Pacific Lutheran University argued that SEIU should be prevented from organizing a collective bargaining unit for adjunct faculty at the institution for two reasons: the faculty promote the religious mission of the university and the faculty have managerial rights as described in the “Yeshiva” decision. On both counts, the NLRB (with one member providing a dissenting opinion) found that the university had made an insufficient case.
On the “religious exemption,” the NLRB has concluded:
“We find, for the following reasons, that although PLU meets the threshold requirement of holding itself out as creating a religious educational environment, it does not hold out the petitioned-for contingent faculty members as performing a religious function in support of that environment. Accordingly, we will assert jurisdiction over the petitioned-for faculty members.
“PLU’s public representations generally emphasize a commitment to academic freedom, its acceptance of other faiths and its explicit de-emphasis of any specific Lutheran dogma, criteria, or symbolism. Neither Lutheranism specifically, nor religion in general, are featured prominently on PLU’s website, and communications to potential and admitted students emphasize that students of all faiths, or no faith at all, are welcome at PLU. Nevertheless, PLU holds itself out as a 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. These discuss its Lutheran heritage, and its stated purpose, in its bylaws, to “establish and maintain within the State of Washington an institution of learning of university rank in the tradition of Lutheran higher education . . . , affiliated with the Evangelical Lutheran Church in America . . . .” The faculty handbook discusses PLU’s history and concludes by stating, “the faculty of Pacific Lutheran University enjoy the support of a religious community committed to liberal learning at the service of a just, peaceful, and humane future.” PLU also discusses its heritage in materials provided to prospective students, including a flyer entitled, “What’s In A Middle Name,” which “explain[s] what it means to attend a Lutheran University and explains how Lutheran theology underscores what a Lutheran University does.” On its website, PLU describes for students how they can “grow their faith,” by listing various opportunities it makes available for students, including religious services and religious activities.
“As discussed above, this threshold requirement does not require a rigorous showing of PLU’s religious character. Accordingly, based on the above-cited evidence, we find that PLU has met the initial threshold of showing that it holds itself out as providing a religious educational environment. As a result, First Amendment concerns surrounding assertion of the Board’s jurisdiction are raised, and we next determine whether PLU holds its faculty members out as performing a religious function. An examination of the evidence concerning faculty members shows that PLU does not, in fact, hold them out as performing any religious function in creating or maintaining its religious educational environment. Although PLU proclaims its Lutheran heritage in its bylaws, for example, the section of the bylaws governing the faculty is silent with respect to their role in fostering that heritage. The same is true with respect to PLU’s articles of incorporation. And although the faculty handbook broadly covers issues such as the obligation of faculty members to engage in academic advising and evaluate administrators, and sets forth instructional responsibilities and course procedures, it does not require or encourage contingent faculty members to perform any religious function. Likewise, the Division of Humanities’ Statement of Principles and Best Practices Relating to Contingent Faculty is silent regarding any religious function served by contingent faculty members. Moreover, throughout its substantial website, PLU does not indicate that its contingent faculty members play a role in advancing the Lutheran religion. And PLU makes clear that it welcomes the diversity of its faculty and the various perspectives they bring to its community without referencing any religious function that they perform.
This is encapsulated in PLU’s “What’s In A Middle Name” flyer: We don’t fear those who are not like us because we know that others have a perspective we might need to hear. We embrace diversity with great joy. On our campus we have professors, staff, and students of every race, many nationalities, different Christian traditions, different faiths, or no faith. We do not see this as a weakness but as a great strength for it is in the interchange of differing perspectives and ideas that most often truth is found. At a Lutheran university you will find a great variety of people from many cultures and from all walks of life. We embrace this diversity as a gift from God to be treasured.
“PLU does not take into account a contingent faculty member’s adherence to Lutheranism, membership in a Lutheran congregation, or knowledge of Lutheranism in making hiring, promotion, tenure, or evaluation decisions. PLU’s contingent faculty job postings do not list the need to serve any religious function or be or become knowledgeable about the Lutheran religion. For instance, a posting for a full-time contingent faculty position—visiting assistant professor/instructor of computer engineering—for the 2013–2014 academic year, stated that the applicant must be able to teach computer engineering courses, and that “[a] demonstrated commitment to excellence in teaching, especially courses involving group projects and labs is essential. Preference will be given to candidates specializing in electronics (both analog and digital). Applicants with expertise in control systems, robotics, or general signals/systems will also receive strong consideration.” The same is true with respect to the other job postings in the record for assistant professor positions in chemistry, biology, marriage and family therapy, and sociology.
“PLU’s contingent faculty contracts likewise do not mention religion in general (excepting the religion department) or Lutheranism in particular, though the contracts do state that PLU requires the individual “to be committed to the mission and objectives of the University.” Further, contingent faculty members testified at the preelection hearing, without any rebuttal by PLU, that there was no discussion about religion, in any context, during their interviews, no requirement that course material requires a religious component and no requirement that they perform any function in support of a religious educational environment.
“In short, there is nothing in PLU’s governing documents, faculty handbook, website pages, or other material, that would suggest to faculty (either existing or prospective), students, or the community, that its contingent faculty members perform any religious function. Accordingly, although we find that PLU holds itself out as providing a religious educational environment, we find that we may assert jurisdiction because PLU does not hold its petitioned-for faculty members out as performing any religious function.”
On the “Yeshiva” precedent, the NLRB has ruled:
“We conclude that PLU has failed to prove that its fulltime contingent faculty exercise managerial authority on behalf of their employer, PLU. 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. 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.”
If you wish to read the entire 42-page decision, you can locate it on the NLRB site by the searching for the case number NLRB Case 19-RC-102521.