Part-Time and Contingent Faculty in University's Religious Department Should Be Excluded from Bargaining Unit: NLRB | Practical Law

Part-Time and Contingent Faculty in University's Religious Department Should Be Excluded from Bargaining Unit: NLRB | Practical Law

In Seattle University, the National Labor Relations Board (NLRB) held that non-tenure eligible (known as contingent) faculty who taught in the university's Department of Theology and Religious Studies and its School of Theology and Ministry should be excluded from the university's faculty bargaining unit under the NLRB's Pacific Lutheran test and therefore did not have bargaining rights under the National Labor Relations Act (NLRA). In Saint Xavier University, the NLRB similarly held that part-time faculty teaching in Saint Xavier's Department of Religious Studies should be excluded from Saint Xavier's faculty bargaining unit under the Pacific Lutheran test.

Part-Time and Contingent Faculty in University's Religious Department Should Be Excluded from Bargaining Unit: NLRB

by Practical Law Labor & Employment
Law stated as of 11 Jun 2020 • USA (National/Federal)
In Seattle University, the National Labor Relations Board (NLRB) held that non-tenure eligible (known as contingent) faculty who taught in the university's Department of Theology and Religious Studies and its School of Theology and Ministry should be excluded from the university's faculty bargaining unit under the NLRB's Pacific Lutheran test and therefore did not have bargaining rights under the National Labor Relations Act (NLRA). In Saint Xavier University, the NLRB similarly held that part-time faculty teaching in Saint Xavier's Department of Religious Studies should be excluded from Saint Xavier's faculty bargaining unit under the Pacific Lutheran test.
On August 23, 2016, in Seattle University, the panel (Board) heading the NLRB's judicial and election functions held in a 2-1 decision that non-tenure eligible (known as contingent) faculty who taught in the university's Department of Theology and Religious Studies and its School of Theology and Ministry should be excluded from the university's overall faculty bargaining unit under the NLRB's Pacific Lutheran test. The Board found that the university held this faculty out "as performing a specific role in creating and maintaining the school's religious educational environment" under Pacific Lutheran, and therefore the contingent faculty did not have bargaining rights under the NLRA. In Saint Xavier University, a separate decision also issued on August 23, 2016, the NLRB similarly held in a 2-1 decision that part-time faculty teaching in Saint Xavier's Department of Religious Studies should be excluded from Saint Xavier's overall faculty bargaining unit under the Pacific Lutheran test. (364 N.L.R.B. No. 84 (Aug. 23, 2016); 364 N.L.R.B. No. 85 (Aug. 23, 2016).)

Background

Seattle University (SU) and Saint Xavier University (SXU) both:
  • Are private, non-profit Catholic universities holding themselves out as religious educational institutions.
  • Are not exempt from the Board's jurisdiction.
  • Have religious studies departments (SU has a School of Department of Theology and Ministry, as well as a Department of Theology and Religious Studies. SXU has a Department of Religious Studies).
An NLRB regional director determined that a unit of SU's non-tenure eligible (contingent) faculty were an appropriate bargaining unit. SU sought Board review, claiming that:
  • Its contingent faculty was not an appropriate bargaining unit covered by the NLRA.
  • Even if its contingent faculty was generally covered by the NLRA, the Board should exclude from the overall bargaining unit all contingent faculty who teach:
    • in SU's School of Theology and Ministry and in its Department of Theology and Religious Studies; or
    • Catholic theology anywhere at SU.
Separately, an NLRB regional director applied Pacific Lutheran and found that part-time faculty at SXU (except for those in SXU's Pastoral Ministry Unit and School of Nursing) were an appropriate bargaining unit covered by the NLRA, including part-time faculty in SXU's Department of Religious Studies. SXU sought Board review, claiming that:
  • Its part-time faculty was not an appropriate bargaining unit covered by the NLRA.
  • Part-time faculty in SXU's Department of Religious Studies should be excluded from the overall bargaining unit because this faculty was held out as performing a specific religious function for SXU under Pacific Lutheran.
For more information about the Board's test in Pacific Lutheran for religious educational institutions, see Legal Update, NLRB Sets New Jurisdiction Test for Religious Universities, Managerial Test for University Faculty Members.

Outcome

In Seattle University, the Board majority (Members Hirozawa and McFerran):
In Saint Xavier University, the Board majority (Members Hirozawa and McFerran):
  • Denied review of the regional director's determination that SXU's part-time faculty were covered by the NLRA and were an appropriate bargaining unit.
  • Granted review and reversed the regional director's determination regarding part-time faculty teaching in SXU's Department of Religious Studies.
  • Excluded this part-time faculty from SU's faculty bargaining unit because, like SU, SXU held them out "as performing a specific role in creating and maintaining the school's religious educational environment" within the meaning of Pacific Lutheran.
In both decisions, the Board majority noted that:
  • The US Supreme Court rejected a prior NLRB jurisdictional test for lay teachers at religious educational institutions as potentially conflicting with the Free Exercise Clause and Establishment Clause of the First Amendment to the Constitution. In that test, the NLRB inquired about the religious character of a school and the relation of the lay teacher's job functions to that religious character (NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)).
  • In Pacific Lutheran, the Board held that it would assert jurisdiction over faculty members of a college or university that identifies itself as a religious institution unless that institution demonstrates that it:
    • holds itself out as providing a religious educational environment (the threshold requirement) through evidence and contemporary status documents, such as handbooks, press releases, and corporate documents; and
    • holds out that each of the specific faculty members perform religious functions.
    (361 N.L.R.B. No. 157, slip op. at 7.)
The Board majority in both Seattle University and Saint Xavier University applied the Pacific Lutheran test and found that:
  • SU and SXU each met the threshold test because both hold themselves out as providing a religious educational environment.
  • Most of SU's contingent faculty and most of SXU's part-time faculty:
    • do not play a role in creating or maintaining their respective institution's religious educational environment; and
    • are not hired to advance their respective institution's religious goals or required to be involved in campus or off-campus religious activities.
  • A reasonable applicant for a contingent faculty position in SU's Department of Theology and Religious Studies or its School of Theology and Ministry (and a reasonable applicant for a part-time faculty position in SXU’s Department of Religious Studies) would expect that performing the position's responsibilities would involve furthering the institution's religious mission because of the religious content of the courses being taught.
  • Employees in these contingent or part-time faculty positions were responsible for "integrating the institution’s religious teachings into coursework," a religious function that warranted the Board declining to exercise jurisdiction over them. Exercising jurisdiction over them would "give rise to the First Amendment concerns of excessive government entanglement" that the US Supreme Court warned against in Catholic Bishop (440 U.S. at 501-03; see also Pacific Lutheran University, 361 N.L.R.B. No. 157, slip op. at 7.)
Member Miscimarra dissented in both decisions, noting that:
  • The US Supreme Court's concern in Catholic Bishop was not only about how the Board asserting jurisdiction over teachers at religiously affiliated institutions raises First Amendment concerns, but also about the process itself of the Board determining "whether and when particular subjects, practices or institutions were sufficiently 'secular' to permit the Board to exercise jurisdiction."
  • By applying the Pacific Lutheran test and distinguishing between faculty who teach "religious" subjects and faculty who teach "secular" subjects, the Board majority in both cases engaged in the type of process the US Supreme Court warned against as potentially interfering with First Amendment rights.
  • The Pacific Lutheran test as applied by the majority involved the Board delving into the content of courses being taught at religious education institutions, including whether the course:
    • focuses on religious teachings, texts, philosophers, and scholars; and
    • deals exclusively with "nonreligious symbolic logic and logical fallacies, or whether the course includes the study of religious teachings that appear to be illogical."
  • The Board should instead apply the DC Circuit's three-part test from University of Great Falls v. NLRB, where the Board does not exercise jurisdiction over faculty members at a school that:
    • holds itself out to students, faculty, and community as providing a religious educational environment;
    • is nonprofit; and
    • is affiliated with or owned, operated, or controlled by a recognized religious organization.
    (278 F.3d 1335, 1343 (D.C. Cir. 2002).)
  • The Board should address on the merits whether:
    • it lacks jurisdiction over SU and SXU as religiously affiliated educational institutions; and
    • the Pacific Lutheran standard is unconstitutional under the First Amendment.

Practical Implications

The NLRB's companion decisions in Seattle University and Saint Xavier University apply the Pacific Lutheran test to address a narrower issue and hold that certain contingent and part-time faculty teaching at religious educational institutions should be excluded from an otherwise appropriate bargaining unit.

UPDATE

On June 10, 2020, the Board overruled in part Pacific Lutheran, and adopted the three-pronged jurisdictional test outlined by the DC Circuit in Great Falls for determining whether the NLRB may exercise jurisdiction over teachers or faculty at religious schools, including colleges and universities (Bethany Coll., 369 N.L.R.B. No. 98 (June 10, 2020); for more information, see Legal Update, NLRB Adopts New Jurisdictional Standard for Faculty at Religious Colleges and Universities).