The rules that govern union organizing by college professors could soon get a new direction from a federal appeals court.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit gave some hints about where it might go in a case challenging an Obama-era legal test for determining when professors are “employees,” as opposed to “managers.” Workers who don’t have supervisory authority have certain organizing and union rights, while management is generally excluded.

National Labor Relations Board union election cases involving university professors and adjuncts are relatively rare. That means the court’s decision to uphold the Obama board’s ruling or give President Donald Trump’s NLRB appointees a chance to reset the legal test could last for at least a number of years.

Many labor groups have been trying to get a larger foothold on college campuses and expand the pool of non-management workers eligible to unionize.

USC argued in the case that the Obama NLRB’s multi-factor test for deciding whether particular professors are managers is inconsistent with the National Labor Relations Act, the federal law that grants union rights to certain workers. The test includes consideration of a broad range of factors, including whether the professors have “ultimate authority” over certain campus issues. Among other issues, USC says the Obama-era test’s requirement that faculty must have authority over campus finances to be considered managers is arbitrary.

Managerial Control?

Judges David Tatel and Cornelia Pillard’s lines of questioning seemed sympathetic toward a group of non-tenure-track professors who’ve been trying to form a union at a USC graduate school. Judge David Sentelle seemed hesitant to conclude that the group of professors lack sufficient authority to be considered managers.

Tatel at one point said that the non-tenure professors’ representation in the ranks of USC government and administration is “nonexistent.”

“I have doubts about” how “you make the argument that they have control” similar to managers given that circumstance, the judge said.

But Tatel also was skeptical of the NLRB legal test that concluded that the adjunct professors are employees with union rights. He said there are “a lot of problems with what the board has done here"—the sort of straight-forward criticism that often indicates a judge’s belief that an agency may have misinterpreted the federal laws it adjudicates.

The case is University of Southern CA v. NLRB, D.C. Cir., No. 17-01149, oral arguments 9/5/18.