Category Personnel/Employment
Title NLRB’s Decision in Pacific Lutheran University Will Facilitate the Unionization of Religious Schools
Author/s
Preview NLRB’s Decision in Pacific Lutheran University Will Facilitate the Unionization of Religious Schools
Text

NLRB's Decision in Pacific Lutheran University Will Facilitate the Unionization of Religious Schools
By Jeffrey A. Berman, JD

On December 16, 2014, the National Labor Relations Board (NLRB or Board) issued its much anticipated decision in the case in which it established the standards that it intended to follow in determining whether it would take jurisdiction involving faculty employed by religious colleges and universities: Pacific Lutheran University, 361 NLRB No. 157 (2014). Although it is unclear if the Board will extend the same standards to nonfaculty employed by religious schools, there can be little doubt but that the jurisdictional test established in Pacific Lutheran will be applied to all religious schools, and not limited to religious colleges and universities.

The case began when the Pacific Lutheran University (PLU) adjunct faculty filed a representation petition with the Board requesting that it conduct an election to see if a majority of the adjunct faculty wanted to be represented by a union called the Service Employees International Union (SEIU). The Board is a federal agency that has, among its primary responsibilities, the regulation of the relationships between unions and employers. PLU objected to the processing of the petition on two grounds: (1) the Board does not have jurisdiction over religious schools, and (2) because of their involvement in governance of the school, the adjunct faculty were managerial employees and could not unionize.

Because of the importance of the case, many religious colleges and universities and associations filed friend of the court briefs in support of PLU. The Association of Christian Schools International joined with several religious universities and an association of religious schools to file their own brief. In their friend of the court brief, known as amicus briefs, ACSI and the others argued that in order to avoid the type of unnecessary governmental entanglement required by the First Amendment, the Board should not assert jurisdiction over PLU and should adopt a test for use in future cases that follows the dictates of the First Amendment and the decisions of the federal courts, including the U.S. Supreme Court.

The Law Before Pacific Lutheran

Historically, the Board has used a "substantial religious character" test to determine if it would take jurisdiction over religious schools. However, on several occasions the federal appellate courts rejected the test used by the Board and, instead, adopted the following three-part test (4):

  1. Does the school "hold itself out to students, faculty and the community as providing a religious educational environment"?
  2. Is the school "organized as a nonprofit"?
  3. Is the school "affiliated with, or owned, operated, or controlled ... by a recognized religious organization"?

The Board's decision in Pacific Lutheran represents its attempt to respond to the criticism it had received from the federal appellate courts, the decisions of which were based on the Supreme Court's holding in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). In this case the Supreme Court "held that the Board could not assert jurisdiction" over lay teachers at "church-operated" schools, "because to do so would create a 'significant risk'" that the Free Exercise and Establishment Clauses of the First Amendment "would be infringed" (3).

The Pacific Lutheran Two-Part Test

Pacific Lutheran University is affiliated with the Evangelical Lutheran Church of America. When its adjunct faculty sought representation by a local of the SEIU, the University argued that it was exempt from Board jurisdiction under Catholic Bishop, applying the three-part test articulated by the federal appellate courts. The SEIU advocated that the Board use a different "teacher religious function" test. Both sides agreed that the Board should discard the "substantial religious character" test. The concern with the "substantial religious test" is that is required the Board to troll through the religious beliefs of the school and to make determinations of what activities were and were not religious. This test had been uniformly rejected by the federal appellate courts as constituting a violation of the First Amendment.

Instead of adopting one of the two tests advocated by the parties, the Board chose to adopt a "new test." Under the new test, the Board will decline jurisdiction over faculty at a religious college or university if the following apply:

  1. "As a threshold matter," the institution demonstrates that "it holds itself out as providing a religious educational environment" (5).
  2. The institution shows that "it holds out the petitioned-for faculty ... as performing a religious function." This requires the institution to show that "it holds out those faculty as performing a specific role in creating or maintaining the unversity's religious educational environment" (1).

Under both parts of this new "holding out" test,  as discussed in the next section, the Board states that it will not look behind the college or university's document in order to examine actual practices. It remains to be seen whether the Board will actually do this in practice.

Because the SEIU withdrew its election petition shortly after the Board issued the Pacific Lutheran decision, the Board will apply its new two-part test unless and until the federal courts hold otherwise.

Applying the test, the Board found that Pacific Lutheran University met part 1 of the test but did not meet part 2 because it did not hold out "the petitioned-for [adjunct faculty] as performing a religious function" (1). Thus the Board concluded that it could assert jurisdiction.

Pacific Lutheran addressed only faculty at colleges and universities. It thus remains unclear how the Board will treat jurisdictional issues raised by other types of schools or nonfaculty at colleges and universities. As to the former, it reasonably can be anticipated that the Board will extend the Pacific Lutheran test beyond colleges and universities, as Catholic Bishop itself involved high schools. As to the latter, given its current composition, it seems likely that the Board will attempt to assert jurisdiction over nonfaculty.

The Pacific Lutheran decision will not be appealed, as the SEIU dismissed its election petition shortly after the Board issued its decision. This means Pacific Lutheran will be applied by the Board in future school cases, and it will be up to another school to challenge the test.

While the status of the Pacific Lutheran test is thus not settled, the Loma Linda entities would be well advised to take the steps described in the decision—described in detail below—for both faculty and nonfaculty, in order to maximize the chances of falling within the Catholic Bishop exemption (or at a minimum, to bolster an argument for exemption under the Religious Freedom Restoration Act, RFRA).

The Board's Road Map

In its decision in Pacific Lutheran, the Board laid out the types of factors that it would consider in determining whether a school met its new two-part test. Religious schools that are concerned about Board jurisdiction need to be familiar with these factors and make every effort to satisfy them. More important, many of the factors considered by the Board are similar to those considered by courts to determine whether a school qualifies for the religious employer exemption contained in many laws such as Title VII of the Civil Rights Act, which provides partial exemptions permitting religious schools to make religion-based employment decisions.

1.  The school "holds itself out as providing a religious educational environment" (1). Under this part of the test, the Board will not examine how the school implements its mission. Instead, it will examine how the school holds itself out "to students, faculty and the community as providing a religious educational environment" (4). In doing so, the Board will "view the school's own statements" (10).

According to the decision in Pacific Lutheran, "appropriate evidence" includes, "but by no means [is] limited to" the following (6):

  • "Handbooks, mission statements, corporate documents [e.g., bylaws, articles of incorporation], course catalogs, and documents published on a school's website" (6)
  • "Press releases or other public statements by university officials" (6)
  • "Oral statements to prospective and current students and faculty and to the public" (10)

By way of example, Pacific Lutheran University, which satisfied this first element of the test, "[held] itself out as providing a religious educational environment in statements to prospective students on PLU's website, articles of incorporation, bylaws, faculty handbook, course catalog, and other publications" (12). These documents "discuss [the university's] Lutheran heritage," and the university's "stated purpose, in its bylaws, to 'establish[] and maintain[] ... an institutional of learning of university rank in the tradition of Lutheran higher education ... affiliated with the Evangelical Lutheran Church in America'" (12-13). The Board also cited statements in the faculty handbook, as well as a flyer given to prospective students that explains "what it means to attend a Lutheran University and explains how Lutheran theology underscores what a Lutheran University does."

2.  The school holds faculty out "as performing a religious function" (13). Under the second part of the test, the Board will examine "the specific employees in the petitioned-for unit" (7). "Faculty members who are not expected to perform a specific role in creating of maintaining the school's religious educational environment" are subject to Board jurisdiction, because asserting jurisdiction over such employees purportedly "does no harm to the university's religious mission and does not impermissibly entangle the BOard in any of the university's religious beliefs of practices" (8).

Apparently mindful that the First Amendment provides religious organizations with certain constitutional rights, the Board indicated that it will only examine whether the school "holds out" its faculty members as performing "a specific religious function." The Board purportedly will not "examine faculty members' actual performance of their duties": "We will not seek to look behind [the] documents to determine what specific role petitioned-for faculty actually play in fulfilling the religious mission of a school or to inspect the university's actual practice with respect to faculty members"(9).

Just as it enumerated the type of evidence that it will and will not consider in connection with the institutional "holding out" prong of the two-part test, it did the same with respect to the faculty "holding out" prong. According to the Board, the following requirements and statements regarding the faculty's religious role/functions should be reflected on the "school's website," and in job postings, "job descriptions, employment contracts, faculty handbooks, statements to accrediting bodies, and statements to prospective and current faculty and students" (9):

  • "Generalized statements that faculty members are expected to ... support the goals or mission of the university" (This is "not alone sufficient," but such statements in combination with other steps will help to make the required showing.) (8)
  • Evidence that faculty members are "required to serve a religious function, such as" the following (9):
    • "Integrating the institution's religious teachings into coursework" (though faculty are not "required to proselytize or to indoctrinate students") (9)
    • "Serving as religious advisors to students" (9)
    • "Propagating religious tenets, or engaging in religious indoctrination or religious training" (9)
    • "Requiring faculty to conform to [the university's] religious doctrine or to particular religious tenets or beliefs in a manner that is specifically linked to their duties as a faculty member" (But "general or aspirational statements" that do not show "how the requirement affects actual job functions" will "not suffice.") (10)
    • While not necessary, requiring "faculty members to attend religious services or be a member of any particular faith" (Doing so will also help make the required showing.) (10)
  • Making "it clear that faculty members are subject to employment-related decisions that are based on religious considerations" (10), the following for example:
    • "Public representations ... that faculty members [are] expected to comply with (or at least not openly contravene) certain tenets of a religion as a term and condition of employment" (If a faculty member is then terminated "for teaching a doctrine at odds with the religious faith of the institution," the Board would decline jurisdiction over the dispute) (10)
    • "Public representations.... that faculty members accept ecclesiastical sources of dispute resolution and/or waive their right to dispute resolution in any other forum, as a condition of employment" (10)

The Board will also examine "documents concerning the recruitment of future staff" (9). Thus having explicit religious hiring, promotional, and evaluation criteria for faculty (and even for nonfaculty) will help to strengthen a showing under this part of the test.

Pacific Lutheran did not satisfy the faculty "holding out" part of the test. While the Board noted that there were general references to Lutheranism on the school's website, in the faculty handbook, and in promotional materials, the Board concluded that the following factors weighed against the University:

  • The University did not impose religious hiring requirements on any faculty positions (except pastors). 
  • Faculty were not required to attend religious services or participate in spiritual activities on campus.
  • Neither the faculty handbook nor any other policy stated that faculty could be discharged or disciplined for not adhering to Lutheran values.
  • There was no hiring preference for Lutherans to faculty positions.
  • Adherence to Lutheran doctrine, membership in a Lutheran congregation, and knowledge of Lutheranism were not considered in hiring, promotion, tenure, or faculty evaluations.
  • There was no mention of religion or the faculty's performance of religious functions in teaching contracts or in job postings.
  • Faculty were not required to incorporate religion into course materials.
  • The bylaws, articles of incorporation, faculty handbook, and school website were silent as to the role faculty play in fostering a religious environment. 

Notably, the Board also held that a stated commitment to "diversity and academic freedom" weighs against the Catholic Bishop exemption. Such a commitment, in the Board's view, "put[s] forth the message that religion has no bearing on faculty members' job duties or responsibilities" because the values of diversity and academic freedom are "norms shared by both a religion and by wider society" (9). As applied to Pacific Lutheran, the Board noted that the University's "commitment to freedom of thought" was "shared by secular academic institutions," and that its statements in support of "the diversity of its faculty"-religious, ethnic and cultural diversity-also undercut that the faculty played a role in advancing the Lutheran religion (13).

This part of the Board's test, which makes little sense from a practical perspective, already has been criticized, including in the dissenting opinions in the Pacific Lutheran case. It reasonably can be expected that it also will be criticized by the federal appellate courts in future cases involving religious schools.

Conclusion

Whether the Board's new two-prong test adopted in Pacific Lutheran to determine whether it will assert jurisdiction over religious schools will withstand scrutiny by the federal courts may not be known for several years. The same is true with respect to whether it will be applied to cases involving nonfaculty, and exactly how the road map supplied by the Board will be implemented. Regardless, religious schools concerned about these issues need to closely review the Board's decision and decide what steps they can and are willing to take to avoid Board jurisdiction. In conducting this analysis, religious schools also need to be mindful of the fact that government funding, such as the issuance of government bonds to finance construction or contracting directly with governmental organizations for the provision of services might be jeopardized if a school is deemed to be "too religious."

Pacific Lutheran University, 361 NLRB No. 157
(www.aaup.org/sites/default/files/files/Board Decision 12 16 14.pdf)  

Jeffrey A. Berman, JD, is a partner in the Los Angeles office of Seyfarth Shaw LLP. For more than 40 years, a large portion of his law practice has involved the representation of religious organizations. He has litigated many cases involving the scope and application of various religious exemptions, including before the U.S. Supreme Court, the DC Circuit, and the California Supreme Court. He also has been instrumental in drafting a number of the religious exemptions contained in state and federal antidiscrimination laws.  

Among the religion cases in which Mr. Berman has been involved are Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, University of Great Falls vs. NLRB, Catholic Charities of Sacramento, Inc. vs. Superior Court, McKeon vs. Mercy Healthcare Sacramento, Silo vs. CHW Medical Foundation, and East Bay Asian Local Development Corporation vs. State of California. He filed an amicus brief on behalf of ACSI and others in the Pacific Lutheran University case, the subject of this article. Jeffrey Berman can be reached at jberman@seyfarth.com.   

LLU 25.3   

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.  

Association of Christian Schools International
731 Chapel Hills Drive
Colorado Springs, CO 80920
Phone: 719.528.6906
ACSI.org  

Download NLRB’s Decision in Pacific Lutheran University Will Facilitate the Unionization of Religious Schools