University of Southern California

National Labor Relations Board - Board Decisions

Dec 30, 2016

365 NLRB No. 11 (N.L.R.B. 2016)

365 NLRB No. 11
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.
University of Southern California and Service Em-
ployees International Union, Local 721, Petition-
er. 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 con-
sidered the Employer’s Request for Review of the Re-
gional 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 war-
ranting 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 con-
sidered “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 univer-
sity decision-making. To that extent, both the structure of the universi-
ty administration and the nature of the faculty’s employment relation-
ship 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,’ recommenda-
tions 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 general-
ly, 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 deter-
mination 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 ques-
tioned whether any USC faculty members exercise man-
agerial 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 conclu-
sions, the Regional Director relied in part on the testimo-
ny 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 postelec-
tion objections hearing. I believe that the request for
review has raised substantial issues warranting review
regarding each of these findings. Accordingly, I respect-
fully 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 “curricu-
lum, 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 & Con-
tractors 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 Adminis-
trative Procedures Act. That decision was affirmed by the U.S. Court
of Appeals for the Fifth Circuit, 826 F.3d 215 (5th Cir. 2016).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ards, academic calendars, and course schedules” were
managerial employees exempt from the Act. The Court
rejected the view that faculty authority could not be man-
agerial because it was exercised collectively, and the
equally untenable view that faculty could not have man-
agerial 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 sta-
tus 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 employ-
ees and, therefore, excluded from the Act’s protections.
I generally agreed with the Pacific Lutheran frame-
work 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 exam-
ple, I indicated that the Board could not appropriately
reject uncontroverted documentary evidence about facul-
ty 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 re-
view 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 dis-
senting in part).
2 Id.
3 Id.
Pacific Lutheran, and I believe the Regional Director’s
analysis may depart from Yeshiva. The following con-
siderations, 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. Ac-
cordingly, 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 modi-
fied program consisting of those courses, and every ma-
jor or minor or new degree offered by USC, with the
exception of the MD program. A course cannot be in-
cluded in the curriculum handbook without UCOC’s
authorization. While UCOC’s decisions are considered
recommendations to the provost, they are not inde-
pendently investigated, and once accepted by the provost
or vice provost, they are implemented in the USC course
catalog. The Regional Director dismissed this evidence
on the basis that “it is not clear what kind of review is
conducted.” In addition, UCOC “worked back and
forth” with USC’s Price School of Public Policy on the
School’s proposal for a new global master’s degree in
public policy to reach an agreement on the degree pro-
gram, but the Regional Director dismissed this fact as
well because the relevant “testimony does not indicate
whether UCOC rejected certain aspects of the proposal
or simply asked clarifying questions.” Indeed, the Re-
gional Director went so far as to question whether any of
USC’s faculty committees exercise actual or effective
control over USC’s academic programs.
I believe the Regional Director’s analysis is based on
an incorrect premise: that faculty members cannot be
considered “managerial” under our statute unless they
have unreviewable authority. Our cases do not limit
managerial status to the single person in an organiza-
UNIVERSITY OF SOUTHERN CALIFORNIA 3
tion—for example, the president or chief executive of-
ficer (CEO)—who reports to nobody else.4 In this re-
spect, the request for review raises substantial questions
regarding the burden of proof required by the Regional
Director and her determination that USC’s faculty have
no collective authority over its academic programs. As I
have previously explained, the Board should not disre-
gard unrebutted evidence “merely because it could have
been stronger, more detailed, or supported by more spe-
cific examples.” Buchanan Marine, 363 NLRB No. 58,
slip op. at 9 (2015) (Member Miscimarra, dissenting)
(citations omitted). Yet it appears that the Regional Di-
rector attached no weight to uncontroverted evidence of
the UCOC’s authority based on an assumption that
stronger evidence was needed. Again, the mere fact that
UCOC’s recommendations are reviewed by the provost
does not negate unrebutted record evidence of the facul-
ty’s managerial authority. If the preponderance of record
evidence supports a finding of managerial status, the
Board cannot properly find that faculty members are
nonmanagerial based exclusively on evidence that is not
in the record.
In addition to the authority exercised by UCOC, the
USC University Committee on Academic Review
(UCAR) reviews all academic programs on a pre-
determined schedule. This body considers the views of
faculty from peer institutions and makes recommenda-
tions to the provost on changes to improve a program’s
academic content, and the provost’s office then imple-
ments UCAR’s recommendations, working with the pro-
gram in question. The Regional Director dismissed this
fact because “the actual actions taken pursuant to those
recommendations are devised and decided upon at the
school level.” I believe this analysis fails to recognize
that managerial employees are those who “formulate and
effectuate management policies” regardless of whether
others may be involved in implementing those policies.
NLRB v. Bell Aerospace Co., above, 416 U.S. at 288.
Along similar lines, the University Committee on Fi-
nance and Enrollment (COFE) makes recommendations
about university-level finances, such as net tuition, in-
come and expenditure, and enrollment management.
USC describes those recommendations as “at least as
effective as those of deans, on analogy with the faculty’s
role in the tenure process.” COFE has made recommen-
dations regarding how much USC should draw on its
endowment, the cost of tuition, whether to increase the
size of the student body, whether to increase the use of

4 Even actions by a president or CEO are subject to potential review
and approval by a board of trustees or board of directors. One cannot
credibly contend that this type of review renders the president or CEO
nonmanagerial.
test scores for admissions, and whether to implement a
pilot program to broaden need-based financial aid; and
all of these recommendations were quickly approved.
The Regional Director discounted this evidence because
COFE was newly formed and the review of its recom-
mendations was not “sufficiently” described. In this re-
gard, the Regional Director expressed skepticism that the
Board of Trustees would “sign off without second
thought on a tuition amount or enrollment payout based
solely on the recommendation of a newly-formed com-
mittee that had never before considered such issues.”
Faculty authority is managerial regardless of whether it is
exercised hierarchically or collegially, and it does not
require evidence that faculty recommendations are ap-
proved “without a second thought.” See NLRB v. Yeshi-
va University, above, 444 U.S. at 680, 685 fn. 21.5 Addi-
tionally, the Regional Director’s reasoning here is specu-
lative. The question we are addressing is whether faculty
members are managerial, and this depends in part on
whether the record shows that recommendations on man-
agement policies are implemented. NLRB v. Bell Aero-
space Co., 416 U.S. at 288. It is inappropriate to resolve
this question based on an assumption—without record
support—that the board of trustees would not “sign off”
on faculty recommendations regarding management pol-
icies.
Third, the Regional Director concluded that even if
managerial authority was exercised by the faculty com-
mittees referenced above, the non–tenure track faculty
members cannot be deemed managerial because “they do
not constitute a majority” of the committees. I believe
this analysis raises a substantial issue that warrants re-
view based on its inconsistency with the principle of col-
legial managerial authority that the Supreme Court rec-
ognized in Yeshiva.6 There, the Court held that a faculty

5 Similar considerations warrant review of the Regional Director’s
determination that faculty managerial authority is not demonstrated by
faculty participation in other university committees and faculty councils
identified in the Decision and Direction of Election.
6 The Regional Director cited two cases in support of this startling
proposition, but both are distinguishable. In Pacific Lutheran Universi-
ty, above, 361 NLRB No. 157, slip op. at 18 fn. 36, the Board stated
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 managers must prove that a majority of the
committee or assembly is faculty.” Applying this principle, the Board
held in that case that the contingent faculty at issue there were not
managerial where “the membership of each current university commit-
tees [sic] include[s] a mix of faculty, administrators and students, but
the faculty are not a majority on any committee.” Id., slip op. at 21. In
Cooper Union of Science & Art, 273 NLRB 1768 (1985), the Board
found no managerial status on similar facts, where students, alumni,
and administrators served on the relevant governance committees and
both the faculty as a whole and bargaining unit faculty were apparently
in the minority on many of those committees. Here, in contrast, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
member may possess managerial authority even though
he or she cannot individually establish policy separate
from the committees on which he or she serves. Similar-
ly, faculty members in an individual department or pro-
gram may be managerial, even if as a group they are a
minority of the total faculty and are outnumbered and
outvoted on every issue.7 The Regional Director’s newly
fashioned “majority status” requirement contradicts these
principles and cannot be reconciled with the Court’s
holding in Yeshiva.
Fourth, I believe that the Board also should grant re-
view of the Regional Director’s order denying the Em-
ployer’s motion to reopen the record and for reconsidera-
tion. The Employer’s motion demonstrates that union
witness Kate Levin gave inconsistent testimony regard-
ing the role and authority of UCOC. During the preelec-
tion hearing, she minimized its authority in support of the
Union’s position that nontenure track faculty are not
managerial employees. During a postelection hearing on
union objections, in contrast, she testified to UCOC’s
importance in support of the Union’s argument that the
Employer interfered with the election by telling employ-
ees “that if they voted to form a union they would lose
the opportunity to participate in faculty governance.”
The Regional Director denied the Employer’s motion on
the grounds that the evidence was not newly discovered
because the Employer could have adduced it at the
preelection hearing, that the Employer did not file its
motion “promptly” after Levin’s postelection testimony,
and that in any event the testimony would not require a
different result on managerial status. I disagree with this
reasoning in several respects:
 I believe there is no merit to the Regional Direc-
tor’s finding that the evidence was not newly dis-
covered, as Section 102.65(e)(1) requires.8 In
finding that the Employer could have adduced the
evidence at the pre-election hearing, the Regional
Director faulted the Employer for not eliciting it
on cross-examination. I believe this fundamental-
ly misperceives the issue presented here, which is

faculty is not only the majority but the sole members of UCOC and
UCAR, and a clear majority on COFE as well.
7 Otherwise, even faculty who indisputably exercise managerial au-
thority on a university-wide basis could be treated as nonmanagerial if
organized in separate departmental units, each of which was a minority
on any given governance body.
8 I disagree with any implication in the Regional Director’s decision
that a motion to reopen the record must relate to evidence that could
have been presented at the original hearing. To the contrary, Sec.
102.65(e)(1) in the Board’s Rules and Regulations permits a motion to
reopen the record based on “evidence which has become available only
since the close of the hearing,” which may include evidence regarding
posthearing events.
whether Levin testified one way at the pre-election
hearing—favoring the interests of the party that
called her—and then changed her testimony re-
garding a material issue at the post-election hear-
ing.9 Clearly, Levin’s post-hearing change in tes-
timony could not have been brought out in cross
examination during the pre-election hearing, since
Levin had not yet changed her testimony. Nor is
there any merit to the view that the motion, which
was filed one month after Levin testified at the
post-election hearing, was untimely. See YWCA of
Metropolitan Chicago, 235 NLRB 788 (1978)
(motion to reopen record timely filed one month
after close of hearing in unrelated case, where evi-
dence adduced in unrelated case indicated record
in first case was inaccurate and incomplete).10
 The Regional Director included a lengthy sum-
mary of Levin’s pre-election testimony in her de-
cision,11 and she clearly relied on that testimony as
support for her finding that UCOC did not “exer-
cise actual control or effective recommendation
over the university’s academic program.” But
Levin’s testimony that UCOC’s role was “tech-
nical and clerical” is irreconcilable with her later
claim that UCOC’s work was important and gave
her a “say” in what courses are offered to stu-
dents.12 In these circumstances, I believe that the

9 Indeed, the Regional Director went so far as to find it “irrelevant”
that Levin’s testimony at the postelection hearing was more favorable
to the Employer’s position on managerial status than her prior testimo-
ny, on which the Regional Director relied.
10 Further demonstrating the timeliness of the motion, the Employer
notes that the transcript of the postelection hearing became available on
February 26, 2016, its posthearing brief on the objections was due
March 7, it filed a motion to strike portions of the Union’s brief on
March 15, and it filed its motion to reopen the record on March 31.
11 See Decision and Direction of Election at 12–13:
A part-time, non-tenure track Professor in the Dornsife College [Lev-
in], who is currently appointed to the UCOC, testified that her experi-
ence with UCOC is that the committee members largely review pro-
posals for “technical and clerical” matters, such as assuring that the
prerequisites for a course match the specifications in the curriculum
handbook, and making sure the number of credits for a course corre-
spond with the number of contact hours between professors and stu-
dents. She testified that the three assignments she has been given on
the committee—reviewing a graduate-level political science research
methods course, reviewing a change to a certificate offered by the law
school, and reviewing a change to a master’s program in the business
school—have each taken about forty-five minutes of her time. Her
understanding is that once she approves something she has been asked
to look at, she submits it to her subcommittee chair, who then sends it
to “the administration for their final approval.”
12 Levin testified that her work on UCOC was “important” (Tr. 246)
and that by serving on UCOC she had “a say in—you know, in what
courses are offered to students. I enjoy chiming in on discussions that
my fellow committee members are having about any given course or
UNIVERSITY OF SOUTHERN CALIFORNIA 5
relevant issue is not whether Levin’s post-election
testimony alone warrants a different result with re-
gard to faculty managerial status, but whether the
determination that the petitioned-for faculty are
not managerial can stand without Levin’s pre-
election testimony. At a minimum, these circum-
stances warrant reopening the record and admit-
ting Levin’s contrary testimony regarding this ma-
terial issue. I believe this constitutes an additional
substantial issue that warrants granting review.
Conclusion
The Board is required to give due consideration to the
policy, embedded in the Act, that “an employer is enti-
tled to the undivided loyalty of its representatives.” Ye-
shiva, above, 444 U.S. at 682; see NLRB v. Bell Aero-
space, above; NLRB v. Kentucky River Community Care,
532 U.S. 706, 719 (2001) (rejecting Board’s holding that
exercise of professional judgment does not constitute
independent judgment within the meaning of Sec. 2(11));
NLRB v. Health Care & Retirement Corp., 511 U.S. 571
(1994) (rejecting the Board’s holding that professional
employees exercising professional judgment do not act
“in the interest of the employer” within the meaning of
Sec. 2(11)). See generally Buchanan Marine, above, slip
op. at 3–5 (Member Miscimarra, dissenting). I believe
substantial issues warrant review in this case based on
the Regional Director’s failure to give appropriate con-
sideration to this policy in determining whether the facul-
ty members at issue here were managerial employees.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. December 30, 2016
______________________________________
Philip A. Miscimarra Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
DECISION AND DIRECTION OF ELECTIONS
Petitioner Service Employees International Union, Local
721 (Petitioner) filed two petitions under Section 9(c) of the
National Labor Relations Act (the Act), seeking to represent
employees in the following units:
31–RC–164864
Included: All full-time and part-time non-tenure track
faculty who are employed by the University of Southern

any given modification because it’s often the case that a number of
people will comment on a proposal, and I enjoy seeing how other pro-
fessors organized their materials, design their classes” (Tr. 194).
California, including those who also hold a position as a
Program Director or Coordinator, and who teach at least
one credit-earning class, section, lesson, or lab within the
academic unit known as the USC Dana and David
Dornsife College of Letters, Arts and Sciences at the Em-
ployer’s instructional facilities at the University Park
Campus.
Excluded: All tenure or tenure-track faculty; all visit-
ing faculty; all faculty teaching at an academic unit other
than the USC Dana and David Dornsife College of Letters,
Arts and Sciences; all faculty regularly employed by the
Employer at any location other than the University Park
Campus; all faculty teaching online courses exclusively
(regardless of location); all emeritus faculty; all registrars
and librarians; all Athletic Department coaches; all graduate
students; all post-doctoral scholars; all lab assistants, grad-
uate assistants, clinical fellows, teaching assistants, and re-
search assistants; all mentors who do not have teaching
responsibilities;,all department chairs, regardless of their
faculty status; the President of the University; the Provost;
all Associate Provosts, Vice Provosts, and Vice Presidents;
all Deans, Vice Deans, Associate Deans and Assistant
Deans, regardless of their faculty status; all non-faculty
employees; all volunteers; all other represented employees;
and all managers, supervisors, and guards as defined in the
Act.
31–RC–164868:
Included: All full-time and part-time non-tenure track
faculty who are employed by the University of Southern
California and who teach at least one credit-earning class,
section, lesson, or lab within the academic unit known as
the USC Roski School of Art and Design at the Employer’s
instructional facilities at the University Park Campus or at
the Graduate Fine Arts Building, located at 3001 South
Flower Street, Los Angeles, California 90007.
Excluded: All tenured or tenure-track faculty; all facul-
ty whose primary teaching responsibilities are within an ac-
ademic unit other than the USC Roski School of Art and
Design; all faculty whose primary area of practice and/or
scholarship is outside the following areas: ceramics, critical
studies, design, intermedia, painting and drawing, photog-
raphy, printmaking, or sculpture; all faculty regularly em-
ployed by the Employer at any location other than the Uni-
versity Park Campus or the Graduate Fine Arts Building;
all faculty teaching online courses exclusively (regardless
of location); all emeritus faculty; all registrars and librari-
ans; all Athletic Department coaches; all graduate students;
all post-doctoral scholars; all lab assistants, graduate assis-
tants, clinical fellows, teaching assistants, and research as-
sistants; all mentors who do not have teaching responsibili-
ties; all department chairs, regardless of their faculty sta-
tus; all administrators, including those who have teaching
responsibilities; the President of the University; the Prov-
ost; all Associate Provosts, Vice Provosts, and Vice Presi-
dents; all Deans, Associate Deans and Assistant Deans, re-
gardless of their faculty status; all non-faculty employees;
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
all volunteers; all other represented employees; and all
managers, supervisors, and guards and defined in the Act.
Pursuant to Section 102.82 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended, I ordered
Case 31–RC–164864 and 31–RC–164868 be consolidated1
and a hearing be conducted. A hearing was held before a
hearing officer of the National Labor Relations Board. In its
timely filed Statements of Position and at the hearing, the
Employer, University of Southern California, raised the fol-
lowing issues:
1. Employees in the petitioned-for bargaining units in Case
31–RC–164864 and 31–RC–164868 are managerial em-
ployees and/or supervisors under Section 2(11) of the Act.
2. Pacific Lutheran University, 361 NLRB No. 157 (2014)
is contrary to the law established in NLRB v. Yeshiva Uni-
versity, 444 U.S. 672 (1980), and the proposed units are
comprised entirely of faculty who are managerial under
Yeshiva.2
3. The Board’s new election rules violate the Act, are im-
permissibly arbitrary, and deny employers free speech and
due process, both on their face and as applied to the Em-
ployer. 3
Under Section 3(b) of the Act, I have the authority to hear
and decide this matter on behalf of the Board. As explained
below, based on the record, the parties’ posthearing briefs,4
and relevant Board law, I find that the petitioned-for bargain-
ing unit employees in Case 31–RC–164864 and in Case 31–
RC–164868 are not managerial employees, and are not su-
pervisors-within the meaning of Section 2(11) of the Act.
I. THE PARTIES’ POSITIONS
A. Employer’s Position
The Employer submits that the nontenure track faculty at
the University of Southern California’s Dornsife College and

1 The Petitioner also filed a petition in Case 31–RC–164871,
which also was consolidated with the instant cases for hearing.
During the course of the hearing, the parties reached a stipulated
election agreement with respect to Case 31–RC–164871, and I
granted the parties’ joint motion to sever that case from the proceed-
ings.
2 Pursuant to Sec. 102.66(c) of the Board’s Rules and Regula-
tions, the hearing officer required the Employer to present an offer
of proof on this issue. After considering the Employer’s offer of
proof, I declined to permit litigation at the hearing of the issue of
whether Pacific Lutheran was wrongly decided.
3 After considering the Employer’s offer of proof at the hearing,
I declined to permit litigation at the hearing of this issue because
the Board has already considered and rejected such arguments con-
cerning the facial validity of the amendments to its representation
case procedures in adopting the final rule, and the issue was again
considered and decided in Pulau Corp., 363 NLRB No. 8 (2015).
Furthermore, the Employer failed to establish in its offer of proof
how its due process and/or free speech rights were violated in the
specific application of the Rules to the Employer.
4 Although I exercised my discretion to permit the filing of
posthearing briefs, I denied the Employer’s request to file reply
briefs.
Roski School are all managerial employees under NLRB v.
Yeshiva University, and under the Board’s current analysis
under Yeshiva as set forth in Pacific Lutheran University.
The Employer argues that its history of shared faculty gov-
ernance is evidenced by widespread faculty participation in
various committees, many of which handle matters that go to
the heart of the areas of faculty decision making identified in
Pacific Lutheran. The Employer further contends that the
record evidence shows that by participating in these commit-
tees, the USC faculty exercise effective control over central
policies of the University, such that they are aligned with
management. The Employer distinguishes between its non-
tenure track faculty and the contingent faculty at issue in
Pacific Lutheran, arguing that the employment relationship at
USC supports the nontenure track faculty’s role in shared
governance. The Employer notes that many of the nontenure
track faculty have job security in the form of 1 year or multi-
year appointments. The Employer argues that in some re-
spects, nontenure track faculty at use actually have more job
security than their tenure-track counterparts who are proba-
tionary and will not receive tenure unless they are extraordi-
nary. The Employer also notes that all nontenure track
faculty-including part-time faculty who have at least a 50
percent appointment-are eligible for most of the same bene-
fits as are offered to tenured and tenure-track faculty.
Finally, the Employer argues that all faculty at the
Dornsife College and Roski School, including those who do
not directly serve on committees and those who are part-time,
are managerial employees. The Employer asserts that it does
not matter whether nontenure track faculty, nor any other
subcategory of faculty, constitute a majority on USC’s gov-
ernance committees. The Employer argues that the Board’s
analysis in Pacific Lutheran suggests that it is sufficient to
base a finding of managerial status for nontenure track facul-
ty on the fact that faculty members in general have majority
control of such committees. Furthermore, the Employer rea-
sons, the fact that committee compositions change on a year-
ly basis suggests that it would be illogical to require that any
one category of faculty, e.g. nontenure track, or part-time
faculty, constitute a majority in order for that category to be
found managerial.
Although the Employer did not raise this issue in its brief,
it contended at the hearing that the petitioned-for employees
are also, or alternatively, supervisory employees under Sec-
tion 2(11) of the Act.
B. Petitioner’s Position
The Petitioner contends that the Employer has failed to
meet its burden to establish that the employees in the peti-
tioned-for units should be excluded as managerial employ-
ees. The Petitioner argues that the Employer has failed to
establish that the petitioned-for employees exercise actual
control over decision-making in the primary areas identified
in Pacific Lutheran, namely academic programs, enrollment
management, and finances. The Petitioner characterizes
much of the evidence introduced by the Employer on this
subject as conclusory and self-serving, and argues that it is
not sufficient to carry the Employer’s burden. The Petitioner
UNIVERSITY OF SOUTHERN CALIFORNIA 7
further argues that its own witnesses’ testimony illustrates
that nontenure track faculty in the Dornsife College and
Roski School have little to no input into those primary areas
and in some cases faculty input is outright disregarded by the
administration. Similarly, the Petitioner argues that non-
tenure track employees do not exercise actual control in the
secondary areas of decision-making identified by the Board
in Pacific Lutheran. Finally, the Petitioner analogizes these
cases to cases involving employee-shareholders, and con-
cludes that nontenure track faculty lack sufficient collective
power to influence management policy. Specifically, Peti-
tioner contends that nontenure track faculty cannot be mana-
gerial employees because they do not constitute a majority
of any of the shared governance committees.
II. FACTS
A. Overview
University of Southern California (USC) is a private, not-
for-profit university in Los Angeles, California. USC is
governed by a self-selected board of trustees. The board of
trustees elects and delegates academic powers to the Univer-
sity’s president. Reporting directly to the president are ap-
proximately six vice presidents of various subject areas such
as finance, administration, and academic affairs, as well as
the provost, who is the chief academic officer of the Univer-
sity. There are several vice provosts who operate within of
the provost’s office and who are delegated by the provost to
act on his or her behalf on certain issues.
The University is divided into several schools, each offer-
ing degree programs and courses. The two schools most
relevant to this matter are the Dornsife College of Letters,
Arts and Sciences and the Roski School of Art and Design.
Dornsife College, essentially a liberal arts school, is the larg-
est school at USC and offers a wide range of undergraduate
and graduate degrees. The Roski School is an art school that
offers undergraduate and graduate degrees in areas such as
fine arts and critical studies. Each school is further subdivid-
ed into departments and/or programs. Both Dornsife and
Roski are headed by a dean, as are the other schools of the
University. Deans are appointed by the University president
and report to the provost. Under each school’s dean are addi-
tional administrative positions, such as vice deans, associate
deans, assistant deans, and department chairs. Many of the
individuals in such positions, and indeed in higher positions
such as dean, vice provost and provost, also teach or conduct
research within the various schools and departments of USC
and consider themselves faculty as well as administration.
However, it should be noted that the petitioned-for units
specifically exclude, “all Associate Provosts, Vice Provosts,
and Vice Presidents; all Deans, Vice Deans, Associate Deans
and Assistant Deans, regardless of their faculty status.”
B. USCFaculty
University faculty are typically appointed to a particular
school within USC, although some have joint appointments
and may teach and/or conduct research in more than one
school. Faculty are classified as tenured, tenure-track, or
nontenure track. Tenured faculty are those who have
achieved tenure, meaning they can only be removed or de-
moted from their faculty appointment for cause. They are
essentially guaranteed employment until retirement. Tenure-
track faculty are those who are being considered for tenure.
The tenure track is seven years long, and during that time, the
faculty are probationary unless they are offered tenure. At
any time while on the tenure track, a faculty member can be
non-reappointed, meaning that they can be dismissed from
their tenure-track appointment. If a tenure-track faculty
member has not achieved tenure by the 6th year, they will
receive a terminal year appointment, which means they will
be dismissed after the 7th year of their appointment. Finally,
and most relevant here, nontenure track faculty5 are those
full-time and part-time faculty who have short-term appoint-
ments and are not being considered for tenure. Of approxi-
mately 6,600 faculty at USC, approximately 5000 are non-
tenure track faculty. Of those nontenure track faculty, a little
over half are part-time faculty.6
The lengths of nontenure track faculty appointments
vary. Some appointments are for a single semester or sin-
gle academic year. Other nontenure track faculty receive
3, 5, or even 10-year appointments. There is evidence that
some of these appointment contracts are “evergreen” or
continuing contracts, meaning that they may renew after a
certain length of time, or they will renew absent some spe-
cific action being taken. About 60 percent of full-time
nontenure track faculty in the Dornsife College and Roski
School have 3- to 5-year contracts; the rest have 1-year
contracts. Most part-time nontenure track faculty in those
schools have semester-long appointments. The Petitioner
presented witnesses who testified that they often learn that
they have been reappointed for the following semester
only a matter of weeks or months before the semester be-
gins.
In terms of benefits, full-time nontenure track faculty at
USC receive most of the same benefits that tenured and
tenure-track faculty receive. The notable exception appears
to be tuition assistance. Part-time, nontenure track faculty
receive benefits only if they work at least a 50 percent full-
time equivalent. In terms of professional development of
nontenure track faculty, there is little to no evidence that
USC provides nontenure track faculty with support for
their development, research, or art. USC does not provide
nontenure track faculty with support for travel to profes-
sional meetings and conferences, or for their publishing,

5 The petition in Case 31–RC–164864 seeks to include all non-
tenure track faculty, including those in the position of Program
Director or Coordinator. The record is not clear as to who currently
fills these positions or what they do. As the parties did not distin-
guish between Program Directors and Coordinators and the rest of
the nontenure track faculty in Dornsife College, and as there was no
specific evidence presented with regard to their managerial and/or
supervisory status, the term “non-tenure track faculty” as used in
this decision includes Program Directors and Coordinators in
Dornsife College.
6 The record does not reveal what percentage of faculty in
Dornsife College and Roski School are tenured or tenure- track
versus nontenure track faculty.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
research, or exhibitions. Nontenure track faculty in both
Dornsife and Roski do not receive regular performance
evaluations, other than end-of-term student evaluations. In
fact, witnesses testified that administrators in their depart-
ments or schools have never met with them to discuss
expectations about their teaching, their scholarship or artis-
tic work, or their service to the University.
C. Faculty Governance
1. Faculty assembly
At the University level and within each school, there are
dozens of committees comprised in whole or in part of facul-
ty, which are part of USC’s system of shared governance.
At the broadest level, the Faculty Assembly consists of all
full-time faculty. The Faculty Assembly usually acts through
representative bodies, such as the Academic Senate and Fac-
ulty Councils, but may convene in a general meeting or act
through referenda. The Faculty Handbook states that the
Faculty Assembly “is the ultimate body for determining
faculty positions on academic and University issues.”
2. Academic senate
As described in its Constitution and in the Faculty Hand-
book, the Academic Senate “is the representative body of
faculty at large for university-wide issues.” Its bylaws, as
quoted in the Faculty Handbook, state that the Academic
Senate is “from time to time elected or designated by the
faculty,” and possesses the power “to make studies, reports,
and recommendations to the president of the University in
any and all matters pertinent to the well-being of the facul-
ty.” The Academic Senate includes an executive board
comprised of the president of the faculty, the academic vice
president, the administrative vice president, the secretary
general, the immediate past president, and four at-large posi-
tions. The terms for members of the senate executive board
range from 1 year for the members at-large, 2 years for the
secretary and administrative vice president, and 3 years for
faculty in the other positions, who rotate from academic vice
president to president elect, to past president in a 3-year
cycle.
The voting members of the Academic Senate are the pres-
ident of each school’s faculty council, additional delegates
from the faculty councils, the executive board, and the
members-at-large of the executive board. There are approx-
imately 43 voting members of the academic senate, about 19
of whom the Employer identified as being nontenure track
faculty. Five of the nine members of the current senate ex-
ecutive board, including the president of the faculty, are iden-
tified as nontenure track faculty. The Academic Senate in-
cludes three nontenure track professors from Dornsife Col-
lege and one nontenure track professor from the Roski
School.
Some of the primary functions of the Academic Senate are
to appoint faculty to university-wide committees; study, de-
bate, and adopt resolutions with regard to issues affecting
faculty; and generally serve as a liaison between the faculty
and the University. Additionally, the Academic Senate,
through its handbook committee,7 proposes amendments to
the faculty handbook. Those proposals then go to the presi-
dent of the University for approval. The record indicates that
the President has always approved the Academic Senate’s
handbook proposals, except in one instance where the Presi-
dent sent the proposal back for rewording before approving
it. The Faculty Handbook, however, states:
To be sure, any amendments that are endorsed by the Aca-
demic Senate and approved by the President will be in-
corporated into the Faculty Handbook. However, the Uni-
versity Bylaws make it clear that the Academic Senate is
strictly advisory with respect to the President. Thus. .the
policy of the Board of Trustees has been and continues to
be that the President bears the final authority and responsi-
bility for amending the Faculty Handbook.
Moreover, the handbook goes on to state that where the lan-
guage of the handbook conflicts with the University bylaws
or the policies of the board of trustees, the latter two will
prevail.
Some of the revisions to the 2015 Faculty Handbook, at
least some of which would have originated in the Academic
Senate or other faculty committee, include: a new option for
nontenure track appointments to include a roll-over provi-
sion; a new mandate to develop guidelines for the review of
nontenure track faculty, including approval of the principle
that teaching should be evaluated through methods other than
student surveys; a provision for sick leave for all faculty,
including part-time faculty, consistent with California
State Law; a new affirmative consent standard for charges
of sexual assault on campus; and changes to the research
policy consistent with laws on export-controlled or classi-
fied data.
3. Senate and universitycommittees
There are dozens of committees at the University level,
some of which are Academic Senate subcommittees.
These committees conduct studies and make reports to the
Academic Senate or to the provost or one of the vice prov-
osts, and some also “take action.” Almost all of these
committees are comprised of faculty only, although it is
unclear whether that includes faculty who have administra-
tive appointments, such as deans or vice provosts. The
University uses what is at least nominally a “self-
nomination” process for filling these committees. Through
this process, an email jointly issues every spring semester
from the senate president and the provost, inviting all fac-
ulty members to nominate themselves to serve on any
university-wide committee. Additionally, the Faculty
Council of each school is asked to make additional nomi-
nations or to comment on the nominations. The list of
nominations goes to the Academic Senate executive board,
which then identifies “suitable faculty for each commit-
tee.” If the executive board determines there are not

7 The record does not indicate how many members comprise the
handbook committee, but at least four of them are nontenure track
faculty, two of whom are from Dornsife College.
UNIVERSITY OF SOUTHERN CALIFORNIA 9
enough suitable candidates, it will suggest candidates or
“call broadly for people to make suggestions for further
candidates.” The record is not developed as to how the
Senate executive board determines the suitability of each
candidate or what criteria candidates must meet for partic-
ular committee appointments. There is some evidence that
individual faculty members have been sought out to work
on certain committees and that others have been appointed
to committees without volunteering. Ultimately, the final
determination about which faculty will serve on a particu-
lar committee is made by the senate president, the vice
provost, or the university president, depending on the
committee.
The most significant of the senate or university-wide
committees are discussed below.
University Committee on Curriculum
The University Committee on Curriculum (UCOC) is re-
sponsible for approving, modifying or disapproving every
credit-earning course in the University, every proposed new
or modified program consisting of those courses, and every
major or minor or new degree offered by the University, with
the exception of the MD program. The UCOC is organized
into five subcommittees that are divided by discipline, e.g.,
social sciences, humanities, etc. The majority of the work of
the UCOC is done at the subcommittee level. The UCOC
Curriculum Handbook states, “UCOC Minutes and any relat-
ed documents are sent from UCOC to the Provost (or his, or
her, designee). All decisions are considered recommendations
to the Provost, and are not official until approved via email
by the Provost.” When the UCOC’s minutes come to the
vice provost, she either accepts the minutes or goes back to
the committee with questions. There is record testimony that
the vice provost does not do any independent investigation
of the committee’s recommendations, and once she accepts
them, they go into the USC course catalog.
The record includes two recent examples of the UCOC’s
work. In the first, UCOC considered the Price School of
Public Policy’s proposal for a new global master’s degree in
public policy, which is a joint degree with another university
in Asia. There is testimony that UCOC and the Price School
would have worked back and forth to reach an agreement on
the degree program, which is now being offered. Similarly,
UCOC recently approved a new nursing program in the
School of Social Work, which has been accepted and has
gone into the catalog.
A part-time, nontenure track professor in the Dornsife
College, who is currently appointed to the UCOC, testified
that her experience with UCOC is that the committee mem-
bers largely review proposals for “technical and clerical”
matters, such as assuring that the prerequisites for a course
match the specifications in the curriculum handbook, and
making sure the number of credits for a course correspond
with the number of contact hours between professors and
students. She testified that the three assignments she has
been given on the committee-reviewing a graduate-level
political science research methods course, reviewing a
change to a certificate offered by the law school, and review-
ing a change to a master’s program in the business school-
have each taken about 45 minutes of her time. Her under-
standing is that once she approves something she has been
asked to look at, she submits it to her subcommittee chair,
who then sends it to “the administration for their final ap-
proval.”
There are currently about nineteen members in the UCOC,
eight of whom the Employer identified as nontenure track
faculty. Three of those are from Dornsife College; none are
from Roski School. There is only one part-time nontenure
track faculty member on the committee.
University Committee on Academic Review
The University Committee on Academic Review (UCAR)
conducts in-depth studies of academic programs within the
University on a prescheduled multiyear cycle. When a par-
ticular program comes up for review, UCAR creates a task
force comprised of one USC faculty member as well as pro-
fessors from peer institutions who work in the relevant field
of study. The UCAR task force obtains a large, detailed
document from the program being reviewed and spends two
days interviewing faculty, administrators, and students in the
program. After deliberating over its findings, it makes a re-
port to UCAR, which further deliberates and formulates rec-
ommended actions that should be taken to improve the pro-
gram academically, with no regard given to financial consid-
erations. These recommendations go to the provost’s office,
which then interacts with the subject program’s school to
discuss how best to implement the recommendations.
Vice Provost Martin Levine provided an example of
UCAR recommending that the law school offer an advanced
LLM degree to foreign lawyers who wanted advanced train-
ing in American law. After the provost brought the sugges-
tion to the law school, the school created a curriculum pro-
posal and course proposals that went to the University
Committee on Curriculum, which would have then considered
the proposals pursuant to its normal procedures, described
above. A Roski School tenured professor, who also had
experience with UCAR, testified that after the UCAR rec-
ommended changes to the Master of Fine Arts (MFA) pro-
gram, the dean of the Roski School ultimately rejected pro-
posals made by the faculty and implemented other changes
over the faculty’s objections. It is not clear whether the
Dean rejected recommendations of the Roski School Faculty
Council, the UCAR, a Roski School curriculum committee,
or some combination thereof. It is also not clear exactly
when this occurred, but it seems to have been around 2013 or
2014, based on the witness’s testimony. Although the Em-
ployer argues that minutes from the Roski curriculum com-
mittee indicate that witness who testified had himself pro-
posed the changes that the Dean ultimately adopted, the wit-
ness testified that subsequently, the Dean refused to act on
the changes as recommended by the faculty. Instead, the
new MFA curriculum was developed and written by an ad-
ministrator and a staff member, with no faculty input.
UCAR is comprised of about seventeen voting members,
all of whom are faculty, and two of whom are nontenure track
faculty. One of the nontenure track faculty members is from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Dornsife College; none are currently from Roski School.
None of the members of UCAR are part-time faculty.
University Committee on Finance and Enrollment
The University Committee on Finance and Enrollment
(COFE) was created in April 2015. The committee was
formed, in part, because Provost Michael Quick read the
Board’s Pacific Lutheran University decision and decided that
it was important to have faculty involvement in the areas of
finances and enrollment, which had previously been under
the sole purview of the Board of Trustees. In the memo
issued from Provost Quick to Academic Senate President
John Sylvester, which described the formation of the com-
mittee, Quick wrote,
The committee will play a crucial role in shaping the cen-
tral policies of the university as a whole about university-
level finances (net tuition, income and expenditure) and
university-level enrollment management (size, scope and
make- up of the university’s student body. While, of
course, the final decisions on such matters are made by the
Board of Trustees or the President, the committee’s rec-
ommendations will be at least as effective as those of
deans, on analogy with the faculty’s role in the tenure pro-
cess leading to a Provost’s decision.
The COFE has considered and made recommendations on
multiple issues since its recent inception. One such issue was
how much money the University should withdraw from its
endowment for the year. The committee members requested
the University’s financial information, studied and debated it,
and ultimately decided on a recommendation that was made
to the provost’s office. The provost sent the recommendation
on to the board of trustees for approval, and it was approved.
The committee has also made a recommendation on the tui-
tion price for the upcoming year. This recommendation was
also accepted by the provost, and approved by the Board of
Trustees. The COFE also considered whether additional
housing made available by the construction of a new residen-
tial complex should be used to increase the size of the student
body by admitting more students per year, or be used to pro-
vide the existing student body with a more residential college
experience, i.e. allow more students to live on campus for a
longer period of time. The committee recommended to the
provost that the new facilities should not be used to increase
enrollment. The provost accepted that recommendation. It is
not clear if the recommendation then went to the Board of
Trustees or University President for further consideration. In
another instance, the COPE considered whether undergradu-
ate enrollment decisions should focus on standardized test
scores that would bring more students in to the business and
engineering schools, rather than on a “holistic” approach that
promoted diversity across departments and schools. The
committee recommended there not be additional emphasis
placed on test scores, and that recommendation was also
accepted by the provost. In this same vein, the committee
recommended that the University develop a master plan with
regard to graduate student enrollment. This did not involve a
specific plan of action, but simply recommended that the
administration and the faculty work together to create such a
plan of action. The provost approved this recommendation.
Finally, the COPE recommended implementation of a pilot
program to broaden the need-based financial aid program,
which would affect net tuition. In that case, the provost wrote
back to the committee explaining that he would need to send
that recommendation to the president. Ultimately, the presi-
dent accepted the recommendation for the pilot program. In
all of these examples, the record is not developed as to the
actions taken by the provost, board of trustees, or the presi-
dent in response to these recommendations. In other words,
although they were almost all ultimately approved, there is
no evidence as to how much independent investigation or
consideration the recommendations were given, or whether
they were revised or modified before being adopted. Moreo-
ver, I note that all of these recommendations received ap-
proval within the last 4 months, with the recommendations
on the endowment, the tuition amount, and the financial aid
pilot program being approved on about December 2, 2015,
less than a week before the hearing in this matter opened.
COPE consists of ten voting faculty members, four of
whom are nontenure track faculty; one of those nontenure
track faculty is a part-time professor from the Roski School.
Faculty appointed to COPE are asked to serve three-year
terms. There are at least three administrators who sit on the
committee in an ex-officio capacity: the president of finance,
the vice president of admissions, and a vice provost.
Committee on Teaching and Academic Programs
The committee on teaching and academic programs
(CTAP) is tasked with delving into in-depth studies of issues
that affect the University at large. For example, for the cur-
rent academic year, CTAP is focusing on the subject of aca-
demic integrity and what kinds of guidelines and policies the
University needs. In the previous year, the committee pro-
duced a report on residential colleges and how to incorporate
the undergraduate residential college experience into the
existing resources. The provost liked their findings and cre-
ated another committee, the University Committee for resi-
dential design, to look into the issue further.
CTAP has 12 members, 7 of whom are nontenure track
faculty, three of whom are part time. Two of the nontenure
track faculty on CTAP are from Dornsife College and one is
from Roski School.
Research Committee
Each year, the Research Committee studies specific topics
that have been identified by the Academic Senate or the
p rovost as being of interest to the University as a research
institution. In years past, the committee has looked into the
University’s mentoring practices and computing and software
needs. With regard to computing and software, the commit-
tee identified common software platforms that were used
across the University, for which the University could pur-
chase site licenses and give the software to faculty, staff, and
students for free. As a result of the Research Committee’s
recommendation, USC purchased and supplied Microsoft
Word. However, the majority of the committee’s recommen-
dations on software and computing are pending before the
UNIVERSITY OF SOUTHERN CALIFORNIA 11
executive board of the Academic Senate, where they will
either be voted on by the Senate or passed to the administra-
tion. Decisions that are voted on favorably by the Senate are
passed up to the provost, who typically accepts the recom-
mendations. This year, the committee is investigating op-
tions for high performance computing at USC and is meeting
with the University chief information officer to ensure he
understands the faculty’s position on that subject.
It is unclear how large the research committee is, but it is
estimated in the record as between 12 and 20 faculty mem-
bers, some of whom may also be administrators or ex officio
members. There are seven nontenure track faculty on the
committee, one of whom is from Dornsife College. The
chair of the committee is also a nontenure track faculty.
None of the members of the Research Committee are part-
time faculty.
University Committee on Academic Policies and Procedures
The University Committee on Academic Policies and Pro-
cedures (UCAPP) reviews and revises the University’s aca-
demic rules and policies, such as the grading policy. The
recommendations of the committee go to the vice provost of
faculty and academic affairs. In the 6 months that she has
been in that position, the current vice provost has always
adopted the recommendations of UCAPP and she believes
that her predecessor did the same. UCAPP also adjudicates
petitions, which are filed by students when they wish to do
something that is contrary to the academic catalog.
UCAPP consists of faculty, staff and students, but faculty
constitute the majority of the voting members. Although the
record reveals that seven of the UCAPP members are non-
tenure track faculty, the record does not indicate how many
people serve on the committee. One of the UCAPP members
is a part-time faculty from Dornsife College.
University Committee on Appointments, Promotions
and Tenure
The University Committee on Appointments, Promotions
and Tenure (UCAPT) reviews and makes recommendations
on grants of tenure, continuing appointment, clinical scholar
or other titles, and promotions—for tenure-track faculty. Alt-
hough UCAPT includes nontenure track faculty, they are not
involved in any decisions involving tenure. However, if the
decision involves a nontenure matter, nontenure track faculty
must take part in the deliberations and decision-making pro-
cess. An example of this would be a nontenure track profes-
sor who was being considered for appointment to “clinical
scholar or equivalent,” which may mean that the professor
will get a five-year “evergreen” contract. In such a case, the
faculty in that professor’s department would review a dossier
of the professor’s academic achievements and qualifications
and vote on whether to recommend them as clinical scholar.
The issue then goes before the dean of the department. If
neither the dean nor the department faculty vote to promote
the candidate, the candidate does not receive the appointment
as clinical scholar. If either the dean or faculty recommend
the appointment, the issue comes before UCAPT, for essen-
tially the same deliberations at the University level. Once
UCAPT makes its decision, it forwards its recommendation,
along with the candidate’s dossier, to the provost. If both
the department faculty and UCAPT recommend the ap-
pointment, the Provost will approve the candidate for ap-
pointment to clinical scholar. If the two bodies do not
agree, the Provost will review the dossier his or herself, and
decide which recommendation to follow. The UCAPT man-
ual states that the Provost gives careful consideration to all
tenure and promotion cases and UCAPT recommendations,
but that “the final decision is made only by the provost on
behalf of the president.” This process is essentially identical
to the process of granting tenure, except that in that case, no
nontenure faculty would be involved in UCAPT’s decision
making.
UCAPT consists of about twenty-five faculty members.
Seven of those members are identified as nontenure track
faculty, though none of them are from Dornsife College or
Roski School. There are no part-time faculty members cur-
rently serving on UCAPT. The members of the committee
are appointed annually by the university president, and they
typically serve 2- to 4-year terms.
Committee on Nontenure Track Promotions
The committee on nontenure Track Promotions is com-
prised of about 14 nontenure track faculty members, none of
whom are part-time. About three of the members of the
committee are from Dornsife College, including the commit-
tee chair; none are from Roski School. The record testimony
describes this committee as paralleling UCAPT on the non-
tenured track. However, the committee on nontenure track
promotions would only consider a case if a dean ever over-
ruled or vetoed a promotion that had been recommended by
the school’s faculty committees. There is no evidence that
this has actually occurred. There is also testimony that this
committee “can make recommendations about the policies on
nontenure track promotions.” However, no evidence was
presented that the committee has ever actually made such a
recommendation.
Committee on Tenure and Privileges Appeals
The committee on tenure and privileges appeals hears and
decides faculty grievances. For example, this committee
conducts due process hearings where there has been a dis-
missal of a faculty member for cause. The committee makes
a decision on the dismissal and makes a recommendation to
the President. Although the committee has the word “ten-
ure” in its title, it nevertheless handles matters pertaining to
nontenure track faculty as well. If the grievance involves a non-
tenure track faculty member, the three-person panel chosen
from the committee must include at least one nontenure track
member. Vice Provost Levine testified that he had never heard
of a case in which the President did not follow the committee’s
recommendation.
The Committee on Tenure and Privileges Appeals is com-
prised of about forty members, only eight of whom are non-
tenure track. Of those, only three are from Dornsife College,
and none are from Rosh School. There are no part-time faculty
members on the committee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Committee on Nontenure Track Faculty Affairs
The Committee on Nontenure Track Faculty Affairs is an
Academic Senate committee that deals with “anything whatso-
ever having to do with the nontenure track faculty or terms and
conditions of employment.” In the past, the committee has
compared USC’s practices and policies with regard to non-
tenure track faculty to those at other peer institutions. The
committee then reported to the Academic Senate about the
improvements it found to be necessary. There is reference in
the record to the committee being pleased with the administra-
tion’s responses to its recommendations, but the record does
not describe what those recommendations or responses were.
A new subcommittee of the Nontenure Track Faculty Affairs
Committee, called the Part-Time Faculty Subcommittee, was
created in the summer of 2015 and convened for the first time
during the current semester. So far, the subcommittee has most-
ly engaged in discussions, although it has made several recom-
mendations, which are currently pending before the Academic
Senate. Some of the recommendations made by the subcommit-
tee involve including part-time faculty in the Faculty Assembly
and as voting members of University committees, paying part-
time faculty for their hours spent on faculty governance ser-
vice, and trying to move as many part-time faculty members
to full-time status as possible.
The committee on nontenure track faculty affairs consists
entirely of nontenure track faculty, except for possibly one
tenured member. The committee includes about 25 members,
4 of whom are from the Dornsife College and one of whom
is from Roski. Additionally, there are approximately 20
members of the part-time subcommittee, all of whom are part
time. Two of those members are from Dornsife; none are
from Roski School.
Committee on Deadlines and Leaves
The committee on deadlines and leaves deals with faculty
requests for extensions of deadlines for reaching tenure, as
well as requests for sabbaticals and other types of leave. The
members of the committee are jointly selected by the Aca-
demic Senate and the provost. The recommendations of the
committee go to the provost’s office. Vice Provost Levine
recalled only one time that the provost did not adhere to the
committee’s recommendation. The majority of the committee
are faculty members without administrative appointments,
although there are some administrators on the committee.
The record reveals that there are three nontenure track faculty
members on the committee, none of whom are from Domsife
College or Roski School and none of whom are part-time; the
record does not disclose the total number of people on the
committee.
Strategic Planning Committee
The strategic planning committee was convened “this
year” (presumably, the 2015/2016 academic year) to devise a
new strategic plan for USC. There is little record evidence
about what this committee does or will do, but the purpose of
the committee is to address the goals of the University at a
“high level,” seek input from faculty through various media
and methods, and ultimately draft a strategic plan that will
go to the Board of Trustees for ratification. The previous
strategic plan, dated December 7, 2011, discusses broad
goals of the University in general terms, without identifying
specific actions that will be taken.
The record does not indicate the overall size of the strate-
gic planning committee. There are six nontenure track faculty
on the committee, including two who are part time and two
who are from Dornsife College.
4. Facultycouncils
As noted above, there is another level of faculty govern-
ance that interacts with those described above, and that is the
faculty councils. Each school has a faculty council, and each
faculty council has voting delegates in the Academic Senate.
The organization, size, and purpose of the faculty councils
vary from school to school. The Dornsife College faculty
council’s Constitution indicates that only tenured, tenure-
track, and full-time nontenure track faculty are represented
by the Dornsife College faculty council, and are eligible to
attend its meetings or serve as representatives on the council.
There are twenty faculty members on the Dornsife College
faculty council, nine of whom are nontenure track faculty.
There is no evidence that any of them are part-time. There is
similarly no evidence as to what the Dornsife College faculty
council does, or in what way faculty can participate in the
governance of USC through that council. There is no record
evidence of the Dornsife faculty council making any recom-
mendations that were adopted by the administration.
The Roski School faculty council does not appear to have
any governing documents, such as a constitution or bylaws.
There are currently six faculty members on the Roski School
faculty council, three of whom are nontenure track faculty.
The terms for the Roski School faculty council last 2 years.
The record is not clear as to whether part-time faculty are
eligible to serve on the Roski School faculty council or to
vote on who will serve. A professor, who recently became
full-time, nontenure track member of the faculty at the Roski
School, testified that although she had worked as a part-time
professor for 4 years, she was not invited to vote for the fac-
ulty council until she became full time. In fact, she testified
that prior to becoming full time, she did not even know what
the faculty council was. Similarly, another Roski School
part-time, nontenure track faculty member testified that she
does not know what the Roski School faculty council is, de-
spite the fact that she has worked in the school since the
spring semester of 2013.
A tenured professor from the Roski School, who served on
the faculty council at its inception, and served again for the
previous two academic years, testified that the role of the
faculty council is advisory, to hear issues the faculty bring to
the council and to make recommendations to the appropriate
administrative body. He spoke about a particular instance, in
late spring of 2015, in which the faculty council advised
Roski School Dean Erica Muhl about proposed changes to
the way teaching assistant positions-which come with full
tuition and a stipend-were awarded to MFA students. The
council advised the Dean that the current group of MFA
students from the class of 2016 had accepted offers to attend
UNIVERSITY OF SOUTHERN CALIFORNIA 13
Roski School on the understanding that if they completed
their first year successfully they would receive a teaching
assistantship in the second year. The administration was
planning to implement a new application procedure for such
positions, which the faculty council believed could result in
students leaving the program and damage to the school’s
reputation. Although the faculty council submitted its strong
objections to the new procedure in writing to the dean, the
school nevertheless implemented the change, and “the 2016
class withdrew from the university and walked away from
the program en masse.” For its part, the Employer did not
produce any evidence of actions taken by the Roski School
faculty council or examples of recommendations it had made
that were implemented.
5. School anddepartmental committees
At the school and department level, there are myriad addi-
tional committees, some of which purportedly parallel the
function of the significant committees at the University level,
such as the curriculum committee. However, there is little
record evidence about these committees, specifically those
within Dornsife College and Roski School. There is no spe-
cific evidence about actions these committees have taken or
recommendations they have made. In fact, most testimony
about the school or departmental committees came from the
Petitioner’s witnesses, who generally spoke about faculty
concerns being ignored by the schools’ administrators or
about a lack of input.
D. Supervisory Indicia
1. Hire
There is little direct evidence of nontenure track faculty
being actively involved in the hiring process for other faculty
or staff. Vice Provost Levine testified generally that all fac-
ulty hiring must involve faculty committees at the school
level, which review applications and may interview candi-
dates. Ultimately, however, the decision is made in the name
of the dean or the dean’s delegate, or in cases involving hir-
ing part-time faculty, by the program head. Levine testified
that faculty recommendations on hiring are “generally ap-
proved,” but when asked for specific examples of such ap-
proval he simply explained that he had heard no complaints
from faculty committees. Levine admitted that in some cases
even after a faculty committee chooses a candidate, a dean
may decline to hire them for budgetary reasons. The Em-
ployer did not produce any specific evidence with regard to
hiring in Dornsife College or Roski School.
The Petitioner’s witnesses from the Roski School testi-
fied that they do not have any involvement in hiring or
interviewing. The Petitioner also presented evidence of an
incident, in which a faculty hiring committee in Dornsife
College recommended a candidate to the dean, and the
dean chose a different candidate. A Dornsife College part-
time nontenure track faculty member testified that part-
time faculty have no involvement in the hiring process, but
she believes that full-time faculty do through a committee
that reviews the applications. She also stated that her “di-
rect supervisor” Program Director John Holland8 conducts
interviews, but it was not clear how she knows this. Fur-
thermore, she testified that the ultimate decision on hiring
rests with the dean.
2. Transfer
There was even less evidence presented with regard to
the petitioned-for nontenure track faculty’s authority to
transfer employees. Vice Provost Levine explained that if
a faculty member wishes to leave one department, they will
not be stopped. The decision about whether they will be
appointed in another department is made by that depart-
ment. He mentioned that departmental committees would
be involved in the decision to appoint faculty from another
department, but there was no specific testimony or evi-
dence about how that works. Presumably, however, it
would be similar to hiring a new faculty member. There
was no direct evidence produced about the faculty’s in-
volvement in transfers in either the Dornsife College or
Roski School. The Petitioner’s witnesses testified that
they have no such involvement in transfers.
3. Suspend/discipline
Vice Provost Levine testified that if a faculty member--
either tenured, tenure-track, or nontenure track-has a re-
search grant, they may have staff under them who they
may discipline. No evidence was provided as to the identi-
ties of these faculty members with research grants, or how
many of them are included in the petitioned-for bargaining
units. Moreover, Levine testified that the University fol-
lows a disciplinary procedure called “one-step up,” in
which the individual seeking to discipline someone below
them must submit the request for discipline to someone
above them for approval. This would typically be the
dean of the school. However, Levine testified that because
the University takes due process and regulatory compli-
ance so seriously with regard to discipline, there are times
where he as vice provost and the University’s counsel will
also be involved in the decision. He also stated that in
cases where someone is seeking to issue discipline outside
of the typical procedure-such as a discharge for a first
offense, rather than a warning-the one-step up reviewer
will not follow the request and will issue some lesser
discipline.
The Petitioner’s witnesses testified that they do not is-
sue discipline or suspensions.

8 The witness’s almost off-handed references to her “supervi-
sor,” Program Director John Holland, did not serve to develop
the record with regard to the program director position men-
tioned in the bargaining unit description in Case 31–RC–164864.
The record does not reflect what Holland’s duties or responsibili-
ties are, or whether he in fact hired this witness or any other em-
ployees, or exercises any of the supervisory indicia himself.
Accordingly, I do not rely on the characterization of Holland as
either a “Program Director” or as her “direct supervisor” as dis-
positive of the issue of whether the petitioned-for program direc-
tors are supervisors or managerial employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
4. Layoff/recall
Vice Provost Levine testified that USC does not lay off
staff. The Petitioner’s witnesses testified that they have no
role in layoffs.
5. Promote/reward
Vice Provost Levine testified that without distinction
between tenured, tenure-track, and nontenure track, facul-
ty “universally” conduct evaluations of staff members (i.e.
non-faculty and non-student personnel), including recom-
mendations on merit increases. Those recommendations
then go to a senior business officer or human relations
representative who reviews the recommendations. He testi-
fied that the review does not involve independent investiga-
tion into whether the wage increase is merited but is simply
a budgetary review to determine if there is money available
for the raise. There was no specific evidence presented about
whether this practice is followed in Dornsife College and
Roski School. Similarly, there is no evidence as to how
many of the nontenure faculty members in those schools have
staff who report to them.
As discussed above, the University Committee on Ap-
pointments, Promotions and Tenure, as well as the Commit-
tee on Nontenure Track Promotions and various departmental
committees facilitate faculty involvement in promotions.
The Petitioner’s witnesses testified that they do not pro-
mote or evaluate other faculty or staff.
6. Adjust grievances
As discussed above, the committee on tenure and privileg-
es appeals hears and makes recommendations with regard to
faculty grievances.
Once again, the Petitioner’s witnesses testified that they
are not involved in handling other employees’ grievances.
7. Discharge
Vice Provost Levine testified about different ways that non-
tenure track faculty could be involved in the decision to dis-
charge a faculty member. For instance, if a faculty member’s
contract is being terminated for some reason other than for
cause, a school or departmental committee will consider that
decision, and make a recommendation that goes to the dean or
the dean’s designee. However, if the contract is terminated
because a research grant has run out, that decision would not
have faculty committee involvement. If a faculty member is
discharged for cause, it involves multiple levels of commit-
tees, as well as a due process hearing, which is handled by
CTAP, as discussed above. Recommendations resulting from
this process are sent to the president, who, according to Lev-
ine, always approves the recommendation.
The Petitioner’s witnesses testified that they are not in-
volved in discharging employees.
8. Assignment and responsible direction
When asked about the extent to which the petitioned-for
employees assign and direct the work of other employees,
Vice Provost Levine testified that “all faculty who are sup-
ported by staff supervise that staff,” and assign and prioritize
the work of that staff. The record is not developed with re-
gard to which nontenure track faculty are directly supported
by staff; Levine’s testimony is that faculty may share staff
such as secretaries. When asked for specific examples of
faculty assigning work, Levine described a faculty member
asking someone to make copies of documents, or asking the
IT department for an audio-visual set-up. He did not provide
specific examples involving Roski School or Dornsife Col-
lege nontenure track faculty.
Some of the Petitioner’s witnesses testified that they do
not assign work to other employees. One testified that when
she needs something done she will ask the administrative
coordinator, who then assigns a faculty assistant to the task.
9. Secondary indicia
There is no record evidence that the nontenure track facul-
ty in the petitioned-for bargaining units regularly attend su-
pervisory meetings, receive any benefits not granted to other
employees, are specifically designated as supervisors or other
special titles, or are regarded as supervisors by other employ-
ees, faculty or administrators. The petitioned-for faculty
represent a large proportion, if not a majority, of the faculty
in the Dornsife College and Roski School. The record does
not include the ratio of the petitioned-for employees to all
University employees in the schools, including staff.
III. DISCUSSION
A. Managerial Status of the Petitioned-for Employees
1. The Pacific Lutheran framework
In NLRB v. Yeshiva University, 444 U.S. 672 (1980), the
Supreme Court found the faculty of Yeshiva University to be
managerial employees, excluding them from the coverage of
the Act. In coming to its conclusion, the Court noted that a
university is in the business of education, and thus, manage-
rial employees in such a setting “formulate and effectuate
management policies by expressing and making operative the
decisions of their employer.” Id. at 682, citing NLRB v. Bell
Aerospace Co., 416 U.S. 267 (1974). The Court explained
that managerial employees are those who are “aligned with
management” such that they “represent management interests
by taking or recommending discretionary actions that effec-
tively control or implement employer policy.” Id. at 683
(citations omitted).
Over the next three and a half decades, the Board issued
dozens of decisions applying Yeshiva, examining “the many
different combinations and permutations of influence that
render each academic body unique.” University of Dubuque,
289 NLRB 349, 353 (1988). Recently, the Board reevaluated
and refined the analytical framework it applies to cases in-
volving the managerial status of university faculty. In Pacific
Lutheran University, 361 NLRB No. 157 (2014), the Board
identified five areas of faculty decision-making that it will
consider in deciding such cases. Three are primary and
should be given more weight as they affect the university as a
whole. Id., slip op. at 17. These are: academic programs,
“such as the university’s curricular, research, major, minor,
and certificate offerings and the requirements to complete
successfully those offerings;” enrollment management,
which includes “the size, scope, and make-up of the universi-
UNIVERSITY OF SOUTHERN CALIFORNIA 15
ty’s student body;” and finances, or “the power to control or
make effective recommendations regarding financial deci-
sions-both income and expenditure[.]” Ibid. (citation omit-
ted). There are two secondary areas of decision-making,
which although less important, should still be considered.
They are: academic policy, “such as teaching/research meth-
ods, grading policy, academic integrity policy, syllabus poli-
cy, research policy, and course content policy;” and person-
nel policy and decisions, “including hiring, promotion, ten-
ure, leave, and dismissal.” Id., slip op. at 17–18.
The party asserting managerial status has the burden of
proof and must demonstrate not only that the faculty makes
decisions in these policy areas, but that they actually exercise
control or make effective recommendations in those areas.
Ibid. (citations omitted). To that end, the Pacific Lutheran
Board held that to carry its burden, “the party asserting man-
agerial status must prove actual-rather than mere paper-
authority.” Ibid. The Board explained the need for “specific
evidence or testimony regarding the nature and number of
faculty decisions or recommendations in a particular decision-
making area, and the subsequent review of those decisions or
recommendations, if any, by the university administration,
prior to implementation, rather than mere conclusory asser-
tions that decisions or recommendations are generally fol-
lowed.” Ibid. The Board also clarified that for faculty rec-
ommendations to be “effective,” the administration must
“almost always” adopt the recommendations, and do so “rou-
tinely” without independent review. Id. at 19. Finally, the
Board emphasized the importance of evaluating faculty deci-
sion-making in the context of the structure of the university,
and the employment relationship of the faculty with the uni-
versity, in particular whether or not the faculty enjoy tenure.
Ibid.
Applying this new framework with regard to the full-time
contingent faculty (i.e. non tenured faculty hired on annual
contracts) at Pacific Lutheran University, the Board found
that they were not managerial employees. In examining the
contingent faculty’s decision-making in the primary areas of
consideration, the Board found that they had limited partici-
pation in decisions affecting academic programs, in part
because they were precluded at some levels from voting on
such decisions, and were barred from serving on relevant
committees at other levels. Id., slip op. at 24. The Board
found no evidence that the contingent faculty voted on issues
surrounding enrollment management or finances, and noted
that while there were advisory committees that dealt with
those matters, no contingent faculty sat on those committees.
Ibid. The Board also found insufficient evidence that contin-
gent faculty’s influence in the secondary areas of decision-
making rose to the level of actual or effective control, despite
the fact that they could vote on some personnel policies that
passed before the faculty assembly. Ibid.
As the Board said it would, it considered the facts of Pacif-
ic Lutheran in the context of the university’s organization
and structure, as well as the contingent faculty’s position in
that structure and their employment relationship. Noting that
most of the university’s policy in the primary areas of con-
cern was developed at the level of divisions, schools and
departments, the Board observed that in some cases, contin-
gent faculty were excluded from participating in committees
at those levels, either by rule or by virtue of the fact that their
year-long appointments were a deterrent to them serving mul-
ti-year terms on committees. Id., slip op. at 25. Moreover,
the Board found that while contingent faculty were now eli-
gible to vote on university-level committees, they had not yet
done so, and “even if they did, they would be a minority on
the university committee as their membership is currently
structured.” Ibid; see also, id., slip op. at 24, fn. 36 (the
Board will not attribute committee control in decision making
areas to faculty, unless it is proven that faculty exert majority
control of the committee). Finally, the Board held that Pacif-
ic Lutheran University’s contingent faculty had a limited
voice in university governance because their employment
was subject to annual review and renewal, and because many
of them were not even made aware of their basic rights and
responsibilities as faculty of Pacific Lutheran University.
2. The petitioned- for nontenure track faculty are not
managerial employees
Applying the framework of Pacific Lutheran to the instant
case,9 find that the part-time and full-time nontenure track
faculty in the petitioned-for units are not managerial employ-
ees.
Academic Programs
At USC, faculty involvement in decision-making about
academic programs at the University level happens primarily
through the University Committee on Curriculum (UCOC)
and the University Committee on Academic Review
(UCAR). In the case of UCOC, the record shows that before
the proposed curricula, course descriptions, and program
offerings come before that body, they have actually been
formulated at the school level.
10
The role of the UCOC sub-
committees seems to be simply to verify that the proposals
meet predetermined criteria, such as having a sufficient num-
ber of contact hours. UCAR, on the other hand, makes rec-
ommendations to the schools about the programs that it re-
views, but the actual actions taken pursuant to those recom-
mendations are devised and decided upon at the school level.
If those actions include changes to the curriculum, the school
then submits its proposals to UCOC. There is testimony that
more complex matters that come before the UCOC are han-
dled by the full committee, rather than subcommittees.
However, the evidence about the actual work the committee
does is vague. For instance, there is testimony that UCOC
worked “back and forth” with the Price School of Public
Policy on its proposal for a global master’s degree in public
policy. But that testimony does not indicate whether UCOC

9 As described above, the Employer raised the issue of the validity
of the Pacific Lutheran decision, arguing that it is contrary to the
Yeshiva decision. However, as the Employer notes in its brief, Pacif-
ic Lutheran is the extant Board law on this issue, and I am bound to
foilow it.
10 The processes by which curricula are formulated at the school
level seem to vary from school to school. The record is not clear with
respect to the process followed in Roski or the Dornsife College.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
rejected certain aspects of the proposal or simply asked clari-
fying questions. Similarly, though there is record testimony
that the vice provost does not conduct any independent in-
vestigation of UCOC’s recommendations, it is not clear what
kind of review is conducted. As emphasized by the Board in
Pacific Lutheran, “specific evidence or testimony regarding
the nature and number of faculty decisions or recommenda-
tions in a particular decision-making area, and the subse-
quent review of those decisions or recommendations, if any,
by the university administration, prior to implementation,
rather than mere conclusory assertions that decisions or rec-
ommendations are generally followed” is necessary to estab-
lish actual control or effective recommendation sufficient to
make faculty managerial employees. Pacific Lutheran Uni-
versity, slip op. at 24. Accordingly, the record evidence here
is not sufficiently detailed or specific to find that these com-
mittees exercise actual control or effective recommendation
over the university’s academic programs.
Moreover, even if the faculty on the UCOC and UCAR
could be said to actually or effectively control decision-
making with regard to academic programs, I would not at-
tribute that control to the nontenure track faculty at issue
here, as they do not constitute a majority of either committee.
See id., slip op. at 24 fn. 36. In fact, nontenure track faculty
in general do not exercise majority control of these commit-
tees, despite constituting a significant majority of the faculty
at large. Nontenure track faculty from Dornsife College or
Roski School are in the minority on these committees, where
they are represented at all. The Employer argues that it is
sufficient that committees be represented by a faculty majori-
ty, and that to require a majority of University of Southern
California the members be nontenure track faculty is illogical.
I disagree, particularly in a case such as this where non-
tenure track faculty constitute a majority of the University’s
faculty body.
The Board has considered this issue before. In Cooper
Union of Science &Art, 273 NLRB 1768 (1985), a case alleg-
ing a withdrawal of recognition in violation of Section
8(a)(5) of the Act, the Board ruled that full-time faculty mem-
bers who comprised the bargaining unit were not managerial
employees. In making this ruling, the Board found that the
bargaining unit faculty’s role on administrative committees
was not indicative of managerial authority, in part because
full-time faculty constituted a minority on the committees,
even though the committees were controlled by faculty ma-
jorities. Id. at 1775. It is also instructive to note this com-
ment made by the Pacific Lutheran Board, when explaining
its finding that contingent faculty did not exercise actual or
effective control through university committees: “[T]he rec-
ord reflects that no contingent faculty member has yet served
on a university committee. But even if they did, they would
be a minority on the university committee as their member-
ship is currently structured.” Pacific Lutheran University, slip
op. at 25 (emphasis added). Thus, the Pacific Lutheran
Board implies that it would follow the line of reasoning in
Cooper Union and look specifically at whether the peti-
tioned-for faculty members constitute a majority on decision
making bodies. Accordingly, I find that nontenure track
faculty do not have majority control of UCOC or UCAR, and
therefore it would be inappropriate to confer any managerial
control by those committees to the nontenure track faculty.
The record also fails to establish that nontenure track fac-
ulty in Dornsife College and Roski School have any in-
volvement in decision-making about academic programs
within their schools. To the extent that this work is done in
the faculty councils, part-time nontenure track faculty in
Dornsife are expressly barred from participation. Further-
more, even the full-time nontenure track faculty do not con-
stitute a majority of the Dornsife faculty council. The same
is true of the Roski School faculty council, although there the
nontenure track faculty are evenly represented with other
faculty. However, the only specific record evidence about
the Roski faculty council’s involvement in academic pro-
grams shows that the administration of that school ignored
the proposals of the faculty and implemented changes to the
MFA program over faculty objections. The Board has often
found university administrators’ unilateral actions without
input from or over the objections of faculty to be indicative
of a lack of faculty control. Cooper Union, supra, at 1775;
Bradford College, 261 NLRB 565 (1982).
Thus, there is insufficient evidence that the faculty com-
mittees at the University, school, or departmental levels ex-
ercise actual or effective control over USC’s academic pro-
grams. Moreover, even if there was evidence of such control,
full-time and part-time nontenure track faculty do not com-
prise a majority on any of the relevant committees, and there-
fore do not possess managerial control over academic pro-
grams.
Enrollment Management
The record shows that within the 5 months or so prior to
the hearing, the newly-created committee on finance and
enrollment (COFE) made several specific recommendations
about enrollment matters, all of which were approved by the
University’s administration. Specifically, the COFE recom-
mended that USC maintain a “holistic” approach to under-
graduate admissions rather than focusing on standardized test
scores, and that the University formulate a “master plan” on
graduate admissions. The committee’s most concrete rec-
ommendation on enrollment was its rejection of the idea that
newly constructed dormitories should result in increasing the
size of entering undergraduate classes. While all of these
recommendations were quickly approved by the provost, the
record does not sufficiently describe the level or type of re-
view or investigation the provost engaged in before approv-
ing the recommendations. Without such specific evidence, I
cannot find that the COFE’s recommendations on enrollment
matters are routinely followed in such a way that they consti-
tute effective recommendation. Furthermore, I find it note-
worthy that the COFE was very recently created and has
made only a handful of decisions affecting enrollment, all
within the few months before the hearing in this matter. This
brief history is insufficient to establish that the COFE makes
recommendations on enrollment management that are routine-
ly implemented by USC. Additionally, there is no evidence
that COFE, or any other faculty body, has made effective
UNIVERSITY OF SOUTHERN CALIFORNIA 17
decisions about the specific size, scope, and make-up of the
student body. Certainly, their recommendations as adopted
will have an effect on those factors, but there is no evidence
that the faculty is actually determining the size of the student
body or the make-up of the student body.
Finally, even if the COFE can be found to exercise actual
or effective control over enrollment management, here again,
nontenure track faculty do not constitute a majority of the
committee. Therefore, they cannot be found to possess any
managerial control that the COFE might have.
Finances
In the area of University finances, COFE is again the main
vehicle by which faculty may take part in decision-making.
As with enrollment management issues, in the last few
months, COFE has made multiple financial recommendations,
all of which have ultimately been approved by the admin-
istration. Its proposal as to the amount of the University’s
endowment payout was accepted by the provost, and ulti-
mately approved by the board of trustees, as was its proposal
on next year’s tuition rate. The COFE’s proposal that the
University begin a pilot program to expand its need-based
financial aid was ultimately approved by the President. Uni-
versity of Southern California However, again, the record
does not include specific evidence about the type of review
or investigation these recommendations received prior to
approval. I am not convinced by the conclusory evidence in
the record that the Board of Trustees, for example, would
sign off without second thought on a tuition amount or en-
dowment payout based solely on the recommendation of a
newly-formed faculty committee that had never before con-
sidered such issues. Furthermore, I again note the fact that
these recommendations were all approved less than a week
before the hearing in this matter. This is not a sufficient
record to evidence that the faculty is aligned with manage-
ment on these issues. Moreover, there is record evidence
that in the Roski School, the administration made the unilat-
eral decision to change the way teaching assistant positions
were awarded-an issue that implicates financial expendi-
tures, namely the wages paid to teaching assistants-over the
protests of the Roski School faculty council. This fact also
further cuts against finding that the nontenure track faculty,
at least at the Roski School, are managerial employees.
Accordingly, I conclude that the Employer has not met its
burden of proving that the COFE has managerial control over
finances. Additionally, I find that any such control held by
the COFE cannot be attributed to the petitioned-for non-
tenure track faculty members because nontenure track faculty
do not constitute a majority of the committee.
Academic Policies
The faculty at USC has some involvement in decision
making around academic policies, such as the academic in-
tegrity policy, the grading policy, and the research and men-
toring policies. Faculty input into these areas is provided
through various committees: the academic senate handbook
Committee, the committee on teaching and academic pro-
grams (CTAP), the research committee, and the University
Committee on Academic Policies and Procedures (UCAPP).
There was testimony that handbook amendments proposed
by the handbook committee are approved by the University
p resident 100 percent of the time. However, the record also
contains a specific example in which the president sent the
proposal back to the committee for revisions before approv-
ing it. There is almost no record evidence about the review
of CTAP recommendations, such as the recommendation they
will make this year on academic integrity. The only example
of the committee’s past work is a report on residential col-
leges, which led the provost to form yet another committee
to focus on that particular subject. Similarly, although the
record indicates that the research committee has studied such
subjects as mentoring practices, computing and software
needs of the University, and high performance computing
capabilities at USC, the record describes only one concrete
outcome of that work, which is the free provision of Mi-
crosoft Word to faculty and students. Testimony on UCAPP
was vague as to the work that the committee does, with the
exception of one example about revising the grading policy.
In terms of the level of review of UCAPP’s recommenda-
tions, the evidence indicates that the vice provost always
adopts the recommendations, but does not state whether she
conducts any independent investigation prior to doing so.
Considering these facts, although there is some evidence
that faculty at USC play an active role in making decisions
about academic policies, the record is too vague and unde-
fined to conclude that the faculty’s role on committees
amounts to actual or effective control over this area. I note
that even if some of these committees do exercise managerial
control, there is record evidence of nontenure track faculty
constituting a majority on only one, the Committee on
Teaching and Academic Programs. Moreover, even if the
petitioned-for faculty could be found to have managerial
authority in the area of academic policies, such authority in a
secondary area of consideration alone does not support a
conclusion that the nontenure track faculty in Dornsife Col-
lege and Roski School are managerial employees.
Personnel Policy and Decisions
There are several committees that deal with personnel mat-
ters at USC, such as the University Committee on Appoint-
ments, Promotions and Tenure (UCAPT), and the similarly
functioning Committee on Nontenure Track Promotions.
UCAPT primarily deals with issues involving tenure, which
nontenure track faculty are prevented from handling. How-
ever, it is clear that when the issue involves a nontenure track
faculty member being promoted to clinical scholar, UCAPT
involves nontenure track faculty, who will decide on the ap-
pointment with the rest of the committee. It is likewise estab-
lished that unless there is a disagreement between UCAPT
and the candidate’s school on whether to promote, the prov-
ost accepts UCAPT’s recommendation. With regard to the
committee on nontenure track promotions, however, there is
no evidence that the committee has ever considered any cases
or made any recommendations.
The committee on tenure and privileges appeals is another
committee where faculty are involved in decision making
about personnel decisions, in particular discharges for cause
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
for both tenure and nontenure track faculty. There is record
testimony that the president has never failed to follow this
committee’s recommendations, although there was no evi-
dence presented about the president’s review of the recom-
mendations.
Finally, with respect to the committee on nontenure track
faculty affairs, and its subcommittee for part-time faculty,
there is insufficient evidence to establish that they have in
fact effectively controlled decision making about personnel
matters. There is no specific evidence about the type of rec-
ommendations the full committee has made, or about the
response from the administration, other than that the commit-
tee had been pleased by it. The newly—created Part-Time
Subcommittee has made recommendations about various
terms and conditions of employment of part-time faculty, but
so far no action has been taken on those recommendations.
Therefore, I do not find that the Employer has met its bur-
den to show that through these committees, the nontenure
track faculty exercise actual or effective control over person-
nel policies and decisions. With rare exception, the evidence
regarding these committees is vague or shows that the com-
mittee has not made any decisions or recommendations.
Furthermore, non- tenure track faculty at do not exert majori-
ty control over some the committees, including UCAPT and
the committee on tenure and privileges appeals. Finally, as
noted above, without evidence that the nontenure track facul-
ty in Dornsife College and Roski School exercise managerial
authority in one of the primary areas of consideration, even
if they do exercise that authority with regard to personnel
policies and decisions, this would be insufficient to establish
that they are managerial employees.
Actual Control and Effective Recommendation
In reaching my conclusion that the petitioned-for non-
tenure faculty members in Dornsife College and Roski
School do not exercise actual control or effective recommen-
dation in any of the primary or secondary areas of considera-
tion, I have considered the organization of USC and the
employment relationship of these faculty members. Despite
the fact that nontenure track faculty constitute a majority of
the faculty body, they are consistently in the minority on the
dozens of faculty committees that comprise USC’s shared
governance system. Even more revealing is that although the
majority of nontenure track faculty are part-time, part-time
faculty have very little presence on those committees. In
fact, the evidence shows that part-time faculty members in
Dornsife College and Roski School sometimes are not even
aware of the committees that are available to them. Further-
more, the committees, particularly the University and Aca-
demic Senate committees, are not filled by democratic elec-
tions, but rather by a combination of “self-nomination” and a
subjective process of seeking out “suitable” candidates.
Part-time faculty in Dornsife College are not only barred
from serving on the school’s faculty council, they are not
even considered to be represented by it, per its Constitution.
The University does not give nontenure track faculty feed-
back 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 percent
of full-time, benefits such as health insurance.
Furthermore, while the majority of full-time, nontenure
track faculty in Dornsife College and the Roski School may
have multiyear appointments, this is still materially—less than
the job security of a tenured position. More importantly, part-
time nontenure track faculty typically have only semester- or
year-long appointments. Sometimes they do not find out
they have been appointed for another semester until a few
weeks before the previous semester ends. It is unclear how
someone with a short-term appointment can serve on com-
mittees with year-long or multiyear terms, such as the COFE
with its three-year long commitment. As the Pacific Luther-
an Board stated, “[T]he ability of contingent faculty to con-
trol or make effective recommendations regarding university
policy is inherently limited by the very nature of their em-
ployment relationship with PLU.” Pacific Lutheran, slip op.
at 25. Here too, the nontenure track faculty in Dornsife Col-
lege and the Roski School are limited by their tenuous em-
ployment terms, as well as their status as nontenure track
faculty.
I conclude that the Employer has failed to establish that
the full-time and/or part-time nontenure track faculty at the
Dornsife College and the Roski School actually or effectively
exercise control over decision making pertaining to central
policies of the university such that they are aligned with
management. Pacific Lutheran, slip op. at 14. For all of the
reasons discussed above, I find that the petitioned-for full-
time and part-time nontenure track faculty in the Dornsife
College and the Roski School are not managerial employees.
ORDER DENYING EMPLOYER’S MOTION TO REOPEN
THE RECORD AND FOR RECONSIDERATION
On March 31, 2016, the Employer filed a motion pursuant
to Section 102.65(e) of the Board’s Rules and Regulations to
reopen the preelection record in Case 31–RC–164864 and
31–RC–164868 to receive new evidence, and for reconsidera-
tion of my December 24, 2015 Decision and Direction of
Election in light of that new evidence. Subsequently, the
Petitioner filed its Opposition to the Employer’s motion. The
Employer argues that certain postelection testimony by Pro-
fessor Kate Levin contradicts her testimony in the pre-
election hearing, and that this new testimony would compel
me to reach a different result with regard to the preelection
matter. The Petitioner contends that the Employer’s motion
does not meet the standard for reopening the record or for
reconsideration, and should be denied.
Section 102.65(e)(l ) of the Board’s Rules and Regulations
states, in relevant part:
A party to a proceeding may, because of extraordinary cir-
cumstances, move after the decision or report for reconsid-
eration, for rehearing, or to reopen the record. A motion
for rehearing or to reopen the record shall specify briefly
the error alleged to require a rehearing or hearing de no-
vo, the prejudice to·the movant alleged to result from
such error, the additional evidence sought to be adduced,
UNIVERSITY OF SOUTHERN CALIFORNIA 19
why it was not presented previously, and what result it
would require if adduced and credited. Only newly discov-
ered evidence—evidence which has become available only
since the close of the hearing-or evidence which the re-
gional director or the Board believes should have been
taken at the hearing will be taken at any further hearing.
Section 102.65(e)(2) requires that such motions be filed
“promptly on discovery of the evidence sought to be ad-
duced.”
The Employer argues that contrary to her testimony in the
preelection hearing that her involvement on the university
committee on curriculum (UCOC) was merely of a technical
or clerical nature, Professor Levin now testifies in the post-
election hearing that she enjoys having “a say in what courses
are offered,” that she joined the committee to have a “window
into how university curricula are shaped, “and that she views
her work on the committee as “important.” The Employer
also cites Professor Levin’s postelection testimony that the
UCOC “makes recommendations about whether new courses
or changes to existing courses should go through,” as contra-
dicting her preelection testimony that her work on UCOC did
not require her to use her judgment to make substantive deci-
sions about courses. The Employer argues that this testimony
was not known at the time of the preelection hearing, and
that this new testimony necessarily requires a finding that
USC’s nontenure track faculty in the relevant units exercise
managerial authority, contrary to my previous decision. This,
the Employer contends constitutes extraordinary circumstances
such that the preelection record should be reopened and
reconsidered in light of this new evidence.
I do not find that the Employer has established extraordi-
nary circumstances exist that warrant the reopening of the
record. First, I note that the Employer has not provided an
explanation as to why this evidence was not adduced in
the pre-election hearing. None of Professor Levin’s testimony
relied upon by the Employer is directly contrary to her pre-
election testimony. That her specific testimony in the post-
election hearing may be more favorable to the Employer’s
position on the issue of managerial authority is irrelevant.
The Employer had the burden in the preelection hearing to
prove the statutory exclusion. The Employer was given the
opportunity to cross-examine Professor Levin about her expe-
riences on UCOC and did so. The Employer could have ques-
tioned her further or asked the same specific questions asked of
her in her post-election examination, but it did not do so when
it had the opportunity. Thus, Professor Levin’s testimony does
not constitute newly discovered evidence.
Even if Professor Levin’s post-election testimony did con-
stitute new evidence, I do not find that it would require me to
reach a different result on the question of these faculty mem-
bers’ managerial authority. The testimony adduced from Pro-
fessor Levin is unspecific as to the type of recommendations
faculty make about University curricula, how they come to
make those recommendations, and what happens to those rec-
ommendations once made. Furthermore, as the Employer cor-
rectly argued in the preelection hearing, Professor Levin’s
subjective opinions or valuations of the work she does on
UCOC are irrelevant to the question of managerial status. In
other words, her enjoyment of, or the importance she places
on her participation in the committee does not establish that
nontenure track faculty exercise managerial decision making
with regard to USC’s academic programs, as the Employer
argues. This evidence is of little to no probative value and
would not change the result I reached in my preelection deci-
sion.
Finally, I do not find that the Employer’s motion was filed
“promptly on discovery of the evidence sought to be ad-
duced.” Professor Levin concluded her postelection testi-
mony on February 24, 2016. Transcripts were available to
the parties by February 26, 2016. Yet, the Employer did not
file its motion to reopen the record until March 31, 2016.
The Employer provides no explanation for the month-long
delay, and I see no basis for it. Therefore, I do not find that the
motion was timely filed. Accordingly, based on all the fore-
going reasons, I deny the Employer’s motion to reopen the
record and for reconsideration.