden to prove managerial status—a result in which the
full Board, including the partial dissenters, concurred.
There, the Board observed that the employer did not
demonstrate that the petitioned-for faculty had ever voted
on academic proposals originating in departments or sub-
committees, and that even if they did, the proposals were
forwarded to standing committees on which the peti-
tioned-for faculty could not serve; that the petitioned-for
faculty were eligible to serve on the university committee
responsible for enrollment management policies, but there
was no evidence of them doing so or that they otherwise
had the right to vote on such policies; and that there was
no evidence that they were involved in decisions affecting
the university’s finances (budget, tuition, financial aid,
and related fiscal matters). 361 NLRB at 1427. Moreo-
ver, the Board noted that petitioned-for faculty played “a
limited role in deciding personnel policy and related mat-
ters (e.g., hiring, promotion, tenure and leave),” as they
were ineligible to serve on the relevant standing commit-
tee and did not vote on specific personnel decisions, alt-
hough personnel policies in the faculty handbook would
go through a vote at the faculty assembly. Id. With re-
spect to departmental or divisional committees, the Board
observed that the employer “failed to present any evidence
that full-time contingent faculty vote on matters pending
before their division, school, or department.” Id. at 1428.
We find that similar factors warrant a finding that the
petitioned-for non-tenure-track faculty are not structurally
15 While we acknowledge that the Academic Council is a high-ranking
body that oversees four of the five areas of consideration, we ultimately
conclude that the lack of evidence pointing to any other representation
on the Employer’s collegial bodies—especially where most of the peti-
tioned-for faculty are categorically barred from serving on a number of
these committees—ultimately precludes finding structural inclusion on
these facts.
16 361 NLRB at 1444. In agreeing that the petitioned-for faculty were
not managerial, Member Johnson relied on the Employer’s failure to
meet its factual burden, observing:
Significantly, the University [PLU] has not shown any meaningful
participation by the petitioned-for contingent faculty at any level of ad-
ministration. Although they may participate at the department level on
included in the Employer’s managerial bodies. In its brief,
the Employer primarily suggests that the petitioned-for
faculty should be deemed managerial because of their eli-
gibility to serve on certain committees and the role of Billy
Summers as a representative on the Academic Council,
and because most of the petitioned-for faculty can vote at
faculty meetings. In this regard, the Employer largely ig-
nores whether the petitioned-for classifications them-
selves are structurally included in the specific managerial
bodies that the Employer highlights, focusing instead on
the faculty as a whole and broadly asserting that the peti-
tioned-for subgroups are “eligible” for representation on
committees in general. This does not, however, meet the
Employer’s burden to prove structural inclusion, consid-
ering that the Employer has identified only one individual
in the petitioned-for classifications who actually serves on
any of the Employer’s many committees.15 Moreover, the
Employer fails to acknowledge that almost all of the peti-
tioned-for faculty are expressly prohibited from serving
on any committee reserved for “teaching faculty,” includ-
ing several of the standing committees that oversee aca-
demic programs, academic policies, and personnel poli-
cies and decisions. Thus, the Employer’s lack of evidence
here presents a problem similar to the concerns high-
lighted by Member Johnson in his Pacific Lutheran con-
curring opinion: the Employer has simply failed to present
more than “paper authority” suggesting that the peti-
tioned-for classifications play any role in its shared gov-
ernance committees.16
Similarly, we do not think that the eligibility of some of
the petitioned-for faculty classifications to vote at faculty
meetings is sufficient to render them structurally included
in the Employer’s collegial faculty bodies. The Pacific
Lutheran Board rejected the idea that the contingent fac-
ulty in that case were managerial based on their ability to
vote at the faculty assembly, noting that “the record indi-
cates that only about 20 percent of those faculty who ac-
tually attend any particular faculty assembly meeting are
contingent faculty,” and that “PLU has not even estab-
lished that any full-time contingent faculty member ever
has cast a vote, or even spoken, in the faculty assembly.”
various curriculum matters, PLU failed to explain exactly what that par-
ticipation involves, i.e., how participants decide and vote on matters and
to what extent the petitioned-for faculty are allowed to participate in that
process. . . . Contingent faculty are also expressly barred from the faculty
standing committees, which recommend policy on a variety of primary
and secondary areas of decision-making. Furthermore, PLU presented
no evidence that any of the contingent faculty serve on a University com-
mittee, despite the fact that such “paper” authority has existed since
2013. Finally, although contingent faculty have the right to vote in the
faculty assembly, PLU did not provide specific evidence showing that
any of those faculty members has actually ever voted or even spoken in
the faculty assembly.
Id.
ELON UNIVERSITY
11
Id. at 1428. Here, there is a similar problem, as the Em-
ployer has not provided any evidence that any other peti-
tioned-for employee, besides Billy Summers, regularly at-
tends or votes at a faculty meeting. To the contrary, lim-
ited-term professor Dr. Catherine Bush testified that when
she attended her one and only faculty meeting, she felt that
people were “very surprised” to see her there, and that this
discouraged her from attending again. And, in any event,
the fact that only 74–84 of 181 petitioned-for faculty
members are even eligible to vote at faculty meetings is a
further impediment to finding structural inclusion here.
Finally, the nature of the petitioned-for faculty’s em-
ployment weighs against a finding that they are structur-
ally included in the Employer’s collegial bodies. Provost
House acknowledged that the short-term nature of em-
ployment for limited-term and adjunct faculty presents a
“practical hurdle” that makes it difficult for them to serve
for the longer terms required for the standing committees
and Academic Council, stating that “[v]ery few part-time
[faculty] get appointed to these types of [standing] com-
mittees, but it is possible.” The adjunct and limited-term
faculty who testified stated that they had no involvement
in departmental committees or any other groups, with ad-
junct professor Sharon Eisner confirming that she was told
that such committees are “not for adjuncts.” We further
observe that, while the excluded classifications are evalu-
ated with respect to their service to the university, which
likely includes their service on the Employer’s many com-
mittees, the petitioned-for faculty (including the visiting
faculty) are evaluated almost exclusively with respect to
their teaching, suggesting that the Employer holds no ex-
pectation that they will serve in any meaningful role in the
Employer’s shared governance system.
Taken together, the nature of the petitioned-for faculty’s
employment and their categorial exclusion from several of
the collegial bodies that oversee the Pacific Lutheran ar-
eas of consideration, along with the Employer’s failure to
identify more than one petitioned-for faculty member
serving on any of the Employer’s committees, warrant a
finding that the petitioned-for classifications are not struc-
turally included in the Employer’s collegial bodies.17 Ac-
cordingly, they are not managerial, and we need not con-
sider whether the Employer’s collegial bodies exercise ac-
tual control or effective recommendation with respect to
17 Because we rely on these particular considerations in concluding
that the petitioned-for employees are not structurally included in the Em-
ployer’s collegial bodies, we find it unnecessary to remand the present
dispute to the Acting Regional Director for further hearings, as the Em-
ployer proposes. The Employer had ample opportunity to, and did, in
fact, litigate these factors in the prior proceedings. Moreover, while we
have restructured the Pacific Lutheran standard, we have not substan-
tively changed the factors to be considered under the Board’s analysis.
the Pacific Lutheran areas of consideration. We empha-
size, however, that the determining factor in this case is
not that the petitioned-for faculty constitute a minority on
the Employer’s shared governance bodies; rather, it is that,
based on the evidence as a whole, the Employer has failed
to demonstrate that they are structurally included in these
bodies.
V. CONCLUSION
For the foregoing reasons, we find that the petitioned-
for non-tenure-track faculty are not managerial employ-
ees, and we therefore affirm the Acting Regional Director.
Accordingly, we remand the case to the Acting Regional
Director for further appropriate action.
Dated, Washington, D.C. February 19, 2021
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel
Member
________________________________________
John F. Ring
Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN McFERRAN, concurring in the result.
I agree with my colleagues that the Employer’s nonten-
ure-track faculty members are not managerial employees
under the National Labor Relations Act. The Acting Re-
gional Director reached that conclusion under the Board’s
decision in Pacific Lutheran University, 361 NLRB 1404
(2014), applying the “majority status” rule with respect to
university committees adopted there. But the United
States Court of Appeals for the District of Columbia Cir-
cuit has since rejected that rule’s extension to cases of a
petitioned-for faculty subgroup.1 The court concluded that
the “subgroup majority status” rule was inconsistent with
the Supreme Court’s Yeshiva decision, which effectively
establishes the standard for determining whether
Accordingly, we see no reason for the Employer to have a “second bite
at the apple” with respect to litigating factors that it has already litigated.
1 See University of Southern California v. NLRB, 918 F.3d 126 (D.C.
2019). The court pointed out that “the Board [in Pacific Lutheran] left
uncertain” the question of whether the rule required that a petitioned-for
faculty subgroup constitute a majority on managerial committees, or
whether it required only that the faculty as a whole have majority status.
The court addressed only the extension of the rule to subgroups. Id. at
131.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12
university faculty members are managerial employees.2
Today, the majority adopts and applies the District of Co-
lumbia Circuit’s analytical framework, reaching the same
result as the Acting Regional Director. I concur in that
result, which is correct under Pacific Lutheran as well as
under the District of Columbia Circuit’s framework. I
write separately to point out that the new framework per-
mits—indeed, requires—the Board to be sensitive to the
actual situation of contingent faculty members. Unlike the
faculty members in Yeshiva, who were found central to
running the university, these academic workers are typi-
cally excluded from the kind of real power typically asso-
ciated with managerial authority.
I.
In University of Southern California, supra, the District
of Columbia Circuit considered the Board’s application of
the Pacific Lutheran University standard for determining
whether university faculty members are managerial em-
ployees. In many respects, the court endorsed the Board’s
approach in Pacific Lutheran and its application in the
case before it. Rejecting in large part the University of
Southern California’s contention that Pacific Lutheran
“conflicts with the Supreme Court's decision in Yeshiva,”
the court declared that Pacific Lutheran was “an admira-
ble effort by the Board to tame a thicket of case law that
touches on numerous interrelated features of the faculty
experience at universities. . . . [a]nd [an effort that] for the
most part, . . . succeeds.” 918 F.3d at 135 (internal quota-
tions omitted).
In this regard, the court agreed with the Board that, in
order to be found to possess managerial decision-making
authority, the faculty members must be part of a manage-
rial body whose recommendations are “almost always fol-
lowed and routinely adopted without independent re-
view.” The court further found such an approach “com-
ports with Yeshiva, and . . . agree[d] with the Board that
setting a high bar for effective control is necessary to
avoid interpreting the managerial exception so broadly
that it chips away at the NLRA's protections.” Id. at 140
(internal quotations omitted). In addition, the court held,
as to the Board’s delineation in Pacific Lutheran of what
areas of decision-making authority must be examined to
determine whether a faculty body has managerial
2 NLRB v. Yeshiva University, 444 U.S. 672 (1980). The National
Labor Relations Act does not explicitly exclude managerial employees,
in contrast to supervisors, for example. See Act, Sec. 2(3), 29 U.S.C.
§152(3). In NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), however,
the Supreme Court held that Congress intended to include managerial
employees from the coverage of the Act. The Act does not specifically
address the employee-status of university faculty members either. The
Yeshiva Court, rejecting the Board’s view, held that the university faculty
authority, that “the Board's categorization falls well within
its discretion under the NLRA.” Id. at 141.
The District of Columbia Circuit also addressed the in-
clusion of a petitioned-for faculty subgroup in faculty bod-
ies (which, as noted above, must themselves possess rele-
vant decision-making authority). Rejecting the Board’s
application of Pacific Lutheran on this issue, the court
held that Yeshiva, with its emphasis on the absence of hi-
erarchies in academic governance and the collegiality of
faculty bodies, did not permit the Board to hold that a fac-
ulty subgroup lacked managerial authority simply because
members constituted a minority on university governing
committees. Such a requirement, the court reasoned, “ig-
nores the possibility that faculty subgroups, despite hold-
ing different status within the university, may share com-
mon interests [with the faculty who constitute a majority]
and therefore effectively participate together as a body on
some or all of the issues relevant to managerial status.” Id.
at 137. The court held that the Board must broadly con-
sider the nature of the participation of a faculty subgroup
in the context of its distinct features and its relationship to
other faculty, and determine whether the subgroup is
“structurally included” within university bodies. Id. at
137–138.
The court further observed that in determining “struc-
tural inclusion,” the lack of majority status of a faculty
subgroup may shed light on whether a subgroup has a
meaningful voice in a governing body. For example,
“where a subgroup's interests fundamentally diverge from
those of the majority,” this might preclude “reconcil[ing]
[such interests] even through collegial compromise,” and
“the Board might appropriately conclude that the sub-
group cannot exercise effective control unless it consti-
tutes a majority of the relevant committees.” Id. at 138.
Further, a subgroup’s minority status “may signal the
presence of structural barriers to that group's participation.
. . . that effectively silences any managerial voice.” Id. at
139 (internal quotations omitted).
II.
The majority now adopts and applies the District of Co-
lumbia Circuit’s framework, correctly finding that the
nontenure-track faculty here are not “structurally in-
cluded” in university committees – and so are not mana-
gerial employees. As my colleagues observe, most of the
members involved there were managerial employees, because that uni-
versity faculty, as a group, exercised managerial authority. 444 U.S. at
686. The Court observed that “[t]o the extent the industrial analogy ap-
plies, the faculty determines within each school [of the university] the
product to be produced, the terms upon which it will be offered, and the
customers who will be served.” Id. at 686 (footnote omitted). Post-Ye-
shiva, Congress has not addressed the employee status of university fac-
ulty members.
ELON UNIVERSITY
13
petitioned-for faculty members are explicitly barred from
serving on many committees. To the extent that those fac-
ulty members are eligible to serve on committees, only
one person actually does. Rightly, the majority concludes
that the exclusion of the petitioned-for faculty members
from some committees, coupled with hurdles to participa-
tion and the virtually complete absence of non-tenure-
track faculty from committees where they are nominally
eligible to serve, establish that this faculty group is not
structurally included within any governing bodies.3
As today’s decision illustrates, the “structural inclu-
sion” analysis focuses on whether there is meaningful par-
ticipation by the petitioned-for faculty subgroup in univer-
sity committees—and the number of participants from the
subgroup remains relevant, even if a bright-line, majority-
status rule does not apply. The District of Columbia Cir-
cuit recognized, and this case shows, that a low number of
actual participants can demonstrate barriers to participa-
tion that prevent a faculty subgroup from having a mean-
ingful voice in university governance. Here, very few
nontenure-track faculty members participated in univer-
sity committees—and when they did, the record shows
their appearance was met with surprise and skepticism
from tenured faculty. The non-tenure-track faculty were
on the margins of power at best, not at the center.
This will often be the case—and, of course, it tends to
explain why such faculty members are seeking union rep-
resentation. Contingent faculty members are a growing
segment of the faculty workforce.4 But they have been
unable to establish a voice for their workplace concerns
through institutional mechanisms.5 Indeed, contingent
faculty face unique barriers to participation on committees
and other faculty bodies. Often, they must juggle multiple
teaching jobs, they must endure job insecurity and high
turnover, they are denied respect from colleagues, and
they are poorly integrated into university structures and
communities.6 Thus, in the case of contingent faculty—
correctly identified in Pacific Lutheran as having a “tenu-
ous employment relationship” with their university, 361
NLRB at 1422—the Board must be alert to low participa-
tion by members of a faculty subgroup in university com-
mittees. It may well betray their marginalized role within
3 The majority thus does not address the other prong of the test for
managerial status: whether the university committees themselves possess
sufficient managerial authority.
4
See AAUP, Background Facts on Contingent Faculty Positions,
available at https://www.aaup.org/issues/contingency/background-facts
(noting rise in prevalence of contingent faculty, including adjuncts, non-
tenure-track faculty, and graduate students, from 55 percent to 70 percent
of instructional staff appointments, in the period from 1975 to 2015).
5 See, e.g., U.S. Government Accountability Office, Report to Con-
gressional Requesters, Contingent Workforce: Size, Characteristics,
Compensation, and Work Experiences of Adjunct and Other Non-
the university and their lack of a meaningful voice in uni-
versity governance, as it did here.
The District of Columbia Circuit also noted that a fac-
ulty subgroup’s minority status may be relevant where the
subgroup’s interests diverge from the majority.7 The in-
terests of contingent faculty members are often unique—
and, indeed, they may be directly contrary to the interests
of tenured and tenure-track faculty. For example, the
teaching duties of contingent faculty may be what permits
tenured faculty to focus on the research and teaching that
aligns with their own professional goals. The issue of
workload and work assignments thus can pose a clash of
interests between the two groups.8 Here, too, the Board
must sensitive to the reality of the particular situation. Not
all faculty members conform to the Yeshiva ideal, espe-
cially in contemporary universities.
III.
In short, adopting the District of Columbia Circuit’s an-
alytical framework, eliminates a bright-line rule, but it
does not fundamentally change the focus of the Board’s
inquiry. Here, application of the new framework leads to
the same result as applying the old rule—the petitioned-
for non-tenure-track faculty members are not managerial
employees—and that result is correct. Accordingly, I con-
cur.
Dated, Washington, D.C. February 19, 2021
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
Tenure-Track Faculty (Publ. No. GAO-18-49, Oct. 2017), available at
https://www.gao.gov/assets/690/687871.pdf.
6 See, e.g., Danielle Douglas-Gabriel, ‘It keeps you nice and dispos-
able’: The plight of adjunct professors, Washington Post (Feb. 15, 2019).
7 See 918 F.3d at 138 (interests may potentially “differ so signifi-
cantly that they cannot be reconciled even through collegial compro-
mise,” in which case numerical disadvantage on committee may be dis-
positive).
8
See Musa al-Gharbi, Universities Run on Disposable Scholars,
Chronicle of Higher Education (May 1, 2020).