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A recent decision by the National Labor Relations Board (NLRB) is “another example of how the board will do what it can to expand the definition of employees” covered by its jurisdiction, according to Michael Lotito, an attorney with Littler in San Francisco and former chair of the Society for Human Resource Management.
Pacific Lutheran University, 361 NLRB No. 157 (Dec. 16, 2014), the NLRB greatly expanded its exercise of jurisdiction over faculty at self-identified religious universities. It also tweaked the standards used to determine the managerial status of faculty when there is a bargained-for unit.
Under its new standards, contingent faculty at Pacific Lutheran University in Tacoma, Wash., are within the board’s jurisdiction—even though the university holds itself out as providing a religious educational environment—because the faculty do not perform a specific religious function. The board also found that the university failed to demonstrate that its full-time contingent faculty members are managerial employees, so they can be in the bargaining unit.
SHRM Online that, following the decision, religious colleges and universities “may take this as an opportunity to further imbue the religious mission of all faculty, not just those teaching religion courses.”
Mark Mix, president of the National Right to Work Legal Defense Foundation, criticized the ruling, saying, “The Obama NLRB has once again favored union bosses over the constitutional rights of job providers and employees. Now that the NLRB has ruled that the church-operated university’s employees are subject to its jurisdiction—flying in the face of long-standing U.S. Supreme Court precedent—the agency and union bosses can now trample on religious doctrine.”
Lotito added that “this board will not pay much attention” to any First Amendment religious challenge.
The board abandoned its former “substantial religious character” test and adopted a new two-step test for determining if its jurisdiction extends to faculty.
First, the board will look at an institution’s handbooks, mission statements, corporate documents, course catalogs and documents on the university’s website to see if the college contemporaneously holds itself out to be a religious institution. Pacific Lutheran’s public representations reflect a commitment to academic freedom and acceptance of other faiths, and de-emphasizes any specific Lutheran dogma or symbolism, the board said.
But the school does hold itself out as providing a religious educational environment in portions of its website directed at prospective students, as well as in its articles of incorporation, bylaws, faculty handbook, course catalog and other publications.
Its faculty handbook also discusses the university’s history and states, “the faculty of Pacific Lutheran University enjoys the support of a religious community committed to liberal learning.” And a flier entitled “What’s In a Middle Name?” outlines “what it means to attend a Lutheran university and explains how Lutheran theology underscores what a Lutheran university does.”
All of this was enough to show that Pacific Lutheran University held itself out to be a religious institution—a low bar, the board clarified.
However, there wasn’t sufficient evidence to satisfy the second part of the two-step test: proof that the university’s faculty had a specific religious purpose. In fact, the flier noted, “On our campus we have professors, staff and students of every race, many nationalities, different Christian traditions, different faiths or no faith,” the board noted.
Contingent faculty contracts did not mention religion in general, except for the religion department, nor Lutheranism in particular. They did say the individuals had to be committed to the mission and objectives of the university, but that language was not specific enough, according to the board, to show a religious purpose.
Board Member Harry Johnson III criticized the second part of the board’s new standard, saying, “To pass muster under the majority’s test, it appears that it must be established that faculty engage in some type of religious indoctrination or proselytization, teach religion in a particular manner, believe in the religion, engage in religious training, be instructed to conform their behavior to what the religion requires, and perhaps insist on the institution’s use of specific words or phrases within its documents. … This is an oversimplified imagining—if not an outright caricature—of all that a religion is and how a religion’s conception of its earthly mission may translate into a university environment.”
The board next concluded that none of the contingent staff had a managerial role. “Nationwide, contingent faculty tend to have a limited voice in university governance, if they have a role at all,” the board observed.
Contingent faculty, unlike traditional faculty, “have been appointed with no prospect of tenure and often no guarantee of employment beyond the academic year,” the board noted.
“In particular, we find that there is insufficient evidence that the full-time contingent faculty are substantially involved in decision-making affecting the key areas of academic programs, enrollment management and finances. Even in the secondary areas of academic policy and personnel policy or decisions, their decision-making authority is essentially limited to matters concerning their own classrooms or departments,” the board said.
“To the extent full-time contingent faculty do have opportunities to participate in those areas of decision-making, the record is clear that their involvement falls well short of actual control or effective recommendation, given the university’s decision-making structure,” it added.
Johnson applauded the majority’s attempt to provide needed guidance on “the relative weight to be afforded different factors” in determining whether faculty are managers. However, he cautioned that “there will be examples of ‘personnel policy and decisions’ that should be considered of primary importance. For example, these include hiring policies that affect employment and hiring throughout the entire university, particularly personnel decisions regarding faculty. With regard to faculty hiring and tenure decisions, the
quality of the faculty is a significant factor in a university’s reputation and its desirability to potential students,” he said (emphasis in original).
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him
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