By: Jeffrey A. Berman, Esq.
On December 19, 2014, the Board released Pacific Lutheran University, 361 NLRB No. 157 (2014) (Pacific Lutheran Board Decision), a decision that will have significant impact on two key issues: (i) when the Board can assert jurisdiction over religious schools; and (ii) the analysis to be applied in determining when faculty who participate in the governance of a private school are managerial employees and therefore may not unionize. A majority of the Board adopted a new test for determining when to assert jurisdiction over religious colleges and universities, and also “refined” the analysis used to determine the managerial status of faculty. While a brief overview of the decision appears below, for a more in-depth analysis, click here to read the detailed management alert issued to our education sector clients.
Pacific Lutheran University, affiliated with the Evangelical Lutheran Church of America, took the position in response to an adjunct faculty representation petition that the Board could not assert jurisdiction over it as the result of the Supreme Court’s decision in NLRB v. Catholic Bishop of Chicago, as subsequently applied by the D.C. Circuit in University of Great Falls v. NLRB and Carroll College v. NLRB. In all three cases, efforts by the Board to assert jurisdiction over the religious schools were held improper. The University also argued that, under the Supreme Court’s decision in NLRB v. Yeshiva University, several of its adjunct faculty were managerial employees and, as such, could not unionize.
The Regional Director decided against the University and, after the University appealed, the Board invited amicus briefs on numerous issues. Dozens of amicus briefs were filed, primarily by schools, associations of schools, and unions.
New Faculty Function Test
In its decision, the Board announced a new standard for determining jurisdiction over religious colleges and universities, specifically rejecting the test established by the D.C. Circuit in Great Falls and Carroll College. Under the Great Falls test, the courts and the Board are to consider three factors: (i) does the school hold itself out as providing a religious educational environment; (ii) is the school a nonprofit, and (iii) is it affiliated with, or owned, operated or controlled by a recognized religious organization or an entity, membership of which is determined, at least in part, with reference to religion.
Under the new standard, the Board will only decline to assert jurisdiction over faculty members at a college or university that, in addition to claiming it “holds itself out as providing a religious educational environment,” can show that “it holds out the petitioned-for faculty members as performing a religious function.”
The first part of the new test—whether the college or university holds itself out as providing a religious education environment—is the same as the first prong of the Great Falls test. The Board held that it would examine such things as handbooks, mission statement, corporate documents, course catalogs, documents published on the school’s website, press releases and other public statements.
In order to satisfy the second part of its new standard, the college or university must show “that it holds out those faculty as performing a specific role in creating or maintaining the university’s religious educational environment.” The Board stated that, although it would not examine the actual duties performed by faculty members, they need to be held out as performing a “specific religious function” and that generalized statements that faculty members are expected to, for example, support the goals or mission of the school are not alone sufficient. This is because such statements do not indicate that faculty members are expected to incorporate religion into their teaching or research, that they will have any religious requirements imposed on them, or that the religious nature of the school will have any impact on their employment. This is especially true when the school also asserts a commitment to diversity and academic freedom.
The analysis of whether faculty members were held out as performing a “specific religious function” will include a review of job descriptions, employment contracts, faculty handbooks, statements to accrediting bodies, and statements to prospective and current faculty and students. The Board also will look to determine if faculty members are subject to employment-related decisions based on religious considerations, such as dismissal for teaching a doctrine at odds with the school’s religious faith or if faculty are required to accept ecclesiastical sources of dispute resolution. Finally, the Board will determine if the school holds itself out as requiring its faculty to conform to its religious doctrine or to particular tenets or beliefs in a manner that is specifically linked to their duties. The fact that the school does not require faculty members to attend religious services or be a member of a particular faith will not be required before the Board declines jurisdiction.
Refined Managerial Status Standard
In response to criticism as to the lack of guidance it has provided in determining managerial status under Yeshiva University, the Board purported to “refine” the standard by which it determines managerial status pursuant to Yeshiva. Going forward, the Board will determine whether faculty “actually or effectively exercise control over decision making pertaining to central polices of the university such that they are aligned with management.” Essentially, the Board will be analyzing the breadth and depth of the faculty’s decision-making authority.
In making this determination the Board will examine faculty participation in the following areas of decision-making: academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions, giving greater weight to the first three areas than the last two. This examination will be done in the context of the school’s decision-making structure, administrative hierarchy, and the nature of the employment relationship of the faculty in issue.
Applying its two new tests to Pacific Lutheran University, the Board concluded that it should take jurisdiction over the election petition, and that none of the adjunct faculty members were managerial employees.
Members Miscimarra and Johnson dissented from the majority’s holding as to the jurisdictional issue, arguing in favor of the Great Falls test. With regard to managerial status, Member Miscimarra concurred with the majority, and Member Johnson dissented. An appeal is expected.
While some religious schools may applaud the new jurisdiction test, others will not, and others will give the Board an “incomplete” as it specifically limited its holding to faculty employed by colleges and universities. The decision leaves open the questions of whether the new jurisdiction test will be applied to K through 12, and whether it will be applied to non-faculty.
On January 21, 2015, Seyfarth Shaw will be conducting a webinar for educational employers to further discuss the holdings in Pacific Lutheran University, what steps schools should take in response, and other labor issues such as the unionization of adjunct faculty, graduate students and student athletes. Invitations will be sent out in early January.