Marywood University

National Labor Relations Board - Unpublished Board Decisions

May 5, 2017

04-RC-173160 (N.L.R.B. May. 5, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MARYWOOD UNIVERSITY
Employer
and Case 04-RC-173160
MARYWOOD UNIVERSITY FACULTY
ASSOCIATION a/w PENNSYLVANIA
STATE EDUCATION ASSOCIATION
Petitioner
ORDER
The Requests for Review by the Employer and the Petitioner of the Acting Regional
Director’s Decision and Order are denied as they raise no substantial issues warranting review.1

1 We affirm the Acting Regional Director’s decision to dismiss the petition on the basis that the
petitioned-for faculty employees are managerial employees and therefore excluded from
employee status under the National Labor Relations Act. However, in denying the Petitioner’s
request for review on this issue, we do not adopt the rationale of the Acting Regional Director.
See Board’s Rules and Regulations, Sec. 102.67(g); Williams-Sonoma Direct, Inc., 365 NLRB
No. 13, slip op. at 1 fn. 1 (2017). We further find it unnecessary to pass on whether the Acting
Regional Director properly asserted jurisdiction under Pacific Lutheran University, 361 NLRB
No. 157 (2014), at this self-identified religious university.
Chairman Miscimarra concurs with his colleagues that the Acting Regional Director
properly dismissed the petition in this case on the basis that the petitioned-for faculty members
are managerial employees and therefore excluded from employee status under the Act.
However, he would also find, contrary to the Acting Regional Director, that the University is a
religiously affiliated institution that is exempt from the Board’s jurisdiction.
As the Chairman explained in his 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, he believes 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. Applying that test to the facts of this case, the parties
PHILIP A. MISCIMARRA, CHAIRMAN
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., May 5, 2017

stipulated that the University holds itself out to the public as providing a religious educational
environment. In addition, as the record shows, the University is organized as a nonprofit, and is
affiliated with the Catholic Church and the Sisters, Servants of the Immaculate Heart of Mary.
Accordingly, the Chairman would also decline to assert jurisdiction over the petitioned-for
faculty members because, in his view, the University is exempt from coverage of the Act. See
Seattle University, 364 NLRB No. 84 (2016) (Member Miscimarra, dissenting); Saint Xavier
University, 364 NLRB No. 85 (2016) (Member Miscimarra, dissenting).