Saint Xavier University

National Labor Relations Board - Board Decisions

Aug 23, 2016

364 NLRB No. 85 (N.L.R.B. 2016)

364 NLRB No. 85
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Saint Xavier University and St. Xavier University
Adjunct Faculty Organization, IEA-NEA, Peti-
tioner. Case 13–RC–022025
August 23, 2016
DECISION ON REVIEW AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
The issue in this case is whether, under Pacific Lu-
theran University, 361 NLRB No. 157 (2014), the Board
should exclude teachers of religion from an otherwise
appropriate faculty bargaining unit at this self-identified
religious university. We addressed this issue in our re-
cent decision in Seattle University, 364 NLRB No. 84
(2016), and found that contingent faculty teaching in that
university’s Department of Theology and Religious Stud-
ies and School of Theology and Ministry should be ex-
cluded from an overall unit of contingent faculty. On
similar facts and for similar reasons, we hold that part-
time faculty teaching in St. Xavier’s Department of Reli-
gious Studies should be excluded from an overall unit of
part-time faculty.
The Regional Director applied Pacific Lutheran Uni-
versity to a unit comprising all part-time faculty at St.
Xavier University, excluding the School of Nursing. The
Regional Director found that the University holds itself
out as a religious educational environment, but that the
University failed to establish that it holds out its part-
time faculty, other than the part-time faculty in the Pasto-
ral Ministry Institute, as performing a religious function.1

1 The Petitioner filed a petition seeking to represent a bargaining
unit comprising all part-time faculty at the University other than those
part-time faculty in the School of Nursing. On May 26, 2011, the Re-
gional Director issued his initial decision in this case, in which he
found that the petitioned-for unit was an appropriate bargaining unit.
From June 24 to July 12, 2011, the Regional Director conducted a mail-
ballot election, after which the ballots were impounded. Meanwhile,
the University had sought Board review of the Regional Director’s
decision. On December 16, 2014, the Board issued its decision in
Pacific Lutheran University, supra, after which it issued an order re-
manding the instant case to the Regional Director for further action
consistent with that decision. Given the Board’s decision that “[a]
university’s contemporary presentation is more probative,” 361 NLRB
No. 157, slip op. at 6, and since nearly 4 years had passed since the
Regional Director’s initial decision, the Regional Director reopened the
record to afford both parties the opportunity to submit further evidence.
Based upon the entire record in this proceeding, the Regional Director
issued a supplemental decision on June 1, 2015, which again asserted
the Board’s jurisdiction over the University and found the petitioned-
for unit appropriate. The University sought review of that decision.
The Petitioner filed an opposition. The Association of Catholic Colleg-
The University seeks Board review, contending that, as a
religious institution, its part-time faculty is not covered
by the National Labor Relations Act. In the alternative,
the University contends that part-time faculty in its De-
partment of Religious Studies should, like faculty in the
Pastoral Ministry Institute, be excluded from the bargain-
ing unit because they are held out as performing a specif-
ic religious function at the University.
The Board has delegated its authority in this proceed-
ing to a three-member panel. After carefully considering
the record, including the University’s request for review
and the Petitioner’s opposition, we deny review of the
Regional Director’s determination that the University’s
part-time faculty are generally covered by the National
Labor Relations Act and that a unit comprising those
faculty is appropriate for bargaining. However, we grant
review and reverse the Regional Director’s determination
to include in the unit those faculty who teach in the Uni-
versity’s Department of Religious Studies. We find that
the University holds them out “as performing a specific
role in creating and maintaining the school’s religious
educational environment” within the meaning of Pacific
Lutheran University.2
Background
St. Xavier University is a private, nonprofit university
offering undergraduate and graduate degrees at its cam-
puses located in Chicago and Orland Park, Illinois. The
University was established in 1846 by the Sisters of
Mercy, and it holds itself out as a religious educational
institution. Its mission statement declares as follows:
“Saint Xavier University, a Catholic institution inspired
by the heritage of the Sisters of Mercy, educates men and
women to search for truth, to think critically, to com-
municate effectively, and to serve wisely and compas-
sionately in support of human dignity and the common
good.” The University is organized into four schools:
Education, Management, Nursing, and Continuing and
Professional Studies, and the College of Arts and Scienc-
es.

es and Universities, as amicus curiae, submitted a letter in support of
the University’s request for review.
No party sought review of the Regional Director’s exclusion of the
adjunct faculty teaching in the Pastoral Ministry Institute. In the sup-
plemental decision, the Regional Director found that no part-time facul-
ty taught courses in the Pastoral Ministry Institute at the time the elec-
tion was held.
2 The Regional Director correctly found that the ballots may be
opened and counted, but, for the reasons stated here, the ballots of part-
time faculty in the Department of Religious Studies may not be count-
ed. If those ballots have been commingled with other ballots, the Peti-
tioner cannot be certified unless the Regional Director determines that
it achieved a majority of countable ballots.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The College of Arts and Sciences includes the De-
partment of Religious Studies. The department offers a
wide variety of classes, including, in recent years, “Ro-
man Catholic Tradition,” “Catholic-Social Teaching,”
“Old Testament Religion,” “New Testament Christiani-
ty,” “Christian Ethics,” and the “American Catholic Re-
ligion.” The University requires all undergraduates to
take courses in religious studies, although the courses do
not have to be about Catholicism. At the time of the
election, it appears that nine part-time faculty were teach-
ing courses in the department. Unlike part-time faculty
in other University departments and schools, part-time
faculty hired to teach in the department may enter into an
employment contract with the University referring to
their expertise in theology.
Discussion
In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
(1979), the Supreme Court stated that the National Labor
Relations Act must be construed to exclude teachers in
church-operated schools because to do otherwise “will
necessarily involve inquiry into the good faith of the po-
sition asserted by the clergy-administrators and its rela-
tionship to the school’s religious mission.” 440 U.S. at
502. The Court concluded that the Board’s assertion of
jurisdiction over teachers in church-operated schools
would “give[] rise to entangling church-state relation-
ships of the kind the Religion Clauses sought to avoid.”
Id. at 503 (quoting Lemon v. Kurtzman, 403 U.S. 602,
616 (1971)). For the Board to engage in such inquiry
would violate the First Amendment. Id. at 504.3
Consistent with the Court’s decision in Catholic Bish-
op of Chicago, the Board in Pacific Lutheran University
adopted a two-part test to determine when the Board may
exercise jurisdiction over faculty members teaching at a
self-identified religious college or university. 361 NLRB
No. 157 (2014). Explaining that framework, the Board
stated:
[T]he Act permits jurisdiction over a unit of faculty
members at an institution of higher learning unless the
university or college demonstrates, as a threshold mat-
ter, that it holds itself out as providing a religious edu-
cational environment, and that it holds out the peti-
tioned-for faculty members as performing a specific
role in creating or maintaining the school’s religious
educational environment.

3 In Catholic Bishop of Chicago, the Board had asserted jurisdiction
over bargaining units of lay teachers at Catholic high schools operated
by the Catholic Bishop of Chicago and the Diocese of Ft. Wayne-South
Bend. The history of the Board’s treatment of faculty at religiously
affiliated universities is summarized in Pacific Lutheran University.
361 NLRB slip op. at 3–5.
Id. slip op. at 5. The threshold showing is designed to be a
“minimal” burden on the university, as its self-presentation
in its mission statements, course catalogues, or website ref-
erences will suffice to satisfy the requirement that the school
“holds itself out as providing a religious educational envi-
ronment.” Id., slip op. at 6–7. In the second step of the test,
the Board considers how the university deals with and holds
out the faculty in the petitioned-for unit. Again, seeking to
avoid intrusive inquiry into the religious tenets of the institu-
tion, the Board looks primarily at the school’s own state-
ments, particularly job advertisements and descriptions,
employment contracts, employee handbooks, and similar
documents. Id., slip op. at 8–9. The test boils down to
“whether a reasonable prospective applicant [for a faculty
position] would conclude that performance of [her] faculty
responsibilities would require furtherance of the college or
university’s religious mission.” Id., slip op. at 9.
Applying this test, the Regional Director found that the
University holds itself out as providing a religious educa-
tional environment, and therefore met the threshold test
of Pacific Lutheran University. But the Regional Direc-
tor further found that the University failed to establish
that it holds out its part-time faculty, other than the part-
time faculty in the Pastoral Ministry Department, as per-
forming a religious function.
As stated, we deny review of the Regional Director’s
determination that, as a group, the petitioned-for unit of
part-time faculty generally do not play a “role in creating
or maintaining the University’s religious educational
environment.” Id., slip op. at 11. As in Seattle Universi-
ty, supra:
Uncontested evidence shows that the vast majority of
contingent faculty are not hired to advance the religious
goals of the institution. For example, calculus teachers
are hired based on their ability to teach calculus. They
are not required to be Catholic or to take any part in
any religious activities on or off campus; religion is not
mentioned in their employment contracts.
Seattle University, slip op. at 2.4

4 Our dissenting colleague points to language in Catholic Bishop of
Chicago to the effect that a teacher’s handling of secular subjects may
involve some aspect of faith or religious doctrine. See 440 U.S. at 501–
502. But, as stated above, the schools at issue in that case were high
schools operated by the Catholic Bishop of Chicago and the Diocese of
Fort Wayne-South Bend. Some of the schools were deemed “minor
seminaries,” operated directly by an arm of the Catholic Church for the
training of future priests and other Christian leaders. Id. at 492–493. In
the words of that decision, “Religious authority necessarily pervades
the school system.” Id. at 501 (quoting Lemon v. Kurtzman, 403 U.S.
602, 617 (1971)). St. Xavier University, by contrast, is not an arm of
the Church and does not hold itself out to potential students as a path to
SAINT XAVIER UNIVERSITY 3
Contrary to the Regional Director, however, we find
that the University met its burden at the second step with
respect to part-time faculty in the University’s Depart-
ment of Religious Studies. We find that a reasonable
prospective applicant for a part-time faculty position in
the department would expect that the performance of her
responsibilities would require furtherance of the Univer-
sity’s religious mission.
It is undisputed that faculty in the Department of Reli-
gious Studies teach courses with religious content. Un-
dergraduates may take those courses, including some
incorporating Catholic teachings and traditions, to fulfill
core academic requirements. Faculty within the depart-
ment have expertise in Catholic theology, other faith-
based traditions, or other aspects of the religious experi-
ence.
In Pacific Lutheran University, we cited “integrating
the institution’s religious teachings into coursework” as a
prime example of serving a religious function that would
lead the Board to decline jurisdiction over faculty. Id. at
9. See Seattle University, slip. op. at 3. Asserting Board
jurisdiction over faculty members who teach courses in
these subjects at a religiously affiliated university would
give rise to the First Amendment concerns of excessive
Government entanglement that the Court addressed in
Catholic Bishop of Chicago, 440 U.S. at 501–503. Pa-
cific Lutheran University, 361 NLRB No. 157, slip op. at
7; Seattle University, slip op. at 3.5
We conclude that the University holds out the part-
time faculty in the Department of Religious Studies as
performing a specific role in maintaining the university’s
religious educational environment. Therefore, we ex-
clude these faculty members from the unit of contingent
faculty. In all other respects, the University’s request for
review is denied.

the priesthood. And as shown above, few of the part-time faculty are
subject to any kind of religious authority.
5 We recognize the possibility that some course offerings in the De-
partment of Religious Studies may have only a tenuous relationship to
the religious mission of the University. But in order to avoid having to
assess the religious content of any course, we exclude from the unit all
part-time faculty in that department. See Catholic Bishop of Chicago,
440 U.S. at 502 (“It is not only the conclusions that may be reached by
the Board which may impinge on rights guaranteed by the Religion
Clause, but also the very process of inquiry leading to findings and
conclusions.”)(Footnote omitted.). See also Seattle University, slip op.
at 3 fn. 6. Contrary to the dissent, excluding all of those faculty does
not mean 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 and schools. As Seattle Univer-
sity and this decision demonstrate, we have not. Rather, we have as-
sessed only the University’s presentation of those courses to the facul-
ty, students, and public at large.
ORDER
This case is remanded to the Regional Director for fur-
ther appropriate action.
Dated, Washington, D.C. August 23, 2016
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
This case involves whether Saint Xavier University
should be exempted from the jurisdiction of the National
Labor Relations Board (NLRB or Board) because Board
jurisdiction impermissibly encroaches on First Amend-
ment guarantees associated with the University’s status
as a religiously affiliated institution.
As I explained in my dissenting opinion in Seattle
University, my colleagues and I are not permitted to
write from a clean slate regarding this issue.1 It is gov-
erned by NLRB v. Catholic Bishop of Chicago,2 where
the Supreme Court rejected the Board’s assertion of ju-
risdiction over “lay teachers” at church-operated schools,
which the Board had attempted to justify on the basis that
the schools were “‘religiously associated’” rather than
“‘completely religious.’”3 The Supreme Court held that
the Board could not exercise jurisdiction over teachers in
church-operated schools based on “abundant evidence”
that doing so “would implicate the guarantees of the Re-
ligion Clauses.”4
Significantly, the Supreme Court in Catholic Bishop
did not merely find fault with the Board’s “conclusions”
regarding whether asserting jurisdiction over teachers at
religiously affiliated institutions risked impinging on
First Amendment guarantees.5 The Court held that these
constitutional concerns were raised by “the very process
of inquiry” undertaken by the Board in determining
whether and when particular subjects, practices or insti-
tutions were sufficiently “secular” to permit the Board to

1 364 NLRB No. 84 (2016) (Member Miscimarra, dissenting).
2 440 U.S. 490 (1979).
3 Id. at 493 (quoting Roman Catholic Archdiocese of Baltimore, 216
NLRB 249, 250 (1975)).
4 Id. at 507.
5 Id. at 502.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
exercise jurisdiction.6 The Court made clear that “[g]ood
intentions by government” were not enough to “avoid
entanglement with the religious mission of the school.”7
Most importantly, in language that my colleagues disre-
gard here, the Court indicated that the Board could not
properly exercise jurisdiction based on a conclusion that
certain teachers only taught “‘secular subjects.’”8 Ac-
cording to the Court, even when the subject taught is
secular, “‘a teacher’s handling of [the] subject’” still
holds the “‘potential for involving some aspect of faith or
morals.’”9 The Court’s conclusion here leaves no room
for interpretation: “Whether the subject is “remedial
reading,” “advanced reading,” or simply “reading,” a
teacher remains a teacher, and the danger that religious
doctrine will become intertwined with secular instruction
persists.’”10
The Regional Director found it was appropriate for the
Board to exercise jurisdiction over Saint Xavier Univer-
sity, notwithstanding his findings that it is a nonprofit
educational institution affiliated with the Catholic
Church and the Sisters of Mercy (a Catholic religious
order).11 As described by the Regional Director:
Saint Xavier University is the oldest of the 16 Mercy
colleges and universities in the world and the oldest
chartered Roman Catholic educational institution in
Chicago…. The 2010 Official Catholic Directory
listed the University as a Catholic institution located
within the Archdiocese of Chicago with two priests and
five sisters.
. . . .
The University consistently identifies itself as a Catho-
lic institution and publicly describes those values as in-
spiring the education it provides. . . . [T]he University
produces many publicly available programs and publi-
cations that prominently feature Catholic and Mercy
themes. This includes content on its website, registra-
tion as a Catholic university, and Catholic and Christian
iconography in many of its classrooms. The University
is organized as a nonprofit institution.12
The Regional Director applied the test articulated in Pacific
Lutheran University, 361 NLRB No. 157 (2014), where a

6 Id.
7 Id.
8 Id. at 501 (quoting Lemon v. Kurtzman, 403 U.S. 602, 617 (1971))
(emphasis omitted).
9 Id. (quoting Lemon v. Kurtzman, supra).
10 Id. (quoting Meek v. Pittenger, 421 U.S. 349, 370 (1975)) (empha-
sis added).
11 Regional Director’s Supplemental Decision and Order (Supp.
Dec.), June 1, 2015, at 3.
12 Supp. Dec. at 3, 11.
Board majority stated that jurisdiction will be asserted over
faculty members at religiously affiliated universities “unless
the university or college demonstrates, as a threshold matter,
that it holds itself out as providing a religious educational
environment, and that it holds out the petitioned-for faculty
members as performing a specific role in creating or main-
taining the school’s religious educational environment.”13
My colleagues deny review of the Regional Director’s
finding that the Board should exercise jurisdiction over
most of the part-time faculty at Saint Xavier University.
Adhering to and applying the test announced in Pacific
Lutheran, however, they grant review and reverse the
Regional Director’s assertion of jurisdiction over “those
faculty who teach in the University’s Department of Re-
ligious Studies.” In other words, my colleagues draw the
precise distinction—between faculty members who teach
“religious” subjects, on the one hand, and those who
teach “secular” subjects, on the other—that the Supreme
Court rejected as entailing the type of “inquiry” that, by
itself, may impermissibly “impinge on rights guaranteed
by the Religion Clauses.”14
For three reasons, I would grant Saint Xavier Universi-
ty’s request for review in its entirety.

13 Id., slip op. at 5 (emphasis added). In Pacific Lutheran, I dissent-
ed from the Board majority’s test for determining whether to assert
jurisdiction over faculty at religiously affiliated universities, as did
former Member Johnson, because (among other reasons) (i) the majori-
ty rejected the three-part test for making this jurisdictional determina-
tion articulated by the Court of Appeals for the District of Columbia
Circuit in University of Great Falls v. NLRB, 278 F.3d 1335, 1343
(D.C. Cir. 2002), and (ii) “the standards articulated by the majority
suffer from the same infirmity denounced by the Supreme Court in
Catholic Bishop and by the D.C. Circuit in Great Falls: those stand-
ards entail an inquiry likely to produce an unacceptable risk of conflict
with the Religion Clauses of the First Amendment.” Id., slip op. at 26–
27 (Member Miscimarra, concurring in part and dissenting in part); see
also id., slip op. at 27–38 (Member Johnson, dissenting).
14 Catholic Bishop, 440 U.S. at 502; see text accompanying fns. 4–
10, supra. My colleagues exclude from the petitioned-for unit the part-
time faculty in the Department of Religious Studies on the grounds that
“those particular faculty teach courses with religious content.” Howev-
er, this is just the type of “finely spun judicial distinction[]” that then-
Judge Breyer warned, in Universidad Central de Bayamon v. NLRB,
would raise church/state entanglement concerns and contravene Catho-
lic Bishop. 793 F.2d 383, 402–403 (1st Cir. 1985) (en banc) (“[W]e
cannot avoid entanglement by creating new, finely spun judicial dis-
tinctions that will themselves require further court or Labor Board
‘entanglement’ as they are administered. To order the Board to exclude
priests from the bargaining unit [or] to approve its having separated the
seminary from the rest of the school . . . is to tread the path that Catho-
lic Bishop forecloses. These ad hoc efforts, the application of which
will themselves involve significant entanglement, are precisely what
the Supreme Court in Catholic Bishop sought to avoid.”). As explained
in the text, I believe the better approach is to apply the test set forth by
the D.C. Circuit in University of Great Falls v. NLRB, supra, without
regard to the religious or secular nature of the courses taught by the
petitioned-for unit faculty.
SAINT XAVIER UNIVERSITY 5
First, the instant case, like Seattle University, vividly
illustrates the First Amendment problems created by the
Board majority test in Pacific Lutheran, and the distinc-
tion my colleagues draw between secular faculty (who
my colleagues find are subject to Board jurisdiction) and
“faculty [who] teach courses with religious content”
(who my colleagues find are exempt from Board jurisdic-
tion) is forbidden by the main teaching of Catholic Bish-
op, where the Supreme Court emphasized that the “very
process of inquiry” associated with this type of evalua-
tion raises First Amendment concerns,15 that the Board
could not appropriately focus selectively on “secular”
subjects,16 and that “‘[w]hether the subject is “remedial
reading,” “advanced reading,” or simply “reading,” a
teacher remains a teacher, and the danger that religious
doctrine will become intertwined with secular instruction
persists.’”17 Lengthy reflection is not needed to recog-
nize that it will often be impossible to determine whether
faculty members at religiously affiliated schools who
ostensibly teach “secular” subjects nonetheless perform
“a specific role in creating or maintaining the school’s
religious educational environment.”18 However, under
Pacific Lutheran, it now appears that the Board majority

15 440 U.S. at 502.
16 Id. at 501 (quoting Lemon v. Kurtzman, 403 U.S. at 617) (empha-
sis omitted).
17 Id. (quoting Meek v. Pittenger, 421 U.S. at 370) (emphasis added).
I do not find persuasive my colleagues’ distinction between the high
schools at issue in Catholic Bishop and Saint Xavier University here.
In Universidad Central de Bayamon, then-Judge Breyer, whose opinion
states the en banc decision of the court, concluded that the Catholic
Bishop analysis is not limited to secondary schools or schools that are
“ʻpervasively sectarian’”; it also applies to “a college that seeks primar-
ily to provide its students with a secular education, but which also
maintains a subsidiary religious mission.” 793 F.2d at 398–399; id. at
400–401 (finding Board’s exercise of jurisdiction over university that
“holds itself out to students, faculty and community as a Catholic
school” presents the same “ʻstate/religion entanglement’ problems that
underlay the Court’s Catholic Bishop holding”); see also University of
Great Falls, above at 1342 (discussing Bayamon approvingly).
18 Pacific Lutheran, supra, slip op. at 5. Indeed, my colleagues im-
plicitly acknowledge this problem when they “recognize the possibility
that some course offerings in the Department of Religious Studies may
have only a tenuous relationship to the religious mission of the Univer-
sity.” Contrary to my colleagues’ assertion, however, excluding from
the unit all part-time faculty in that Department does not “avoid having
to assess the religious content of any course.” Rather, my colleagues
exclude part-time faculty in the Department of Religious Studies on the
basis that they “teach courses with religious content,” which necessari-
ly means that they have assessed the religious content of those courses.
My colleagues say that they have not assessed the religious content of
those courses 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.
will scrutinize the content of courses to determine
whether they include any “religious” material, or whether
their subject matter is exclusively “non-religious”: no
limiting principle would obviate the need for the Board
to closely examine individual topics and subtopics when
making religious/secular and exempt/nonexempt deter-
minations regarding particular faculty members and de-
partments.19
Second, as explained in my separate opinion in Pacific
Lutheran University, 361 NLRB No. 157, slip op. at 26–
27, when determining whether a religious school or uni-
versity 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 D.C. Circuit in
University of Great Falls v. NLRB, supra. 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 en-
vironment; (2) is organized as a nonprofit; and (3) is af-
filiated 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.20 In my view,
Saint Xavier University has clearly raised a substantial
issue regarding whether it is exempt from the Act’s cov-
erage under that three-part test. As the Regional Director
found, the University holds itself out to the public as
providing a religious educational environment, and it is
organized as a nonprofit. Additionally, the University is
affiliated with the Catholic Church and the Sisters of
Mercy. Accordingly, I would grant the University’s re-
quest for review on the grounds that 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 Saint Xavier University is an exempt
religiously affiliated educational institution on the basis

19 As described in my dissenting opinion in Seattle University, some
of these determinations could be quite challenging. See Seattle Univer-
sity, supra, slip op. at 5 (Member Miscimarra, dissenting) (describing
examples). Obviously, the Board has no expertise regarding these
types of matters; and even if it were otherwise permissible to address
such matters, it is almost certain that the courts will not give deference
to Board findings as to whether a particular course or material is suffi-
ciently “religious” to warrant a determination that the faculty member
who provides relevant instruction is exempt on First Amendment
grounds.
20 278 F.3d at 1343.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
that (1) it holds itself out as providing a religious educa-
tional environment (which the Regional Director found
and my colleagues do not dispute), and (2) individuals in
the petitioned-for unit play a specific role in creating or
maintaining the University’s religious educational envi-
ronment.21 As to this last question, I believe substantial
questions exist with respect to the role played by part-
time faculty in supporting the Catholic identity and fur-
thering the Catholic mission of the University, as well as
in facilitating dialogue among various faith traditions and
between those traditions and academic disciplines.22

21 As explained above, I disagree with my colleagues’ decision to
grant review and reverse the Regional Director with respect to only the
part-time faculty in the University’s Department of Religious Studies,
as I believe Catholic Bishop forecloses the distinction my colleagues
draw between those faculty and the other unit faculty.
22 For example, according to the University’s request for review, the
University’s faculty manual states that the University’s mission . . . sees
all learning as essentially ‘religious,’” and its Philosophy Statement
states that the University seeks to “promote [ ] a vigorous and compas-
sionate dialogue among the various faith traditions, and between them
and the academic disciplines.” Moreover, the request for review states
that the University must adhere to Ex Corde Ecclesiae, promulgated by
Pope John Paul II, and to the Application of Ex Corde Ecclesiae, prom-
ulgated by the U.S. Conference of Catholic Bishops. According to the
request for review, Ex Corde Ecclesiae requires all faculty at Catholic
universities “to respect Catholic doctrine and morals in their research
and teaching.” Also according to the request for review, the Applica-
tion of Ex Corde Ecclesiae states that “faculty” at Catholic universities
“participate in [the] important task” of “safeguarding and strengthening
the Catholic identity of the university,” and that “[a]ll professors are
expected to be aware of and committed to the Catholic mission and
identity of their institutions.” Thus, unlike my colleagues, I believe a
substantial question warranting review exists regarding whether part-
time faculty—regardless of whether they are “calculus teachers [who]
are hired based on their ability to teach calculus” or “[f]aculty within
the [Department of Religious Studies who] have expertise in Catholic
theology, other faith-based traditions, or other aspects of the religious
experience”—are “hired to advance the religious goals of the institu-
Further, I believe substantial questions exist as to wheth-
er part-time faculty “are subject to employment-related
decisions that are based on religious considerations.”23
For the reasons set forth above, I believe the Board
should grant review of the Regional Director’s decision
that the Board has jurisdiction over the petitioned-for
part-time faculty members. Accordingly, I respectfully
dissent.
Dated, Washington, D.C. August 23, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

tion.” See Great Falls, supra, 278 F.3d at 1346 (“That a secular uni-
versity 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, supra, slip op. at 31 (Member Johnson,
dissenting) (“The majority also errs fundamentally here by assuming a
false dichotomy between ‘religious’ and ‘secular’ instruction.”).
23 Pacific Lutheran, supra, slip op. at 10 fn. 19. For example, the
University’s request for review represents that Ex Corde Ecclesiae
“calls for the recruitment of adequate university personnel, especially
teachers and administrators, who are both willing and able to promote”
the University’s Catholic identity (emphasis added). The request for
review also refers to record evidence that (i) candidates for part-time
faculty positions are told during the interview process that they are
expected to support the University’s Catholic identity and Mercy herit-
age, and if candidates are unable to describe their relationship to the
University’s mission, they are unlikely to be hired; (ii) there would be
negative consequences for faculty who denigrate the University’s reli-
gious mission; and (iii) the University strongly encourages part-time
faculty to participate in or attend the University’s religious events and
programs, and part-time faculty who actively participate may be more
likely to be promoted.