Saint Xavier University

National Labor Relations Board - Board Decisions

Apr 6, 2017

365 NLRB No. 54 (N.L.R.B. 2017)

365 NRLB No. 54
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 Service Employees Inter-
national Union, Local 1. Case 13–RC–092296
April 6, 2017
DECISION ON REVIEW
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
In this case, we examine the standard that the Board
should apply in determining whether nonteaching em-
ployees at religious colleges or universities have collec-
tive-bargaining rights under the National Labor Relations
Act. After careful consideration of the applicable case
law, as well as the positions of the parties and amicus,
we have decided to adhere to the Board’s established
precedent. Under that precedent, the Board will assert
jurisdiction over the nonteaching employees of religious
institutions or nonprofit religious organizations unless
their actual duties and responsibilities require them to
perform a specific role in fulfilling the religious mission
of the institution. See, e.g., Hanna Boys Center, 284
NLRB 1080 (1987), enfd. 940 F.2d 1295 (9th Cir. 1991),
cert. denied 504 U.S. 985 (1992). Applying that standard
here, we find that the housekeeping employees at Saint
Xavier University (the University) are covered by the
Act. Accordingly, we will assert jurisdiction in this case.
Procedural History
The University is a private, nonprofit university offer-
ing undergraduate and graduate degrees at its campuses
in Chicago and Orland Park, Illinois. On October 30,
2012, the Petitioner, Service Employees International
Union, Local 1, petitioned to represent a unit of full-time
and regular part-time housekeepers at the University.
The University opposed the petition, contending that it is
exempt from the jurisdiction of the Act because of its
status as a religious educational institution. On Novem-
ber 28, 2012, the Regional Director issued his initial de-
cision in this case, finding that it was appropriate for the
Board to assert jurisdiction. The University sought
Board review of the Regional Director’s decision. On
January 3, 2013, the Region conducted an election and
impounded the ballots.
On February 20, 2013, the Board granted the Universi-
ty’s request for review. On December 16, 2014, the
Board issued its decision in Pacific Lutheran University,
361 NLRB No. 157, setting out a new test for determin-
ing when the Board should decline to exercise jurisdic-
tion over faculty at self-identified religious colleges and
universities. On February 12, 2015, the Board vacated
its February 20, 2013 order and issued a new order re-
manding the case to the Regional Director “for further
appropriate action consistent with Pacific Lutheran Uni-
versity.”
On June 23, 2015, the Acting Regional Director issued
a supplemental decision and order. Applying the test
articulated in Pacific Lutheran University, the Acting
Regional Director determined that the University’s
housekeeping employees are covered by the Act.1 The
University requested review, contending that, under
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
(1979) (“Catholic Bishop”), and the test articulated by
the United States Court of Appeals for the District of
Columbia Circuit in University of Great Falls v. NLRB,
278 F.3d 1335 (D.C. Cir. 2002) (“Great Falls”), it is
completely exempt from the Board’s jurisdiction because
of its status as a religious educational institution.
By order dated November 3, 2015, the Board granted
the University’s request for review. The Board requested
that the parties address whether it should adhere to cur-
rent precedent pursuant to which it will assert jurisdiction
over the nonteaching employees of religiously-affiliated
organizations (Hanna Boys Center); extend the test artic-
ulated in Pacific Lutheran University to nonteaching
employees; or take a different approach. Both the Peti-
tioner and the University filed briefs on review.2
Facts
The University is an institution of higher learning, es-
tablished in 1846 by the Sisters of Mercy, a Roman
Catholic religious order.3 The University retains its affil-
iation with the order through the Conference for Mercy
Higher Education, the order’s corporate arm, which acts
as the religious sponsor for the University and 15 other
colleges and universities. The University is also listed in
the official Catholic Directory, a listing of entities recog-
nized as official ministries of the Roman Catholic
Church.
The parties stipulated to the following facts regarding
the petitioned-for housekeepers: offers of employment
to housekeepers do not mention the Sisters of Mercy,

1 The Acting Regional Director also rejected the University’s con-
tention that the Board’s jurisdiction would violate the Religious Free-
dom Restoration Act. The University does not seek review of that
determination.
2 The Islamic Saudi Academy filed an amicus brief on review.
3 It is undisputed that the University is a religious educational insti-
tution. The University’s 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 communicate effectively, and to serve wisely and compas-
sionately in support of human dignity and the common good.” See St.
Xavier University, 364 NLRB No. 85, slip op. at 1 (2016).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Catholicism, God, or religion; there is no requirement
that housekeepers be Catholic or adhere to any specific
religion; in the course of their duties, the housekeepers
are not required to abide by any specific tenets of the
Sisters of Mercy, Catholicism, or any religion, but, as
with all employees, are invited to attend and participate
in any program or activities that recognize or celebrate
the University’s Catholic and Sisters of Mercy heritage;
the job evaluations of housekeepers contain no reference
to the Sisters of Mercy, Catholicism, or religion; and the
housekeepers have never been instructed to disseminate
the Catholic faith.
Relevant Precedent
In Catholic Bishop, the Supreme Court held that the
Board could not assert jurisdiction over lay teachers em-
ployed by a group of parochial schools to teach both reli-
gious and secular subjects because it would create “a
significant risk that the First Amendment will be in-
fringed.”4 440 U.S. at 502. The Court observed that “the
raison d'etre of parochial schools is the propagation of a
religious faith,” and emphasized the “critical and unique
role of the teacher in fulfilling th[at] mission.” Id. at 503
and 501, quoting Lemon v. Kurtzman, 403 U.S. 602, 628
(Douglas, J., concurring) and 617 (1971). The Court
predicted that the Board would be unable to “avoid en-
tanglement with the religious mission of the school in the
setting of mandatory collective bargaining,” because
“nearly everything that goes on in the school affects
teachers and is therefore arguably a ‘condition of em-
ployment.”’ Id. at 502–503. In the Court’s view, more-
over, “the very process of inquiry leading to findings and
conclusions” in Board proceedings involving the rela-
tionship between a religious school and its teachers
risked intrusion on religious freedoms because such pro-
ceedings “will necessarily involve inquiry into the good
faith of the position asserted by the clergy-administrators
and its relationship to the schools’ religious mission.”
Id. at 502. In light of these factors, the Court saw “no
escape from conflicts flowing from the Board’s exercise
of jurisdiction over teachers in church-operated schools
and the consequent serious First Amendment questions

4 The Court had granted certiorari to consider two questions: (a)
Whether teachers in schools operated by a church to teach both reli-
gious and secular subjects are within the jurisdiction granted by the
Act; and (b) if the Act authorizes such jurisdiction, does its exercise
violate the Religion Clauses of the First Amendment? 440 U.S. at 490.
As to the second question, the Court declined to rule directly on the
constitutionality of Board jurisdiction, but instead invoked the doctrine
of constitutional avoidance in which the federal courts will refrain from
ruling legislation to be unconstitutional in the absence of “the affirma-
tive intention of Congress clearly expressed” to enact the unconstitu-
tional construction of the statute, when an alternative, permissible con-
struction is available. Id. at 500.
that would follow.” Id. at 504. Accordingly, the Court
held that, “in the absence of a clear expression of Con-
gress' intent to bring teachers in church-operated schools
within the jurisdiction of the Board, we decline to con-
strue the Act in a manner that could in turn call upon the
Court to resolve difficult and sensitive questions arising
out of the guarantees of the First Amendment Religion
Clauses.” Id. at 507.
In Hanna Boys Center, supra, the Board found that
neither the Supreme Court’s decision in Catholic Bishop
nor the Religion Clauses of the First Amendment pre-
clude the Board from asserting jurisdiction over non-
teaching employees of religiously-affiliated organiza-
tions. The Board observed that the petitioned-for clerical
employees and child-care workers, recreation assistants,
cooks, and maintenance employees at Hanna Boys Cen-
ter were not teachers and that there was no record evi-
dence that their duties (save for those of the child-care
workers) had any connection to the employer’s “possible
religious mission.” 284 NLRB at 1083. Regarding the
child care workers, the Board found that although Hanna
Boys Center provided classroom instruction, including a
moral guidance class taught by religious sisters, there
was no indication in the record that the child-care work-
ers were required to, or did in fact, involve themselves in
religious or secular teaching. Id. In any case, the Board
found that “[t]he child-care workers are clearly less in-
volved in the religious inculcation of the entrants than
the teachers are.” Id. The Board therefore found that the
“sensitive first amendment issues surrounding the asser-
tion of jurisdiction over teachers noted by the Court in
Catholic Bishop are not involved. . . .” Id.5
In enforcing the Board’s Order, the Ninth Circuit
agreed with the Board that Catholic Bishop did not create
a blanket exemption from the Act’s coverage for reli-
gious institutions and that its holding was limited to “the
employment relationship between church-operated
schools and its teachers.” 940 F.2d 1295, 1301–1302 fn.
6. The court went on to find that the petitioned-for em-
ployees’ “pervasively secular” duties ensured that Board
jurisdiction would not impermissibly interfere with the
Establishment or Free Exercise clauses of the First
Amendment. Id. at 1306.

5 Since Hanna Boys Center, the Board has continued to assert juris-
diction over nonteaching employees at religious organizations where
there is no evidence that the employees play a specific role in fulfilling
the religious mission of the organization. See, e.g., Catholic Social
Services, 355 NLRB 929, 929–930 (2010) (asserting jurisdiction over
facility providing childcare services where an “ancillary” part of social
services provided included “wholly secular education” to a small num-
ber of children); Salvation Army, 345 NLRB 550, 552 (2005) (asserting
jurisdiction over resident advisors at facility providing prerelease ser-
vices to prisoners and probationers).
SAINT XAVIER UNIVERSITY 3
In Pacific Lutheran University, 361 NLRB No. 157,
the Board reexamined its standard for determining, in
accordance with Catholic Bishop, when the Board should
decline to exercise jurisdiction over faculty members at
self-identified religious colleges and universities. The
Board held that it will decline to assert jurisdiction over
faculty members if the college or university demonstrates
that: (1) it holds itself out as providing a religious educa-
tional environment and (2) it holds the faculty out “as
performing a specific role in creating or maintaining”
that environment. 361 NLRB No. 157, slip op. at 6.
The Pacific Lutheran Board emphasized that in craft-
ing the new test for faculty members, it had endeavored
to “be faithful to the holding of Catholic Bishop” and
“avoid the potential for unconstitutional entanglement
while, to the extent constitutionally permissible, vindicat-
ing the rights of employees to engage in collective bar-
gaining.” Id., slip op. at 5. The Board recognized, for
example, that an examination of the actual functions
performed by teachers at a religious educational institu-
tion “could result in the type of intrusive inquiry into a
university’s religious beliefs and practices that was re-
jected by the Supreme Court in Catholic Bishop.” Id.,
slip op. at 6. To avoid that risk, the Board held that it
would “rely on the institutions own statements” about its
religious mission and whether its teachers are required to
perform religious functions as part of their duties “with-
out questioning the institution’s good faith or otherwise
second-guessing those statements.” Id., slip op. at 9.
The Board, however, rejected the suggestion of Pacific
Lutheran University and amici that it should adopt the
even more restrictive test formulated by the District of
Columbia Circuit in Great Falls, supra, 278 F.3d 1335.
Under that test, the Board has no jurisdiction over a
school that (1) holds itself out to students, faculty and
community as providing a religious educational envi-
ronment; (2) is organized as a nonprofit; and (3) is affili-
ated 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. 278 F.3d at 1343. The
Board observed that, although the Great Falls test avoids
any intrusive inquiry into a university’s religious beliefs
or actual practices, it sweeps too broadly because its ex-
clusive reliance on the religious nature of an educational
institution, without considering the petitioned-for em-
ployees’ role in supporting the institution’s religious
mission, “could deny the protections of the Act to faculty
members who teach in completely nonreligious educa-
tional environments if the college or university is able to
point to any statement suggesting the school’s . . . con-
nection to religion, no matter how tenuous that connec-
tion may be.” 361 NLRB No. 157, slip op. at 6. The
Board concluded “[t]his approach goes too far in subor-
dinating Section 7 rights and ignores federal labor policy
as embodied in the Act.” Id.
Notably, in Pacific Lutheran the Board acknowledged
its long history of asserting jurisdiction over nonteaching
employees at religious institutions citing, in support,
Hanna Boys Center and other cases. Id., slip op. at 8 fn.
11. The Board further made clear that its decision was
“limited to addressing the requirements for units of facul-
ty members at colleges and universities.” Id.
Positions of the parties
The University contends that it is completely exempt
from the Act’s jurisdiction under Catholic Bishop be-
cause of its status as a religious educational institution.
The University additionally contends that, in determining
whether an employer is exempt from the Act's coverage
as a religious educational institution, the Board should
apply the three-part test articulated by the District of Co-
lumbia Circuit in Great Falls and that it is exempt under
that test.
The University argues that application of the test in ei-
ther Hanna Boys Center or Pacific Lutheran University
to determine the jurisdictional question in this case
would create an unacceptable risk of conflict with the
Religion Clauses of the First Amendment because they
require the Board to engage in the type of intrusive in-
quiry that Catholic Bishop sought to avoid and they fail
to address the entanglement problems related to the
Board’s role in enforcing the Act against a religious col-
lege or university.
Finally, the University argues that the Acting Regional
Director ignored the Board’s longstanding practice of
declining to assert jurisdiction over the secular employ-
ees of nonprofit, religious organizations, where the em-
ployees provide vital services toward the mission of the
religious organization.6 Emphasizing the centrality of
cleanliness to Catholicism, the University contends that
the petitioned-for employees in this case provide vital
services toward the religious mission of the University,

6 The Board has declined to assert jurisdiction over the secular em-
ployees of churches and similar institutions where the petitioned-for
secular employees are those “without whom the employer could not
accomplish their religious mission.” St. Edmunds High School, 337
NLRB 1260, 1260 (2002) (custodial/maintenance employees perform-
ing work at religious schools, church, and other religious buildings),
citing Riverside Church, 309 NLRB 806 (1992); Faith Center— WHCT
Channel 18, 261 NLRB 106 (1982). The Board has limited this exemp-
tion to churches and their direct extensions. Faith Center-WHCT
Channel 18, 261 NLRB at 108 (exempting broadcasting employees of a
church that largely propagated its religious message through a radio
station, finding its “purpose and function indistinguishable from that of
‘conventional’ churches’”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
and the Board should therefore decline to assert jurisdic-
tion over them.7
In its brief on review, the Petitioner contends that the
Board should apply Hanna Boys Center to determine
whether non-teaching employees of colleges and univer-
sities are covered by the Act. The Petitioner contends
that under Hanna Boys Center, the petitioned-for house-
keeping employees are plainly covered by the Act. The
Petitioner additionally contends that application of the
test articulated in Pacific Lutheran University would
result in the Board exercising jurisdiction over the em-
ployees. Finally, the Petitioner points out that the Board
declined to adopt the Great Falls test in Pacific Luther-
an University.
Analysis
We have carefully considered the contentions of the
parties and amicus, as well as the views of our dissenting
colleague, and we have decided to adhere to the Board’s
established precedent in Hanna Boys Center to determine
whether non-teaching employees at religious colleges or
universities have collective-bargaining rights under the
Act. For the reasons explained below, we do not believe
that standard creates an unacceptable risk of conflict with
the Religion Clauses of the First Amendment.
First, we reaffirm the Board’s longstanding position
that the holding of Catholic Bishop is limited to the
teaching employees of religious schools, who play a
“critical and unique role” in creating and sustaining a
religious environment, and that the Court did not intend
to create a categorical exemption from the Act’s cover-
age for religious institutions. We also reaffirm the
Board’s view that the Great Falls test goes too far in
subordinating Section 7 rights.8 Pacific Lutheran Uni-
versity, 361 NLRB No. 157, slip op. at 6.
Second, as referenced above, the Board in Pacific Lu-
theran University expressly limited its decision to “units
of faculty members at colleges and universities,” 361
NLRB No. 157, slip op. at 8 fn. 11, noting that it “has
long asserted jurisdiction over secular employees of non-
profit religious organizations other than schools, as well
as over nonteaching employees at religious institutions
that have an educational component as part of their mis-
sion[.]” Id. The Pacific Lutheran University Board

7 In its amicus brief, the Islamic Saudi Academy similarly argues
that the Pacific Lutheran University test errs in presuming the exist-
ence of a sharp distinction between the religious and secular activities
of a religious school, and that, in fact, non-teachers can play a specific
role in a school’s religious educational environment.
8 Our dissenting colleague states that he would apply the Great
Falls test in this and any future case involving religiously affiliated
schools or universities. But he acknowledges that the Board rejected
that approach in Pacific Lutheran University.
clearly did not intend for its decision to extend to non-
teaching employees, such as the housekeepers at issue in
this case.
Moreover, extending Pacific Lutheran University’s
test for whether to assert jurisdiction to non-teaching
employees would move beyond the concerns that moti-
vated the test. As discussed above, in Pacific Lutheran
University, the Board was concerned that an examination
of the actual functions performed by teachers at a reli-
gious educational institution “could result in the type of
intrusive inquiry into a university’s religious beliefs and
practices that was rejected by the Supreme Court in
Catholic Bishop.” Id., slip op. at 6. Therefore, to “be
faithful to the holding of Catholic Bishop” and avoid
even the potential for unconstitutional entanglement, the
Board held that it would not examine the actual duties of
the petitioned-for teachers and would instead “rely on the
institutions own statements” about whether its teachers
are required to perform religious functions as part of
their duties “without questioning the institution’s good
faith or otherwise second-guessing those statements.”
Id., slip op. at 9.
As the Board observed in Pacific Lutheran University,
the Court’s concerns in Catholic Bishop about
“creat[ing] an impermissible risk of excessive govern-
ment entanglement” stemmed from “[t]he key role
played by teachers” in creating and sustaining the reli-
gious educational environment. 361 NLRB No. 157, slip
op. at 7, citing Catholic Bishop, 440 U.S. at 501. See
also NLRB v. Bishop Ford Central Catholic High School,
623 F.2d 818, 822, 823 (2d Cir. 1980) (observing that
“[t]he entire focus of Catholic Bishop was upon the obli-
gation of lay faculty to imbue and indoctrinate the stu-
dent body with the tenets of a religious faith”). In con-
trast, where the petitioned-for employees are non-
teaching employees who do not play a similar role in
carrying out the religious mission of the school, the sen-
sitive First Amendment concerns of excessive entangle-
ment are not implicated and the process of inquiring into
the actual duties and responsibilities of such employees
will not “impinge on rights guaranteed by the Religion
Clauses.” Catholic Bishop, 440 U.S. at 502. The Board
and the circuit courts have repeatedly relied on this edu-
cator/non-educator distinction in determining that the
Board properly asserted jurisdiction over non-teaching
employees at religiously-affiliated organizations. See,
e.g., Catholic Social Services, 355 NLRB at 929; Salva-
tion Army, 345 NLRB at 550; NLRB v. Salvation Army of
Massachusetts Dorchester Day Care Center, 763 F.2d 1,
6 (1st Cir. 1985); Tressler Lutheran Home for Children
v. NLRB, 677 F.2d 302, 305 (3d Cir. 1982); NLRB v.
World Evangelism, Inc., 656 F.2d 1349, 1353 (9th Cir.
SAINT XAVIER UNIVERSITY 5
1981); NLRB v. St. Louis Christian Home, 663 F.2d 60,
64 (8th Cir. 1981).
In sum, we adhere to existing precedent. Under that
precedent, we will assert jurisdiction over nonteaching
employees of religiously-affiliated colleges and universi-
ties, unless it has been demonstrated that their actual du-
ties and responsibilities require them to perform a specif-
ic role in fulfilling the religious mission of the institution.
Application to the petitioned-for employees
Applying Hanna Boys Center, we find that the Board
has jurisdiction in this proceeding. The parties stipulat-
ed, and we find, that the housekeepers do not have any
teaching role or perform any specific religious duties or
functions, but are confined to the secular role of provid-
ing cleaning services to the University.
Thus, because the petitioned-for housekeeping em-
ployees provide wholly secular services and there is no
indication that they are expected to perform a specific
role in furthering the religious mission of the University,
the exercise of jurisdiction over the employees will not
create “serious constitutional questions” of the type the
Supreme Court sought to avoid in Catholic Bishop, 440
U.S. at 501. Accordingly, we find that the petitioned-for
employees are covered by the Act.
ORDER
This proceeding is remanded to the Regional Director
for appropriate action consistent with this Decision and
Order.
Dated, Washington, D.C. April 6, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
ACTING CHAIRMAN MISCIMARRA, dissenting.
The issue in this case is whether the Board should de-
cline jurisdiction over Saint Xavier University (Universi-
ty) as the employer of the petitioned-for unit of house-
keepers to avoid potentially interfering with rights pro-
tected by the Religion Clauses of the First Amendment.1
I believe the Board should decline jurisdiction. In my
view, the majority errs in holding that when a petitioner

1 As my colleagues note, it is undisputed that the University is a re-
ligiously affiliated institution.
seeks an election in a bargaining unit of non-teaching
employees, the exemption from the Board’s jurisdiction
accorded to religiously affiliated schools and universities
only applies if those employees have duties and respon-
sibilities that require them to perform a specific role in
fulfilling the religious mission of the institution. This
standard, which my colleagues adopt and apply, entails
the very type of inquiry that impermissibly risks entan-
gling the Board in matters of religion.
It was to avoid such risks that the Supreme Court, in
NLRB v. Catholic Bishop of Chicago,2 gave the National
Labor Relations Act (NLRA or Act) a limiting construc-
tion depriving the Board of jurisdiction where its exer-
cise would raise First Amendment concerns. Thus, I
cannot join my colleagues’ decision. Instead, when the
Board must determine whether to assert jurisdiction over
any employees—teachers or otherwise—employed by a
school or university that claims to be religiously affiliat-
ed, I would apply the test—discussed below—articulated
by the Court of Appeals for the D.C. Circuit in Universi-
ty of Great Falls v. NLRB.3 Applying that test here, I
would find that the Board is precluded from asserting
jurisdiction. Accordingly, I would dismiss the election
petition.
Discussion
As explained in my separate opinions in Seattle Uni-
versity,4 Saint Xavier University,5 and Pacific Lutheran
University,6 the determination of whether the Board can
exercise jurisdiction over a religious school or university
is governed by NLRB v. Catholic Bishop of Chicago,
supra. In Catholic Bishop, the Supreme Court rejected
the Board’s assertion of jurisdiction 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.’”7 The
Supreme Court held that the Board was precluded from
exercising jurisdiction over teachers in church-operated
schools based on “abundant evidence” that doing so
“would implicate the guarantees of the Religion Claus-
es.”8 The Court rejected the Board’s decision to exercise
jurisdiction over these teachers, a decision the Board

2 440 U.S. 490 (1979).
3 278 F.3d 1335 (D.C. Cir. 2002).
4 364 NLRB No. 84, slip op. at 3–6 (2016) (Member Miscimarra,
dissenting).
5 364 NLRB No. 85, slip op. at 3–6 (2016) (Member Miscimarra,
dissenting).
6 361 NLRB No. 157, slip op. at 26–27 (2014) (Member Miscimar-
ra, concurring in part and dissenting in part).
7 440 U.S. at 493 (quoting Roman Catholic Archdiocese of Balti-
more, 216 NLRB 249, 250 (1975)).
8 Id. at 507.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
based on its conclusion that the teachers only taught
“‘secular subjects.’”9 Even when the subject taught is
secular, the Court explained, “‘a teacher’s handling of
[the] subject’” at a church-operated school holds the
“‘potential for involving some aspect of faith or mor-
als.’”10
Significantly, the Supreme Court in Catholic Bishop
did not merely find fault with the Board’s conclusion that
because the teachers taught “secular” subjects, the Board
could exercise jurisdiction over them without impinging
on rights guaranteed by the First Amendment. The Court
held that the rights protected by the First Amendment’s
Religion Clauses were put at risk by “the very process of
inquiry” undertaken by the Board in determining whether
particular subjects, practices, or institutions were suffi-
ciently “secular” to permit the Board to exercise jurisdic-
tion.11 The Court did not question the Board’s motives,
but it made clear that “[g]ood intentions by government”
were not enough to “avoid entanglement with the reli-
gious mission of the school.”12
In subsequent cases, reviewing courts rejected the
Board’s continued efforts to assert jurisdiction over reli-
gious schools and universities in violation of the princi-
ples established in Catholic Bishop.13 Of particular note,
in striking down the Board’s then-applied “substantial
religious character” test, the D.C. Circuit in University of
Great Falls criticized the Board for adopting a test under
which it “‘troll[ed] through a person’s or institution’s
religious beliefs,’”14 asking if they were “sufficiently
religious?”15 To steer clear of such constitutionally in-

9 Id. at 501 (quoting Lemon v. Kurtzman, 403 U.S. 602, 617 (1971)
(emphasis omitted)).
10 Id. (quoting Lemon v. Kurtzman, supra) (emphasis added).
11 Id. (emphasis added).
12 Id.
13 See University of Great Falls, 278 F.3d at 1335 (invalidating the
Board’s post–Catholic Bishop standard, under which the Board de-
clined jurisdiction only over schools it deemed to have a “substantial
religious character”); Universidad Central de Bayamon v. NLRB, 793
F.2d 383, 398 (1st Cir. 1985) (en banc) (denying enforcement of Board
order against a church-operated college “that [sought] primarily to
provide its students with a secular education, but which also main-
tain[ed] a subsidiary religious mission”); NLRB v. Bishop Ford Central
Catholic High School, 623 F.2d 818 (2d Cir. 1980) (reversing Board’s
determination that a religious school was outside the scope of Catholic
Bishop merely because it was operated by a private corporation rather
than a religious order, finding that First Amendment concerns are im-
plicated in both circumstances). See also Pacific Lutheran University,
361 NLRB No. 157, slip op. at 27–35 (Member Johnson, dissenting),
for a comprehensive analysis of Catholic Bishop and these related
cases.
14 278 F.3d at 1341–1342 (quoting Mitchell v. Helms, 530 U.S. 793,
828 (2000) (plurality opinion)).
15 278 F.3d at 1343 (emphasis in original). The Board’s impermis-
sible “trolling” in Great Falls included an examination of curriculum
subject matter, university policies, the religious background of students,
firm inquiries, the court in Great Falls adopted a “bright-
line test” that would “allow the Board to determine
whether it has jurisdiction without delving into matters of
religious doctrine or motive, and without coercing an
educational institution into altering its religious mission
to meet regulatory demands.”16 Under this test, “an insti-
tution is exempt from [the Board’s jurisdiction] . . . [if]
the institution (1) holds itself out to the public as a reli-
gious institution; (2) is non-profit; and (3) is religiously
affiliated.”17
In 2014, the Board decided Pacific Lutheran Universi-
ty, supra. There, the Board abandoned the “substantial
religious character” test rejected by the D.C. Circuit in
University of Great Falls. Rather than adopt the Great
Falls test, however, a Board majority adopted a new test
for determining whether the Board should exercise juris-
diction over faculty members at religiously affiliated
schools or universities. Under the Pacific Lutheran ma-
jority standard, the Board will assert jurisdiction over
faculty members at religiously affiliated universities “un-
less 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 peti-
tioned-for faculty members as performing a specific role
in creating or maintaining the school’s religious educa-
tional environment.”18 I relevantly dissented in Pacific
Lutheran, as did former Member Johnson, because the
jurisdictional standards the majority adopted “suffer from
the same infirmity denounced by the Supreme Court in
Catholic Bishop and by the D.C. Circuit in Great Falls:
those standards entail an inquiry likely to produce an
unacceptable risk of conflict with the Religion Clauses of
the First Amendment.”19 I concluded that the Board
should adopt the understandable and straightforward
three-part test articulated by the D.C. Circuit in Great
Falls.20
My colleagues have decided not to apply Pacific Lu-
theran here. However, I believe the standard they adopt
instead is just as constitutionally infirm as the Pacific
Lutheran standard. The majority states they “will assert
jurisdiction over non-teaching employees of religiously-
affiliated colleges and universities, unless it has been

whether the university’s president and administrators were required to
be members of the Catholic faith, whether faculty members were or
were not required to teach Church doctrine, and whether students were
required to take courses involving Catholicism. Id. at 1340.
16 Id. at 1345.
17 Id. at 1347.
18 361 NLRB No. 157, slip op. at 5.
19 361 NLRB No. 157, slip op. at 26 (Member Miscimarra, concur-
ring in part and dissenting in part); see also id., slip op. at 27–38
(Member Johnson, dissenting).
20 Id., slip op. at 26–27.
SAINT XAVIER UNIVERSITY 7
demonstrated that their actual duties and responsibilities
require them to perform a specific role in fulfilling the
religious mission of the institution.” Like the flawed test
adopted by the majority in Pacific Lutheran, the test my
colleagues adopt today is also contrary to the teaching of
Catholic Bishop and Great Falls because it requires the
Board to conduct an inquiry to determine whether the
“duties and responsibilities” of employees in the peti-
tioned-for unit are sufficiently secular to permit the
Board to assert jurisdiction.
The majority gleans the test they adopt and apply in
the instant case from Hanna Boys Center.21 In Hanna
Boys Center, the Board considered whether to direct an
election in a petitioned-for unit that included clerical
employees, recreation assistants, cooks, cooks helpers,
and child-care workers at a Catholic residential facility
for boys.22 The record was devoid of evidence regarding
the duties of the clerical employees, recreation assistants,
cooks, and cooks helpers. Accordingly, in deciding
whether to assert jurisdiction over the facility, the Board
focused on the religious nature, or lack thereof, of the
child-care workers’ job functions. Among other consid-
erations, the panel majority observed that (i) the child-
care workers “‘shepherd’ the boys from their cottages to
chapel, supervise the boys in their cottages, and make
sure the boys do their housekeeping chores and home-
work (which may include work from the moral guidance
course), see that the boys say their prayers, and select a
boy to say the evening prayer”; (ii) the child-care work-
ers’ job responsibilities included the teaching of “values:
ethical principles, religious observances”; (iii) there was
“no indication” that child-care workers were “required
to, or do in fact, involve themselves in the religious or
secular teaching of” the boys; and (iv) the child-care
worker was more akin to a “‘dormitory monitor,’ an au-
thority figure to supervise the [boys] when they are not in
class.”23 Leaving no doubt that they had made the very
type of religious/secular determination the Supreme
Court sought to preclude when it limited the Board’s

21 284 NLRB 1080 (1987), enfd. 940 F.2d 1295 (9th Cir. 1991),
cert. denied 405 U.S. 985 (1992). I say that my colleagues “glean”
their test from Hanna Boys Center because the majority opinion in that
case—authored by two members of a three-member panel over the
dissent of Chairman Dotson—does not state a test for determining
when jurisdiction should be asserted over nonteaching employees of
religiously affiliated institutions.
Chairman Dotson would have declined jurisdiction in Hanna Boys
Center on the ground that in his view, the Board should “decline to
assert jurisdiction over nonprofit, charitable institutions unless it has
been demonstrated that such institutions have a substantial impact on
interstate commerce.” 284 NLRB at 1083. He did not pass on the
applicability of Catholic Bishop. Id.
22 284 NLRB at 1080.
23 Id. at 1083.
jurisdiction in Catholic Bishop, the panel majority mem-
bers in Hanna Boys Center concluded that the child-care
workers were “clearly less involved in the religious in-
culcation of the [boys] than the teachers [were].”24
My colleagues make the same kind of “religious ver-
sus secular” determination in the instant case. They base
their decision to assert jurisdiction on the following facts:
(i) offers of employment to housekeepers do not mention
the Sisters of Mercy (the Roman Catholic religious order
that founded the University), Catholicism, God, or reli-
gion; (ii) there is no requirement that housekeepers be
Catholic or adhere to any specific religion; (iii) in the
course of their duties housekeepers are not required to
abide by any specific tenets of the Sisters of Mercy, Ca-
tholicism, or any religion, but, as with all employees, are
invited to attend and participate in any programs or activ-
ities that recognize or celebrate the Employer’s Catholic
and Mercy heritage; (iv) the job evaluations of house-
keepers contain no reference to the Sisters of Mercy,
Catholicism, or religion; and (v) housekeepers have nev-
er been instructed to disseminate the Catholic faith.
Based on these facts, my colleagues conclude that the
petitioned-for housekeepers “do not . . . perform any spe-
cific religious duties or functions, but are confined to the
secular role of providing cleaning services.”
The soundness or otherwise of my colleagues’ conclu-
sion is not the issue here. Rather, it is the nature of the
facts they rely on to reach their conclusion that vitiates
the test they have adopted today. The inquiry my col-
leagues conduct resembles the “trolling” in religious wa-
ters that prompted the D.C. Circuit in Great Falls to re-
ject the Board’s “substantial religious character” test. In
Great Falls, the court faulted the Board’s inquiry into
whether university officials were required to be members
of the Catholic faith and whether faculty members were
or were not required to teach Catholic doctrine.25 Here,
my colleagues have considered whether housekeepers
must be Catholic, whether they must adhere to the tenets
of Catholicism, and whether they are expected to dissem-
inate the Catholic faith. Although I do not disagree with
the majority’s conclusion that the housekeepers “are con-
fined to the secular role of providing cleaning services to
the University,” it is not this conclusion that implicates
the concerns animating the Supreme Court’s decision in
Catholic Bishop. Rather, it is “the very process of in-
quiry”26 my colleagues undertake to reach this conclu-
sion that implicates those concerns. Because the juris-
dictional test they adopt today compels such an inquiry,

24 Id.
25 278 F.3d at 1340.
26 Catholic Bishop, 440 U.S. at 502.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
the test must be rejected, as must any standard that “at-
tempts to distinguish between the ‘religious’ and ‘secu-
lar.’”27
Finally, although this case might look like an easy
one—most would view housekeeping as a secular activi-
ty—cases involving nonteaching employees may present
facts that lead the Board into even deeper entanglements
with an institution’s religious mission. Indeed, the facts
of Hanna Boys Center itself illustrate this danger. The
child-care workers’ job functions did include duties that
touched on matters of religion: they shepherded the boys
to chapel, saw to it that the boys completed their home-
work for their moral guidance course, and made sure the
boys said their prayers. The majority’s test requires the
Board to sift through facts like these and decide whether
they render a petitioned-for unit of non-teaching employ-
ees “sufficiently religious”28 to warrant declining juris-
diction. Accordingly, inherent in the Hanna Boys test is
at least the “potential for involving some aspect of faith
or morals” in the Board’s inquiry, an outcome the Su-
preme Court deemed unacceptable in Catholic Bishop.29
For the same reasons discussed in my separate opinion
in Pacific Lutheran, I believe the Board should apply the
Great Falls test in this and any future case involving
nonteaching employees at religiously affiliated schools
or universities. The Great Falls test does not provide for
scrutiny into the duties of employees to determine
whether those duties are “religious enough” to warrant
exclusion from the Board’s jurisdiction. I believe this
aspect of Great Falls is correct because such scrutiny
would contravene Catholic Bishop. Rather, as Great
Falls makes clear, when evaluating the potential exemp-
tion applicable to a religiously affiliated school or uni-
versity, the institution itself is the appropriate focus—
specifically, whether the institution holds itself out to the
public as a religious institution, is nonprofit, and is reli-
giously affiliated.30 In addition to the soundness of the
test from a constitutional perspective, I believe applica-
tion of the Great Falls standard in all cases involving
religiously affiliated institutions—regardless of the facul-
ty or non-faculty status of the petitioned-for employees
in any particular case—has the additional benefit of
yielding understandable and predictable results. See
First National Maintenance Corp. v. NLRB, 452 U.S.
666, 679, 684–686 (1981) (rejecting a standard govern-
ing potential bargaining obligations when “[a]n employer
would have difficulty determining beforehand whether it

27 Pacific Lutheran, 361 NLRB No. 157, slip op. at 31 (Member
Johnson, dissenting).
28 University of Great Falls, 278 F.3d at 1343.
29 440 U.S. at 501 (emphasis added).
30 278 F.3d at 1347.
was faced with a situation requiring bargaining or one
that [was] . . . sufficiently compelling to obviate the duty
to bargain,” and when “[a] union, too, would have diffi-
culty determining the limits of its prerogatives, whether
and when it could use its economic powers to try to alter
an employer’s decision, or whether, in doing so, it would
trigger sanctions from the Board”).
Conclusion
I believe the Great Falls test, when applied here, com-
pels a conclusion that the Board should not exercise ju-
risdiction over the University with respect to the peti-
tioned-for housekeepers. First, the University holds it-
self out to the public as a religious institution. As the
Regional Director found, the University “consistently
identifies itself as a Catholic institution and publicly de-
scribes those values as inspiring the education it pro-
vides.” This Catholic identity is reflected in the Univer-
sity’s website, publicly available programs, publications,
registration as a Catholic university, and in the Catholic
iconography in many of its classrooms. Second, the
University is organized as a nonprofit. Third, the Uni-
versity is religiously affiliated, as shown by the follow-
ing facts. It is recognized as a Catholic institution locat-
ed within the Archdiocese of Chicago. Its only corporate
member is the corporate arm of the Institute of the Sisters
of Mercy of the Americas known as the Council for Mer-
cy Higher Education (CMHE), and the CMHE is “the
corporate member who links the University to the
Church and makes it an officially recognized member of
the Church.” The University is managed by an inde-
pendent Board of Trustees numbering no fewer than 25
and no more than 30, and five trustees are Sisters of
Mercy. Finally, the University is guided by the Ex Corde
Ecclesiae, the Apostolic Constitution of Pope John Paul
II on Catholic Universities.31
Accordingly, for the reasons set forth above, I respect-
fully dissent.
Dated, Washington, D.C. April 6, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
NATIONAL LABOR RELATIONS BOARD

31 These facts concerning the third prong of the Great Falls test are
derived from the Regional Director’s statement of facts in related Case
13–RC–22025. The parties agreed to include the transcripts, exhibits,
and post-hearing briefs in that case as part of the record herein.