[00:00:02] Speaker 00: Case number 17-1149 at L, University of Southern California Petitioner versus National Labor Relations Board. [00:00:10] Speaker 00: Mr. Langham for the petitioner, Ms. [00:00:12] Speaker 00: Beard for the respondent, Ms. [00:00:14] Speaker 00: Myers for the intervener. [00:00:41] Speaker 03: May I place the court? [00:00:42] Speaker 03: My name is Al Latham. [00:00:43] Speaker 03: I represent the University of Southern California. [00:00:48] Speaker 03: In the Yeshiva case, our Supreme Court said, and I quote, authority in the typical mature private university is divided between a central administration and one or more collegial bodies. [00:01:03] Speaker 03: Stated otherwise in the terms that we use in academia, the Yeshiva court embraced a system of shared governance, shared between administrators and faculty. [00:01:18] Speaker 03: The board's test for the managerial status of faculty under the National Labor Relations Act, as first announced in Pacific Lutheran, and then expanded further and made more extreme, frankly, in our USC case, cannot be reconciled with shared governance, and therefore cannot be reconciled with the United States Supreme Court's decision in Yeshiva. [00:01:47] Speaker 03: We've pointed this out in many ways in our brief, but there are two that I think are particularly worth flagging here at oral argument. [00:01:55] Speaker 03: The first is the board's new requirement that a type of faculty constitute the majority of a faculty committee in order for their service on that committee to count for purposes of managerial status. [00:02:11] Speaker 03: And the second, which I think reflects a truly fundamental misunderstanding on the part of the board as to how shared governance works, is the board's dismissal out of hand of evidence that faculty committees work back and forth with administrators to govern the university. [00:02:33] Speaker 03: Turning first to the majority requirement, in Pacific Lutheran, the board said we require that faculty be a majority of the faculty committee in order for their service to count for these purposes. [00:02:47] Speaker 04: I want to ask you what may be sort of an antecedent question to this. [00:02:56] Speaker 04: So in Yeshiva and in [00:03:02] Speaker 04: Pacific Lutheran. [00:03:06] Speaker 04: The faculty that was seeking recognition was the faculty of the entire university, right? [00:03:13] Speaker 04: That was the contingent faculty in Lutheran and in the regular faculty in Yeshiva. [00:03:21] Speaker 04: Here, it's only the non-tenured track faculty of Roski. [00:03:29] Speaker 04: So isn't the question we have to answer, or the board has to answer, a little narrower than the brief seemed to suggest? [00:03:36] Speaker 04: Isn't the question whether Roske non-tenured faculty, non-tenured track faculty have effective control of all of these committees that the parties have talked about? [00:03:52] Speaker 04: Is that the question we have to ask? [00:03:54] Speaker 03: I don't think so, Your Honor, for a couple of reasons. [00:03:57] Speaker 03: First of all, the test that is to be applied is the issue that first has to be addressed, and this Court has said many times. [00:04:07] Speaker 03: If the test, the legal test that is applied by the NLRB is wrong, then the case cannot be... Well, but the NLRB has, the regional director has findings about the non-tenured faculty at Roski. [00:04:21] Speaker 04: Just forget the question of whether the regional director got it right or not. [00:04:26] Speaker 04: Just isn't that the question we're supposed to ask here? [00:04:28] Speaker 04: Because it's only the Rossky faculty who are seeking non-tenure track faculty who are seeking recognition, seeking to join a union, right? [00:04:37] Speaker 04: So if, I mean, now there's not much in the record at all about how non-tenure track faculty compare from school to school at USC. [00:04:48] Speaker 04: It's conceivable, isn't it, that [00:04:50] Speaker 04: non-tenured track faculty at Roske play a very different role than, say, in other colleges. [00:04:56] Speaker 04: I just don't know. [00:04:56] Speaker 04: It's not in there. [00:04:58] Speaker 04: But why would we look university-wide if the question here is the ability of the Roske non-tenured track faculty to join you? [00:05:10] Speaker 03: First of all, Your Honor, the board itself in Pacific Lutheran said that the more important types of power to be exercised are the types of power that are exercised on a university-wide basis. [00:05:22] Speaker 04: And in that case, the contingent faculty university-wide were seeking recognition. [00:05:29] Speaker 04: So you would look university-wide at all contingent faculty. [00:05:33] Speaker 04: I'm not saying you only look at Roske. [00:05:35] Speaker 04: I'm saying, or what I'm asking is why aren't we [00:05:41] Speaker 04: Do you see my point? [00:05:43] Speaker 04: Why aren't we asking the narrower question about whether these faculty have effective control of university-wide issues? [00:05:53] Speaker 03: I think it's important for your honor to understand that as the case was litigated below in the regional office, [00:06:00] Speaker 03: It was litigated on a broader basis because there was also a petition for all of the non-tenure track faculty in the college, the Dornsife College, and then when the regional director ordered elections in both bargaining units, both the Dornsife College, which was many more faculty, and in Roske, [00:06:21] Speaker 03: When the regional director ordered that election in both, it happened that the faculty and the college voted down the union, so that's technically not before you. [00:06:29] Speaker 04: That explains why the regional director speaks so greatly of that. [00:06:35] Speaker 04: non-tenure track faculty throughout the university and why you're brief and the board's brief too. [00:06:39] Speaker 04: But I told you, I was asking you whether or not that's the right focus. [00:06:43] Speaker 03: I think it is both. [00:06:44] Speaker 04: Who is seeking recognition here? [00:06:46] Speaker 03: I think it is both because in determining whether the Shiva standards are met, the board itself in Pacific Lutheran said you have to focus primarily on university-wide exercises of power. [00:06:58] Speaker 03: And the Roski School faculty [00:07:01] Speaker 03: have the same opportunities right and in fact do participate to a certain extent in university-wide governance. [00:07:09] Speaker 03: And the important point there is, you can't just, sorry. [00:07:16] Speaker 04: According to the RD's, the regional director's decision, and I don't think you've questioned this, of the 15 university-wide committees that the parties are discussing, non-tenured, [00:07:28] Speaker 04: faculty, non-tenured faculty, non-tenured track faculty, only four of them have someone from Roske, and each of them have a line of one. [00:07:42] Speaker 04: Right? [00:07:42] Speaker 04: You don't disagree with that, do you? [00:07:44] Speaker 03: But Roske, I don't recall the exact number, but it's relatively small, but it's important to understand. [00:07:52] Speaker 03: that if that were the test, by petitioning for a tiny unit, and I think there were only about 20-some people in this unit, you could always have a relatively small percentage of participation in a university-wide faculty committee or the academic senate or any of the other institutions if you petition just for the French department, let's say, hypothetically. [00:08:16] Speaker 03: There may be nobody. [00:08:17] Speaker 03: in the French department who happens to sit on these committees. [00:08:21] Speaker 03: But you couldn't then say that the people who are in the French department are not, in fact, in the same position as others who do participate. [00:08:31] Speaker 02: Two follow-ups on that. [00:08:32] Speaker 02: The first one is, who is the employer here? [00:08:34] Speaker 02: Is it Roche or is it USC? [00:08:36] Speaker 02: It is USC. [00:08:37] Speaker 02: USC. [00:08:38] Speaker 02: Second is, the way the person was praised by the presiding judge, he said, have to have control. [00:08:45] Speaker 02: Is it conceded that they have to have control or that they have participation in the decision making, which is the right? [00:08:52] Speaker 02: I know that the board says control, but is that right or should it be to be consistent with Yeshiva and with the traditional models of labor relations law that it would be input rather than necessarily control? [00:09:07] Speaker 03: Control was expressly found by the Yeshiva court to be incorrect as an interpretation of the Act. [00:09:15] Speaker 03: So Your Honor is correct. [00:09:16] Speaker 03: It has to be a meaningful participation, which is what shared governance is all about. [00:09:22] Speaker 02: For granted that, as is said by the board in the brief, I think this is a different model than the traditional, original labor union management model of the mill and the mine. [00:09:35] Speaker 02: Nonetheless, even in the mill and the mine, management, personnel who are in management do not necessarily have control over the final decisions. [00:09:44] Speaker 02: The shop foreman in the mill is not making the final decision in anything. [00:09:50] Speaker 02: He always could be overruled by the plant superintendents. [00:09:54] Speaker 02: Control has never been necessary to a test of management status, has it? [00:09:59] Speaker 03: Your Honor is entirely correct, and that's exactly what Yeshiva said, citing cases from mill and mine, showing that officials such as production managers can be managerial within the meaning of the National Labor Relations Act. [00:10:14] Speaker 02: My recollection of real-world experiences, rather than cases I can cite to you, is that even shift foremen in, for example, textile mills were treated as management and not part of the bargaining [00:10:28] Speaker 03: That is my recollection, Your Honor. [00:10:30] Speaker 06: Yes. [00:10:31] Speaker 06: So, Mr. Latham, does the entire Roski non-tenure track faculty rise or fall together? [00:10:37] Speaker 06: In other words, is it possible that particular individual non-tenure track employees had more input, meaningful role in employment? [00:10:51] Speaker 03: Well, first of all, it was not litigated on that basis. [00:10:54] Speaker 03: It was litigated across the board, all rising and fall together. [00:10:59] Speaker 03: And again, because of the emphasis on university-wide exercise of power. [00:11:05] Speaker 03: Let me say, though, that the Roske non-tenure track faculty did participate. [00:11:10] Speaker 03: You would not expect them to participate, you know, wildly out of their percentage in the university. [00:11:17] Speaker 03: But, for example, the union's chief witness, Judge Fine, had been [00:11:22] Speaker 03: and testified that he had been on the University Committee for Academic Review and had participated as a faculty member in that. [00:11:31] Speaker 03: And there are others from the Roske School who participate, but it represents only 1% of the faculty, if that. [00:11:39] Speaker 06: regional director focused on what happened with the recommendations after they came out of the committee but one of the things that I didn't see but you know the record better might be able to point me to how the issues were given to the committees because it does seem I think you're right that university management is a different beast and one of the questions for me in reading the record is [00:12:07] Speaker 06: how decisional were the outputs of the various committees? [00:12:13] Speaker 06: Or were they, for example, involving people to cross-check decisions that were more or less already in the works? [00:12:24] Speaker 06: Were they kind of using the faculty committees as focus groups and information, getting buy-in? [00:12:33] Speaker 06: And we don't really have evidence on that, do we? [00:12:37] Speaker 03: What you do, you have, for example, the undisputed record evidence that the curriculum committee, except for the School of Medicine, everything has to go through the curriculum committee, and if the curriculum committee does not approve, it does not go into the curriculum. [00:12:53] Speaker 03: And that brings me to the second point I particularly wanted to highlight today in my oral argument, which is the board's misunderstanding of working back and forth. [00:13:05] Speaker 03: criticized the fact that in setting up a new program in the School of Public Policy, the evidence showed that the faculty committee, which in this case was the curriculum committee, worked back and forth with the School of Public Policy and said, well, we don't know enough about what this back and forth was. [00:13:29] Speaker 03: The testimony in the record [00:13:31] Speaker 03: was that it took months of dialogue between the administration and the School of Public Policy before an agreement was made as to, okay, we are going to have a new master's degree in global public policy. [00:13:46] Speaker 03: That is the essence of shared governance, and I think it illustrates how the board fails to understand how shared governance works. [00:13:56] Speaker 03: I'm sorry. [00:13:59] Speaker 04: I actually think you've raised some pretty serious questions here about what the board has done. [00:14:04] Speaker 04: But I want to ask you just about one issue here. [00:14:07] Speaker 04: You say the board has adopted a higher standard of control than the court approved in Yeshiva. [00:14:13] Speaker 04: Yeshiva says faculty over university-wide policy must be pervasive, right? [00:14:19] Speaker 04: That's the word Yeshiva uses, pervasive. [00:14:22] Speaker 03: with respect to academic matters. [00:14:25] Speaker 04: Right. [00:14:26] Speaker 04: So how's that different from what the board standard is, which is that the recommendations of the committee must almost always be followed? [00:14:36] Speaker 03: Well, the board didn't stop there. [00:14:37] Speaker 03: They said it must almost always be followed. [00:14:43] Speaker 03: And when we demonstrated in case after case, as member Miskimara's dissent points out, that a particular faculty committee's decisions were adopted without independent review. [00:14:57] Speaker 04: Can I just go back to my question? [00:14:59] Speaker 04: I still want to know how pervasive is different from almost always or without meaningful review. [00:15:06] Speaker 04: That's my only question. [00:15:08] Speaker 04: It seems to me that if a committee's recommendations are almost always followed, or, and I want to ask the board about this. [00:15:18] Speaker 04: The board seems to think this is just one standard, but I'm not convinced. [00:15:21] Speaker 04: But let's assume it's two. [00:15:23] Speaker 04: If a committee's recommendations are almost always approved, or if they're approved without meaningful review, isn't that pervasive control? [00:15:38] Speaker 03: Well, I think that would be pervasive. [00:15:41] Speaker 04: Right. [00:15:41] Speaker 04: That's my point. [00:15:42] Speaker 03: But I'm sorry. [00:15:44] Speaker 04: I mean, there may be a lot of problems with what the board has done here, but I guess I'm not sure why they've imposed a higher standard than you should have. [00:15:55] Speaker 03: If that were, if you used a disjunctive or that would be pervasive, the other issue to focus on is what topics are we talking about here. [00:16:04] Speaker 03: If we're talking about academic topics, that's one thing. [00:16:07] Speaker 03: And one of the things the board did was move finances into the primary category of topics. [00:16:13] Speaker 03: which it's never been in colleges and universities, and the board admitted in its brief it's actually trying to affect what kind of authority is given to faculty by adding finances to that primary, the list of primary areas. [00:16:29] Speaker 03: But one final thing, Your Honor, [00:16:32] Speaker 03: The Yeshiva court was careful to say, even in the areas that faculty did control in Yeshiva, such as academics, that it is always subject to oversight, to review, and occasional vetoes. [00:16:48] Speaker 03: Thank you, Your Honor. [00:16:59] Speaker 07: Good morning. [00:17:00] Speaker 07: I'm Heather Beard for the board. [00:17:02] Speaker 07: The board's test to determine whether faculty are managerial and therefore excluded from the act's coverage is rational and consistent with the act, comports with Yeshiva, and follows this court's instruction to provide greater clarity in the area. [00:17:17] Speaker 06: How do you respond to Mr. Latham's point that under the board's approach they can slice and dice the unit and make it so that nobody ever has managerial authority? [00:17:30] Speaker 07: Okay, I have two responses to that. [00:17:32] Speaker 07: My first response is that the test that the regional director was looking to when first considering the petition for unit, as Judge Tatel was talking about, is the common one that the board applies when looking to see what the composition should be and the community of interest in the unit. [00:17:52] Speaker 07: The RD went a bit further here to also take a look at sort of the furthest [00:17:58] Speaker 07: common shared grouping, which would be with the Rossky School faculty, the other non-tenure track faculty in the school, and rationally concluded that the terms and conditions of employment of the unit of the [00:18:14] Speaker 07: petition for unit the Ross key school folks as well as those others across the university as a whole non tenure track over seventy five percent of the university and looking at those two together the board found that the unit here that's petition for here did not [00:18:33] Speaker 07: did not align with management sufficiently enough to be excluded from coverage under the act. [00:18:38] Speaker 04: So in terms of the board... Is it possible that at a university a particular category of faculty, well let's just stick with what we've got here, non-tenure track faculty, [00:18:52] Speaker 04: could be considered management in some schools at a university and not in others, depending upon how they're operating? [00:19:01] Speaker 04: That's correct, yes. [00:19:04] Speaker 04: So the only question the board has decided here is that non-tenure track faculty at Roski are not management. [00:19:13] Speaker 04: Correct in the petition in the petition for unit are not managerial and looking to whether or not they And the reason why you say that the regional director and the board and everybody else looks beyond rosky is just to sort of flesh out how [00:19:30] Speaker 04: non-tenure track faculty are treated elsewhere. [00:19:34] Speaker 04: Yes indeed in Pacific. [00:19:35] Speaker 04: But the question is still Roske. [00:19:37] Speaker 07: Yes the question is about the petition for a unit and the board even in the Pacific. [00:19:43] Speaker 02: Let me ask you something about that petition of that. [00:19:47] Speaker 02: Would you agree and would the board agree that the faculty senate is exercising a managerial role or are you saying that's not management because decisions are not finalized? [00:19:58] Speaker 07: that whether the Academic Senate as a whole is exercising managerial. [00:20:03] Speaker 07: There was some evidence that over the issue, for example, a secondary issue of academic policy, the Academic Senate in its main committees was exercising [00:20:14] Speaker 07: by virtue of the decisions that were made, but not the non-tenure track faculty, which is the relevant grouping. [00:20:22] Speaker 02: The answer to my question would have been yes. [00:20:24] Speaker 02: You could have said that and stopped there. [00:20:26] Speaker 02: Yes, it is management. [00:20:29] Speaker 07: I don't think the answer respectfully to your question is a yes. [00:20:32] Speaker 07: I don't know that the record demonstrates the Academic Senate and all of what it does in every area and whether or not the Board would find that... Absolutely. [00:20:40] Speaker 02: A shop foreman doesn't spend all his time on management. [00:20:43] Speaker 02: He occasionally gets to pick up a hammer in a lot of shops. [00:20:45] Speaker 02: Oh, absolutely. [00:20:46] Speaker 02: Are you saying you have to spend all your time on management to be management? [00:20:49] Speaker 02: No, that's not what the Board is saying. [00:20:51] Speaker 02: Okay, good. [00:20:51] Speaker 02: We'll get that out of the way. [00:20:53] Speaker 02: That said then, the Faculty Senate does have a role in management, does it not? [00:20:58] Speaker 07: The faculty senate in this particular instance, the only evidence in the record about what they had been doing was the handbook committee. [00:21:08] Speaker 07: There was evidence in the record specifically about the handbook committee. [00:21:11] Speaker 07: And adopting policies of the faculty handbook, if there was enough evidence in this case to look at, could possibly be one of the secondary areas for management. [00:21:23] Speaker 02: stand here and say that the faculty senate is not a managerial body, or is a managerial body, if you have to say. [00:21:29] Speaker 02: Because you do have to say. [00:21:33] Speaker 02: Is it a managerial body or not? [00:21:36] Speaker 07: On this record, Your Honor, I do not know that I can say here that that body itself is a managerial body. [00:21:43] Speaker 02: Just a factual question, then. [00:21:44] Speaker 02: Is it not the case that the record reflects that a non-tenured track professor served as president of the faculty senate at one time? [00:21:53] Speaker 07: Yes. [00:21:54] Speaker 02: I don't know whether he was Roski or not, but if he was eligible and was not Roski, Roski non-tenured also would have been eligible, right? [00:22:02] Speaker 07: Can you repeat that last part? [00:22:03] Speaker 07: If he was from Roski. [00:22:04] Speaker 02: I don't know whether he was Roski or not. [00:22:05] Speaker 02: I don't remember. [00:22:06] Speaker 07: Was he Roski or not? [00:22:08] Speaker 07: I think there was a Roski non-tenured. [00:22:09] Speaker 02: Okay, thank you. [00:22:09] Speaker 02: I just won't go any further with that then. [00:22:11] Speaker 02: Thank you. [00:22:14] Speaker 06: Okay. [00:22:16] Speaker 06: I just want to get the board's position straight, and I recognize this is complex. [00:22:22] Speaker 06: If the employer is the university, but the unit is Roske. [00:22:28] Speaker 06: I take it it's the board's position that some non-tenure-track Roski faculty might be managerial and some not? [00:22:35] Speaker 06: That could be. [00:22:36] Speaker 06: In this particular instance, none of them. [00:22:38] Speaker 06: It wasn't proved that any of them were, but in a theoretical way. [00:22:43] Speaker 06: Or I'm just saying your position is it wasn't proved. [00:22:45] Speaker 07: And the board would not include a manager in a unit that was otherwise non-managerial, even if there was a one or two Roski folks that they proved. [00:22:54] Speaker 06: So if there was somebody. [00:22:55] Speaker 06: And what is your view of how the board [00:22:58] Speaker 06: analyzes the question whether one or two or five non-tenure track faculty members participation in a committee gives them managerial power. [00:23:14] Speaker 06: That would be, they would have to be one of a block of similarly situated [00:23:22] Speaker 06: participants in that committee in order for decisional power to redound to them? [00:23:29] Speaker 06: I would agree with that. [00:23:31] Speaker 06: And is the similar situation that they be non-tenure track, or that they be rosky, or both? [00:23:37] Speaker 07: Here, I think the answer is that they would be both, given the fact that there was so much discussion by the RD of that grouping of non-tenure track faculty being relevant to those non-tenure track folks at Roske. [00:23:50] Speaker 07: And in fact, the test in Pacific Lutheran specifically talks about looking to the structure of the administration as well as the structure of the faculty. [00:24:00] Speaker 06: And since you should- Why would it be both? [00:24:03] Speaker 06: If there were somebody on the non tenure track Rossky faculty who was ex officio made provost the fact that that person was acting for the university and well maybe that's over determined. [00:24:22] Speaker 06: It just seems like somebody could be managerial and in a way that doesn't also affect the other Roski people and still have to be excluded. [00:24:36] Speaker 07: That's true. [00:24:36] Speaker 07: There could be someone in a different way, not even from service on a committee, in terms of, as you said, becoming a dean or a provost, and they could be excluded. [00:24:43] Speaker 07: And in terms of your first question, Judge Pillard, about sort of mischief-making, in terms of—but there's, first of all, no such evidence here, and that it is not necessarily mischievous for a union to determine what is an appropriate unit of employees who share terms and conditions of employment. [00:24:59] Speaker 07: And in this instance, [00:25:00] Speaker 07: those teachers, faculty, non-tenure track in the Rossky School who are not serving in not only a majority of the committees but the very important what is the type of control that they must have in order to recommend and that goes all the way back to Yeshiva. [00:25:17] Speaker 07: Footnote 17 of Yeshiva which says [00:25:20] Speaker 07: that there needs to be effective recommendation. [00:25:23] Speaker 07: And that's what this case carries forward from Yeshiva, taking Yeshiva's suggestion that Yeshiva is only a starting point and taking Yeshiva's suggestion that it could be that there is a line drawn rationally between non-tenure track and tenured faculty. [00:25:39] Speaker 07: And looking to that as guidance, what the board did was rationally come up with a test that here the employer simply did not meet. [00:25:48] Speaker 04: I want to ask you about two of the arguments that USC makes. [00:25:54] Speaker 04: One is about the board's definition of effective control. [00:25:57] Speaker 04: It says they're effective if they're almost always followed and routinely become operative, right? [00:26:04] Speaker 04: The board's view is that's an and, correct? [00:26:07] Speaker 04: Yes. [00:26:07] Speaker 04: It has to be both. [00:26:08] Speaker 04: Correct. [00:26:09] Speaker 04: Can you explain why? [00:26:11] Speaker 04: Sure. [00:26:12] Speaker 04: Well, let me just ask you the question. [00:26:16] Speaker 04: If a committee's recommendations are almost always followed, what difference does it make whether the extent of board of administration review isn't that, quote, effective, close quote, control? [00:26:37] Speaker 07: No, I think that they're separate, and here's why. [00:26:39] Speaker 07: If a committee recommendation is almost always followed, that doesn't necessarily mean that the committee effectively made a recommendation. [00:26:48] Speaker 07: For example, the folks who are reviewing the committee's recommendation made for completely different reasons. [00:26:55] Speaker 07: decide that they're going to adopt it or maybe did not do the kind of level of review that they're alleging that they did here. [00:27:07] Speaker 07: And therefore, if a committee recommendation is followed, it doesn't necessarily follow that it's because there was effective recommendation made by that committee. [00:27:15] Speaker 07: And we make that point in our briefs. [00:27:17] Speaker 07: So they are. [00:27:17] Speaker 07: Indeed, this court has actually the independent review prong of this test. [00:27:24] Speaker 07: is similar to the one this court in the decision in allied that we cite in our brief has upheld in a case involving whether or not employees are supervisors. [00:27:36] Speaker 07: And so that particular prong of effective recommendation and not necessarily just something being always followed is something that is a test that is rational in order to determine if the very important question of whether employees are going to be excluded from the act. [00:27:51] Speaker 04: Well, let me ask you my second question. [00:27:57] Speaker 04: It's about your majority, the board's majority control requirement. [00:28:03] Speaker 04: Suppose you had a committee that was 55% tenured and 45% non-tenured. [00:28:10] Speaker 04: Right. [00:28:13] Speaker 04: And suppose further that the recommendations of that committee are unanimous. [00:28:20] Speaker 04: It's a committee that really worked well together. [00:28:21] Speaker 04: and that it meets both parts of your test. [00:28:25] Speaker 04: That is, they almost always become effective. [00:28:29] Speaker 04: Well, they always become effective and there's no effective administration review at all. [00:28:37] Speaker 04: So it meets both your standards. [00:28:41] Speaker 04: Why wouldn't those, why wouldn't the non-tenure track people be considered effectively controlling those decisions? [00:28:52] Speaker 07: Well, in that instance, because of the majority requirement. [00:28:54] Speaker 04: You can't answer my question by saying it's not a majority. [00:28:57] Speaker 04: I'm asking you to defend the majority requirement with this hypothetical. [00:29:02] Speaker 04: And you notice the American Council of Education points out collegiality at the university level is really important. [00:29:14] Speaker 04: Collegiality between administrators and faculty. [00:29:17] Speaker 04: And so here you have [00:29:19] Speaker 04: in my hypothetical, a committee that's functioning the way you want them to. [00:29:22] Speaker 04: It's collegial, it's working well together, it's obviously working well with the administration. [00:29:28] Speaker 04: True, the non-tenured faculty, in my example, don't have control, but don't they have effective control? [00:29:37] Speaker 04: Why would they not be considered aligned with management? [00:29:41] Speaker 04: Maybe I should put it that way. [00:29:43] Speaker 04: Why isn't, they seem to be aligned with management. [00:29:48] Speaker 07: Because that's the standard, right? [00:29:51] Speaker 07: The standard is whether or not they are aligned with management such that they do have the effective recommendation and control. [00:29:56] Speaker 07: So to answer your question, to defend the majority standard, first I would say that is a rational way to determine whether or not there is effective recommendation in the context of there needing to be an actual role that there is by that grouping. [00:30:13] Speaker 04: What I'm worried about, the reason I ask the question is, [00:30:16] Speaker 04: You know, yes, at face value, I see what you're saying. [00:30:22] Speaker 04: How can someone have effective control through a minority, right? [00:30:26] Speaker 04: But these are universities, and the management structure of the university is complex. [00:30:32] Speaker 04: And my question comes from a concern that perhaps these rules, which might well work outside university context, are too rigid to respond to what's really going on in a university. [00:30:45] Speaker 04: That's my question. [00:30:46] Speaker 07: And I think this, I would respond, Your Honor, by saying I think Pacific Lutheran took into consideration the special circumstances of faculty in universities as Yeshiva taught, and this absolutely... I know it said it did. [00:30:59] Speaker 07: My question is, did it do it sufficiently? [00:31:01] Speaker 07: The board's position is that the board absolutely did that. [00:31:04] Speaker 07: Recognizing collegiality and the way that committees can exercise collective authority, which is something that's taught by Yeshiva, is not a reason for there to be no effective recommendation. [00:31:14] Speaker 07: But in determining the effectiveness of that collective authority, one rational way to determine it is having the relevant grouping of the faculty, that line being drawn and taking a look to see [00:31:25] Speaker 07: that numerical majority. [00:31:27] Speaker 07: Now that, again, is not here, the end of the matter. [00:31:30] Speaker 07: I mean, we... In fact, it's only an alternative ground, isn't it? [00:31:34] Speaker 06: In each instance, the regional director does not rely on the lack of a majority non-tenure track, but says, even if I thought that there was managerial control being exercised here, I still wouldn't find that the non-tenure track faculty were exercising that because they were in the minority. [00:31:50] Speaker 06: That is correct. [00:31:51] Speaker 06: Is that right? [00:31:51] Speaker 06: I mean, just... [00:31:52] Speaker 06: I'd like your independent view that that's as alternative ground, even if. [00:32:02] Speaker 07: The way that it's written in the regional director's decision, is that correct? [00:32:06] Speaker 07: Yes. [00:32:07] Speaker 07: That even if, after all of the analysis is said and done of the [00:32:10] Speaker 07: that that particular factor, which is something that is a significant and relevant factor, that would mean that on almost every single committee, there's not a majority of non-tenure track faculty at Roske. [00:32:25] Speaker 04: But just to follow up with Judge Pilgrim's question, I mean, her point, I think, is that [00:32:30] Speaker 04: to prevail in this case, just on this particular regional director decision, you don't have to defend the majority rule requirement, because it wasn't critical to her opinion, right? [00:32:43] Speaker 07: In terms of the application of the Pacific Lutheran test, you're correct, Your Honor. [00:32:48] Speaker 07: My understanding, though, is that the employer is challenging the test itself. [00:32:52] Speaker 04: But given the way the RD decided the case, is the test relevant? [00:32:58] Speaker 07: Yes, it is relevant because it is part of her decision. [00:33:01] Speaker 07: Yes, it is relevant. [00:33:02] Speaker 04: One more question. [00:33:03] Speaker 04: Suppose you have a committee that, say it's pretty carefully balanced. [00:33:08] Speaker 04: Take my 54-45 committee. [00:33:11] Speaker 04: And for a year or two, it's 55-45 in favor of tenure. [00:33:16] Speaker 04: But in some times, it switches because of the selection process. [00:33:21] Speaker 04: So it goes back and forth over the years. [00:33:23] Speaker 04: Sometimes it's majority control for non-tenure. [00:33:25] Speaker 04: Sometimes it's not. [00:33:27] Speaker 07: What will we do with that committee? [00:33:29] Speaker 07: Well, we would take a look at the committee and its composition at the time that the unit is petitioned for and that the board would have a hearing. [00:33:41] Speaker 04: So if it's 45% when the union is certified, but three years later it's 55, could the employer move to decertify the union because it's now management? [00:33:51] Speaker 07: The employer could file a unit clarification petition and say that at that particular time that it is filing the petition, the unit is no longer an appropriate unit for just those reasons that you- And what difference does it make whether they're elected or not? [00:34:05] Speaker 07: That was one of the factors that was considered, because in earlier cases, the fact as to whether or not they're elected means sort of more towards the notion of being a collegial sort of representative of the employees being elected, rather than having no information as, in this instance, many of the Roske non-tenure track faculty had no idea how they could become members of, [00:34:29] Speaker 07: of any of these committees. [00:34:30] Speaker 07: And so it's just one factor demonstrating the representative capacity. [00:34:34] Speaker 04: I just have one last question. [00:34:36] Speaker 04: So the board in its decision in Yeshiva, I'm sorry, in Pacific Lutheran, and you in your brief here, and a couple of the amicus briefs, you emphasize how universities have changed since the court decided Yeshiva. [00:34:56] Speaker 04: There's far more [00:34:58] Speaker 04: The percentage of administrators is far higher, the percentage of non-tenure track is far higher. [00:35:04] Speaker 04: You say, you know, universities that run much more like corporations. [00:35:08] Speaker 04: Do you think that Yeshiva would come out differently today? [00:35:14] Speaker 07: Yeshiva might, it's hard to know without knowing the exact intricacies of the record in Yeshiva, but I do think because Yeshiva itself said that it was the starting point and that the principles that the board has explicated in Pacific Lutheran and here in USC have come into fruition, that in applying them to the [00:35:35] Speaker 07: the unit of faculty in Yeshiva, I guess there we wouldn't have the issue of tenure versus non-tenure because most of the faculty there overall was tenure. [00:35:45] Speaker 07: So with that factor being quite different, I don't know that I know if it would or wouldn't come out differently under this test, but what I do know is that this test takes Yeshiva as its starting point and honors it without going too far to contradict Yeshiva, and that's what this test is. [00:36:05] Speaker 06: I have a question, and I know that it's the employer's burden, and so in some way they structure what the record is. [00:36:12] Speaker 06: But I have the same question for you that I had for Mr. Latham, which is, doesn't it also matter quite a bit what the nature of the remit is for a particular committee or a sensible governance body? [00:36:28] Speaker 06: If you know in my experience is that often a committee even if it has a fancy name is given an issue. [00:36:39] Speaker 06: that's somewhat cooked. [00:36:41] Speaker 06: So the board asks whether there's investigation or independent investigation or analysis after the committee works. [00:36:49] Speaker 06: But to me, it seems like maybe it's as important is what's the analysis and what's the nature of the remit before the committee gets the task to say, hey, should we use these new dorms to double the size of our student body or to give more of our current students [00:37:07] Speaker 06: a space, what information is provided, what is expected to come out of that. [00:37:14] Speaker 07: Absolutely agree, Your Honor, and I think that that is in the test when you talk. [00:37:18] Speaker 07: You do. [00:37:19] Speaker 07: Where do you think that's in the test? [00:37:20] Speaker 07: Well, coming, if I start with Yeshiva, where Yeshiva says there needs to be [00:37:24] Speaker 07: discretion that is exercised within or independent of the administration. [00:37:31] Speaker 07: And you cannot exercise and have a recommendation that is a discretionary one if it is of a routine matter in which the individual is not exercising discretion. [00:37:42] Speaker 07: And that is what our point was in our brief about the Curriculum Committee, which everyone agrees a majority of the work is done in the subcommittees. [00:37:50] Speaker 07: And the subcommittees, what they get [00:37:52] Speaker 07: I think that's what you mean by the remit, sort of the input into the committee, is in the record, sort of a, almost a checklist of what would this course need to do in order to meet the requirements to be in the, to be in our course curriculum. [00:38:08] Speaker 07: And so absolutely, if what's put into the committee is something that isn't something over which folks can be said to be using discretion, then that initial input, we don't have [00:38:20] Speaker 07: the effective recommendation. [00:38:22] Speaker 07: And that, I believe that is, if that answers your question Judge Pillard, that is important and that is seen not just in the test but also is played out in this record. [00:38:35] Speaker 07: And I'm happy to answer more questions. [00:38:37] Speaker 07: I know my intervener wants to. [00:38:39] Speaker 04: Thank you. [00:38:40] Speaker 04: We'll hear from the intervener. [00:38:48] Speaker 01: Intervener. [00:38:49] Speaker 03: Thank you, Your Honor. [00:38:50] Speaker 01: Council, Intervener. [00:38:51] Speaker 01: Intervener. [00:38:52] Speaker 03: Oh, I'm sorry. [00:38:53] Speaker 03: I apologize, Your Honor. [00:38:54] Speaker 03: I didn't hear you. [00:39:02] Speaker 08: Good morning, Your Honors. [00:39:03] Speaker 08: My name is Maria Myers, and I am counsel for the Intervener, the Service Employees International Union Local 721. [00:39:11] Speaker 08: The Rossky faculty are not managers. [00:39:14] Speaker 08: Their employment relationship with USC and their limited role in shared government make that clear. [00:39:21] Speaker 08: For my time, I wanted to highlight and take a closer look at what shared governance looks like at the school level so that we could take a closer look at whether non-tenure track faculty actually exercise managerial decision making of the type that's discussed in Yeshiva. [00:39:37] Speaker 06: Is that what's important at the school level, you mean Rossky? [00:39:41] Speaker 08: I think it is important, although Pacific Lutheran and Yeshiva guide us to look at committees that are at the university level, the record does reflect that much of the kind of really important, meaty decision making occurs at the school level. [00:39:56] Speaker 08: And there are shared governance structures at the school level. [00:39:59] Speaker 08: I think it would be a mistake for us to completely avoid that question and only look at the university-wide committees. [00:40:05] Speaker 02: As far as looking at whether an employee is or is not aligned with me, don't we have to look at the whole employer, not just bargaining in? [00:40:14] Speaker 08: By that, Your Honor, do you mean the entire employer, including tenure faculty? [00:40:18] Speaker 02: No, you're not litigating, but the board's not litigating against Roske. [00:40:23] Speaker 02: They're litigating against the employer, like is the norm in labor relations cases. [00:40:28] Speaker 05: I agree, Your Honor. [00:40:29] Speaker 02: Don't we have to look at the role of the putative employee in relation to the employer, which would be USC, not Roske? [00:40:39] Speaker 08: I think, Your Honor, here that we have to look at both. [00:40:41] Speaker 08: I agree that USC is the employer, and it's important for us to look at shared governance that is on the university-wide level. [00:40:48] Speaker 08: But I do think that to the extent that we're looking and trying to perform an analysis of whether or not the faculty in the petition for unit are exercising managerial authority such that they ought to be stripped of the protections of the act, [00:41:02] Speaker 08: It would be a mistake to totally overlook what occurs at that school level. [00:41:06] Speaker 06: It's a curious position for you to be taking. [00:41:08] Speaker 06: In essence, I take the suggestion, and you may well be right, that managerial authority or managerial control, whether at the Rossky level or at the university level, could disqualify an employee from participating in the bargaining unit because [00:41:26] Speaker 06: either level of management could align the employee with the employer. [00:41:34] Speaker 08: I think, Your Honor, that unlike maybe if in labor relations, I think we're accustomed to looking at kind of more of a supervisory status question where we look at the actual individual employee and we try to understand what is your role within this organization. [00:41:49] Speaker 08: Here, when we look at higher education, authority is collective. [00:41:53] Speaker 08: And so we have to look at governance structures. [00:41:56] Speaker 08: And I think that Pacific Lutheran and both Yeshiva guide us that we must look at them at both levels, the university level, [00:42:02] Speaker 08: the committees that cover everyone, but also the school level. [00:42:05] Speaker 08: And I think here it would be a mistake to skip over that part of the record because there's a lot of evidence here that at that school level, the decision-making by faculty, both tenured and non-tenured track, is routinely ignored or overruled. [00:42:22] Speaker 08: by the administrators there. [00:42:24] Speaker 08: There is approximately the entire faculty of Roske, including non-tenured track and tenured faculty. [00:42:30] Speaker 08: There are 40 faculty members. [00:42:33] Speaker 08: There are 10 administrators. [00:42:34] Speaker 08: There's a dean, and then below that dean there are nine different associate deans, assistant deans, vice deans. [00:42:42] Speaker 08: And the record contains a lot of evidence about even critical issues about curriculum, finance, admissions, where Roske faculty, both tenured and non-tenured track, made recommendations and those recommendations were completely ignored or overruled by the administration. [00:43:00] Speaker 08: I think the best example of that had to do with a decision that the dean made about changing the way that teaching assistantships are awarded to graduate students who are studying for their Master of Fine Arts degree. [00:43:12] Speaker 08: That may not sound like a very big deal as we review it, but teaching assistantships are important because they come with a stipend and tuition forgiveness for those students. [00:43:25] Speaker 08: So the university uses that as a way to recruit people to attend Roske. [00:43:29] Speaker 08: And the dean had an idea that she wished to change the way those TA ships were awarded. [00:43:35] Speaker 08: The faculty council voted against that, and she said that she would proceed with that change nonetheless. [00:43:41] Speaker 08: The faculty council actually wrote a letter to the dean saying that they strongly disagreed in asking her to please reconsider. [00:43:48] Speaker 08: She did not do that, and she instead moved forward and implemented that change. [00:43:53] Speaker 08: As a result, the entire rising second year MFA class from Roske resigned en masse. [00:43:59] Speaker 08: And the record has testimony from tenured faculty that the reputation of the program was destroyed and that they fell significantly in the rankings as a result of this. [00:44:09] Speaker 08: I think that decision and the fact that the faculty had so strenuously opposed it and that the dean nonetheless went forward with it really cuts against a finding that faculty are managerial. [00:44:21] Speaker 02: Would that be evidence that even tenured faculty are not managing [00:44:24] Speaker 08: I don't know that the record contains enough evidence to show that, but I would say there's a strong argument, I think, at Ross Gate that the tenured faculty are not managers. [00:44:33] Speaker 08: However, those are not in our petition for a unit, so we don't need to reach that today. [00:44:38] Speaker 04: I know you defend the boards, the Pacific Lutherans. [00:44:45] Speaker 04: majority requirement and its definition of effective control and the division of the five areas I look at. [00:44:54] Speaker 04: But as I hear your argument, for you to prevail here, do we have to even decide any of those questions? [00:45:06] Speaker 04: I mean, you seem to be saying under any standard [00:45:10] Speaker 04: Just simply applying your Shiva. [00:45:13] Speaker 04: There's no evidence of effective control by the [00:45:19] Speaker 04: non-tenure track faculty. [00:45:22] Speaker 04: In fact, they're not even participating at all, essentially, in management. [00:45:26] Speaker 04: Isn't that your position? [00:45:28] Speaker 08: I agree, Judge Tatel, that even under Yeshiva, even if Pacific Lutheran had never been decided, I think that these folks are not managers. [00:45:37] Speaker 04: Under your view, even if the majority rule requirement were invalid, it wouldn't affect your argument, right? [00:45:43] Speaker 08: I don't think it would because the majority rule, I view, is kind of an ancillary. [00:45:48] Speaker 04: And even if the board was misinterpreting, it's virtually or almost always, and no effective management, even if that was wrong, it wouldn't affect your position, right? [00:46:01] Speaker 04: And nor would it affect your position if the board had put finances in the wrong category, correct? [00:46:10] Speaker 08: I want to be clear that the union's position is that we do support the test articulate appeal. [00:46:14] Speaker 04: I know you do, but I'm asking whether any of that's relevant in this particular case on these facts. [00:46:19] Speaker 08: I think upon these facts, you're correct. [00:46:21] Speaker 08: I do not know that the test actually matters, because even under Yeshiva, I agree. [00:46:26] Speaker 08: I think faculty here are not managers. [00:46:30] Speaker 04: Do you think non-tenure track faculty can ever be considered management? [00:46:36] Speaker 04: Yes. [00:46:37] Speaker 04: You do. [00:46:38] Speaker 04: Do you think there's a difference between part-time and full-time? [00:46:43] Speaker 08: There are important factual distinctions. [00:46:45] Speaker 08: Part-time faculty at USC do not receive benefits if they teach less than half time. [00:46:51] Speaker 08: They are predominantly on semester-by-semester contracts. [00:46:57] Speaker 08: They are not permitted by the rules of the Roske Faculty Council to [00:47:00] Speaker 08: to hold an office on the council or even to vote in elections. [00:47:06] Speaker 08: So there are some important distinctions. [00:47:08] Speaker 04: Is there any evidence in the record about how non-tenure faculty function in other schools at USC? [00:47:23] Speaker 08: Your honor we I believe offered evidence From only the two schools actually, I'm sorry the three schools that were petitioned for at that time I do not believe that the record was developed about non-tenant track faculty at other schools Thank you Thank You Was counsel any time with Okay, mr. Latham you're out of time, but you can take three minutes. [00:47:52] Speaker ?: I [00:47:58] Speaker 03: Thank you, your honor. [00:47:59] Speaker 03: First of all, I want to flag what I thought was absolutely stunning position that the board took in response to one of Judge Pilar's questions. [00:48:09] Speaker 03: She said that the majority of a committee would have to be not only faculty, not only non-tenure track, but if I heard her correctly, would also have to be from the Roske School in order for the service to count. [00:48:23] Speaker 03: I cannot emphasize enough how radical [00:48:26] Speaker 03: a position that is, when we're talking about the majority standard. [00:48:32] Speaker 03: We are not talking about an ancillary position or an alternative position. [00:48:39] Speaker 03: We're talking about a presumption, a presumption that the board first laid down in Pacific Lutheran, then extended in the USC case to all non-tenure track faculty, which means that their service simply will not count. [00:48:57] Speaker 03: And I respectfully disagree with counsel on the notion [00:49:00] Speaker 03: that this presumption was merely an alternative argument or a factor to be weighed, the text of the regional director's decision as affirmed in full by the board is very clear that service does not count. [00:49:15] Speaker 03: And it flies directly in the face of Yeshiva's teaching when it condemned, quote, the board's view that the managerial status of particular faculties may be decided of conclusory rationales rather than examination of the facts of each case. [00:49:32] Speaker 06: So the difficulty is, it may be the case that one person from a bargaining unit has a very powerful role, the decisive role, the swing vote on an important committee, and effectively exercises that authority. [00:49:52] Speaker 06: But at the same time, it may also be the case that the person is, let's say, a student not elected by the student body, chosen kind of on the fly by a professor to be eyes and ears for an important constituency and really has zero managerial authority. [00:50:11] Speaker 06: So what is your understanding of how the board should determine the role of any individual bargaining unit member in collective governance? [00:50:23] Speaker 06: What's enough? [00:50:25] Speaker 03: I think it should look at whether there is, as the Yeshiva court said, a mature relationship where there is shared governance. [00:50:35] Speaker 03: And the evidence in this case of shared governance is overwhelming. [00:50:40] Speaker 03: in that the key areas, such as academic control, are entirely in the faculty's hands. [00:50:48] Speaker 04: So, for example... But what's the role of Roske non-tenured faculty in any of that? [00:50:54] Speaker 04: The opportunity... Well, the committees may well be effective control, but what's your best argument? [00:51:04] Speaker 04: for the proposition that, and I give you the argument about the majority requirement. [00:51:10] Speaker 04: You could tell from my questions, I have doubts about that. [00:51:13] Speaker 04: But what's your best argument that even assuming that some of these committees are more effective than the RD might have said? [00:51:24] Speaker 04: Given that the representation of Grosky non-tenured track faculties, either non-existent or one, how do you make the argument that they have effective control? [00:51:41] Speaker 03: as non-tenure track faculty under the shared governance system that USC has, they have the same opportunity as anyone in any other school to become the president of the Academic Senate, to be on the Academic Senate, to be on any of these committees. [00:51:58] Speaker 04: But the question is not whether there's potential for control, but whether they in fact have it. [00:52:02] Speaker 04: Or do you think that that is also an example where the board in Pacific Lutheran has misinterpreted each other? [00:52:11] Speaker 03: If you were to say that members of the unit, in order to be managerial, had to actually sit on these committees. [00:52:19] Speaker 03: No, no, not members. [00:52:20] Speaker 04: I'm talking about the unit here. [00:52:23] Speaker 04: This is a non-tenured faculty. [00:52:27] Speaker 03: You have to look at how the university welcomes non-tenured track faculty university-wide into shared governance. [00:52:37] Speaker 04: Even if you look university-wide, where's the evidence that non-tenure track faculty have effective control of anything? [00:52:49] Speaker 03: One of them was cited by Judge Sintel, the fact that we had a non-tenured track faculty member who in the relevant year was the president of the Academic Senate. [00:52:57] Speaker 02: It was, Rossky, and it was the year of the hearing. [00:53:00] Speaker 03: It was. [00:53:00] Speaker 03: It was the year of the petition. [00:53:02] Speaker 03: The president was non-tenured track. [00:53:03] Speaker 04: But does that mean that the Rossky non-tenured track faculty have control? [00:53:11] Speaker 04: It may be that one member was playing an effective role in the committee, but is that the same as the faculty? [00:53:18] Speaker 03: because of their status as university faculty, in a system of shared governance as it is maintained at USC, they can choose to participate or not participate, and some did participate in university-wide faculty governance. [00:53:36] Speaker 03: I have to say also that if you were to say that a faculty member who had the opportunity to participate in shared governance chose not to, [00:53:47] Speaker 03: If you were to say that that person, by virtue of not choosing to participate in shared governance, is an employee within the meaning of the Act, is not managerial, then I think that is contrary to Yeshiva itself, because nobody in the whole course of the Yeshiva case, from the board on, got down to the granular level of, okay, Professor Jones versus Professor Smith. [00:54:12] Speaker 03: It was given the system that Yeshiva had, [00:54:16] Speaker 03: What kind of power did the faculty exercise? [00:54:19] Speaker 03: So it is here. [00:54:21] Speaker 03: Given the system that USC has, the faculty, absolutely including non-tenure track faculty, exercise shared governance. [00:54:30] Speaker 03: In the case, for example, of the Academic Senate, [00:54:34] Speaker 03: The evidence is that there has never been a case where the Academic Senate wanted something in the faculty handbook and it didn't go in. [00:54:43] Speaker 03: The regional director cited a single instance, just one. [00:54:47] Speaker 03: where something was sent back for the president for rewording, and therefore the regional director said, well, that shows that the authority is not there to effectively recommend. [00:55:00] Speaker 03: I would submit that shows that the regional director, affirmed by the board, was expecting ultimate authority in order to call them managerial. [00:55:10] Speaker 03: One quick point, if I may, Your Honor. [00:55:12] Speaker 06: So you're, just to be clear, and I think this is your position, that it's the group rises or falls, non-tenure track faculty, based on whether they've been shown to have the opportunity to participate in collective decision making, and the active and authoritative participation of some non-tenure track faculty suggests to you that, and you think should have been basis for the board to find that they do. [00:55:39] Speaker 03: Yes, that is a system of shared governance. [00:55:43] Speaker 03: As Your Honor knows from your experience at Georgetown Law, not everybody chooses to participate, but it doesn't make those who choose not to participate employees rather than managers within the meaning of the Act. [00:55:55] Speaker 03: And let me just say one more thing, if I may. [00:55:57] Speaker 03: I think it's critical that this Court address the legal standards that the Board set down, including but not limited to the majority standard, because if there's a failure to apply the proper legal standard, as this Court said in titanium metals versus NLRB, then the case, the Board's order cannot survive review. [00:56:19] Speaker 03: They have to have the right legal standard first before you know how the facts apply to that legal standard. [00:56:28] Speaker 04: You know, and I just had a question that occurred to me while you were talking about potential. [00:56:34] Speaker 04: Am I right? [00:56:35] Speaker 04: Didn't the court in Yeshiva say, didn't it think it was significant that Yeshiva faculty were required to participate on committees? [00:56:44] Speaker 04: Am I right about that? [00:56:45] Speaker 03: I don't recall that the court emphasized any requirement. [00:56:50] Speaker 04: Participate, yeah. [00:56:51] Speaker 03: I don't recall that. [00:56:52] Speaker 03: I will say, since your honor mentions... But that's not true here, right? [00:56:55] Speaker 04: USC doesn't require non-tenure faculty to participate. [00:56:59] Speaker 04: Actually, for a time... The point is they can, but it's not required, right? [00:57:02] Speaker 03: Actually, full-time non-tenured track faculty are required to have a service component that they serve in some way. [00:57:09] Speaker 03: That may not mean that they serve on a faculty committee that engages in shared governance. [00:57:14] Speaker 04: Is that different from tenured faculty? [00:57:17] Speaker 03: No, that part is not different. [00:57:20] Speaker 04: So both tenured and non-tenured track have a service component? [00:57:24] Speaker 03: If you're full-time non-tenured track. [00:57:26] Speaker 06: And do we know the proportion of the bargaining unit that are full-time versus part-time? [00:57:32] Speaker 03: I don't recall off the top of my head. [00:57:34] Speaker 03: I think the majority of them are full-time, as I recall. [00:57:36] Speaker 04: Where do we know what you just told me about? [00:57:39] Speaker 04: I don't doubt you, but where do I find this in the record about how USC treats tenure versus non-tenure track faculty regarding their obligations or opportunities to serve on committees? [00:57:52] Speaker 03: Your Honor, I can't unfortunately give you a citation. [00:57:55] Speaker 03: I recall that Vice Provost Martin Levine testified, he was our first witness, he testified at great length about how shared governance works at USC, and he may have mentioned as part of that testimony the service component. [00:58:09] Speaker 03: But to be clear, nobody is actually required to sit on a particular committee. [00:58:16] Speaker 03: At the university-wide level, you decide whether you want to self-nominate yourself or, in some cases, the Academic Senate will reach out and ask you to serve. [00:58:27] Speaker 02: Now, this comes back to the question that I probably should immediately come to the answer to, but I sort of lost it. [00:58:35] Speaker 02: When you say that they applied the wrong standard, if we're writing an opinion, what do we say the right standard is that they departed from? [00:58:42] Speaker 03: Well, they're departing from Yeshiva in multiple ways. [00:58:46] Speaker 02: Don't cite me a case, tell me what the standard is. [00:58:49] Speaker 02: I'm asking you the standard that you would say we could say they didn't achieve. [00:58:56] Speaker 03: I would have to say that you would remand to ask the board to try again, but within that context. [00:59:02] Speaker 02: Within that context. [00:59:03] Speaker 02: Within that context. [00:59:05] Speaker 02: You made the statement just a few sentences ago that we should say they had not applied the right standards. [00:59:09] Speaker 02: Right. [00:59:10] Speaker 02: Now, this implies that there is a right standard. [00:59:13] Speaker 02: What would you say that standard is that they departed from? [00:59:16] Speaker 03: Within that context, Your Honor, I would say, first of all, that they should abandon the requirement that they stated of majority status as a presumption. [00:59:28] Speaker 03: I would say that they should not require both, that the recommendations of a faculty committee be almost always followed and that there be no independent review. [00:59:42] Speaker 03: I would suggest that the five-part organization of factors is contrary to the statute in that they have moved finances into one of the three primary factors and that they have failed to include academic policy as one of the primary factors, but have instead treated academic policy as a secondary factor. [01:00:06] Speaker 03: I think that would be a good start, Your Honor, in terms of giving guidance to the board. [01:00:11] Speaker 04: That was very helpful. [01:00:12] Speaker 04: Let me just ask once more. [01:00:13] Speaker 04: So let's assume you're right on all of those. [01:00:16] Speaker 04: How would that make a difference in this case? [01:00:20] Speaker 04: How would it make a difference in this case? [01:00:23] Speaker 04: Suppose you're right on all three of those. [01:00:25] Speaker 03: I think it would show that the non-tenured track faculty, including those at Roski, are managerial employees within the meaning of the Act, for the reasons I said. [01:00:34] Speaker 03: They all participate or have every opportunity to participate in shared governance, which makes them managers within the meaning of Yeshiva. [01:00:44] Speaker 04: I see. [01:00:44] Speaker 04: And where in Yeshiva do you find the proposition that [01:00:51] Speaker 04: Question is not whether the faculty is actually participating, but their opportunity to do so. [01:01:02] Speaker 03: Your Honor, all I can say about that is, Yeshiva addressed broad questions of what powers faculty as a group have at Yeshiva University and did not ever say each individual has to be shown to have managerial authority based on what they choose to do or don't choose to do. [01:01:28] Speaker 03: Yeshiva spoke in terms of the powers of the faculty [01:01:31] Speaker 03: as a group. [01:01:33] Speaker 03: And in fact, remember, one of the things that the Yeshiva court specifically [01:01:39] Speaker 03: rejected the board's position on, was the board's rejection of the notion that authority, managerial authority, can be exercised collectively. [01:01:51] Speaker 03: Prior to Yeshiva, the board had been saying, we don't pay attention to collective authority. [01:01:57] Speaker 03: It's got to be individual exercise of authority. [01:02:01] Speaker 03: And one of the things that the Yeshiva court did say, and I think this actually is responsive to Your Honor's question, [01:02:07] Speaker 03: is that the collective authority is managerial authority and the specific position of the board was deemed insupportable on that one point in Yeshiva. [01:02:21] Speaker 04: Thank you very much.