Union organizing directed at religious college and university faculties has gained momentum since the National Labor Relations Board (“Board”) issued its decision in Pacific Lutheran University (“PLU”) in 2014. In PLU, the Board adopted a new, two-part standard for determining whether to assert jurisdiction over faculty at religiously-affiliated colleges and universities. Under the PLU standard, the Board will assert jurisdiction unless 1) the college or university holds itself out as providing a religious educational environment; and 2) the college or university holds the petitioned-for faculty out as performing a specific role in creating or maintaining the university’s religious educational environment.

The first prong is fairly easy to meet. The college or university merely has to show that it is organized as a nonprofit and that it presents itself as a religious institution. Often, the petitioning union will stipulate to this prong of the test.

The second prong, however, has been the stumbling block for most colleges and universities and has resulted in the Board asserting jurisdiction under the PLU test in the vast majority of cases. For the second prong, the college must demonstrate that it holds out the petitioned-for faculty as performing a specific role in creating or maintaining the religious educational environment. The Board considers evidence that includes job descriptions, employment contracts, faculty handbooks, statements to accrediting bodies, and statements to prospective and current faculty and students. While the Board says that it will not look behind these publically available documents to assess the college’s actual practice, the Board specifically held in PLU that “generalized statements that faculty members are expected to, for example, support the goals or mission of the university are not alone sufficient.” The problem in applying this prong of the test to most religious colleges and universities is that it fails to take into account that one of the core tenets of most of these institutions is to promote diversity and critical thinking to allow students and faculty to come to a greater understanding of the world and its relationship with God. By its very nature, this tenet requires a diverse faculty in order to provide instruction beyond discussions about a specific religion or belief.

In Carroll College the Regional Director for Region 19 (located in Seattle) found that the College met its burden under both prongs of the PLU test and declined to assert jurisdiction over the College. In concluding that the College met the second prong of the test, the Regional Director relied on PLU’s footnote 19 in which the Board noted that it “will decline jurisdiction so long as the university’s public representations make it clear that faculty members are subject to employment-related decisions that are based on religious considerations.” Carroll College’s faculty handbook enumerated four reasons for which the College could discharge faculty for serious cause, one of which was “continued serious disrespect or disregard for the Catholic character or mission” of the College. There was no credible evidence that the College had relied on this language to take an adverse employment action against a faculty member. The Regional Director, however, found that even though the handbook did not specifically state “that teaching a doctrine at odds with the religious faith of the institution could lead to discharge, the language of the Handbook [was] broad enough to encompass termination for that reason.” Thus, the Regional Director declined to assert jurisdiction.

It is instructive that the Regional Director dismissed most of the College’s evidence and arguments as insufficient under the second prong of the PLU test. For example, the Regional Director was not persuaded to decline jurisdiction by the fact that the College sent prospective faculty members a copy of the its mission statement and required them to reflect and write an essay about it; rather, the Regional Director dismissed that exercise as akin to “generalized statements” that did not have an impact on the faculty’s conditions of employment. Nor was the Regional Director swayed by the College President’s testimony that faculty advising went beyond academics to include “a strong dedication to the full human and spiritual development of the students;” that was too vague to rise to the level of holding faculty out as religious or spiritual leaders. Finally, the teaching of theology and Catholicism and the inclusion of a minimal number of Catholic related readings was insufficient to show that the College held its faculty out as performing a specific religious function. In the end, the language in the faculty handbook alone was sufficient to carry the day for Carroll and led the Regional Director to dismiss the union’s attempt to organize Carroll’s faculty.

The Union has a right to request the Board to review the Regional Director’s decision, and we expect that they will. For now, however, this decision provides insight into what might persuade a Regional Director to decline jurisdiction over faculty at a religiously-affiliated higher education institutions.