system of shared governance shared between administrators and faculty the board's test for the managerial status of faculty under the national labor relations act as pursed announced in pacific lutheran and then expanded and made more extreme frankly in our u s c case cannot be reconciled with shared governance and therefore cannot be reconciled with united states supreme court's decision and you shiva 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 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 their that committee to count for purposes of manager 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 turning first to the majority requirement and pacific lutheran the board said we  wrong then the case cannot be whether the you know or b has the regional director has findings about the non tenured faculty roski i'm just forget the question of whether the regional director  right or not just isn't that the question was supposed to ask here because it's only the roski faculty who are seeking non tenure track faculty who are seeking recognition so you can enjoy your right so if you mean that now there's not much the record at all about how on tenure track faculty compare from school to school at u s c it's conceivable isn't it that non tenure track faculty at roski play a very different role than say you know other colleges i just don't know it's not in there but why would we look university why if the question here is the ability of the russkie non tenure track faculty  down the union so that's technically not before and explains why the regional directors speak so great non tenure track faculty throughout the university and why your brief and the board's brief to do but i thought you know i was asking you whether  that's the right focus i think it isn't only seeking recognition i think it is both because in determining whether the chivas standards are met the board itself civic lutheran said you have to focus primarily on university wide exercise of power and the russkies school faculty have the same opportunities right and in fact do participate to a certain extent in university why governance and the important point various you tenured faculty non tenure faculty non tenure track faculty only four of them have someone from roski and each of them have only one you know disagree but that russkie i don't recall the exact number but it's relatively small but you but it's important to understand that if that were the test by petitioning for a tiny unit and i think the only about twenty 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 there may be no money in the french department who happens to sit on these committees but you could then say that people who are in the french department are not in fact and correct as an interpretation yeah so here are is correct it has to be a meaningful participation which is what shared governance is all about  your honour's entirely correct and that's exactly what you shiva said citing cases from ellen mine showing that official such as production managers can be managerial within the main the national l then does does the entire roski non tenure track faculty rise or fall together in other words is it possible that particular individual non tenure track employees had more employed meaningful role in employer well first of all it was not litigated on that basis it was litigated across the board all rise and fall together and again because of the emphasis on university wide exercise of power i knew save up that the russkie non tenure track faculty to participate you would not expect them to just pay you know wildly out of their percentage in the university but for example the unions chief witness judd fein had been on and testify that he had been on the university committee for academic review and had participated as a faculty member in that and there are others from the russkie school who participate but it represents only one percent of the faculty if that is right in the me 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 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 the management is a different beast and one of the questions for me in reading the record is how decisional were the outputs of the various committees or were they for example involving people to cross check decisions that were more or less already in the works where they kind of you know using the faculty committee says you know focus groups and information you know getting by and and we don't really have evidence on that doing what you do for example the understated 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 just not approved it does not go into the curriculum and that brings me to the second i wanted to highlight today in my oral arg which is the board's misunderstanding of working back and forth i think the board criticized the fact that when setting up a new program and the school of public policy of the evidence shows that the faculty committee which isn't 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 the testimony in the record was that it took months of dialogue between vietnam the straight and the school of public policy before an agreement was made as to ok we are going to have a new master's degree in global  public policy that is the essence of shared governance i think it illustrates how the board fails to understand how shared governance works fine i'm sorry but i think over university why passing this be pervasive right that's the word you should use pervasive with respect to academic niters right so how's that different from from what the how i still want to know how pervasive is different from from almost always or without meaningful review just that that's one question i don't see it seems to me that if if the committee's recommendations i'm sorry there may be a lot of problems with the boards done here but i guess i'm not sure why impose a higher standard if that were used to destructive or that would be pervasive the other issue to focus on is what topics are we talking about here if we're talking about academic topics that's one thing and one of the things the board did was move finances into the primary category of topics which it's never been in colleges and universities and the board admitted in its briefs actually trying to effect what kind of authority is given to faculty by adding finances to th that it is always subject to oversight to review and occasional vetoes thank you instruction to provide greater clarity in the area here how do you respond to mr latham's point that under the board's approach they can slice and dice the unit make it so that nobody ever has managerial talking about is the common one that the board applies when looking to see what the composition should be in the community of interest in the unit the r d went a bit further here to also take a look at sort of the furth common shared grouping which would be with the roski 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 petition for unit the roski school folks as well as those others across the university as a whole non tenure track this over seventy five percent of the university and looking at those two together the board found that the correct in the petition the petition for unit are not managerial and invoking to whether or not they are the reason why you say that the regional director in the board and everybody else who looks beyond roski is just  whether the academic senate is a whole is exercising managerial yeah there was some there was some evidence that over the issue for example a secondary issue of academic policy the academic senate in its name committees was faculty senate in this particular incidence the only evidence in the record about what they had been doing was the handbook committee there was evidence in the record specifically about the handbook committee 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 effects one of the secondary ways for me would for so i just want to get the board's position straight and i recognize this is complex if the employer is the university but the unit is ros guessing your position as the person per in the board would not include eight manager in a unit that was otherwise non managerial even if there was a if there was a one or two run folks that they'd so if there was somebody and what is your view of how the board analyzes the question whether one or two or five non tenure track faculty members to support committee gives them the managerial power that would be they would have to be one of a block of similarly situated participants in that committee in order to further for decisional power to redound to them i would i would agree with that and has the similar situation that they be non tenure track or that they be roski or both here i think the answer is that they would be both given the fact that there was so much discussion by the r d of that of non tenure track faculty being relevant to those non tenure track folks at roski 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 and since why would it be both like if if there were somebody on the non tariff hard roski faculty who was exit made provos the fact that that person was acting for the university and maybe that's overdetermined it just seems like somebody could be managerial and you know a way that doesn't also affect the other roski people and still have to be excluded that's true there could be someone in a different way from not even from service on a committee in terms of as you said becoming a dean or a provost and they could be excluded in terms of your first question judge dillard about sort of mischief making in terms of there with there's first of all no such evidence here and that it is not necessarily mysterious for a union to determine what is an appropriate unit of employees who share terms and conditions of employment and in this instance those teachers faculty non tenure track in the roski 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 footnote seventeen of the shiva which says that there needs to be affective recommendation and that's what this case carries forward from you shiva taking the shiva suggestion that she was only a starting point and taking as she was suggestion that it could be that there is a line drawn rationally between non tenure track and tenured faculty and looking to that as died in what the board did was rationally come up with a test that here on the employer simply did not meet the owners q i'm about to the arguments you will see makes one is about the board's definition of effective control it says it says they're here question if if if if if the committee's recommendations are almost always well differences make whether the extent of administration or of you isn't isn't that quote effective control no i think that they're separate and here's why if a committee recommendation is almost always followed that doesn't necessarily mean that the committee effectively made a recommendation for example the folks who are reviewing the committee's recommendation may for completely different reasons decide that they're going to adopt it or maybe did not do the kind of level of review that that would you know that they're alleging that they did here and therefore if a committee recommendation is followed it doesn't necessarily follow that it's because there was affective recommendation made by that committee and we make that point in our brief so they are indeed this court has actually the you know independent review of this test is similar to the one this court in the decision in allied that we  in our brief has has held in a case involving whether or not employees are supervisors and so that particular prong of affective recommendation is not necessarily just something being always followed is defend the majority standard first i would say that is a rational way to determine whether or not there are in effect is in fact a recommendation in the context of there needing to be an actual bowl that there is by that grouping what  i'm worried about the reason i asked a question is you know you yes that's face value i see what you're saying how could someone have affective control through the north right but these are universities there to be no effective recommendation but into terminating the effectiveness of that collective authority one rational way to determine it is having the relevant grouping of the faculty that that line being drawn in taking a look to see that that numerical majority know that again is not he or the end of the matter i mean we are in fact it's only an alternative ground isn't it in each instance the regional director does not rely on the lack of a majority non tenure track but says even if i an alternative to the ground in half the way that it's written in the in the regional directors decision is that correct yes that even if after all of the analysis is said and done of the areas  in recommendation that bad particular factor which is something that is a you know a significant relevant factor that would mean that on almost every single committee there is not a majority of non tenure track faculty or rusky now so but just to follow up with est well yes it is relevant because it is part of her decision yes it is valid life one more question suppose you have a committee here say it's pretty carefully i'll stake my fifty four forty five and for a year or two was fifty five forty five in favor of tenure but in sometimes it switches because of the saw action process so it goes back and forth over the years sometimes it's majority control for another ten years sometimes  time that it is filing the petition the union is no longer an appropriate unit for just those reasons that you and what difference does it make whether they're elected or not that was one of the factors that was considered because an earlier case is the fact as to whether or not they're elected means sort of more towards the notion of being a police source of representative of the employees being elected rather than having no information as in this instance many of the russkie non tenure track faculty had no idea how they could become members of ever of any of these committees and so it's just one factor demonstrating the representative passably i said one last question so the board in his decision for more right the percentage of ministry is far higher the percentage of non tenure track is far higher say you know their universities are run much more corporations that do you think that you should or would come up differently today you might you know it's hard to it's hard to know without knowing the exact intricacies of the record in the shiva but i do think because you see that self said that it was the starting point that in that the principles of the of the faculty there overall was was ten year so with that factor being being quite different i don't know that i know if it would or wouldn't come out differently under under this test but what i do know is that this test shiva as its starting point and is in honors it without going too far to to contradict it and that's what so i have a question and i know that it's the it's the employers burden and so in some way they structure what the record as i have the same question for you that i have for mr latham which is doesn't it also matter quite a bed what the needs are of the room it is for a particular committee or you know a sensible governance body if you know in my experience is that often a committee even if it has a fancy name is give him an issue that's somewhat cooked you know there's this phrase so that so the board asks whether there is investigation or independent investigation are now says after the committee works but to me it seems like maybe it's as important is what's the analysis and what's the nature of remit before the committee gets the task to say hey should we use these new dorms for you know to double the size of our student body or to give more of our current students us you know a space of what what  discretion that is exercised within or independent of the ministration 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 and that is what we are point was in our brief about the curriculum committee which everyone agrees a majority of the work is done in the subcommittees and the subcommittees what they get this i think that's what you mean by the the input into the committee is in the record sort of 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 and so absolutely if what's put into the committee something that isn't something over which folks can be said to be using discretion then if that that initial important we don't have the effect of recommendation and  that i believe that is that is if if that answers your question judge pillared that isn't that is important and that is seen not just in the test but also is played out in this record and i am happy to answer my questions i know my interv their limited role in should government make that clear from my time i want to highlight and take a closer look at what share governance looks like at the school so that we could take a closer look at whether or not tenure track faculty actually exercise university level the record does reflect that much of the kind of really important decision making occurs at the school level and there are shared governance structures at the school level i think it would be a mistake for us to completely level but i do think that to the extent that we're looking at and trying to perform an analysis of whether or not the faculty in the titian or unit are exercising managerial authority such that they ought to be stripped of the protections of the act it would be a mistake to totally overlook what occurs at that school but a curious position for you to be taking and in essence i take the suggestion and you may well be right that manager will authority your manager open troll whether at the rocky level or at the university level could disqualify an employee from participating in the parking unit because either level of management could align the employee with the with the employer i think your honor that i'm like maybe if if in literal visions 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 organisation here when we look at higher education authorities collective rights so we have to look at governance structures and i think the pacific lutheran and both issues would guide us that way that we must look at them at both levels the university level the committees that cover everyone but also the school level 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 on tenure track is routinely ignored or overruled by the administrators there there are there is approximately the entire faculty of rocky roski including non tenure track and tenured faculty there are forty faculty members there are ten administrators there's a dean and then below that dean there are nine different associate dean assistant deans by students and the record contains a lot of evidence about even critical issues about curriculum finance admissions where roski faculty both tenured and non tenure track made recommendations and those recommendations were completely ignored or overruled by the administration i think the best example of that had to do with the decision that the dean made about changing the way the teaching assistant ships are awarded to graduate students who are studying for their master of fine arts degree that may not sound like a very big deal as we review it teaching assistant should trump britain because they come with a stipend and tuition forgiveness for those students so the university uses that as a way to recruit people to attend roski and the dean had a idea that she wished to change the way those two ships were awarded the faculty council voted against that and she said that she would proceed with that change nonetheless the faculty council actually wrote a letter to the dean saying that they strongly disagreed in asking her to please reconsider she did not do that and she instead moved forward and implemented that change as a result the entire rising second year m f a class from roski resigned on mass 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 i think that decision and the fact that the faculty had so strenuously opposed it and that the dean nonetheless went forward with it these folks are not a manager but in your view even if the majority rule requirement were invalid it wouldn't affect your argument right i don't think it would because the majority rule my view is kind of ancillary and even if even if the board was misinterpreting it's virtually all or almost always and no had no effect that matter even if that was wrong it wouldn't affect your position and it nor would it affect your position  you're correct i do not know that the test actually matters because even under the sheet i agree i think faculty here are not managers you think non tenure track faculty can ever be considered news yes you do you think there's a difference between part time and full time there are important factual distinctions part time faculty at us c do not receive benefits if they teach less than the time they are predominantly on semester by semester contract they are not permitted by the rules of the prostate faculty council to hold an office on the council or even to vote in elections speech your honor we i believe you offered evidence from only the two schools actually i'm sorry the three schools that were petition for at that time i do not believe that the record was developed thank you ron first of all i want to flag the what i thought was absolutely stunning position that the board took in response to one of judge course questions she said that the majority of the committee would have to be is when we're talking about the majority standard we are not talking about an ancillary position or an alternative position we're talking about a presumption a presumption the board first laid down in pacific lutheran then extended in the u s see case two to all non tenure track faculty which means that their service simply will not count and i respectfully disagree with counsel on the notion that this presumption was merely an alternative argument or a factor to be weighed the text of the regional directors decision as affirmed informed by the board is very clear that service does not count and it flies directly in the face of yeshivas teaching when it condemned quote the board's view that the managerial status of particular faculties may be  conclusory rationales rather than examination of the facts of each case so the difficulty is it may be the case that one person from a bargain unit has a very powerful role the decisive role the swing vote on an important committee and effectively exercises that authority but at the same time it may also be the case that the person in 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 so how what is your understanding of how the board should determine the role of any individual bargaining unit member in the collective governance what what's enough i think it should look be effective control but that won't work but let's see what your best or for the proposition which is what i give you the argument about the majority requirement but you could tell from my questions i doubt about that but what's your best argument that even assuming that some of these committees are more effective than they already might have said given that not your track faculty under the shared government system that u s c asked they have the same opportunity as anyone in any other school to become the president of the academic senate to be on the academic to be on anybody's action it is not whether this potential for control whether they in fact have it or you think that that is also an example where the board in pacific lutheran has misinterpret you have to look at how the university welcomes not change your track faculty university wide into share governance even if you look inversely why we're seeing evidence of we're seeing evidence that non tenure track faculty are have affected control of any one of them was cited by judges and tell the fact that we have a non tenure track faculty member who in the relevant year was the president of the academic governance as it is maintained at u s c they can choose to participate or not dissipate and some did persist in university wide faculty governance 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 if you were to say that that person by virtue of not choosing to participate and shared governance is  employed within the meaning of the act is not managerial then i think that is that is contrary to your ship itself because nobody in the whole course of ishita case from the board on got down to the granular level  ok professor jones worst professor sneath it was given the system that you shiva had what kind of power did the faculty exercise so it is here given the systems that u s c has the faculty absolutely including nineteen your track faculty exercise shared governess in the case for example of the academic senate the evidence is that there has never been a case where the academic senate wanted something in the fact that the handbook and it didn't go in the regional director cited a single instance just one where something was sent back to the president for the rewording and therefore the regional director said well that shows that the authority is not there to effectively recommend i would submit that shows that the regional director affirmed by the board was expecting ultimate authority in order to call them an order to call the  manchurian one quick point if i may run so your i just to be clear and i think this is your position that it's the it's this group rises 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 suggest to you that and you think should have been basis for the board to find that they do shared government governess as your honor knows from your expression georgetown law not everybody chooses to participate but it doesn't make those who choose not to participate in ploys rather than managers within the meaning of the act and let me just say one more thing i find that i think it's critical that this court addressed 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 don't doubt you where do i find this in the record about how u s c treats tenure vs non tenure track faculty regarding their obligations or opportunities to serve your i can't but but to be clear nobody is actually required to sit on a particular kinetic at the university wide level you decide whether you i want to self nominate yourself or in some cases the academic first of all that they should abandon the requirement that they stated of majority status as a presumption i would say that they should not require both that the recommendations of  be almost always followed and that there be no independent review i would suggest that the five part organisation 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 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 if she even spoke in terms of the powers of the faculty as a group and in fact remember one of the things that you shiva court specifically rejected the board's position on was the board's rejection of the notion that authority authority and one of the things that the shiva court did say i think this actually is responsive to your honest question is that the collective authority is managerial authority and the