A Bad Decision from the NLRB

The National Labor Relations Board has issued its long-anticipated decision in the case of Pacific Lutheran University (available here), which is the first in a recent series of cases involving adjunct faculty unionization efforts at religiously-affiliated colleges and universities to be decided by the full Board (a number of Catholic universities—Duquesne, Seattle, Manhattan, and St. Xavier—have been involved in similar cases).

The case is already garnering some commentary (see this story at Inside Higher Ed) for its application of the Supreme Court’s NLRB v. Yeshiva University decision about whether faculty at private universities are managerial employees (and thereby precluded from collective bargaining under the NLRA). My interest is more in the Board’s (mistaken in my view, as I laid it out in testimony available here before two House Subcommittees in 2012) rejection of the test articulated by then-Judge Breyer in Universidad Central de Bayamon v. NLRB , 793 F.2d 383 (1st Cir. 1985) and the D.C. Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) for when the Board can exercise jurisdiction over unionization efforts at religiously-affiliated colleges and universities. On that issue, the Board divided 3-2, with dissents from Members Phillip Miscimarra and Harry Johnson. Amicus briefs in support of Pacific Lutheran were submitted by, among others, the Association of Catholic Colleges and Universities and the Association of Jesuit Colleges and Universities.

Recall that under the Great Falls test, a religious institution is exempt from NLRB jurisdiction if: (1) the institution “holds itself out to students, faculty and community as providing a religious educational environment,” (2) the institution “is organized as nonprofit,” and (3) the institution “is affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.” 278 F.3d at 1347. In the Pacific Lutheran case, the Board decided to go along with the first component of that test “as a threshold matter” if a school “holds itself out as providing a religious educational environment” (slip op. at 6). This is a slight improvement over some prior decisions that had sought to figure out whether a school was “substantially religious” in the first place by trolling through the core curriculum and rates of attendance at religious services.

But what the Board gives with one hand, it takes away with the other when it imposes a requirement that “the university holds out its petitioned-for faculty members as performing a specific role in creating and maintaining that [ie, religious educational] environment” (slip op. at 7) (emphasis added), a requirement that Pacific Lutheran could not meet in the Board’s view. On this issue, the Board has a remarkably cramped account of whether faculty contribute to the religious mission of a university. The Board holds that where a school does not indicate that “faculty members are expected to incorporate religion into their teaching or research, that faculty members will have any religious requirements imposed on them, or that the religious nature of the university will have any impact at all on their employment” (slip op. at 8), then the university is not “holding out” its faculty as performing a religious function. Most troubling is the Board’s egregious claim that “[t]his is especially true when the university also asserts a commitment to diversity and academic freedom, further putting forth the message that religion has no bearing on faculty members’ job duties or responsibilities" (id.).

The problem with the “holding out faculty as performing a specific religious function” test is that it throws the Board back into the sort of intrusive religious inquiry that courts from NLRB v. Catholic Bishop, 440 U.S. 490 (1979) to Great Falls have said runs a high risk of unconstitutional interference with religion. On the Board’s view, only when faculty engage in “religious indoctrination or religious training” or where a school imposes a narrow religious test for hiring would the Board find no jurisdiction (slip op. at 9). But this is the Board’s view of what counts as factors sufficient for faculty at a school to be part of its religious mission, a view not shared by Pacific Lutheran (or, I submit, most Catholic universities). In its opinion, the Board begs the question by asserting its own (highly contestable) view of what constitutes the religious mission of a university, including a rejection of academic freedom and curricular and hiring practices in which very few schools engage. As Member Johnson puts it: 

The failings of the majority’s new test are made manifest by the majority’s dismissive treatment of the actual record here. The majority’s analysis is too narrowly focused on evidence of documented commitment of the faculty to indoctrination, orthodoxy, and exclusion. As a result, the majority appears to require that, to meet its burden, there must be evidence establishing that the university’s mission centers on blatant religious indoctrination or proselytization, that the institution fails to grant religious freedom or freedom of inquiry, and that the institution denies nonbelievers from participating on campus as students and faculty members. Because PLU, in its literature, does not correspond to this crabbed view of how a religion should express itself in a university environment, the majority finds that the faculty are, ipso facto, not held out as performing a specific religious function (slip op. at 37).

There is, of course, much more to say, but let me add a final note that this is not (but will be portrayed as) a matter of being crudely “pro-union” or “anti-union.” One can affirm (as I do) the Catholic Church’s historic commitment to the right of workers to organize while also affirming (as I do) the right of religious institutions to be free (in central respects pertaining to their mission) of government interference in their internal governance with regard to faculty matters. That is a difficult but necessary argument to make, and this decision (and appeals from it or similar cases) will provide many opportunities to do so.