By Matt Pavich, J.D. The majority of part-time faculty at a religiously affiliated university were covered by the NLRA; however, faculty teaching in the university’s religious studies program were to be excluded from an otherwise appropriate bargaining unit of contingent faculty, an NLRB majority has ruled. Member Miscimarra dissented (Saint Xavier University, August 23, 2016). The employer, a private university affiliated with the Catholic Church, is divided into four schools, including the College of Arts and Sciences, which includes the Department of Religious Studies. That department offers various courses, including classes relating to the history and teachings of the Catholic Church. All undergraduates are required to take religious studies courses and during the relevant time, nine part-time faculty members taught courses in the department. Unlike other part-time faculty, those hired to teach in the department had the option of entering into an employment contract that would refer to their theology expertise. The union petitioned to represent the university’s part-time faculty (except for its nursing students) and the Regional Director ordered an election, finding that all part-time faculty members were covered under the NLRA. The university sought review, arguing that because it is a religious institution, its part-time faculty were not covered under the Act. Alternatively, the university contended that its religious studies faculty should be excluded from the bargaining unit, as they perform a specific religious function. Jurisdiction. In Pacific Lutheran University, the NLRB crafted a two-part test to determine whether the NLRB has jurisdiction over faculty of a self-identified religious college or university. The Board may exert jurisdiction unless the university presents itself as providing a religious educational environment and if it asserts that the petitioned-for faculty members perform specific roles in furtherance of that environment. Under this test, the majority found all non-religious studies part-time faculty were covered under the NLRA. They were not hired to advance the university’s religious goals, they were not required to be Catholic, and their contracts did not mention religion. Thus, the majority denied review of the Regional Director’s finding that the faculty were covered. Religious faculty excluded. However, the majority reversed the Regional Director’s finding that the religious studies faculty should be included in the bargaining unit. The majority found that a reasonable applicant for the part-time faculty position would expect that their job would entail the furtherance of the religious mission. These faculty members taught courses with religious content and undergraduate students could use those courses to fulfill the religious studies requirement. The faculty also had expertise in religious studies, including Catholic theology, and were allowed to sign contracts that expressed that expertise. Thus, the university held them out as faculty members who would perform specific roles in the furtherance and maintenance of the university’s religious educational environment. Accordingly, they were excluded from the petitioned-for unit. Dissent. Member Miscimarra would have granted the university’s request for review in its entirety. He objected to the idea that the Board should scrutinize course content for the presence of religious materials and encouraged the Board to adopt the reasoning of the D.C. Circuit, which has ruled that the NLRB lacks jurisdiction over faculty at nonprofit universities that hold themselves out as providing a religious education and that are affiliated with, or owned by, a recognized religious group. Miscimarra also found substantial questions as to the extent that all part-time faculty support the Catholic mission and identity of the university. In a footnote, the majority responded that its ruling would not require scrutiny of course content, because it focused solely on how the university had presented the roles of the various part-time faculty members.
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