Seattle University

National Labor Relations Board - Board Decisions

Aug 23, 2016

364 NLRB No. 84 (N.L.R.B. 2016)

364 NLRB No. 84
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.
Seattle University and Service Employees Interna-
tional Union, Local 925. Case 19–RC–122863
August 23, 2016
DECISION ON REVIEW AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND
MCFERRAN
In Pacific Lutheran University, 361 NLRB No. 157
(2014), we announced the test we would apply in deter-
mining, consistent with the First Amendment, when non-
tenure eligible (contingent) faculty have bargaining
rights under the National Labor Relations Act at self-
identified religious colleges or universities. Here, we
apply the Pacific Lutheran test to address a narrower
issue: whether, at a self-identified religious university
that is not exempt from the Board’s jurisdiction, we
should exclude teachers of religion or theology from an
otherwise appropriate faculty bargaining unit because the
university “holds out [these] faculty members as per-
forming a specific role in creating or maintaining the
school’s religious educational environment.” 361 NLRB
No. 157, slip op. at 5.
The Regional Director determined that a unit compris-
ing most of the contingent faculty at Seattle University
constituted an appropriate bargaining unit.1 The Univer-
sity seeks Board review, contending that, as a religious

1 The Petitioner filed a petition on February 20, 2014, seeking to rep-
resent a bargaining unit comprising all nontenure eligible faculty at the
University other than those teaching nursing and law. On April 17,
2014, the Regional Director issued his initial decision in this case, in
which he found that the petitioned-for unit was an appropriate bargain-
ing unit. From May 14 to June 2, 2014, the Regional Director conduct-
ed a mail-ballot election, after which he impounded the ballots. Mean-
while, the University had sought Board review of the Regional Direc-
tor’s decision. On December 16, 2014, the Board issued its decision in
Pacific Lutheran, supra, after which it issued an order remanding the
instant case to the Regional Director for further action consistent with
that decision. On March 3, 2015, the Regional Director issued a sup-
plemental decision in which he found that it was unnecessary to reopen
the record and reaffirmed his earlier decision. The University again
sought review. On June 12, 2015, the Board granted review of that
decision and remanded the case for the reopening of the record, after
which the Regional Director conducted an additional hearing. On
August 17, 2015, the Regional Director issued a second supplemental
decision in which he again asserted the Board’s jurisdiction over the
University and found the petitioned-for unit appropriate. The Universi-
ty sought review of that decision, as well. The Petitioner filed an oppo-
sition.
The University initially contended that the contingent faculty were
also exempt from the coverage of the National Labor Relations Act as
managerial employees. The Regional Director rejected that contention
and the University does not seek review of that determination.
institution, its contingent faculty is not covered by the
National Labor Relations Act. Alternatively, the Univer-
sity contends that, even if the contingent faculty general-
ly is covered by the Act, the Board should exclude from
the unit those faculty who teach at the University’s
School of Theology and Ministry and all other faculty
who teach Catholic theology.
The Board has delegated its authority in this proceed-
ing to a three-member panel. After carefully considering
the University’s request for review and the Petitioner’s
opposition, we deny review of the Regional Director’s
determination that the University’s contingent 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 University’s Department
of Theology and Religious Studies and in its School of
Theology and Ministry. We find that the University
holds them out “as performing a specific role in creating
and maintaining the school’s religious educational envi-
ronment” within the meaning of Pacific Lutheran.2
Background
Seattle University is a private, nonprofit university of-
fering undergraduate and graduate degrees at its campus-
es near Tacoma and Seattle, Washington. The University
was founded in 1891 by the Society of Jesus (more
commonly known as the Jesuits), and it holds itself out
as a religious educational institution. Its vision statement
states that the University “will be the premier independ-
ent university of the Northwest in academic quality,
Jesuit Catholic inspiration, and service to society.” The
University is organized into five colleges—Arts and Sci-
ences, Science and Engineering, Education, Nursing, and
Matteo Ricci3—and three schools—Business and Eco-
nomics, Law, and Theology and Ministry.
The College of Arts and Sciences includes the De-
partment of Theology and Religious Studies. The de-
partment offers a wide variety of classes, ranging in 2011
through 2013 from “History of Catholic Theology” and
“Liberation Catholicism” to “Between the Bible and the
Quran” and “Death of God.” At the time of the election,

2 The Regional Director correctly found that the ballots may be
opened and counted, but, for the reasons stated here, the ballots of unit
faculty in the Department of Theology and Religious Studies and in its
School of Theology and Ministry may not be counted. If those ballots
have been commingled with other ballots, the Petitioner cannot be
certified unless the Regional Director determines that it achieved a
majority of countable ballots.
3 Matteo Ricci College offers a Bachelor in the Humanities degree
on an accelerated basis to qualified students from five Seattle-area
Catholic high schools.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
about five contingent faculty were teaching classes in the
department.
The School of Theology and Ministry is operated in
conjunction with the Archdiocese of Seattle and 12 other
Christian religious denominations. The School does not
train Catholic priests, but offers degrees in divinity and
ministry, including a doctor of ministry. Between 2011
and 2013 course offerings included a wide variety of
subjects, including “Sacramental Liturgical Theology”
and “Survey of Interfaith Communities.” At the time of
the election, about seven contingent faculty were teach-
ing in the School of Theology and Ministry.
The University requires all undergraduates to take two
theology courses. Approximately two of the credit hours
must contain “a component on the Catholic tradition.”
The University’s Provost testified that the instructor of
coursework in the Catholic tradition must have “exper-
tise in Catholic theology.” The Provost further testified
that he was not aware of any faculty member teaching a
course in the Catholic tradition who was not either a Jes-
uit or a member of the Department of Religious Studies
or the Theology School. The course description pertain-
ing to Catholic tradition courses states that students will
“reflect on questions of meaning, spirituality, ethics, val-
ues and justice” through “knowledge of Jesuit, Catholic
intellectual traditions and understanding of diverse reli-
gious traditions.”
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 504.4
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

4 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. 361 NLRB
No. 157, slip op. at 3–5.
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.
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 institution, the
Board looks primarily at the school’s own statements,
particularly job advertisements and descriptions, em-
ployment contracts, employee handbooks, and similar
documents. Id., slip op. at 8–9. The test boils down to
“whether a reasonable prospective applicant [for a facul-
ty 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
Seattle University holds itself out as providing a religious
educational environment, and therefore met the threshold
test of Pacific Lutheran University. But the Regional
Director further found that the University did not meet its
burden of demonstrating that it holds out the petitioned-
for faculty as performing a specific religious function.
As stated, we deny review of the Regional Director’s
determination that, as a group, the petitioned-for unit of
contingent faculty generally do not play a “role in creat-
ing or maintaining the University’s religious educational
environment.” Uncontested evidence shows that the vast
majority of contingent faculty are not hired to advance
the religious goals of the institution. For example, calcu-
lus teachers are hired based on their ability to teach cal-
culus. They are not required to be Catholic or to take
any part in any religious activities on or off campus; reli-
gion is not mentioned in their employment contracts.5

5 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-
SEATTLE UNIVERSITY 3
Contrary to the Regional Director, however, we find
that the University met its burden at the second step with
respect to contingent faculty in the University’s Depart-
ment of Theology and Religious Studies and in the
School of Theology and Ministry. We find that a rea-
sonable prospective applicant for a contingent faculty
position in either the Department or the School would
expect that the performance of her responsibilities would
require furtherance of the University’s religious mission.
It is undisputed that those particular faculty teach
courses with religious content. Undergraduates may take
those courses, including some incorporating Catholic
teachings and traditions, to fulfill core academic re-
quirements. Faculty within the Department of Theology
and Religious Studies have expertise in Catholic theolo-
gy, other faith-based traditions, or other aspects of the
religious experience. The same holds true of faculty in
the School of Theology and Ministry, which, as stated,
confers degrees in divinity and ministry. In Pacific Lu-
theran 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. Asserting
Board jurisdiction over faculty members who teach
courses in these subjects at a religiously affiliated univer-
sity would give rise to the First Amendment concerns of
excessive government entanglement that the Court ad-
dressed in Catholic Bishop of Chicago, 440 U.S. at 501–
503. Pacific Lutheran University, 361 NLRB No. 167,
slip op. at 7; Saint Xavier University, 364 NLRB 85
(2016), slip op. at 3.6

502. But the schools at issue were high schools operated by the Catho-
lic Bishop of Chicago and by the Catholic 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)). Seattle University, by contrast, is not an arm of the Church
and does not hold itself out to potential students as a path to the priest-
hood. And as shown above, few of the contingent faculty are subject to
any kind of religious authority. Of the nine contingent faculty who
testified at the hearings, none testified that she had ever been informed
that part of her job was performing a religious role.
6 We recognize the possibility that some course offerings in the De-
partment of Theology and Religious Studies and, particularly, in the
School of Theology and Ministry, 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 contingent faculty in the Department and the School. 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.) 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
We conclude that the University holds out the non-
tenure eligible faculty in the Department of Theology
and Religious Studies and in the School of Theology and
Ministry as performing a specific role in maintaining the
university’s religious educational environment. There-
fore, we exclude these faculty members from the unit of
contingent faculty. In all other respects, the University’s
request for review is denied.
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 Seattle University should
be exempted from the jurisdiction of the National Labor
Relations Board (NLRB or Board) because Board juris-
diction impermissibly encroaches on First Amendment
guarantees associated with the University’s status as a
religiously affiliated institution.
My colleagues and I are not permitted to write from a
clean slate regarding this issue. It is governed by NLRB
v. Catholic Bishop of Chicago,1 where 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

content of those courses to those taught by faculty in other departments
and schools. As this decision clearly demonstrates, we have not. Ra-
ther, we have assessed only the University's presentation of those
courses to the faculty, students, and public at large.
The dissent asserts that, on remand, the Regional Director erred by
not permitting the University to offer additional evidence of its overall
religious purpose. But as the Regional Director pointed out, by that
stage of the proceeding, it was undisputed that the University had estab-
lished that it holds itself out as providing a religious educational envi-
ronment, i.e., the University had satisfied its burden under step one of
the Pacific Lutheran University test. Accordingly, the sole issue to be
addressed at the remand hearing was whether the University holds out
its non-tenured faculty as performing a role in creating or maintaining
that environment. The Regional Director reasonably determined the
relevance of evidence by that standard.
1 440 U.S. 490 (1979).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
“‘completely religious.’”2 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.”3
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.4 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
exercise jurisdiction.5 The Court made clear that “[g]ood
intentions by government” were not enough to “avoid
entanglement with the religious mission of the school.”6
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.’”7 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.’”8 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.’”9
The Regional Director found it was appropriate for the
Board to exercise jurisdiction over Seattle University,
notwithstanding his findings that it is a private, nonprofit
university affiliated with the Catholic Church and the
Society of Jesus, more commonly known as the Jesuits.10
As described by the Regional Director:
The University is a nonprofit. It is one of the 28 U.S.
Jesuit Colleges and Universities, listed in the registry of
U.S. Catholic universities maintained by the Catholic
Church. The University's vision statement, displayed

2 Id. at 493 (quoting Roman Catholic Archdiocese of Baltimore, 216
NLRB 249, 250 (1975)).
3 Id. at 507.
4 Id. at 502.
5 Id.
6 Id.
7 Id. at 501 (quoting Lemon v. Kurtzman, 403 U.S. 602, 617 (1971))
(emphasis omitted).
8 Id. (quoting Lemon v. Kurtzman, supra).
9 Id. (quoting Meek v. Pittenger, 421 U.S. 349, 370 (1975)) (empha-
sis added).
10 Regional Director’s Second Supplemental Decision and Order
(Second Supp. Dec.), Aug. 17, 2015, at 3.
prominently in a number of locations on its campus and
website, asserts that the University “will be the premier
independent university of the Northwest in academic
quality, Jesuit Catholic inspiration, and service to socie-
ty.” The University’s webpage frequently features
banners on Jesuit or Catholic events. There was exten-
sive testimony at both hearings about how the Univer-
sity’s mission and vision statements and Jesuit Catholic
identity pervade the University in all its operations.11
The Regional Director applied the test articulated in Pacific
Lutheran University, 361 NLRB No. 157 (2014), where a
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.”12
My colleagues deny review of the Regional Director’s
finding that the Board should exercise jurisdiction over
most of the contingent faculty at Seattle University. Ad-
hering to and applying the test announced in Pacific Lu-
theran, however, they grant review and reverse the Re-
gional Director’s assertion of jurisdiction over “those
faculty who teach in the University’s Department of
Theology and Religious Studies and in its School of
Theology and Ministry.” 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 “in-
quiry” that, by itself, may impermissibly “impinge on
rights guaranteed by the Religion Clauses.”13

11 Second Supp. Dec. at 3–4.
12 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).
13 Catholic Bishop, 440 U.S. at 502; see text accompanying fns. 4–9,
supra. My colleagues exclude from the petitioned-for unit the contin-
gent faculty in the Department of Theology and Religious Studies
(Department) and the School of Theology and Ministry (School) on the
grounds that “those particular faculty teach courses with religious con-
tent.” However, this is just the type of “finely spun judicial distinc-
tion[]” that then-Judge Breyer warned, in Universidad Central de Ba-
SEATTLE UNIVERSITY 5
For three reasons, I would grant Seattle University’s
request for review in its entirety.
First, the instant case vividly illustrates the First
Amendment problems created by the Board majority test
in Pacific Lutheran, and the distinction 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 col-
leagues find are exempt from Board jurisdiction) is for-
bidden by the main teaching of Catholic Bishop, where
the Supreme Court emphasized that the “very process of
inquiry” associated with this type of evaluation raises
First Amendment concerns,14 that the Board could not
appropriately focus selectively on “‘secular’” subjects,15
and that “‘[w]hether the subject is “remedial reading,”
“advanced reading,” or simply “reading,” a teacher re-
mains a teacher, and the danger that religious doctrine
will become intertwined with secular instruction per-
sists.’”16 Lengthy reflection is not needed to recognize
that it will often be impossible to determine whether fac-
ulty members at religiously affiliated schools who osten-
sibly teach “secular” subjects nonetheless perform “a
specific role in creating or maintaining the school’s reli-
gious educational environment.”17 However, under Pa-

yamon v. NLRB, would raise church/state entanglement concerns and
contravene Catholic Bishop. 793 F.2d 383, 402–403 (1st Cir. 1985) (en
banc) (“[W]e cannot avoid entanglement by creating new, finely spun
judicial distinctions 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 Catholic Bishop forecloses. These ad hoc efforts, the applica-
tion 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.
14 440 U.S. at 502.
15 Id. at 501 (quoting Lemon v. Kurtzman, 403 U.S. at 617) (empha-
sis omitted).
16 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 Seattle 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).
17 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 Theology and Reli-
cific Lutheran, it now appears that the Board majority
will scrutinize the content of courses to determine, for
example, (i) whether an ethics course encompasses reli-
gious teachings and examples from the Bible, the Koran
and other “religious” works, or whether the course fo-
cuses exclusively on “non-religious” philosophers,
scholars and commentators (with the Board determining
what qualifies particular authorities as “religious” or
“non-religious” when addressing ethical questions); (ii)
whether a logic course deals exclusively with “non-
religious” symbolic logic and logical fallacies, or wheth-
er the course includes the study of religious teachings
that appear to be “illogical” (e.g., the story in the Gospel
of John where Jesus feeds a crowd of 5,000 with five
loaves and two fish);18 or (iii) whether a music composi-
tion course teaches choral and instrumental writing based
exclusively on secular music, or whether the course in-
cludes the great religious works of Handel, Bach, Liszt,
Tchaikovsky, Mozart, Haydn, and others.19

gious Studies and, particularly, in the School of Theology and Ministry,
may have only a tenuous relationship to the religious mission of the
University.” Contrary to my colleagues’ assertion, however, excluding
from the unit all contingent faculty in the Department and School does
not “avoid having to assess the religious content of any course.” Ra-
ther, my colleagues exclude contingent faculty in the Department and
School on the basis that they “teach courses with religious content,”
which necessarily 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 presenta-
tion 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 “presen-
tation” of a course means assessing the course’s content as set forth in
that presentation.
18 John 6:1–14, Holy Bible, New International Version (2011)
(https://www.biblegateway.com/passage/?search=John+6:1-14) (last
viewed July 19, 2016).
19 It appears clear that no limiting principle would obviate the need
for the Board to closely examine individual topics and subtopics when
making religious/secular and exempt/nonexempt determinations regard-
ing particular faculty members and departments under the test articulat-
ed in Pacific Lutheran. These determinations could be quite challeng-
ing. For example, when applying Pacific Lutheran, what should the
Board conclude with regard to the instructor of a music composition
course that devotes substantial time to studying the Saint-Saëns Requi-
em, Op. 54 (1878), a Catholic mass written by Camille Saint-Saëns,
who is widely regarded as an atheist and who maintained that “art and
science would take the place of religion”? See Jane Stuart Smith, The
Gift of Music, p. 144 (1995); see also Wikipedia, List of atheists in
music (https://en.m.wikipedia.org/wiki/List_of_atheists_in_music) (last
viewed July 19, 2016);
http://www.allaboutheaven.org/sources/733/190/saint-saens (last
viewed July 19, 2016) (Saint-Saëns “was fascinated by spirituality, but
had no time for religion.”). Obviously, the Board has no expertise
regarding these types of matters; and even if it were otherwise permis-
sible to address such matters, it is almost certain that the courts will not
give deference to Board findings as to whether a particular course,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
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,
Seattle University has clearly raised a substantial issue
regarding whether it is exempt from the Act’s coverage
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 Society of
Jesus. 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 believe a
substantial issue is raised by the Regional Director’s de-
nial of the University’s request for special permission to
appeal the Hearing Officer’s ruling sustaining the Peti-

treatise, or musical composition is sufficiently “religious” to warrant a
determination that the faculty member who provides relevant instruc-
tion is exempt on First Amendment grounds.
20 278 F.3d at 1343.
tioner’s objection to the introduction of evidence con-
cerning the University’s religious purpose, and limiting
testimony and other evidence to the second prong of the
Pacific Lutheran test. In this regard, I believe that sub-
stantial questions exist as to whether the Hearing Of-
ficer’s ruling incorrectly limited the scope of the Board’s
June 12, 2015 remand Order,21 and whether the ruling
prejudiced the University by denying it the opportunity
to present evidence relevant to the Pacific Lutheran
standard.22
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
contingent faculty members. Accordingly, I respectfully
dissent.
Dated, Washington, D.C. August 23, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

21 The Board’s June 12, 2015 Order granted the University’s request
for review of the Regional Director’s supplemental decision and re-
manded this case “to the Regional Director to reopen the record to
permit the parties to adduce additional evidence in light of the Board’s
decision in Pacific Lutheran University, 361 NLRB No. 157 (2014).”
22 Although the Regional Director found, based on evidence intro-
duced at the initial hearing in this case—which took place before the
Board issued its decision in Pacific Lutheran—that the University met
its burden under prong one of the Pacific Lutheran standard by estab-
lishing that it holds itself out as providing a religious educational envi-
ronment, evidence relating to the University’s overall religious purpose
may also be relevant to its burden of establishing, under the second
prong of the Pacific Lutheran standard, that it holds its faculty mem-
bers out “as performing a specific role in creating or maintaining [its]
religious purpose or mission.” Pacific Lutheran University, supra, slip
op. at 8.