The NRLB and the lost soul of U.S. Catholic higher education…

In the case of Pacific Lutheran University and Service Employees International Union, Local 925 (Case 19–RC–102521), the National Labor Relations Board (NRLB) ruled on December 16 that contingent (“adjunct”) faculty members at private colleges and universities can unionize.

This decision certainly has the potential to impact the nation’s Catholic institutions of higher education. But, of far greater importance is how the NLRB will require those institutions to demonstrate they are Catholic, that is, if they are to be excluded from the National Labor Relations Act.

Moving forward, the NLRB fully expects an institution to fulfill its religious mission—to make it promient in the classroom—through its faculty in the classrooms, while advising, and in conducting research. The key finding is found in the decision’s second paragraph:

After careful consideration of applicable case law, as well as the positions of the parties and amici, we have decided that we will not decline to exercise jurisdiction over faculty members at a college or university that claims to be a religious institution unless the college or university first demonstrates, as a threshold matter, that it holds itself out as providing a religious educational environment. Once that threshold requirement is met, the college or university must then show that it holds out the petitioned-for faculty members as performing a religious function. This requires a showing by the college or university that it holds out those faculty as performing a specific role in creating or maintaining the university’s religious educational environment. (bold, italics added)

The case concerned the right of contingent faculty to unionize at a religious university. At issue was the institution’s claim that full-time contingent faculty members are “managerial employees” based upon the Yeshiva decision (444 U.S. 672 [1980]). The NRLB rejected that claim, redefining “managerial status” and providing the thresholds bolded and italicized above. But, the NRLB went further, offering examples regarding how administrators can provide evidence that contingent faculty members meet the new thresholds.

• Concerning how an institution “holds itself out as providing a religious educational environment,” the NRLB states:

Appropriate evidence of how the university holds itself out as providing a religious educational environment would include, but by no means be limited to, handbooks, mission statements, corporate documents, course catalogs, and documents published on a school’s website. Press releases or other public statements by university officials could also be relevant. A university’s contemporary presentation of itself is likely to be more probative than its founding documents and historical tradition. (p. 6)

The NRLB is clearly not interested in making an “intrusive inquiry into the university’s beliefs or how it implements its religious mission.” What the NRLB is interested in, however, is that the institution presents itself as providing a “religious educational environment.” That phrase, ambiguous as it is, provides the minimal threshold for an institution to be excluded from the Act.

• Concerning how an institution “holds out the petitioned-for faculty members as performing a religious function,” the NRLB states:

The focus is on whether faculty members are held out as having such an obligation as part of their faculty responsibilities. Although we will not examine faculty members’ actual performance of their duties, we shall require that they be held out as performing a specific religious function. Generalized statements that faculty members are expected to, for example, support the goals or mission of the university are not alone sufficient. These types of representations do not communicate the message that the religious nature of the university affects faculty members’ job duties or requirements. They give no indication 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. This 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. Without a showing that faculty members are held out as performing a specific religious function, there is no basis on which to distinguish these employees from faculty members at nonreligious universities or to exclude them from coverage under the Act….

If the evidence shows that faculty members are required to serve a religious function, such as integrating the institution’s religious teachings into coursework, serving as religious advisors to students, propagating religious tenets, or engaging in religious indoctrination or religious training, we will decline jurisdiction.  (pp. 8-9) (bold, italics added)

With this second threshold, the NRLB is clearly interested that an institution demonstrate how its faculty are fulfilling a management function by actively translating the institution’s religious doctrine into the experience of students. If an institution can demonstrate that its faculty meet this threshold, that institution is excluded from coverage under the provisions of the Act because its faculty are providing the “religious educational environment” for which the institution exists.

• Concerning how an institution “holds out those faculty as performing a specific role in creating or maintaining the university’s religious educational environment,” the NRLB states:

Our minimal requirements do not, of course, preclude a party from presenting additional evidence that it believes is relevant to demonstrating that faculty members do or do not perform a religious function…. (fn. 13, p. 9)

….if the college or university holds itself out as requiring its faculty to conform to its religious doctrine or to particular religious tenets or beliefs in a manner that is specifically linked to their duties as a faculty member, we will decline jurisdiction….However, general or aspirational statements, without specificity as to how the requirement affects actual job functions, will not suffice…. (p. 9)

Our inquiry in this regard focuses on whether a reasonable prospective applicant would conclude that performance of their faculty responsibilities would require furtherance of the college or university’s religious mission. (p. 9)

Interestingly, this third threshold implicitly raises a fundamental issue: “Truth in advertising.” That is, it’s one thing for an institution to promote itself as religious (the first threshold) and that its faculty promote the institution’s religious doctrine (the second threshold). Superadded to providing evidence that the institution does all of that as defined by this new management standard, the institution must now also clearly communicate to potential applicants that they will receive a specifically religious education and they should fully expect that all faculty members will provide that religious education. That is, if the institution is to be excluded from being covered by the Act.

Considering the number of Catholic universities and colleges and associated organizations filing amicus briefs to exclude those institutions from the provisions of the Act, this decision represents what may be a major blow in their efforts to keep faculty in their institutions from unionizing. In that regard, the decision is almost certain to be appealed.

More substantively, the decision articulates with clarity what an authentic Catholic higher education in the United States involves and requires of both administrators and faculty. For five decades, administrators of the nation’s Catholic universities and colleges have had it both ways. They could “talk the talk” about how their institution are “Catholic,” while at the same time, allow faculty in the classrooms, in their advising, and in their research to emulate their secular counterparts.

What’s ironic about the NRLB decision is that it took an agency of a secular government to dictate to those administrators what it means to “walk the talk” and how that requires faculty who teach students as they should be taught in a specifically Catholic institution. The NRLB may have done more to reclaim the lost soul of U.S. Catholic higher education than has any other group—including the National Conference of Catholic Bishops—in the past 50 years.

To read the NLRB’s decision, click on the following link:
http://mynlrb.nlrb.gov/link/document.aspx/09031d4581a176cb

To read The Motley Monk’s daily blog, Omnibus, click on the following link:
http://richard-jacobs-blog.com/omnibus.html