NLRB still refining test for adjunct faculty unionization

Colleges and universities face challenges in applying the managerial exception to adjunct faculty

In recent years, as colleges and universities have increasingly relied on adjunct faculty, the question of whether these and other non-tenure-track faculty may organize with a labor organization has become increasingly relevant.

Since the U.S. Supreme Court’s 1980 decision in NLRB v. Yeshiva University, the National Labor Relations Board (the Board) has continued to revisit and refine the test it uses to determine whether faculty at private institutions may organize and where these non-tenure-track faculty fit within that standard (See Pacific Lutheran University, 361 NLRB 1404 (2014)).

The Board’s recent decision in Elon University further refined the standard for evaluating that issue. The decision makes clear that practical hurdles specific to the nature of this type of employment relationship will make it difficult for employers to apply the managerial exception to adjunct faculty. 370 NLRB No. 91 (2021).

Faculty as exempt managers

In Yeshiva, the Supreme Court established that if faculty members take on a managerial role, they may not organize with a labor organization, reasoning that faculty should not be in a position of dividing their loyalty between their employer and their union. The question of whether faculty are managerial turns on whether they have authority to decide what courses are offered, when they are taught, who teaches them, which students are admitted, retained and graduated, and what teaching standards are applied.

In other words, the critical factors are whether the faculty determines, within each school, the product to be produced, the terms on which it is offered and the customers to be served. In the education setting, this authority is often shared, as colleges and universities often rely on faculty for their professional judgment in developing crucial policies and practices.

Natale V. DiNatale
Natale V. DiNatale

In Pacific Lutheran, a 2014 decision, the Board set forth the factors that it should examine in determining whether university faculty are managerial employees.

Specifically, “the Board considers the faculty’s participation in five areas of decision-making: [1] academic programs, [2] enrollment management policies, [3] finances, [4] academic policies, and [5] personnel policies and decisions,” giving “greater weight to the first three ‘primary’ areas of consideration . . . .”

Emily A. Zaklukiewicz
Emily A. Zaklukiewicz

Importantly, under this standard, faculty must either actually exercise control or make effective recommendations in these areas. Pacific Lutheran also adopted a “subgroup majority status rule,” which holds that “a particular faculty subgroup cannot exercise effective or actual control if it does not hold the majority of seats on the committees that govern that area of consideration.”

Where do adjunct faculty fit in?

Over the years, adjunct faculty have taken on a predominant instructional role at colleges and universities. As they’ve done so, they’ve looked to unions to address workplace issues, and unions—including the SEIU and AAUP—have taken up their cause.

In response, some employers have taken the position that adjunct faculty are managers, and, therefore, barred from organizing. Pacific Lutheran’s bright-line, majority standard made it increasingly difficult to classify nontenure-track faculty members as managerial employees, thus increasing the ability of such adjunct faculty to organize. In February 2021, the Board revisited the standard set forth in Pacific Lutheran in the Elon University case.

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The Board’s decision in Elon University arose from a university’s objection to the application of the Board’s “subgroup majority status rule,” as the application of that bright-line rule precluded further consideration of whether nontenure-track faculty in that case are managers. While the Board agreed with Elon University that the bright-line, majority rule should be discarded, it ultimately concluded that the Elon University’s nontenure-track faculty are not managers.

In discarding the majority rule, the Board held that it would examine “whether a faculty body exercises effective control [see Pacific Lutheran] and, if so, whether, based on the faculty’s structure and operations, the [group that the union seeks to organize] is included in that managerial faculty body.” In other words, whether faculty have the necessary authority, and, if so, whether adjunct faculty are part of the group that has that authority. In Elon University, the answer was clearly “no.” Importantly, all four members of the Board agreed with the result, with three members (all Republican) joining the majority opinion and Chairman McFerran (Democrat) concurring.

In reaching that conclusion, the Board discussed the many challenges that colleges and universities will face in applying the managerial exception to adjunct faculty, including practical hurdles that could make it impossible. Thus, in Elon University, the University’s rules categorically excluded virtually all adjunct faculty from serving on most standing committees.

Also, with respect to academic programs, enrollment, finances and personnel policies, the university failed to show that any eligible adjunct faculty presently serve on any of the standing committees on which they were eligible to serve. Ultimately, the university relied on the fact that one person in the 181-person faculty group that the union sought to organize had a seat on the 19-person academic council. The Board found that fact alone insufficient, even though the Academic Council oversees four of the five areas of consideration.

Importantly, the Board concluded that the short-term nature of the adjunct faculty’s employment (semester-to-semester contracts) weighed against a finding that they are “structurally included in the employer’s collegial bodies,” as the nature of their employment presents a “practical hurdle” that makes it difficult for them to serve in these roles for the longer terms required for the various committees.

In essence, the Board shifted its focus from an evaluation of the majority status of the faculty’s involvement to an evaluation of the meaningfulness of such involvement.

Greater rights to organize

The Elon University decision is important for private, higher-education institutions that utilize and rely upon adjunct faculty and that seek to ensure that these faculty are part of their managerial team. While the Board has moved away from a bright-line rule that theoretically makes the managerial exception more broadly applicable, the Board made it clear that the nature of an adjunct faculty’s employment presents a significant hurdle to their structural integration into a college or university’s faculty.

The Board’s decision serves as a reminder to private colleges and universities that adjunct faculty members have greater rights to organize, especially to the extent that the nature of their employment relationships keeps them uninvolved in the institution’s governance and decision-making committees.

Natale V. DiNatale is a partner in Robinson+Cole’s Labor and Employment Group and Education Law Group as well as chair of the firm’s Labor Relations Group. Emily A. Zaklukiewicz, an associate in the firm’s Labor, Employment, Benefits + Immigration Group, focuses her practice on counseling private sector employers in all areas of labor and employment law and defending employers in federal and state court and before administrative agencies.

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