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Dec. 22 — A divided National Labor Relations Board decided Dec. 16 it will assert jurisdiction over faculty members of a college or university that claims to be a religious employer unless the institution shows both that it holds itself out as providing a religious educational environment and that it holds out faculty who seek to unionize as performing a specific role in creating or maintaining that religious environment.
In a 3-2 vote, NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy J. Schiffer found the board has jurisdiction in a representation case in which a Service Employees International Union local seeks to represent nontenured contingent faculty members at Pacific Lutheran University in Tacoma, Wash.
The majority said its new test “will not entangle the Board, or reviewing courts, into the institution's religious beliefs and practices.” But dissenting Members Philip A. Miscimarra and Harry I. Johnson said the First Amendment requires the NLRB not to take jurisdiction over the dispute.
All five members of the board rejected the university's argument that many of its adjunct faculty are managerial employees outside the coverage of the National Labor Relations Act. But Pearce, Hirozawa and Schiffer wrote that the board should refine its analysis of cases arising under NLRB v. Yeshiva University, 444 U.S. 672, 103 LRRM 2526 (1980), by examining faculty authority in five key areas of college and university decision making.
In a statement Dec. 22 on behalf of Pacific Lutheran, Steven P. Starkovich, provost and senior vice president for academic affairs, noted the board members were unanimous in concluding that the institution provides a religious educational environment.
University representatives “have just started to analyze and understand this new test,” but “it appears to have exactly the same constitutional defects as the prior, now discredited, test,” Starkovich said. “We understand that the next step is to count the ballots,” and he noted that “PLU has no avenue to appeal this decision until the election results are final.”
Jane Harty, a senior lecturer in music at Pacific Lutheran and one of the faculty leaders of the organizing drive, told Bloomberg BNA Dec. 22 that she is cautiously optimistic Local 925 will prevail when the NLRB opens and counts the contingent faculty members' ballots.
Harty, who has been a member of the university's contingent faculty since 1978, said a struggle over decades to obtain better working conditions finally moved ahead when the faculty gained the support of a union. During the organizing campaign, employees have voiced concerns about equal pay and benefits, safety and job security—all issues Harty said “have been coming up for decades.”
Calling the ruling “a big decision” for faculty nationwide, Harty praised the NLRB's focus on the specific roles of faculty members in an academic institution as a “brilliant” addition to a test for asserting jurisdiction over organizing by the employees of religiously affiliated institutions.
The board action came in response to an NLRB representation petition filed by SEIU Local 925, which seeks to represent contingent faculty members who are ineligible for tenure at Pacific Lutheran, which identifies itself as providing service in the “distinctive tradition of Lutheran higher education.”
The university opposed the petition, arguing it is a church-operated institution exempt from NLRB jurisdiction under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 100 LRRM 2913 (1979), and asserting that the full-time contingent faculty sought by Local 925 are managerial employees under Yeshiva.
An NLRB regional director rejected the university's arguments, and the board granted a request to review the ruling. The board invited the filing of amicus briefs and received submissions from educational institutions, unions, and interested organizations and individuals.
The board identified a number of issues raised in the case, including how to determine “whether self-identified ‘religiously affiliated educational institutions' are exempt from the Board's jurisdiction” and what factors to examine in determining whether faculty members are managerial employees under Yeshiva.
Pearce, Hirozawa and Schiffer said that in Catholic Bishop, the U.S. Supreme Court held that because of the “critical and unique role” of teachers in “fulfilling the mission of a church-operated school,” the board could not assert jurisdiction over lay teachers in a Catholic high school without a significant risk of infringing on First Amendment religious rights.
After the high court ruling, the members said, the board examined on a case-by-case basis whether a school that identified itself as religious had a “substantial religious character.”
The board's approach was criticized, and in University of Great Falls v. NLRB, 278 F.3d 1335, 169 LRRM 2449 (D.C. Cir. 2002), the U.S. Court of Appeals for the District of Columbia Circuit applied a three-part test under which the NLRB could assert jurisdiction unless a college or university holds itself out as providing a religious educational environment, operates as a nonprofit organization, and is affiliated with a recognized religious organization or with an entity in which membership depends at least in part on religion.
The board majority said Pacific Lutheran, Local 925 and all of the amicus briefs filed with the board agreed the board should no longer rely on its “substantial religious character” test. Pacific Lutheran and some of the briefs advocated adoption of some version of the D.C. Circuit's Great Falls test, while Local 925 and others urged the board to focus on whether teachers in a proposed unit of employees perform religious functions as part of their jobs.
“[W]e adopt neither alternative and take this opportunity to articulate a new test,” the board said. The members said Great Falls avoided an intrusive inquiry into a university's religious beliefs and practices, but they found it “overreaches because it focuses solely on the nature of the institution, without considering whether the petitioned-for faculty members act in support of the school's religious mission.”
On the other hand, the board said, the unions' proposed focus on teacher duties “does not consider the teacher's function in connection with how the college or university holds itself out.”
Adopting the first part of the Great Falls test, the board said it will examine as a threshold matter whether an educational institution holds itself out as providing a religious educational environment.
If the institution makes the initial showing, the board said, it must then also demonstrate that faculty members sought to be covered by a union's representation petition are held out by the institution as performing a specific role in creating or maintaining the religious environment.
By requiring the educational institution only to show at the initial step that it holds itself out as offering a religious environment, the board said, the risk of an intrusive inquiry and First Amendment problem is reduced. “The Board will not ‘troll' through the beliefs of the school or examine the religious beliefs or practices of faculty members, students, administrators, or the institution itself. Instead, we will view the school's own statements,” the majority said.
The board said, however, that finding the board lacks jurisdiction over cases involving faculty with religious roles will “require that they be held out as performing a specific religious function.”
Applying the new standard to Pacific Lutheran, the board said the university made the threshold showing that it holds itself out as offering a religious education environment. For example, the NLRB said, the university “proclaims its Lutheran heritage in its bylaws.”
However, the board said, the university touts the diversity of its faculty and “does not take into account a contingent faculty member's adherence to Lutheranism, membership in a Lutheran congregation, or knowledge of Lutheranism in making hiring, promotion, tenure, or evaluation decisions.”
Finding nothing that holds out the contingent faculty as performing a religious function, the board said it may assert jurisdiction over the petition for unionization of the faculty group.
Turning to the issue of how the board should apply the Supreme Court's Yeshiva decision, the members said the high court has defined faculty as managerial employees outside the NLRA's definition of covered employees if they “formulate and effectuate management policies by expressing and making operative the decisions of their employer.”
Pearce, Hirozawa and Schiffer said the board has issued nearly two dozen published decisions on Yeshiva issues but has drawn criticism for failing to provide guidance on the importance of the factors it has considered.
Stating the board wants “to develop a more workable, more predictable analytical framework to guide employers, unions and employees alike,” the board said that in examining the authority of the faculty at a particular institution, it will give more weight to faculty authority in policy areas with universitywide effects. It also will examine closely whether the faculty members who are allegedly managerial employees “actually exercise control or make effective recommendations over those areas of policy.”
“[P]rimary issues” of importance to determining managerial status would include decision making concerning academic programs, enrollment management and college or university finances, the board said. Secondary issues would include matters of academic policy and personnel policy, it said.
After examining the evidence of faculty control and recommendations, the board said it will then determine “whether the faculty actually control or make effective recommendation over those areas. If they do, we will find that they are managerial employees and, therefore, excluded from the Act's protections.”
Pacific Lutheran's full-time contingent faculty members vote in the university senate, but the board said the university failed to show they exercise managerial authority for the institution.
Finding there is no evidence they are substantially involved in decisions about academic programs, enrollment and finances, the board said that in secondary matters, faculty members are essentially limited to issues affecting their own classrooms or departments.
Concluding “their involvement falls well short of actual control or effective recommendation,” the board remanded the case to the regional office, which is expected to open and count the impounded ballots that will determine whether Local 925 has won the right to represent the contingent faculty.
Miscimarra dissented from the board's decision to assert jurisdiction in the case, stating, “the Board should simply embrace and apply the three-part test articulated by the D.C. Circuit in University of Great Falls.” He agreed that the university failed to show any of the petitioned-for faculty are managerial employees.
Johnson wrote that the board continues to face a serious constitutional problem in asserting jurisdiction over religiously affiliated educational institutions.
“This arc of progress has moved only in one direction: toward more religious freedom and less state interference in religion. Today, it is inconceivable in the United States that a government agency would tell religious educational institutions how they must define—and “hold out”—their religious traditions to the public, or else the agency will begin regulating them, just as it regulates secular bodies. Or, so it should be,” he said.
Dissenting from the board's assertion of jurisdiction over Pacific Lutheran, Johnson wrote: “The state cannot substitute its judgment for the university's over what is ‘truly' religious, and whether something is ‘specifically religious enough' to qualify as religious, in order to come to an opposite determination. In short, the Board cannot tell the religion what it must believe—and what it must express to the public—in order to be religious.”
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