Duquesne University of the Holy Spirit

National Labor Relations Board - Board Decisions

Apr 10, 2017

06-RC-080933 (N.L.R.B. Apr. 10, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DUQUESNE UNIVERSITY
OF THE HOLY SPIRIT
Employer
and Case 06-RC-080933
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION, AFL-CIO, CLC
Petitioner
DECISION ON REVIEW AND ORDER
The Employer’s Request for Review of the Regional Director’s Decision and
Recommendation to Overrule Objections to Election and Issue Certification is granted solely
with regard to the Regional Director’s inclusion of the Department of Theology adjunct faculty
in the unit found appropriate. Applying the Board’s recent decisions in Seattle University, 364
NLRB No. 84 (2016) and Saint Xavier University, 364 NLRB No. 85 (2016), we find that the
University holds out the part-time adjunct faculty in the Department of Theology as performing a
specific role in maintaining the University’s religious educational environment.1 As in those
cases, a reasonable prospective applicant for a position in the University’s Department of
Theology would expect that the performance of their responsibilities would require furtherance
of the University’s religious mission. The record shows that the part-time adjunct faculty in the
Department of Theology teach courses that are presented as having religious content;
undergraduates may take these courses to fulfill core academic requirements; and the part-time
adjunct faculty in the department have an expertise in Catholic theology, other faith-based
traditions, or other aspects of the religious experience. Id., slip op. at 3 in each decision.

1 Our colleague advances arguments similar to those he made in his dissents in Seattle
University and St. Xavier University. For the reasons given in those decisions, we are not
persuaded by those arguments. In particular, we disagree with his view that NLRB v. Catholic
Bishop of Chicago, 440 U.S. 490 (1979), forbids the Board from making a distinction between
faculty who teach religious and secular courses because this type of inquiry alone raises First
Amendment concerns. To the contrary, excluding the part-time adjunct faculty in the
Department of Theology does not mean that we have assessed the religious content of the
courses they teach or otherwise compared the content of those courses to those taught by faculty
in other departments. Rather, we have assessed only the University’s presentation of those
courses to the faculty, students, and public at large. Seattle University, 364 NLRB No. 84
(2016), slip op. at 2-3 fns. 4-6; Saint Xavier University, 364 NLRB 85 (2016), slip op. at 2-3 fns.
3-5.
Although Member Pearce did not participate in Seattle University and Saint Xavier
University and expresses no view as to whether they were correctly decided, he agrees to apply
them as precedent in this case.
Accordingly, the part-time adjunct faculty in the Department of Theology are excluded from the
unit found appropriate,2 and the University’s Request for Review is denied in all other respects.3
ORDER
This case is remanded to the Regional Director for further appropriate action.
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., April 10, 2017.
Acting Chairman Miscimarra, dissenting.
Contrary to my colleagues, I would grant in its entirety Duquesne University of the Holy
Spirit’s Request for Review of the Regional Director’s Decision and Recommendation to
Overrule Objections to Election and Issue Certification, in which the Regional Director asserted
jurisdiction over the University and recommended overruling the Employer’s objection to the
conduct of the election and issuing a Certification of Representative in a unit of all part-time
adjunct faculty employed by the University in its McAnulty College and Graduate School of
Liberal Arts. My colleagues deny review of the Regional Director’s finding that the Board
should exercise jurisdiction over most of the petitioned-for part-time adjunct faculty; however,
they grant review, reverse the Regional Director’s assertion of jurisdiction over the part-time
adjunct faculty in the Department of Theology, which necessitates remanding the case to the
Regional Director for further action in order to determine whether a certification of
representative should issue. For three reasons, I believe there is a substantial issue regarding
whether the Board lacks jurisdiction over the entire petitioned-for unit.
First, as I explained in my dissenting opinions in Seattle University, 364 NLRB No. 84,
slip op. at 3–5 (2016) (Member Miscimarra, dissenting), and Saint Xavier University, 364 NLRB

2 Because we have excluded the Department of Theology part-time adjunct faculty from the unit,
the Petitioner should not be certified as the bargaining representative unless the Regional
Director determines that it achieved a majority of countable ballots without those of the excluded
employees. If she so determines, we direct the Regional Director to amend the certification to
exclude those employees from the unit.
3 We also adopt the Regional Director’s recommendation to overrule the Employer’s objection
to the assertion of jurisdiction, except as otherwise provided in this decision.
In its Response in Opposition to Employer’s Request for Review, filed 21 days after the
Regional Director’s decision, the Petitioner also contends that the Regional Director erred in
failing to find that the Employer waived its objection to the Board’s jurisdiction when it initially
entered into a stipulated election agreement prior to the election prior to withdrawing from the
agreement and asserting that it was entitled to a religious exemption from the Board’s
jurisdiction. We find this contention to be an untimely request for review under Sec. 102.67(c)
of the Board’s Rules and Regulations, which requires filing within 14 days of the Regional
Director’s decision, and accordingly dismiss this argument.
No. 85, slip op. at 3–5 (2016) (Member Miscimarra, dissenting), the distinction my colleagues
draw between part-time adjunct faculty who teach courses with “religious content” (who my
colleagues find are exempt from the Board’s jurisdiction) and the other petitioned-for unit
faculty (who my colleagues find are subject to the Board’s jurisdiction, presumably on the basis
that those faculty teach courses with exclusively “secular” content) is forbidden by the main
teaching of NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), where the Supreme Court
emphasized that the “very process of inquiry” associated with this type of evaluation raises First
Amendment concerns. Id. at 502.
Second, as explained in my separate opinion in Pacific Lutheran University, 361 NLRB
No. 157, slip op. at 26–27 (2014) (Member Miscimarra, concurring in part and dissenting in
part), when determining whether a religious school or university is exempt from the Act’s
coverage based on First Amendment considerations, I believe the Board should apply the three-
part test articulated by the Court of Appeals for the District of Columbia Circuit in University of
Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002). Under that test, the Board has no
jurisdiction over faculty members at a school that (1) holds itself out to students, faculty and
community as providing a religious educational environment; (2) is organized as a nonprofit; and
(3) is affiliated with or owned, operated, or controlled, directly or indirectly, by a recognized
religious organization, or with an entity, membership of which is determined, at least in part,
with reference to religion. Id. at 1343. In my view, the University has clearly raised a
substantial issue regarding whether it is exempt from the Act’s coverage under that three-part
test. The Regional Director found that the University holds itself out to the public as providing a
religious educational environment. Additionally, the University is organized as a nonprofit, and
it is affiliated with the Catholic Church and the Congregation of the Holy Spirit, a Catholic
religious order. Accordingly, I would grant the University’s request for review because
substantial questions exist regarding (i) whether the Board lacks jurisdiction over the University
as a religiously affiliated educational institution, and (ii) whether the Pacific Lutheran standard is
unconstitutional under the First Amendment. I would consider these jurisdictional and
constitutional issues on the merits.
Third, even if one applies Pacific Lutheran, I would grant review because I believe there
is a substantial issue regarding whether the University is an exempt religiously affiliated
educational institution on the basis that (1) it holds itself out as providing a religious educational
environment (as found by the Regional Director), and (2) individuals in the petitioned-for unit
play a specific role in creating or maintaining the University’s religious educational
environment. As to this last question, I believe substantial questions exist with respect to the
specific role played by part-time adjunct faculty, regardless of department, in providing students

My colleagues say that they have not assessed the religious content of the courses taught by
part-time adjunct faculty in the University’s Department of Theology, but “only the University’s
presentation of those courses to the faculty, students, and public at large.” However, whether the
content of a course is examined by looking at a syllabus distributed only to students taking the
course or at publicly available documents is beside the point. Either way, it is the content of the
course that is being evaluated. Assessing the University’s “presentation” of a course means
assessing the course’s content as set forth in that presentation. See Seattle University, above, at 5
fns. 16-17 (Member Miscimarra, dissenting); Saint Xavier University, above, at 5 fns. 17-18
(Member Miscimarra, dissenting).
exposure to diverse viewpoints, which is an important aspect of a Catholic education. See Great
Falls, supra, 278 F.3d at 1346 (“That a secular university might share some goals and practices
with a Catholic or other religious institution cannot render the actions of the latter any less
religious.”); Pacific Lutheran University, supra, slip op. at 31 (Member Johnson, dissenting)
(“The majority also errs fundamentally here by assuming a false dichotomy between ‘religious’
and ‘secular’ instruction.”).
For these reasons, I believe the Board should grant review of the Regional Director’s
decision that the Board has jurisdiction over the petitioned-for part-time adjunct faculty
members. Accordingly, I respectfully dissent.
PHILIP A. MISCIMARRA, ACTING CHAIRMAN