‘Tweaking’ Which Adjuncts Can Form Unions

Unions are somewhat discomfited by last week’s National Labor Relations Board decision regarding Elon University, even though it was good news for adjuncts at that particular campus. That’s because the decision could restrict some adjuncts’ rights to collective bargaining under the National Labor Relations Act going forward.

At the same time, union advocates note that the current NLRB is something of a lame duck, with its Trump-appointed majority scheduled to end by summer. That means a more union-friendly board, with new members appointed by President Biden, is probably on the way. This could change adjuncts’ status under the labor act once again.

The story of the Elon decision starts back in 2014, when the Obama-era NLRB decided in another major case -- concerning Pacific Lutheran University -- that adjuncts at many private institutions could form unions because they were not in fact managerial employees. Pacific Lutheran had argued that non-tenure-track professors were managers of sorts, like their tenure-track and tenured counterparts. Under a long-standing legal precedent, these tenure-line professors are not entitled to collective bargaining rights.

The Pacific Lutheran case was a big win for would-be adjunct unions at private institutions everywhere, as it established that adjunct faculty members had to have majorities on various kinds of faculty governance committees to be considered managers. That is not typical, as adjuncts often have limited roles in faculty governance.

Then, in a 2019 decision concerning non-tenure-track instructors of art and design at the University of Southern California, the powerful federal appeals court in Washington rejected the majority test element of adjuncts' managerial status for a number of reasons, including that it artificially split the faculty as whole into different groups. The court sent the art adjuncts’ case back to the NLRB for review.

The adjuncts at USC have since withdrawn their petition from the NLRB. But the board still set new guidelines for adjunct unions last week, in the case concerning Elon. The board rejected the committee majority test established in Pacific Lutheran. It nevertheless found that Elon's adjuncts were not managers.

'Structurally Included'

Elon’s adjuncts are “not structurally included in the employer’s collegial bodies,” the board said in its decision. “Accordingly, they are not managerial, and we need not consider whether the employer’s collegial bodies exercise actual control or effective recommendation with respect to the Pacific Lutheran areas of consideration.”

For instance, the board said, Elon’s Academic Council has 19 spots, only one of which is reserved for a limited-term or adjunct professor. Most other seats are specifically reserved for nonadjuncts.

However, the decision says, “the determining factor in this case is not that the petitioned-for faculty constitute a minority on the employer’s shared governance bodies; rather, it is that, based on the evidence as a whole, the employer has failed to demonstrate that they are structurally included in these bodies.”

Elon’s adjunct union celebrated the decision. Even though adjuncts apparently don’t have significant participation in governance there, they get to try to improve their working conditions through collective bargaining.

Yet for adjuncts beyond Elon, the NLRB's stance also means something else: those who do have meaningful roles in shared governance may not be entitled to collective bargaining rights. The NLRB’s ruling therefore pits, to some degree, adjuncts’ participation in shared governance against their potential job security and other collectively bargained working conditions.

One current member of the NLRB was appointed by President Obama and recently named chair by Biden, following the termination of a Trump-appointed general counsel who did not want to step down. This new chair, Lauren McFarren, wrote a separate concurrence with her three Trump-appointed colleagues that favored the Elon adjuncts. But McFarren also warned that meaningful participation in shared governance -- in practice, not just in policy -- must be key to evaluating adjunct union bids going forward.

Elon’s non-tenure-track faculty members “were on the margins of power at best, not at the center,” she said. “This will often be the case and, of course, it tends to explain why such faculty members are seeking union representation. Contingent faculty members are a growing segment of the faculty workforce. But they have been unable to establish a voice for their workplace concerns through institutional mechanisms.”

Contingent faculty members “face unique barriers to participation on committees and other faculty bodies,” McFarren continued. So the board “must be alert to low participation by members of a faculty subgroup in university committees. It may well betray their marginalized role within the university and their lack of a meaningful voice in university governance, as it did here.”

Going forward, the board must be sensitive to the various ways in which tenure-track and tenured professors’ interests differ from adjuncts’ interests, as well, McFarren said.

William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College of the City University of New York, said that the recent NLRB decision “tweaks” the scope of the Pacific Lutheran decision. Essentially, Herbert said, the decision established an updated standard for whether or not adjuncts at a particular institutions have collective bargaining rights: whether faculty bodies in general have effective control in relevant structural operations at the university, and -- instead of whether adjuncts have majority control of committees -- whether this subgroup in general is included in faculty governance.

Outlook Litigious

Herbert said the most significant implication of the Elon decision is that institutions who fight adjunct union bids will probably have to engage in more litigation to get at whether adjuncts have meaningful participation in campus governance or not.

“These cases are very fact-intensive,” now more than ever, Herbert said. “Each time, the litigation is going to be over the scope of contingent faculty involvement on faculty committees. If they are part and parcel of the structure of faculty committees, they’re more likely to be found managerial. If not, they won’t be found managerial.”

An American Federation of Teachers official said that this new decision leaves adjunct faculty members’ control of relevant campus operations more up in the air than the Pacific Lutheran criteria, undermining the ability of these faculty members to organize and have rights under federal labor law.

Yet the AFT, which represents adjunct faculty unions at private institutions nationwide, noted that the Biden administration could soon appoint two new board members who might be even more favorable to adjunct unions than the Obama-era board.

Many adjunct unions are also affiliated with Service Employees International Union. Peter MacKinnon, SEIU’s higher education council chair, said the NLRB’s decision at least “affirms the spirit of the Pacific Lutheran test and squarely puts the burden on employers to show that their faculty effectively control university policies, which -- given the decades of erosion of faculty governance within higher education -- is a high bar for many administrations to clear.” 

Universities will be “even more hard-pressed to prove that adjunct faculty are structurally included in a faculty body that makes such decisions, as often they work on a semester-by-semester basis with no guarantee of future employment,” MacKinnon said. 

For now, Elon’s administration says the NLRB’s decision was a partial win.

In a statement on the decision, Provost Aswani Volety said that the board “agreed with Elon’s position advocating for a revised standard to determine whether part-time faculty are managerial employees under the law.”

Elon believes in the “important voice and role” that all faculty members, “including adjunct, limited-term and visiting faculty, provide within the university’s unique system of shared governance,” Volety said. “We are carefully reviewing this very complex decision and will consider all available options in support of our collaborative model of shared governance before making a decision about next steps.”