Bethany College

National Labor Relations Board - Board Decisions

Jun 10, 2020

369 N.L.R.B. 98 (N.L.R.B. 2020)

369 NLRB No. 98
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.
Bethany College and Thomas Jorsch and Lisa Guinn.
Cases 14–CA–201546 and 14–CA–201584
June 10, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The threshold and dispositive issue in this case is
whether the Board can exercise jurisdiction over the fac-
ulty of the Respondent, a self-identified religious institu-
tion of higher education.1 Applying Pacific Lutheran Uni-
versity, 361 NLRB 1404 (2014), the judge answered that
jurisdictional question in the affirmative. With the case
now before us on exceptions, the General Counsel has
changed position and urges us to reverse the judge and dis-
miss the complaint by overruling Pacific Lutheran in rel-
evant part and adopting the jurisdictional test announced
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).
We agree with the General Counsel. It is clear to us that
the Great Falls decision correctly interpreted the Supreme
Court’s holding in NLRB v. Catholic Bishop of Chicago2
and properly concluded that the exercise of Board juris-
diction over religious schools in matters involving faculty
members will inevitably involve inquiry into the religious
tenets of these institutions. We agree that such inquiry
would impermissibly present a significant risk that the
protections set forth in the Religion Clauses of the First
Amendment of the Constitution would be infringed.3 We
also agree with the D.C. Circuit that the Board’s Pacific
Lutheran test fails to avoid that risk. Duquesne University
of the Holy Spirit v. NLRB, 947 F.3d 824 (D.C. Cir. 2020),
petition for en banc consideration filed No. 18-1063 (D.C.
Cir. Feb. 25, 2020).
Accordingly, we have decided to overrule Pacific Lu-
theran in relevant part4 and to adopt the D.C. Circuit’s
three-pronged standard announced in Great Falls.5
1 On October 31, 2018, Administrative Law Judge Christine E. Dib-
ble issued the attached decision. The Respondent filed exceptions and a
supporting brief, the General Counsel and the Charging Parties filed an-
swering briefs, and the Charging Parties filed cross exceptions.
The National Labor Relations Board has considered the decision and
the record in light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
2 440 U.S. 490 (1979).
3 Specifically, the First Amendment provides that “Congress shall
make no law respecting an establishment of religion, or prohibiting the
free exercise thereof . . . .” This provision contains two clauses, the
Specifically, in determining whether to assert jurisdiction
over the faculty of an educational institution claiming ex-
emption under the principles set forth in Catholic Bishop,
we will inquire only whether the institution (a) holds itself
out to the public as a religious institution, (b) is nonprofit,
and (c) is religiously affiliated. Applying the Great Falls
test in this case, we reverse the judge’s decision and dis-
miss the underlying unfair labor practice complaint.
I.
Catholic Bishop of Chicago
In 1975, the Board asserted jurisdiction over separate
units of lay teachers at two groups of Catholic high
schools, one controlled by the Bishop of Chicago and the
other by the Diocese of Fort Wayne-South Bend in Indi-
ana. In asserting jurisdiction over the schools, the Board
relied on its extant policy of declining jurisdiction over re-
ligiously sponsored organizations only where they were
“‘completely religious, not just religiously associated.’”
Catholic Bishop of Chicago, 220 NLRB 359, 359 (1975)
(quoting Roman Catholic Archdiocese of Baltimore, 216
NLRB 249, 250 (1975)).
After the Seventh Circuit Court of Appeals denied en-
forcement of the Board’s underlying decision,6 the case
was heard by the Supreme Court, which rejected the
Board’s decision to exercise jurisdiction. In NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490 (1979), the
Court first concluded that if the National Labor Relations
Act authorized Board jurisdiction over church-operated
schools and their lay teachers, there would be a “signifi-
cant risk that the First Amendment will be infringed,” and
the Court could be forced to “resolve difficult and sensi-
tive questions arising out of the guarantees of the First
Amendment Religion Clauses.” Id. at 501–502, 507.
The Court emphasized the “critical and unique role of
the teacher in fulfilling the mission of the school,” irre-
spective of whether the teacher provides instruction in re-
ligious or secular subjects. Id. at 501. It also provided two
specific examples of significant risk that the exercise of
Board jurisdiction would infringe First Amendment rights
under the Religion Clauses. First, the Court recognized
that if the Board were to exercise jurisdiction over matters
Establishment and Free Exercise Clauses, which are often collectively
referred to as the “Religion Clauses” of the First Amendment, and we
will use that designation here.
4 We note that this case does not present the issue whether the stand-
ard for determining the managerial status of faculty set forth, and applied,
in Pacific Lutheran is appropriate. See Pacific Lutheran, 361 NLRB at
1417–1428. In fact, the managerial status issue will be mooted in any
case where a religiously affiliated school is deemed exempt from Board
jurisdiction under the Great Falls standard we adopt today.
5 278 F.3d at 1347.
6 559 F.2d 1112 (7th Cir. 1977) (denying enforcement of The Catho-
lic Bishop of Chicago, 224 NLRB 1221 (1976)).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
involving teachers at a religious school, the resolution of
certain unfair labor practice charges would “necessarily
involve inquiry into the good faith of the position asserted
by the clergy-administrators and its relationship to the
school’s religious mission. It is not only the conclusions
that may be reached by the Board which may impinge on
rights guaranteed by the Religion Clauses, but also the
very process of inquiry leading to findings and conclu-
sions.” Id. at 502. Second, with respect to bargaining re-
lationships subjected to the Board’s jurisdiction, the Court
observed that “[t]he Board will be called upon to decide
what are ‘terms and conditions of employment’ and there-
fore mandatory subjects of bargaining” under Section 8(d)
of the Act. Id. at 502–503. This would inevitably “impli-
cate sensitive issues that open the door to conflicts be-
tween clergy-administrators and the Board, or conflicts
with negotiators for unions,” giving “‘rise to entangling
church-state relationships of the kind the Religion Clauses
sought to avoid.’” Id. at 503 (quoting Lemon v. Kurtzman,
403 U.S. 602, 616 (1971)). Accordingly, consistent with
its “prudential policy” of constitutional avoidance, the
Court “declin[ed] to construe the Act” to permit the
Board’s exercise of jurisdiction “in the absence of a clear
expression of Congress’ intent to bring teachers at church-
operated schools within the jurisdiction of the Board.” Id.
at 501, 507.
II.
Judicial Rejection of the Board’s Substantial Religious
Character Test
Subsequent to the Catholic Bishop decision, the Board
decided on a case-by-case basis whether a religiously af-
filiated school had a “substantial religious character,” and,
if that was not established, the Board would exercise ju-
risdiction over the school at issue. These attempts to test
the limits of the Catholic Bishop decision, however, were
consistently rejected by reviewing courts, even when ap-
plied to college-level education. See Carroll College v.
NLRB, 558 NLRB 568 (D.C. Cir. 2009); University of
Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002);
Universidad Central de Bayamon v. NLRB, 793 F.2d 383
(1st Cir. 1986) (en banc); NLRB v. Bishop Ford Central
Catholic High School, 623 F.2d 818 (2d Cir. 1980).
Bayamon involved the court’s review of the Board’s as-
sertion of jurisdiction under the “substantial religious
character” test over a private Roman Catholic university
claiming exemption under Catholic Bishop. In an evenly
divided en banc decision, the First Circuit denied enforce-
ment of the Board’s order in the underlying case. In an
opinion written for the judge’s finding that the Board
lacked jurisdiction, then-Judge Breyer rejected the
Board’s finding that the university was not church-
controlled, 793 F.2d 399–400, but found that the school
could be properly described, in respect to its mission, as
an institution “‘with admittedly religious functions but
whose predominant higher education mission is to provide
. . . students with a secular education.’” Id. at 401 (quoting
Tilton v. Richardson, 403 U.S. 672, 687 (1971)) (ellipsis
in original). Finding that Board precedent reflected a con-
scious policy not to apply Catholic Bishop to an institution
of higher education so described, then-Judge Breyer pro-
ceeded to detail reasons why this policy was legally mis-
taken.
“First, the language of Catholic Bishop itself does not
distinguish colleges from primary and secondary
schools.” Id. at 401. Second, the assertion of Board juris-
diction over religiously affiliated colleges and universities
would pose the same or greater specific risks of state/reli-
gion entanglement that the Supreme Court said would re-
sult at the secondary school level. Third, and perhaps
most importantly, the failure to apply Catholic Bishop to
religiously affiliated institutions of higher education
“would undercut that opinion’s basic rationale and pur-
pose.” Id. at 402. The Supreme Court there sought to
minimize the extent to which the Board’s inquiry into the
nature of such institutions under the completely religious
test—an inquiry that involves delving into matters of cur-
riculum, teaching, and counseling—“would itself entangle
the Board in religious affairs.” The Board’s failure to ap-
ply this rationale at all educational levels would neces-
sarily entangle the Board and the courts in the develop-
ment of a variety of new distinctions and controls over the
Board’s efforts to examine religious matters. “These ad
hoc efforts, the application of which will themselves in-
volve significant entanglement, are precisely what the Su-
preme Court in Catholic Bishop sought to avoid.” Id. at
402–403.
The subsequent D.C. Circuit decision in Great Falls
likewise involved judicial review of the Board’s assertion
of jurisdiction, under the “substantial religious character”
test, over the faculty of a private Roman Catholic univer-
sity claiming exemption under Catholic Bishop. In the un-
derlying Board case, the regional director “issued a deci-
sion extensively exploring the evidence of religious faith,
practice and mission at the University” and, thereafter,
concluded that the Board should exercise jurisdiction be-
cause “‘propagation of a religious faith is not the primary
purpose of the [University], but rather . . . the University’s
purpose and function are primarily secular.’” 278 F.3d at
1338, 1340 (quoting University of Great Falls, 331 NLRB
1663, 1665 (2000)). The Board adopted the regional di-
rector’s findings, agreeing that the University did not have
a “substantial religious character” and that it was therefore
distinguishable from the schools at issue in Catholic
BETHANY COLLEGE 3
Bishop. Id. at 1340 (citing Great Falls, 331 NLRB at
1665–1666).
Upon review, the D.C. Circuit found that the “substan-
tial religious character” test involved the same “intrusive
inquiry” and same “exact kind of questioning into reli-
gious matters which Catholic Bishop specifically sought
to avoid,” with “the NLRB trolling through the beliefs of
the University, making determinations about its religious
mission, and that mission’s centrality to the ‘primary pur-
pose’ of the University.” 278 F.3d at 1341–1343 (empha-
sis in original); see also Corp. of Presiding Bishop v.
Amos, 483 U.S. 327, 343–344 (1987) (finding that the at-
tempt to decide which activities in an organization are sec-
ular as opposed to religious improperly entangles the gov-
ernment in religious affairs and creates a risk of chilling
religious activity).
After rejecting the Board’s test, the court concluded that
in order to properly determine when the Catholic Bishop
exemption from Board jurisdiction over faculty members
at an allegedly religiously affiliated school should apply,
a “bright line” test based on objective facts was required.
Drawing partially from Judge Breyer’s opinion in Baya-
mon, the court promulgated a three-prong test, under
which the Board “must decline to exercise jurisdiction”
over an institution that (a) “holds itself out to students, fac-
ulty, and community as providing a religious educational
environment”; (b) is “organized as a nonprofit”; and (c) is
“affiliated with, or owned, operated, or controlled, directly
or indirectly, by a recognized religious organization, or
with an entity, membership of which is determined, at
least in part, with reference to religion.” Great Falls, 278
F.3d at 1343–1344, 1347 & fn. 2. As the court explained,
this test 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 regu-
latory demands.” Id. at 1345. At the same time, the test
“provides the Board and the courts with some assurance
that the institutions availing themselves of the Catholic
Bishop exemption are bona fide religious institutions.” Id.
at 1344.
The D.C. Circuit reaffirmed the Great Falls test 7 years
later in Carroll College v. NLRB, 558 F.3d 568 (D.C. Cir.
2009). Declining to enforce a Board order requiring that
yet another Roman Catholic–affiliated college bargain
with a union representing a faculty employee unit, the
court stated that the Board “should have known immedi-
ately” that exercising jurisdiction in that matter violated
the bright-line Great Falls test. Id. at 574. The court went
on to explain that the only permissible inquiry relative to
prong one of that test is limited to considering the school’s
“public representations as to its religious educational
environment” and that, for constitutional reasons, any fur-
ther inquiry is improper. Id. at 572–573.
III.
Pacific Lutheran University
In 2014, a Board majority attempted to craft still another
approach testing the limits of Catholic Bishop’s jurisdic-
tional holding. In Pacific Lutheran University, 361 NLRB
at 1404, a union filed a petition to represent a unit of all
nontenure-eligible contingent faculty members employed
by the university. Despite finding that the university held
itself out as “creating a religious educational environ-
ment,” id. at 1415, ostensibly accepting the first prong of
the Great Falls test, the majority nevertheless concluded
that an additional “holding out” inquiry was required in
order to determine whether the Board should assert juris-
diction. The majority held that a religious college or uni-
versity seeking to establish that it was exempt from the
Board’s jurisdiction also has to show that “it holds out the
petitioned-for faculty members themselves as performing
a specific role in creating or maintaining the college or
university’s religious educational environment, as demon-
strated by its representations to current or potential stu-
dents and faculty members, and the community at large.”
Id. at 1414 (emphasis added).
This second-step inquiry into the specific role played by
petitioned-for faculty members effectively became the fo-
cal point of the new jurisdictional test. The Board major-
ity reasoned that “[f]aculty members who are not expected
to perform a specific role in creating or maintaining the
school’s religious educational environment are indistin-
guishable from faculty at colleges and universities which
do not identify themselves as religious institutions and
which are indisputably subject to the Board’s jurisdic-
tion.” Id. at 1411. The Board reasoned that it would be
unfair to deny those faculty in a religious school the same
rights under the Act as enjoyed by faculty in undisputedly
secular schools. The majority claimed to avoid the risk of
impermissible inquiry into religious beliefs by purportedly
applying the same objective “holding out” standard to the
examination of faculty roles that the Great Falls court ap-
plied to the school itself. However, the specific descrip-
tion of that standard belied this claim:
Although we will not examine faculty members’ actual
performance of their duties, we shall require that they be
held out as performing a specific religious function.
Generalized statements that faculty members are ex-
pected to, for example, support the goals or mission of
the university are not alone sufficient. These types of
representations do not communicate the message that
the religious nature of the university affects faculty
members’ job duties or requirements. They give no
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
indication that faculty members are expected to incorpo-
rate religion into their teaching or research, that faculty
members will have any religious requirements imposed
on them, or that the religious nature of the university will
have any impact at all on their employment.
Id. (italics in original).
Applying the new test, the Board found it appropriate to
exercise jurisdiction over Pacific Lutheran University and
the petitioned-for contingent faculty members, based on
its conclusion that there was nothing in the University’s
“governing documents, faculty handbook, website pages,
or other material” that would suggest to students, faculty,
or the community that the faculty members at issue “per-
form any religious function.” Id. at 1416.
Members Miscimarra and Johnson each dissented from
the Pacific Lutheran majority’s holding that the Catholic
Bishop jurisdictional exemption for religious schools
should only apply if faculty members are held out “as per-
forming a specific religious function.” Among numerous
arguments made by the dissenters, Member Johnson ob-
served that the specific religious function requirement of
Pacific Lutheran “not only fails to avoid the First Amend-
ment questions, it plows right into them at full tilt” by
again calling on the Board “to judge the religiosity of the
functions that the faculty perform.” Id. at 1433–1434.
As mentioned above, the D.C. Circuit recently rejected
the Board’s Pacific Lutheran test in Duquesne University,
947 F.3d at 824. A panel majority there determined that
the circuit’s prior decisions in Carroll College and Great
Falls were conclusive of the jurisdictional issue. It re-
jected the argument that the Great Falls “bright line” test
permits the Board to assert jurisdiction over an educa-
tional institution that meets the three-part test based on the
roles played by its faculty. As the court explained, “it
makes no difference whether the adjuncts are faculty
members who play a role in Duquesne’s religious educa-
tional environment.” Id. at 833 (emphasis in original).
“The Board may not ‘dig deeper’ by examining whether
faculty members play religious or non-religious roles, for
‘[d]oing so would only risk infringing upon the guarantees
of the First Amendment’s Religion Clauses.’” Id. (quot-
ing Carroll College v. NLRB, 558 F.3d at 572). The court
further explained that its “refusal [in Great Falls] to ex-
amine the roles played by various faculty members fol-
lowed directly from Catholic Bishop,” where “the Su-
preme Court did not differentiate between teachers who
play religious roles and those who play secular roles, but
rather held that the Board lacked jurisdiction over all
teachers at church-operated schools.” Id. at 834 (emphasis
in original) (citing Catholic Bishop, 440 U.S. at 501).
The Duquesne court rejected the assertion in Pacific Lu-
theran that an inquiry into the way in which faculty mem-
bers were held out to the public would not risk infringe-
ment on First Amendment rights. In support of its posi-
tion, the Pacific Lutheran decision attempted to suggest
types of conduct that would pass its test and types that
would not. For example, the decision deemed “indoctri-
nation” to be “sufficiently religious,” but found that “sup-
porting religious goals” was not. 947 F.3d at 835. The
court concluded that such attempts at “line-drawing” or
“second-guessing” are themselves an impermissible sub-
stitution of the Board’s views about what constitutes reli-
gious activity for educational institutions’ own views on
the matter. As the court found, such attempts “minimize
the legitimacy of the beliefs expressed by a religious en-
tity” and present a risk of conflict with the Religion
Clauses of the Constitution. Id. at 835–836 (citations
omitted).
IV.
Pacific Lutheran is Overruled and the Great Falls
Test is Adopted
For the reasons set forth in Catholic Bishop, in the court
opinions applying the tenets of that decision, and in the
dissenting opinions in Pacific Lutheran, we hold that Pa-
cific Lutheran must be overruled as inherently incon-
sistent with the binding rationale of the Supreme Court in
Catholic Bishop. Our analysis begins, as it must, with the
clear mandate in the First Amendment of the Constitution
that “Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof.”
The Religion Clauses limit government involvement in
the affairs of religious groups and also safeguard the free-
dom to practice religion, whether as an individual or as a
part of a group. See, e.g., Hosanna-Tabor Evangelical Lu-
theran Church & Sch. v. EEOC, 565 U.S. 171, 181–190
(2012). As the Supreme Court has recognized, “[t]he val-
ues enshrined in the First Amendment plainly rank high
on the scale of our national values.” Catholic Bishop, 440
U.S. at 501.
We recognize that the Board has an important mission
to protect employees’ rights set forth in the National Labor
Relations Act, but those rights are subordinate to those en-
shrined in the Constitution where there is a potential con-
flict between the two. The fundamental flaw in Pacific
Lutheran was the majority’s refusal to accept this reality.
As Member Johnson stated in his Pacific Lutheran dis-
sent, the majority in that case persisted in the fundamen-
tally mistaken assumption that the Board may engage in a
balancing of competing statutory and constitutional inter-
ests. We agree with Member Johnson’s assertion that
BETHANY COLLEGE 5
[t]here is no balancing test, because no federal statute
commands the gravitas of the Constitution. Simply
stated, while the Act is of paramount importance in al-
most every other scenario—it is dwarfed by the First
Amendment’s protection of religion. Instead of a bal-
ancing act of any kind, what Catholic Bishop and the
doctrine of constitutional avoidance establish is a warn-
ing for us: “make absolutely sure the Act was intended
to encompass religious universities, and that the Act
mandates your test of jurisdiction for teachers at those
universities” before we impose it on religious universi-
ties.
361 NLRB at 1432. As to that point, Catholic Bishop pro-
vides the answer: “There is no clear expression of an affirm-
ative intention of Congress that teachers in church-operated
schools should be covered by the Act.” 440 U.S. at 504. Ac-
cordingly, the Court effectively mandated that the Act be in-
terpreted to avoid the substantial risk of infringement of the
rights contained in the Religion Clauses that the exercise of
Board jurisdiction over teachers at religious schools would
pose. The Catholic Bishop Court could not have been
clearer: “We see no escape,” it said, “from conflicts flowing
from the Board’s exercise of jurisdiction over teachers in
church-operated schools and the consequent serious First
Amendment questions that would follow.” Id.
Despite this clear message, the Board, which has no ex-
pertise in matters of constitutional interpretation and is en-
titled to no judicial deference when interpreting Supreme
Court precedent on such matters, has until now persisted
in defying the risks of First Amendment infringement ra-
ther than avoiding them. In particular, the two-part Pacific
Lutheran test is fatally flawed because its required analy-
sis, at step two, of whether faculty members at religiously
affiliated institutions of higher learning are held out as per-
forming a specific religious function entails an impermis-
sible inquiry into what does and what does not constitute
a religious function. As detailed above, this approach has
been soundly rejected by the courts as irreconcilable with
the holding, rationale, and purpose of Catholic Bishop.
See, e.g., Duquesne University, 947 F.3d at 834–835 (in-
quiry into whether faculty are held out as playing specific
religious roles would “still require the Board to define
what counts as a ‘religious role’ or a ‘religious function’”);
Bayamon, 793 F.2d at 402–403 (finding that the Board’s
attempt to create and administer distinctions between
7 See, e.g., Town of Greece, New York v. Galloway, 572 U.S. 565,
582 (2014) (noting that the very act of sifting “sectarian” from “nonsec-
tarian” prayer would be futile and would unconstitutionally entangle the
courts with religion); Mitchell v. Helms, 530 U.S. 793, 828 (2000)
(“[I]nquiry into the recipient’s religious views required by a focus on
whether a school is pervasively sectarian is not only unnecessary, but
offensive.”); Corp. of the Presiding Bishop v. Amos, 483 U.S. at 326
religious and secular instruction “would itself entangle the
Board in religious affairs”); see also Pacific Lutheran Uni-
versity, 361 NLRB at 1434 (Member Johnson, dissenting)
(finding that new test places the Board in the “untenable
position of deciding what can, and what cannot, be
deemed a sufficiently religious role or a sufficiently reli-
gious function”) (emphasis in original).
Because the Supreme Court has clearly decided this
matter, and because we find the rationale set forth in Cath-
olic Bishop and in the circuit court decisions interpreting
that seminal case to be persuasive, we now hold that the
Board does not have jurisdiction over matters concerning
teachers or faculty at bona fide religious educational insti-
tutions. We further hold that the test set forth in the D.C.
Circuit’s Great Falls case is the appropriate test to use
when determining whether it is proper for the Board to ex-
ercise its jurisdiction in these cases. Under this bright-line
test, the Board will leave the determination of what con-
stitutes religious activity versus secular activity precisely
where it has always belonged: with the religiously affili-
ated institutions themselves, as well as their affiliated
churches and, where applicable, the relevant religious
community. Applying the Great Falls test will remove
any subjective judgments about the nature of the institu-
tions’ activities or those of its faculty members and limit
the Board to making jurisdictional determinations based
on objective evidence. It will prevent the type of intrusive
inquiries that the Supreme Court prohibited in Catholic
Bishop and has found problematic in other contexts.7 Fi-
nally, and importantly, it will provide the Board with a
mechanism for determining when self-identified religious
schools are not, in fact, bona fide religious institutions,
therefore protecting the rights of employees working for
those institutions.
For all these reasons, we find that the Pacific Lutheran
test cannot be squared with Supreme Court precedent and,
accordingly, we reject it and adopt the Great Falls test in
its place.
V.
Application of the Great Falls Test in this Case
The Respondent is a 501(c)(3) institution of higher
learning in Lindsborg, Kansas. According to the Re-
spondent’s Bylaws, it is a ministry of the Evangelical Lu-
theran Church in America (ELCA) and is owned and op-
erated by the Central States Synod and the
(finding that it is a “significant burden” for a religious institution “to pre-
dict which of its activities a secular court will consider religious”); New
York v. Cathedral Academy, 434 U.S. 125, 133 (1977) (Litigation be-
tween church and state “about what does or does not have religious
meaning touches the very core of the constitutional guarantee against re-
ligious establishment.”).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Arkansas/Oklahoma Synod of the ELCA. During the pe-
riod of time at issue, the Respondent had a student body
totaling about 643 students. Because the Respondent did
not participate in the hearing, the record evidence pertain-
ing to the jurisdictional issue presented is primarily lim-
ited to the Respondent’s Handbook and testimony from
Professor Thomas Jorsch, who was hired by the Respond-
ent in August 2014.8
Applying the Great Falls test to the instant case, we find
that the Respondent is exempt from the Board’s jurisdic-
tion and that, therefore, the complaint alleging unfair labor
practices committed against specific faculty members
must be dismissed.9 To begin, we agree with the judge’s
finding that the Respondent meets the first prong of the
Great Falls test by holding itself out to students, faculty,
and the community as providing a religious educational
environment. For example, the Respondent’s Handbook
states that the “object and purpose of this Corporation
shall be to establish and maintain a Christian institution of
higher education to be known as ‘Bethany College’; to
serve Jesus Christ and His church by training men and
women who seek a liberal arts education under Christian
auspices; and to acquaint these students with the cultural,
intellectual, and religious forces in the field of higher ed-
ucation.” Further, various job postings entered into the
record demonstrate that prospective faculty members and
other employees were informed of the Respondent’s reli-
giously based nature. The job posting to which Charging
Party Jorsch responded when applying to work for the Re-
spondent specifically notes that the Respondent is a col-
lege of the ELCA with a mission “to educate, develop, and
challenge individuals to reach for truth and excellence as
they lead lives of faith, learning, and service.”
The second prong of the Great Falls test is also met
here; as mentioned above, the Respondent is established
as a 501(c)(3) nonprofit institution. Finally, the third
prong, that the institution must be “affiliated with, or
owned, operated, or controlled, directly or indirectly, by a
recognized religious organization, or with an entity, mem-
bership of which is determined, at least in part, with refer-
ence to religion,” is easily met.10 Again, as described
above, the Respondent is owned and operated by the
8 In her decision, the judge states that “the Respondent’s refusal to, at
minimum, present evidence showing it is exempt from the Act because
of its religious affiliation leaves me with no choice but to find that the
General Counsel has established jurisdiction.” The judge, however,
clearly misunderstood that the Respondent did not have the burden to
establish that the Board lacked jurisdiction over it. The burden to estab-
lish Board jurisdiction clearly rests on the General Counsel. See, e.g.,
Construction and General Laborers Local 1177, 269 NLRB 746, 746
(1984) (“The burden of proof regarding jurisdiction, as with all other el-
ements of a prima facie case, is on the General Counsel.”). In fact, a
court may reject a Board decision on jurisdictional grounds “even though
Central States Synod and the Arkansas/Oklahoma Synod
of the ELCA.
CONCLUSION
The issue before us was decided for all intents and pur-
poses by the Supreme Court in 1979. The Court rejected
the Board’s attempt to assert jurisdiction over church-con-
trolled schools, finding that any inquiry that seeks to dif-
ferentiate between “secular” and “religious” duties or ac-
tivities of faculty members at these schools cannot be un-
dertaken due to the inherent risk of conflict with the rights
enshrined in the First Amendment’s Religion Clauses.
We see no reason any longer to question the scope and
meaning of the Supreme Court’s clear disposition of this
issue. Further, we find that the D.C. Circuit’s Great Falls
test for determining Board jurisdiction in these matters
constitutes a faithful application of the constitutional prin-
ciples set forth in Catholic Bishop. Accordingly, we over-
rule Pacific Lutheran University in relevant part and fully
adopt the Great Falls test for determining whether to ex-
ercise jurisdiction over the faculty of self-identified reli-
gious schools, including colleges and universities. Be-
cause the Respondent satisfies all three prongs of the
Great Falls test, we find that the Board cannot exercise
jurisdiction over it. Accordingly, we reverse the judge’s
findings, and we dismiss the complaint.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. June 10, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
the college never raised the jurisdictional issue before the Board.” Car-
roll College v. NLRB, 558 F.3d at 547.
9 In light of our finding herein, we need not pass on the Respondent’s
procedural exceptions, including its challenge to the judge’s denial of its
request for a stay in the proceedings and petition to revoke certain inves-
tigative subpoenas and the judge’s reliance on adverse inferences.
10 In Great Falls, the court expressed some concern about the breadth
of this prong of the test but found it unnecessary to address that concern
because the religious affiliation of the University of Great Falls was un-
questionable. See 278 F.3d at 1343–1344. As in that case, the religious
affiliation of Bethany College has been clearly established.
BETHANY COLLEGE 7
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Rebecca Proctor, Esq. and Julie Covel, Esq., for the General
Counsel.
Gregory P. Goheen, Esq., for the Respondent.
DECISION
I. STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge. This case
was tried in Lindsborg, Kansas, on December 6, 2017. Thomas
Jorsch (Jorsch) filed the charge in case 14–CA–201546 on June
19, 2017.1 The first amended charge in case 14–CA–201546 was
filed by Jorsch on August 28. The charge in case 14–CA–
201584 was filed by Lisa Guinn (Guinn) on June 29, with an
amended charge filed in the case on August 28. The Regional
Director for Region 14, (the Region) of the National Labor Re-
lations Board (NLRB/the Board) issued an Order Consolidating
Cases, Consolidated Complaint and Notice of Hearing on August
30. On September 13, Bethany College (the Respondent/the
College) filed a timely answer and affirmative defenses to the
consolidated complaint denying all material allegations in the
complaint.
The consolidated complaint alleges that the Respondent vio-
lated Section 8(a)(1) of the National Labor Relations Act
(NLRA/the Act) when (1) since about December 29, 2016, the
Respondent has unlawfully maintained an overly broad confi-
dentiality rule; (2) about May 19, the Respondent, by William A.
Jones (Jones), prohibited employees from engaging in concerted
activities with other employees for the purposes of mutual aid
and protection by asking them tosign an agreement not to dis-
close a proposed tenure plan; (3) about June 23, the Respondent,
by Jones, through email prohibited employees from discussing
terms and conditions of employment with each other; and (4)
about June 26, the Respondent, by Jones, through a letter in-
formed employees that they were being discharged for engaging
in protected, concerted activities. The consolidated complaint
also alleges that on about June 27, the Respondent discharged its
employees Jorsch and Guinn in violation of Section 8(a)(1) and
(3) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the posthearing
brief filed by the General Counsel, I make the following findings
of fact and conclusions of law
II. PRE AND POST-TRIAL MOTIONS
The General Counsel contends that because the Respondent
refused to comply and produce the subpoenaed documents and
witnesses, I should issue sanctions. Moreover, the General
Counsel argues that as a result of the Respondent’s refusal to
participate in the administrative trial, the Respondent is unable
1 All dates are in 2017, unless otherwise indicated.
to and has failed to establish lack of jurisdiction based on its re-
ligious affiliation.
A. Respondent’s Motion to Dismiss or in the Alternative
Motion for Summary Judgment
On November 8, the Respondent filed with the Board a motion
to dismiss the consolidated complaint or in the alternative motion
for summary judgment objecting to the proceedings on the basis
of jurisdiction.2 The Respondent’s filing with the Board in-
cluded attachments for its consideration. The General Counsel
filed a response on November 13, opposing the motion to dismiss
or in the alternative for summary judgment. Since the Board had
not ruled on the motion prior to the opening of the administrative
trial, I heard oral arguments on the Respondent’s motion.
Shortly after the administrative trial adjourned, on December
6, the Board issued an order denying the Respondent’s motion.
In its order, the Board ruled that the Respondent failed to estab-
lish that there are no genuine issues of material fact warranting a
hearing and that it is entitled to judgment as a matter of law.
Consequently, the need for me to rule on the Respondent’s mo-
tion to dismiss, or in the alternative motion for summary judg-
ment is moot.
B. Respondent’s Motion to Revoke the General
Counsel’s Subpoenas
On November 13, the General Counsel served the Respondent
with a subpoena duces tecum. On the same date, the Respond-
ent’s supervisors and/or agents, Jones, Robert Carlson (Carlson),
and Joyce Pigge (Pigge), were served with subpoenas ad testifi-
candum. The Respondent filed a petition to revoke the subpoe-
nas on November 20. The Respondent claims that the Board
lacks jurisdiction over the Respondent because it is a higher ed-
ucation institution with religious affiliation; and thus the Board
is unable to compel production of documents or the appearance
of witnesses Jones, Pigge, and Carlson. Moreover, the Respond-
ent argues that the Board lacks jurisdiction over Jorsch’s com-
plaint because he was a faculty member with managerial author-
ity. Even assuming the Board properly has jurisdiction over the
Respondent, the Respondent contends that the subpoenas seek to
compel the production of documents that are overbroad, irrele-
vant as to subject matter and time, the requests are vague, some
of the documents are equally available to the General Counsel,
unduly burdensome, and improperly seeks attorney-client privi-
leged records, attorney work product, and other confidential
privileged records.
On November 24, the General Counsel filed a response in op-
position to the Respondent’s petition to revoke. By written order
dated December 1, I denied the Respondent’s petition. On De-
cember 5, the Respondent filed a motion to reconsider. During
the administrative trial, I allowed the Respondent to present oral
argument in support of the motion. The General Counsel pre-
sented a rebuttal. Following careful consideration of the parties’
arguments, I denied the Respondent’s motion. Nonetheless, de-
spite my rulings ordering the Respondent to comply with the
subpoenas requests, the Respondent refused. Consequently, the
2 The Respondent also filed a memorandum in support of its motion
and a reply memorandum. (GC Exh. 1-T, 1-U, 1-V, and 1-W.)
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
counsel for the General Counsel moved for evidentiary sanctions
against the Respondent.
I reject the Respondent’s argument that because it is a higher
education institution with religious affiliation it is exempt from
the Act, and therefore neither I nor the Board can compel it to
respond to the General Counsel’s subpoena requests. Similarly,
the Respondent’s contention that the Board does not have juris-
diction over Jorsch’s complaint because he was a faculty mem-
ber with managerial authority is equally unpersuasive.
The Respondent’s claims that it is exempt from the Act be-
cause of its religious affiliation; and that Jorsch is not an em-
ployee within the meaning of the Act are not grounds for revok-
ing the subpoenas where Board jurisdiction is not plainly lack-
ing. See NLRB v. Chapa De Indian Health Program, Inc., 316
F.3d 995, 1002 (9th Cir. 2003). The Respondent has the burden
of proving that it is exempt from the Act because of its religious
affiliation. Pacific Lutheran, 361 NLRB 1404 (2014). The Gen-
eral Counsel is correct in noting that the Respondent’s mere as-
sertions contesting the Board’s jurisdiction is insufficient to meet
the test for determining the validity of its arguments. I agree with
the General Counsel that the Respondent’s arguments require
“the presentation and analysis of evidence and subsequent find-
ings of fact.” (GC Br. 4.) Likewise, the Board, in denying the
Respondent’s motion to dismiss or in the alternative Motion for
Summary Judgment, found that there are genuine issues of ma-
terial fact warranting a hearing on the issue of whether the Re-
spondent’s religious affiliation exempts it from the Act; and
there are issues of material fact requiring a hearing on the under-
lying merits of the consolidated complaints. Consequently, the
Respondent’s refusal to, at minimum, present evidence showing
it is exempt from the Act because of its religious affiliation
leaves me with no choice but to find that the General Counsel
has established jurisdiction, which will be discussed in more de-
tail below.
Second, Respondent’s argument that certain requests are irrel-
evant is not supported by law or facts. It is well settled law that
subpoenaed information should be produced if it relates to any
matter in question, or if it can provide background information
or lead to other evidence potentially relevant to an allegation in
the complaint. Board’s Rules, Section 102.31(b) and Perdue
Farms, 323 NLRB 345, 348 (1997). I find that the General
Counsel’s subpoena duces tecum meets this requirement.
Respondent also contends that the subpoena requests are un-
reasonably broad and unduly burdensome. The party seeking to
avoid compliance with a subpoena bears the burden of demon-
strating that it is unduly burdensome or oppressive. To satisfy
that burden, a party must show that the production of the subpoe-
naed information would seriously disrupt its normal business op-
erations. Maryland Cup Corp., 785 F.2d 471, 477 (4th Cir.
1986); Carolina Food Processors, Inc., 81 F.3d 507, 513 (4th
Cir 1996). The Respondent has produced nothing more than as-
sertions that the requests are unreasonably broad and unduly bur-
densome; and therefore, has not satisfied this burden. The Re-
spondent also argues that paragraph 6 seeks confidential infor-
mation that is unreasonably broad and irrelevant and is an inva-
sion of privacy. I find the argument unpersuasive. The Respond-
ent’s objections are nonspecific and do not provide a clear expla-
nation of the legal and factual bases for why the documents are
confidential and legally exempt from discovery. Likewise, there
is no clear explanation about why the documents are not relevant
to the matters at issue.
Last, I again reject the Respondent’s contention that is should
not be required to respond to the General Counsel’s document
requests because it would require the production of privileged
information. To the extent the subpoena requests may encom-
pass documents the Respondent believes are privileged, it retains
the right to withhold such documents. However, in that event,
the Respondent, as the party asserting the privilege, must provide
sufficient information to evaluate the asserted privilege. This in-
cludes submitting a privilege index log specifically identifying
the documents it believes are covered by the privilege and sup-
porting affidavits, if necessary. See, e.g., In re Grand Jury Sub-
poena, 274 F.3d 563, 576 (1st Cir. 2001); Holifield v. U.S., 901
F.2d 201, 204 (7th Cir. 1990); and Friends of Hope Valley v.
Frederick Co., 268 F.R.D. 643, 651–652 (E.D. Cal. 2010). If the
Respondent fails to demonstrate sufficient grounds for protec-
tion, the privilege may be found to have been waived. In re
Grand Jury Subpoena, above. As part of its petition to revoke,
the Respondent has failed to provide the required information.
Consequently, the Respondent has not established an attorney-
client privilege or work product privilege, nor shown that com-
pliance with the subpoena duces tecum would force it to violate
those privileges if they existed.
C. Respondent’s Motion to Re-Open the Hearing
As noted earlier in this decision, I heard oral arguments on the
Respondent’s motion to dismiss or, in the alternative, for sum-
mary judgment which was filed with the Board on November 8.
During its oral argument, the Respondent moved to include the
attachments that it filed with the Board as part of its November
8 motion. The Respondent marked the motion and attachments
as Respondent’s exhibit 1 (R. Exh. 1). (Tr. 95–96.) Since the
Respondent’s motion was pending before the Board, I agreed to
rule on the motion and request to admit into evidence R. Exh. 1,
only if the Board had not made a ruling prior to the issuance of
my decision on the merits of the case. At the conclusion of the
administrative trial, I informed the parties that I would hold the
record open for the limited purpose of deciding whether to accept
into the record R. Exh. 1.
Following the close of the administrative trial, on January 10,
2018, the Respondent filed its post-hearing brief and Motion to
Re-Open the Hearing. The General Counsel filed a timely re-
sponse in opposition to the motion. Further, the General Counsel
requests that the preclusion rule be implemented because the Re-
spondent’s refusal to produce the subpoenaed documents and
witnesses and attempt to preserve the right to supplement the rec-
ord at a later date “constitute[] abuse of the Board subpoena pro-
cess and is an attempt to disadvantage Counsel for the General
Counsel.” (GC Br. 10.)
After a careful review of the motion, response, and Board law,
I find that the Respondent has failed to establish that the admin-
istrative trial should be re-opened. In addition, I find that the
preclusion rule should be applied in this instance. Perdue Farms
Inc. v. NLRB, 144 F.3d 830, 834 (D.C. Cir. 1998) (“A party re-
fusing to comply with a subpoena risks application of the preclu-
sion rule.”).
BETHANY COLLEGE 9
Under the Board’s Rules and Regulations, a party may file a
motion with the administrative law judge (ALJ) to reopen the
record on the basis of “newly discovered” evidence. The motion
to reopen must be filed after the trial closes but prior to the issu-
ance of the ALJ’s decision. Section 102.35(a)(8), 102.48(d)(1).
Consequently, a motion to reopen the trial will only be granted
if the moving party can show (1) the evidence is truly “newly
discovered”; and (2) “demonstrated that the introduction of the
[evidence in question] would require a different result than that
reached by the judge.” Fitel/Lucent Technologies, 326 NLRB 46,
46 fn. 1 (1998); Planned Building Services, Inc., 347 NLRB 670,
670 fn. 4 (2006). None of the documents contained in R. Exh. 1
is newly discovered evidence. Respondent Exhibit 1 consists of
the College’s student, employee, and faulty handbook (which
has been admitted into evidence as GC Exh. 12), information
about the College from its website, minutes from a few faulty
and HLC meetings held in 2015 and 2017, and emails from 2015.
All of this information was available before the opening of the
administrative trial and several of the documents were part of the
General Counsel’s subpoena requests. Again, I must emphasize
that the Respondent refused to comply with my orders to produce
the information and witnesses requested in the General Coun-
sel’s subpoena duces tecum and subpoena testificandum. More-
over, there is nothing in the record or the Respondent’s filings
which demonstrate that I would reach a different result if I were
to allow the reopening of the trial.
Although the Respondent refused to participate in any part of
the NLRB process, including the administrative trial, the Re-
spondent argues that it expressly reserved the right to present any
evidence to challenge any witness, or otherwise argue the merits
of its case if “a court of competent jurisdiction” decides that the
Board has jurisdiction over this matter. The Board has consist-
ently held that the Respondent has the burden of showing that it
is exempt from the Board’s jurisdiction because of its religious
affiliation. See Pacific Lutheran, at 1404. Moreover, there is no
case law which supports the Respondent’s argument that it can
ignore the administrative law judge’s pretrial rulings on compli-
ance with subpoenas, refuse to create an evidentiary record on
jurisdiction, and not participate in the administrative trial in any
manner, “until, and if such time, as a Court of competent juris-
diction determines that the NLRA applies to the College, and that
the NLRB has jurisdiction over the College.” (Tr. 28.) The Gen-
eral Counsel correctly notes that if the Respondent is allowed to
proceed without sanction it “incentivizes employers to simply
ignore Board subpoenas.” (GC Br. 10.) I will not re-open the
trial to allow the Respondent to flood the record with evidence
that should have been produced at the trial to establish that it is
exempt from the reach of the Act or in the alternative that it had
legitimate nondiscriminatory bases for its actions. Again, as the
party contesting jurisdiction, the Respondent had the burden of
proof which it failed to establish. Pacific Lutheran, at 1404. The
Respondent had ample opportunity to submit its evidence at the
administrative trial but chose not to participate. The Respond-
ent’s decision to ignore my pretrial rulings and not create an
3 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for General Counsel’s exhibit; “R. Exh.” for Respond-
ent’s exhibit; “GC Br.” for the General Counsel’s brief; and “R. Br.” for
evidentiary record on jurisdiction for fear of waiving its argu-
ment that as a religiously affiliated institution it is exempt from
the Board’s jurisdiction is specious reasoning. Participating in
the administrative trial would not have waived that argument;
and the Respondent failed to take part in the administrative trial
at its peril.
III. JURISDICTION
The Respondent, a corporation with an office and place of
business in Lindsborg, Kansas, has been engaged in the opera-
tion of a private non-profit college. During the fiscal year ending
June 30, the Respondent admits, and I find that in conducting its
business operations derived gross revenues available for operat-
ing expenses in excess of $1 million. During this same period,
the Respondent admits, and I find that it purchased and received
at its Lindsborg, Kansas facility products, goods, and materials
valued in excess of $5000 directly from points outside of the
State of Kansas. (GC Exhs. 1-S, 4A, 4B.)3
The Respondent denies that at all material times it has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act; and contests the Board’s jurisdic-
tion. The Respondent argues that because it is a “higher educa-
tional institution with religious affiliation, it is not subject” to the
NLRA and, therefore, the Board lacks jurisdiction over this mat-
ter. (GC Exh. 1-U.) The Respondent did not participate in the
Board proceedings and instead rested on its claim that the Board
lacks jurisdiction over it. Consequently, the Respondent refused
to comply with my order requiring the Respondent to produce
subpoenaed documents and subpoenaed witnesses; and the Re-
spondent refused to participate at the administrative trial. After
making an appearance to argue a motion for reconsideration of
my order denying the Respondent’s petition to revoke; and argu-
ing for a motion to dismiss or in the alternative for summary
judgment, the Respondent’s counsel became a mere observer for
the remainder of the administrative trial. Moreover, subpoenaed
witnesses Joyce Pigge (Pigge) and Robert Carlson (Carlson) ap-
peared at the administrative trial, but the Respondent refused to
allow them to testify in contravention of my order.
A. Test to Determine if the Respondent is Exempt from the Act
based on its Religious Affiliation
(1) Facts
According to the College’s Amended and Restated Bylaws
(bylaws), Bethany College is a ministry of the Evangelical Lu-
theran Church in America (ELCA), owned and operated by the
Central States Synod and the Arkansas/Oklahoma Synod of the
ELCA. The Respondent’s employee handbook (handbook)
states that the object and purpose of “this Corporation shall be to
establish and maintain a Christian institution of higher education
to be known as ‘Bethany College’; to serve Jesus Christ and His
church by training men and women who seek a liberal arts edu-
cation under Christian auspices. . . ” (GC Exh. 12.)
According to the handbook, members of the faculty are “ex-
pected to share the sacred trust of safeguarding the defined
Respondent’s brief. Specific citations to the transcript, exhibits, and
briefs are included where appropriate to aid in review, and are not nec-
essarily exhaustive or exclusive.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
objectives of the College . . .” and each faculty member “shall
promote the purpose of the College and its ideals of scholarship,
and assist in the realization of the Christian objectives of the Col-
lege,” and each faculty member “shall be expected to conduct
himself or herself at all times in a manner consistent with the
standards of Christian men and women.” (GC Exh. 12 at p. 28.)
Under the Faculty Code of Conduct and Ethics of the handbook,
the faculty is bound, among other things, to advance the mission
of the College. Id. at p. 52.
According to the handbook, the Respondent, in order to ac-
complish its mission, commits to the task of educating its stu-
dents by striving to be a community of faith which fosters Chris-
tian faith, witness and worship by seeking to “stimulate the stu-
dent’s desire to know and to understand personal relationships
and relationships with God in light of the Gospel of Christ; pro-
vides a setting where regular worship is encouraged and where
students, faculty and staff members may offer Christian witness
through their lives and teaching.” (GC Exh. 12, p. 56.) The hand-
book continues by noting that the Respondent, through its fac-
ulty, offers a “total campus experience within which the student
can grow into a philosophy of life that recognizes in selfless ser-
vice to God and humanity . . . educates students who will con-
tribute significantly toward the development of constructive
Christian thought and expression in human life and society” and
“assists the student in incorporating Christian values and service
into chosen careers.” Id. In addition, the handbook contains a
statement that the College faculty supports the church and “pro-
vides for the Church of Christ on earth dedicated and informed
leadership to assist in the determination and implementation of
its future goals; serves the Church through continuing education
programs for laity and clergy and as a resource for congregations
and the Church in the modern world.” Id.
Jorsch, who was employed with the Respondent from August
2014 to June 2017, applied for employment with the College
through a job posting on the website HigherEdJobs.com showing
that there was an opening for an assistant professor of history.
The job description identified some of the duties for the position
as teach history classes, participate in creative course develop-
ment, and advise students. (GC Exh. 8; Tr. 54–55.) Identifying
the school as an affiliate of the Evangelical church in America is
the only mention of religion in the posting.4 Once Jorsch sub-
mitted his application for employment, he was interviewed via
Skype. Subsequently, he was invited to the College’s campus for
a day-long interview with the search committee members: Pigge,
Dr. Bruce Taylor (Taylor), Dr. Holly Crutch Thomas (Thomas),
and two student representatives. At no time during his inter-
views, nor at any point in the hiring process was Jorsch told that:
he would be responsible for maintaining the College’s religious
environment; he would have to incorporate religious doctrine
into his teachings; his position would have a religious require-
ment; or he would have to maintain a Christian lifestyle. Alt-
hough Jorsch attended a chapel service on the day of his on-
4 Moreover, none of the current available positions at the College
include a requirement that the successful candidate assist in maintaining
the College’s religious environment or Christian lifestyle. (GC Exh. 9.)
5 Jorsch received extensions of his appointment until his termination
on about June 26, 2017. None of his faculty appointment letters
campus interview, he was never informed that attending chapel
services would be a requirement for his position. Following his
interviews, Jorsch was offered and accepted an appointment as
an assistant professor of history with eligibility for tenure in fall
2017. Jorsch initial term of appointment ran from August 10,
2014 to May 19, 2015.5 He was given a copy of the “Bethany
College Handbook” soon after he was hired. Pigge was Jorsch’s
direct supervisor and in that capacity, she led departmental meet-
ings and observed his classroom instruction.
Although Jorsch attended the Faculty Senate meetings as a re-
quirement for faculty members, he was not an eligible member
of the Faculty Senate because he was not tenured. Decisional or
policymaking authority is vested in the Faculty Senate. The Fac-
ulty Senate has primary authority over evaluations, promotions,
tenure, appointment, reappointment, and the welfare of the fac-
ulty. (GC Exh. 12.)
(2) Analysis
In Catholic Bishop,6 the Supreme Court stated that the Board’s
jurisdiction over labor disputes between church-operated schools
and their teaching employees would present “a significant risk
that the First Amendment will be infringed” because the “sub-
stantial religious character of these church-related schools gives
rise to entangling church-state relationships of the kind the reli-
gious clauses sought to avoid.” Id. at 1320 (citing Lemon v.
Kurtzman, 403 U.S. 602, 616 (1971), 91 S.Ct. 2105, 2113
(1971)). Therefore, the Supreme Court concluded that the Board
should not exercise jurisdiction over schools with “substantial
religious character.” Following the Supreme Court’s decision in
Catholic Bishop, the Board in University of Great Falls, 331
NLRB 1663 (2000), set out several factors to consider on a case-
by-case basis whether a school met the substantial religious char-
acter test set forth in Catholic Bishop. However, on appeal, the
D.C. Circuit rejected the Board’s analysis and developed a dif-
ferent three-part test for when the Board may assert jurisdiction
over a religious college or university. University of Great Falls
v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) (hereinafter Great
Falls). Under the test set forth in Great Falls, the Board may not
assert jurisdiction where a university: (1) holds itself out to stu-
dents, faculty, and the community as providing a religious envi-
ronment; (2) is an organized non-profit; and (3) is affiliated with,
or owned, operated, or controlled, directly or indirectly, by a rec-
ognized religious organization, or with an entity whose member-
ship is determined at least in part based on religion. Id. at 1343.
In Pacific Lutheran, the Board reexamined its standard for ex-
ercising jurisdiction over faculty members at self-identified reli-
gious colleges and universities in accordance with Catholic
Bishop. The Board opined that the Great Falls test “overreaches
because it focuses solely on the nature of the institution, without
considering whether the petitioned-for faculty members act in
support of the school’s religious mission.” Id. at 1409. The ex-
clusive reliance on the religious nature of an educational institu-
tion, without considering the petitioned-for employees’ role in
contained requirements that he maintain a religious lifestyle or perform
a religious role while employed by the Respondent.
6 NLRB v. Catholic Bishop of Chicago, 99 S.Ct. 1313 (1979).
BETHANY COLLEGE 11
supporting the institution’s religious mission, “could deny the
protections of the Act to faculty members who teach in com-
pletely nonreligious educational environments if the college or
university is able to point to any statement suggesting the
school’s . . . connection to religion, no matter how tenuous that
connection may be.” Saint Xavier University, 365 NLRB No. 54
(2017), citing 361 NLRB 1404, 1409. In Pacific Lutheran, the
Board noted that 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,
vindicating the rights of employees to engage in collective bar-
gaining.” Id.
Consequently, in Pacific Lutheran the Board declined to fol-
low the test established by the D.C. Circuit in Great Falls, and
instead adopted a new two-part test to determine whether the
Board has jurisdiction over a religiously affiliated college or uni-
versity. Pacific Lutheran, 1409. Under the test, a college or uni-
versity contesting jurisdiction on the basis of religious affiliation
must first show that “it holds itself out as providing a religious
educational environment.” Id. In deciding whether the Respond-
ent satisfies this requirement, relevant evidence to consider
would include, but not limited to, “handbooks, mission state-
ments, corporate documents, course catalogs, and documents
published on a school’s website” and possibly “[p]ress releases
or other public statements by university officials.” Id. Once that
threshold requirement is met, the college or university “must
then show that it holds out the petitioned-for faculty members
themselves as performing a specific role in creating or maintain-
ing the college or university’s religious educational environ-
ment.” Id. The college or university contesting jurisdiction on
the grounds that it is religiously affiliated educational institution
of higher learning has the burden of proof.
Under the Board’s current test, I find that the threshold re-
quirement has been met in this case.7 Since the Respondent re-
fused to participate in the administrative trial, there is miniscule
amount of evidence showing that the Respondent holds itself out
as providing a religious educational environment. Nonetheless,
the Board requires only a minimal showing to meet the initial
threshold requirement. In this case, the lone piece of evidence is
the College’s handbook which states its object and purpose is to
“establish and maintain a Christian institution of higher educa-
tion . . . to serve Jesus Christ and His church by training men and
women who seek a liberal arts education under Christian auspi-
ces; and to acquaint these students with the cultural, intellectual,
and religious forces in the field of higher education.” (GC Exh.
12 at 13.) The handbook also describes the College as a college
of the ELCA, “approved by the Central States and Arkansas-Ok-
lahoma Synods of the ELCA.” Moreover, a not-for-profit cor-
poration, such as the College, could also be a relevant factor in
concluding it is providing of religious education environment.
Pacific Lutheran at 1410; Great Falls at 1344.
Accordingly, I find that the Respondent has satisfied the test
that it holds itself out to students, faculty, and the community as
providing a religious environment.
7 Regardless of conflicting court of appeals’ decisions, the adminis-
trative law judge must follow established Board precedent which neither
the Board nor the Supreme Court has reversed. Pathmark Stores, Inc.,
Next I turn to the question of whether the Respondent holds
out its petitioned-for faculty members as performing a specific
role in creating and maintaining that environment. The Board
found that “the focus of our inquiry into whether there is a ‘sig-
nificant risk’ of infringement under Catholic Bishop, 440 U.S. at
502, must be on the faculty members themselves, rather than on
the nature of the university as a whole.” 361 NLRB 1404. Ac-
cording to the Supreme Court, if teachers play a “critical and
unique role” in creating and sustaining a religious environment,
the Board’s assertion of jurisdiction over them could result in
interference in management prerogatives and “open the door to
conflicts between clergy-administrators and the Board.” Id. “By
contrast, where faculty members are not expected to play such a
role in effectuating the university’s religious mission and are not
under religious control or discipline, the same sensitive First
Amendment concerns of excessive entanglement raised by the
Court are not implicated.” Id.
In the case at hand, the evidence is nonexistent that the faculty
member(s) at issue perform a “specific role in creating or main-
taining the university’s religious educational environment.” Pa-
cific Lutheran, 1410–1411. Here, no specific duties relating to
religion were stated in the faculty appointment letters that are in
evidence for both faculty eligible for tenure and part-time facul-
ties (not eligible for tenure). Jorsch and Guinn provided undis-
puted testimony that they were never told they were expected to
perform a religious role or maintain the university’s religious en-
vironment. Likewise, there is no evidence that any faculty was
tasked with meeting this requirement. Moreover, mere general-
izations, such as those cited in the College’s handbook, are in-
sufficient to meet the second prong of the test established in Pa-
cific Lutheran. Pacific Lutheran, at 1413.
Although the Respondent has established that the Bethany
College “holds itself out to students, faculty, and the community
as providing a religious environment,” it fails to establish that “it
holds out the petitioned-for faculty members themselves as a per-
forming a specific role in creating or maintaining the college or
university’s religious educational environment, as demonstrated
by its representation to current or potential students and faculty
members, and the community at large.” Id.
Accordingly, I find, that at all material times the Respondent
has been an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
Further, the General Counsel presented un-rebutted evidence
that the American Association of University Professors – Col-
lective Bargaining Congress (the Union/AAUP), at all material
times, has been a labor organization within the meaning of Sec-
tion 2(5) of the Act. (Tr. 40–54; GC Exhs. 6, 7.)
B. Whether Jorsch is a Supervisor and, or Agent as Defined
by the Act
The General Counsel alleges that Jorsch is an employee of the
Respondent. The Respondent, however, contests that designa-
tion and argues that Jorsch was employed in a managerial capac-
ity; and therefore, he is excluded from the protections of the Act.
342 NLRB 378 fn. 1 (2004); Waco, Inc., 273 NLRB 746, 749 fn. 14
(1984).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The burden of establishing supervisory status is with the party
alleging that status. The party asserting supervisory status must
set forth specific facts which prove the existence of supervisory
authority. Commercial Movers, Inc., 240 NLRB 288, 290
(1979); Under Section 2(11) of the Act, the status of supervisor
is determined by the duties performed and not the title or job
classification. Section 2(11) defines a supervisor as any person
having authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recommend such action,
if . . . such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Based on the statutory language, an individual is a supervisor
if: the individual has authority to take one of the actions listed in
Section 2(11) or to effectively recommend such action; the indi-
vidual exercises this authority in the interest of the employer; and
the exercise of this authority is not merely routine or clerical in
nature, but instead requires the individual to use independent
judgment. NLRB v. Kentucky River Community Care, Inc., 121
S.Ct. 1861, 1864 (2001); NLRB v. Health Care & Retirement
Corp., 511 U.S. 571, 573–574 (1994). Moreover, the Board has
consistently held that the evidence must show that a presumed
supervisor is accountable for a subordinate’s work performance.
In re Oakwood Healthcare, Inc., 348 NLRB 686, 691–692
(2006).
In Yeshiva University, the Supreme Court found that the uni-
versity faculties were managerial employees excluded from the
right to collective bargaining under the NLRA. NLRB v. Yeshiva,
444 U.S. at 674, 679 (1980). The Court defined managerial fac-
ulty as those who “formulate and effectuate management poli-
cies by expressing and making operative the decisions of their
employer.” Id. at 682. Such managerial faculty “must exercise
discretion within, or even independently of, established em-
ployer policy and must be aligned with management.” Id. at 683.
However, if faculty members’ decision-making is “limited to the
routine discharge of professional duties in projects to which they
have been assigned,” they would be covered by the NLRA, even
if union membership “arguably may involve some divided loy-
alty.” Id. at 690.
After Yeshiva University, the Board issued nearly two dozen
decisions applying a “sweeping” breadth of factors to analyze
the managerial status of faculty at universities, such as, academic
programs, enrollment management policies, finances, academic
policies, and personnel policies and decisions, and giving greater
weight to the first three areas than the last two. 361 NLRB 1404,
1418. Since the Yeshiva University Court did not give a precise
analytical framework to determine the managerial status of uni-
versity faculty and left the Board to proceed on a case-by-case
basis, the Board in Pacific Lutheran stated that it would now ap-
ply Yeshiva University to develop a “new approach” that is more
“workable” and “predictable” to help guide employers, unions,
and employees. Id., slip op. at 16. Under the new approach, the
Board will examine “both the breadth and depth of the faculty’s
authority at the university,” giving more weight to those areas of
policy making that affect the university as a whole, and seeking
to determine whether the faculty actually exercise control or
make effective recommendations over those policy areas. Id., at
1419–1421. Specifically, the Board will examine the faculty’s
participation in decision-making concerning: academic pro-
grams, enrollment management policies, finances, academic pol-
icies, and personnel policies and decisions. Id., at 1418. The
Board will put greater weight on the first three areas. Id.
In applying the new standard, the Pacific Lutheran Board
concluded that the employer failed to prove that its full-time con-
tingent faculty exercised sufficient managerial authority to jus-
tify their exclusion from the petitioned-for unit of contingent fac-
ulty because there was insufficient evidence that the faculty were
substantially involved in decision-making affecting the key pri-
mary decision-making areas of academic programs, enrollment
management policies, and finances. Id. Even in the secondary
areas of academic policies and personnel policies, the Board ma-
jority found that the full-time contingent faculty members’ au-
thority was limited to their own classrooms or departments. Id.
The Board concluded that their involvement in decision-making
areas fell well short of actual control or effective recommenda-
tion, given the University’s decisionmaking structure. Id.
The Act also provides that an individual who is an agent of the
employer is, in effect, the employer for purposes of assessing re-
sponsibility in matters over which the Board has jurisdiction.
The Board applies common-law principles to determine if an in-
dividual possesses apparent authority to act for an employer. In
Comau, Inc., 358 NLRB 593, 595 (2012), the Board lists the
principles as (1) an indication by the principal to a third party
that creates a reasonable belief that the alleged agent has been
authorized by the principal to act; and (2) the principal intended
or should have realized that its conduct is likely to create the third
party to believe the agent is authorized to act for the principal.
See Pan-Oston Co., 336 NLRB 305, 305–306 (2001).
I again emphasize that because the Respondent is alleging su-
pervisory status, it has the burden of proving it. Since the Re-
spondent objected to and refused to participate in the proceed-
ings, the record is devoid of evidence from the Respondent es-
tablishing that Jorsch was a supervisor and, or agent of the Re-
spondent. There is nothing, therefore, to rebut the General Coun-
sel’s credible evidence showing that he was not a supervisor and,
or agent. (GC Exhs. 9–9, 10–1, 10–2, 12, 15; Tr. 53–88.) I find,
therefore, that the Respondent has failed to establish its burden
of proof.
Accordingly, I find that Jorsch does not meet the statutory def-
inition of supervisor and, or agent as defined by Section 2(11)
and (13) of the Act.
IV. SANCTIONS
Based on the above and the entire record, I find that sanctions
against the Respondent are appropriate. The General Counsel re-
quests that I: (1) draw an adverse inference against the Respond-
ent; (2) allow the General Counsel to present secondary evi-
dence; and (3) strike portions of the pleadings. The General
Counsel argues that an adverse inference should be drawn that
the subpoenaed documents and subpoenaed witnesses “would
have provided evidence damaging to Respondent’s case” be-
cause “[a]ll witnesses and documents were within Respondent’s
control, and should have been easily produced.” (GC Br. 9.) In
addition, the General Counsel contends that allowing the General
Counsel to present secondary evidence is appropriate because in
BETHANY COLLEGE 13
many instances the relevant documents can only be accessed by
the Respondent; and moreover, the subpoenaed witnesses en-
gaged in conversations with the Charging Parties that are im-
portant to the General Counsel’s case. Last, the General Counsel
asserts that multiple paragraphs from the Respondent’s answer
should be stricken because “Respondent did not comply with the
subpoenas, and did not participate at all during hearing” and
therefore, the “Respondent should not be allowed to use these
unsupported statements and allegations as grounds for any future
arguments.” (GC Br. 12.) See McAllister Towing & Transpor-
tation, 341 NLRB 394, 396–397 (2004), enfd. 156 Fed.Appx.
386 (2d Cir. 2005); San Luis Trucking, 352 NLRB 211, 212–214
(2008); Equipment Trucking Co., 336 NLRB 277, 277 fn. 1
(2001); Lenscraft Optical Corp., 128 NLRB 807, 817 (1960).
After a careful consideration of procedural history, the parties’
arguments and case law, I make the following rulings regarding
the General Counsel’s request for sanctions:
I decline to strike any portion of the Respondent’s answer. In-
stead, I find it sufficient to weigh the strength of the Respond-
ent’s answer based on the record of evidence. Likewise, I find it
unnecessary to rule on allowing the General Counsel to present
secondary evidence. As I discuss later in the decision, the evi-
dence the General Counsel produced is more than sufficient to
prove its case.
As discussed earlier in this decision, I repeatedly rejected the
Respondent’s arguments that the subpoenaed documents and
witness testimonies were overbroad, irrelevant, and improperly
sought privileged records. I ordered the Respondent to comply
with the subpoena requests, but it refused. Consequently, I find
that the circumstances support me taking an adverse inference
that the subpoenaed documents and subpoenaed witnesses
“would have provided evidence damaging to Respondent’s
case.” Id. Accordingly, I will apply this sanction where appro-
priate in this decision. Metro-West Ambulance Service, 360
NLRB 1029, 1030–1031 (2014) (adverse inference appropriate
where respondent failed to produce accident reports); Zapex
Corp., 235 NLRB, 1237, 1239–1240 (1978), enfd. 621 F.2d 328
(9th Cir. 1980) (ALJ should have drawn an adverse inference
that respondent did not establish its burden of proof where re-
spondent failed to produce subpoenaed documents relevant to
the issue).
V. ALLEGED UNFAIR LABOR PRACTICES
Facts
A. Overview of Respondent’s Operation
The Respondent is a 501(c)(3) institution of higher learning in
Lindsborg, Kansas. During the period at issue, the College had
a student body totaling about 643 students. Two hundred and
ninety-four (294) of the students had no religious affiliation,
about 341 were from the various denominations of Christianity,
and a small number were of a non-Christian faith. (GC Exh. 11.)
Robert Carlson (Carlson) is the provost and academic dean of the
College; and Jones is its president.
B. Jorsch Denied Tenure and Terminated
The Respondent’s policy on the tenure review process is set
forth in its handbook. The Respondent’s tenure process uses “a
portfolio approach that enables development of goals and an
assessment of the progress achieved” by the tenure candidate.
(GC Exh. 12.) A faculty review committee is established to re-
view the tenure candidate’s portfolio “detailing teaching, schol-
arship, and service activities”, and meet with the candidate if
clarification of the candidate’s portfolio is needed. Thereafter,
the faculty review committee forwards a recommendation on
tenure to the president of the College. If the College president
concurs with the recommendation, the president will submit it to
the board of director. However, in those instances where the
president disagrees with the faculty review committee’s deci-
sion, the College president will meet with the committee to dis-
cuss the recommendation. “The president may elect, after meet-
ing with the committee, to concur with the committee’s recom-
mendation, in which event the recommendation will be submit-
ted to the Board, or the president may elect to disagree with the
recommendation, in which event the recommendation will be re-
ported to the Board.” (GC Exh. 12 at 110.) If a tenure candidate
disagrees with the recommendation, the candidate may request a
review of the decision through the faculty grievance procedure.
Id.
In late November or early December, Jorsch was reviewed for
tenure by the faculty review committee. Professors Laurenelle
Lockyear (Lockyear), Dan Masterson (Masterson), and Gail
Konzem (Konzem) served on his committee. After reviewing
the required materials, the faculty review committee prepared a
summary report, which was provided to Jorsch, recommending
him for tenure. (GC Exh. 13.) The Provost Carlson also recom-
mended Jorsch for tenure. The recommendation was forwarded
to Jones with a request that he submit it the board of directors for
final approval. On April 20, Jorsch met with Jones who told him
that he was tabling his tenure pending completion of a “plan”
that he would receive at a later date. Jorsch was surprised at this
development because it was his understanding that the tenure re-
view process did not require him to complete any type of plan
before being granted tenure. His faculty appointment letter for
the 2017–2018 academic year, which was signed and authorized
by Carlson and Jones, notes that he is eligible for tenure promo-
tion. Moreover, by letter dated February 28, he was informed
that,
As you know you are eligible for Tenure and Promotion pend-
ing Board Approval. The Faculty Review Committee and the
Provost continue to support their positive recommendation for
you. The Board has elected to make these decisions at their
May 2017 meeting . . . Based on Board action in May, your
contract for 2017–2018 will be revised accordingly.
(GC Exh. 15.) There was no mention in the cover letter or fac-
ulty appointment letter that Jorsch’s ongoing employment with
the Respondent was contingent on his signing or successfully
completing a “plan.”
Immediately after his April 20 meeting with Jones, Jorsch met
with Faculty Chair and Associate Professor of English Dr. Kris-
tin Van Tassel (Van Tassel) to tell her and express his “surprise”
about what happened in his meeting with Jones. Subsequently,
Van Tassel met with Jones for about an hour in an attempt to
understand why he refused to submit to the board of directors the
faculty review committee’s recommendation of Jorsch for ten-
ure. She also tried to change his mind about his decision. In
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
addition, on April 20, Jorsch telephoned Pigge to tell her about
the events surrounding his tenure review and Jones’ action
blocking the committee’s recommendation that he be given ten-
ure. She expressed shock. Later, Jorsch had another conversa-
tion with Pigge where she told him that she had spoken about his
situation with a colleague, Athletic Director and Dean of Stu-
dents Dane Pavlovich (Pavlovich). Pavlovich, in turn, told Jones
about their conversation. Consequently, Jones called Pigge into
his office and berated her for discussing Jorsch’s situation, and
further warned Pigge that any attempt by her or Jorsch to rally
the College faculty in support of Jorsch would “meet with con-
sequences”. I am taking an adverse inference that if the Re-
spondent had complied with my order to compel Pigge to testify
she would have corroborated Jorsch’s version of their interac-
tions and conversations.
On May 19, Jorsch and Jones met for Jones to give him a “Plan
to Achieve Positive Tenure Recommendation” (the plan). (GC
Exh. 14.) According to the plan, it was being issued because of
concerns relating to Jorsch’s alleged “anger/temper issues and
collegiality issues . . .” (GC Exh. 14.) Williams and Carlson
were the officials responsible for deciding whether Jorsch suc-
cessfully completed the plan. The plan contained a confidential-
ity provision which prevented him from discussing the plan with
anyone other than, presumably, Jones and Carlson. The plan
stated in part,
Additionally, by signing below, you are agreeing, committing,
and contracting with Bethany College to keeping the contents
of this plan confidential and not to discuss or to share any part
of it with others. If any part of the agreement is shared on cam-
pus, with the public, or with others, you can face legal action.
(GC Exh. 14.)
Jorsch was concerned that the plan was too vague and ambigu-
ous. He felt it did not contain standards or a specific set of cri-
teria for him to meet, nor clearly explain why he was not consid-
ered “collegial”. Jorsch was worried that the manner in which
his tenure process was handled would become precedent for
other tenure and promotion matters for faculty. Consequently,
at the AAUP’s annual meeting, he met with Professor Ronald
Barrett (Barrett), AAUP president and co-committee chair for
the State of Kansas Conference of the AAUP, about his concerns
and to ask for the AAUP’s assistance regarding the tenure and
promotion process at the College. Jorsch expressed to Barrett
that he was concerned not only with his personal situation but
also the integrity of the entire tenure and promotion process at
the College and its impact on current and future faculty.
AAUP conducted an investigation into Jorsch’s complaints
and found that he had been denied tenure in violation of AAUP’s
national, state, and local standards. As part of its investigation,
AAUP interviewed at least five people at the College who con-
firmed Jorsch’s version of events surrounding his tenure process.
In addition, AAUP found fault with the tenure decision because
of the reliance on “collegiality” as a basis for the denial. The
AAUP agreed with Jorsch that determining “collegiality” is too
subjective; and therefore, the College’s reliance on it to deny
Jorsch tenure and its handling of the tenure process was in oppo-
sition to the shared governance model followed by the AAUP
and its members. Consequently, the AAUP met as a committee
comprised of eight people from institutions across the state; and
the committee decided to issue a letter, on behalf of Jorsch, to
the Higher Learning Commission (HLC), which oversees ac-
creditation of various institutions in their region. (GC Exh. 7.)
In a letter addressed to the HLC’s vice president for accreditation
relations, Dr. Anthea Sweeney, the AAUP expressed its concern
that “some extremely troubling dynamics have come to our at-
tention involving the tenure process at Bethany that seem coun-
ter to national AAUP norms. We are concerned about what ap-
pears to be a fundamental lack of institutional integrity in the
promotion and tenure process. Many faculty members at Beth-
any expressed fear of being capriciously dismissed . . .” Id. Sub-
sequent to its investigation, AAUP provided Jorsch with a list of
attorneys to consult.
On June 22, a day prior to the AAUP’s letter to the HLC,
Jorsch sent an open-letter to Jones via email, and copied the en-
tire college faculty and the chair of the board of directors, be-
cause he felt that the manner in which his tenure process was
handled had negative implications for all faculty members, par-
ticularly those in line for tenure. The letter stated in part,
It is my wish that this letter opens a dialog on campus that helps
define the relationship between faculty and administration, the
importance of a fair and open tenure process. . .While I am
hopeful you will change your mind, support my tenure and pro-
motion, and send it to the Board of Directors for their approval,
I am more concerned about the fair treatment of current and
future faculty.
(GC Exh. 16.) Jones responded to Jorsch’s email with his own
email to the entire faculty. (GC Exh. 17.) He did not directly
address Jorsch’s concerns but instead noted that he did not want
to discuss, through a “community-wide email conversation”, the
College’s mission and core values as they relate to tenure. Ap-
proximately an hour after Jorsch sent the faculty-wide email, his
email account at the College was terminated. Guinn, Jorsch’s
wife and adjunct history professor, also had her email account
terminated later in the afternoon on June 22 by the Respondent.
By letter dated June 26, Jones issued Jorsch a letter of termi-
nation. (GC Exh. 18.) Jones wrote that Jorsch was being dis-
charged because his open letter “was [a] blatant act of insubor-
dination and was exacerbated by your choice to publicize the is-
sues by sending copies of the letter to the Bethany College fac-
ulty and others. For that reason, I have determined that your em-
ployment with Bethany College is terminated immediately.” Id.
After receiving notification of his termination, Jorsch spoke
briefly with Pigge about getting another faculty member to teach
his classes. Although Guinn had not been terminated at this
point, Pigge told Jorsch that the administration informed him
Guinn would not be considered to cover his classes. I am taking
an adverse inference that if the Respondent had complied with
my order to compel Pigge to testify she would have corroborated
Jorsch’s version of their conversation.
C. Guinn’s Tenure with the Respondent
Guinn and Jorsch negotiated a part-time assistant professor-
ship for her when Jorsch was hired as a full-time tenure track
professor. She was employed by the Respondent from August
2014 to May 2017 to teach history. As part of the hiring process,
BETHANY COLLEGE 15
Guinn spoke with the provost by telephone a couple of times.
She was never told by anyone at the College that she was respon-
sible for maintaining the College’s religious environment; the
College’s religious affiliation and environment were never men-
tioned; and she was never told that she had to incorporate reli-
gious doctrine into her teaching nor told she was required to per-
form a religious role. Moreover, none of the aforementioned was
ever mentioned or required of her after she was hired. Likewise,
Guinn’s employment contracts for 2014–2015 and 2016–2017
contained nothing about her having a responsibility to maintain
a Christian lifestyle or perform a religious role.
Pigge was Guinn’s immediate supervisor. Pigge was also re-
sponsible for obtaining approval for renewing all adjunct profes-
sors’ employment contracts each year. In early or mid-April,
Guinn passed Pigge in the hallway on campus and Pigge men-
tioned to her that she had submitted the requests for adjunct pro-
fessor approvals for the fall semester. A few weeks after that
encounter, Guinn received an email from Pigge asking her to
pick the books for the history classes Guinn was teaching in the
fall so that Pigge could order the books. In early May, Guinn
received an email from Assistant Dean of Academic Affairs Pro-
fessor Melody Steed (Steed) asking her to teach two freshman
courses. Despite, however, it being implied by Pigge that the
renewal of Guinn’s employment contract had been submitted for
approval, being asked to teach two classes in the fall, and asked
to choose books to order for the history classes she was sched-
uled to teach, Pigge’s teaching contract was not renewed. Jorsch
told Guinn that Pigge stated Guinn would no longer be teaching
history courses. Guinn believes she was terminated because of
the email her husband sent to Jones and copied faculty-wide.
D. Respondent’s Confidentiality Rule
Since about December 29, 2016, the Respondent has main-
tained the following rule:
Bethany’s policy is to ensure that its operations, activities, busi-
ness affairs, and the files of alumni, faculty, employees, and
students are kept confidential to the greatest possible extent.
During the course of their employment, employees will acquire
confidential or proprietary information about Bethany, em-
ployees and its students. Such information shall be kept in
strict confidence and not discussed with anyone other than the
appropriate Bethany employees. Employees also are responsi-
ble for the internal security of such information. Violation of
this policy shall subject the employee to disciplinary action up
to and including termination of employment.
(GC Exh. 12 at p. 125.)
VI. DISCUSSION AND ANALYSIS
A. Confidentiality Rule
The General Counsel argues that the Respondent’s confiden-
tiality rule is overly broad and, therefore, the Respondent has
been interfering with, restraining, and coercing employees in the
exercise of their Section 7 rights. Since the Respondent refused
to participate in the proceedings, there was no counterargument
presented.
8 365 NLRB No. 154 (2017).
Under Boeing Co.,8 the Board has held that it will “no longer
find unlawful the mere maintenance of facially neutral employ-
ment policies, work rules and handbook provisions based on a
single inquiry, which made legality turn on whether an employee
‘would reasonably construe’ a rule to prohibit some type of po-
tential Section 7 activity that might (or might not) occur in the
future.”9 Consequently, the Board established the following an-
alytic framework:
[W]hen evaluating a facially neutral policy, rule or handbook
provision that, when reasonably interpreted, would potentially
interfere with the exercise of NLRA rights, the Board will eval-
uate two things: (i) the nature and extent of the potential impact
on NLRA rights, and (ii) legitimate justifications associated
with the rule. We emphasize that the Board will conduct this
evaluation, consistent with the Board’s “duty to strike the
proper balance between . . . asserted business justifications and
the invasion of employee rights in light of the Act and its pol-
icy,” . . . focusing on the perspective of employees, which is
consistent with Section 8(a)(1). . . . As the result of this balanc-
ing, . . . the Board will delineate three categories of employ-
ment policies, rules and handbook provisions (hereinafter re-
ferred to as “rules”):
● Category 1 will include rules that the Board designates as
lawful to maintain, either because (i) the rule, when reasonably
interpreted, does not prohibit or interfere with the exercise of
NLRA rights; or (ii) the potential adverse impact on protected
rights is outweighed by justifications associated with the rule.
Examples of Category 1 rules are . . . the “harmonious interac-
tions and 15 relationships” rule that was at issue in William
Beaumont Hospital, and other rules requiring employees to
abide by basic standards of civility . . ..
● Category 2 will include rules that warrant individualized
scrutiny in each case as to whether the rule would prohibit or
interfere with NLRA rights, and if so, whether any adverse im-
pact on NLRA-protected conduct is outweighed by legitimate
justifications.
● Category 3 will include rules that the Board will designate
as unlawful to maintain because they would prohibit or limit
NLRA-protected conduct, and the adverse impact on NLRA
rights is not outweighed by justifications associated with the
rule. An example of a Category 3 rule would be a rule that pro-
hibits employees from discussing wages or benefits with one
another.
Boeing at slip op. 3–4. Analyzing the Respondent’s confidenti-
ality rule under category 1 of the Boeing test yields a finding that
the Respondent’s rule violates the Act. While I acknowledge
that employers have a legitimate interest in safeguarding their
confidential and proprietary information, read in context, this
rule also encompasses the disclosure and discussion of employee
wages, disciplinary actions, performance appraisals, personnel
documents, and other terms and conditions of employment. The
Board has consistently held that this type of broadly worded rule
is inconsistent with the Act. Hyundai America Shipping Agency,
357 NLRB 860, (2011) (work rule unlawful that prohibited
9 365 NLRB No. 154, slip op. at 2.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
“[a]ny unauthorized disclosure from any employee’s personnel
file”); Battle’s Transportation, Inc., 362 NLRB 125 (2015)
(Board held unlawful employer’s confidentiality agreement pro-
hibiting employees from divulging “human resources related in-
formation” and “investigations by outside agencies”); Flex Frac
Logistics, LLC, 358 NLRB 1131, slip op. at 1 (finding unlawful
employer’s rule prohibiting employees from disclosing “person-
nel information and documents” to nonemployees with the threat
of “termination” or “legal action” for violating the rule). The
provision is overbroad because its wording encompasses and
precludes employees from revealing employee contact infor-
mation without distinguishing “between information obtained in
the normal course of work or information obtained from Re-
spondent’s files or even between information obtained by em-
ployees from contact with or discussion with other employees.”
Costco Wholesale Club, 358 NLRB 1100, 1116 (2012). See also
Anserphone of Michigan, Inc., 184 NLRB 305, 306 (1970) (em-
ployee obtained names and contact information of employees
from office manager, who was lawfully in possession of the in-
formation). It is not only overly broad but also ambiguous be-
cause it leaves employees to guess what information is “confi-
dential.” Moreover, employees could interpret this provision as
a prohibition against disclosing or discussing wages and salary,
employee contact information, and other terms and conditions of
employment.
Regardless whether the Respondent’s confidentiality rule is
analyzed under category 1, 2, or 3, the Respondent produced no
evidence to show that there are justifications associated with the
rule that outweigh the potential adverse impact on protected
rights.
Accordingly, I find that the Respondent’s rule is so broad as
to restrict employees’ right to engage in concerted protected ac-
tivity and thus violates Section 8(a)(1) of the Act.
B. May 19, Employee Prohibited from Disclosing Terms of
a Tenure Plan
The General Counsel argues that the provision in the tenure
plan threatening Jorsch with legal action if he discloses its con-
tents “on campus, with the public, or with others” is “an attempt
to coerce, interfere, or restrain his exercise of those Section 7
rights and violates Section 8(a)(1) of the Act.” (GC Br. 27.)
Since the Respondent refused to participate in the administrative
trial, it did not present an argument or evidence to refute this al-
legation.
Section 8(a)(1) of the Act provides that it is an unfair labor
practice for an employer to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act. The rights guaranteed in Section 7 include the right “to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection.” See Brighton Retail, Inc., 354
NLRB 441, 441 (2009). The Board has established an objective
test for determining if “the employer engaged in conduct which
would reasonably have a tendency to interfere with the free ex-
ercise of employee rights under the Act.” Santa Barbara New-
Press, 357 NLRB 452, 476 (2011). This objective standard does
not depend on whether the “employee in question was actually
intimidated.” Multi-Ad Services, 331 NLRB 1226, 1228 (2000),
enfd. 255 F.3d 363 (7th Cir. 2001). The mere threat of an un-
specified reprisal is sufficient to support a finding that the em-
ployer has violated Section 8 (a)(1) of the Act. Metro One Loss
Prevention Services Group, 356 NLRB 89, 89 (2010).
I find that the Respondent, through Jones, unlawfully pre-
cluded an employee from discussing his concerns about the Col-
lege’s tenure plan and his perception of its unfair and subjective
nature with other employees. The facts establish that Jones met
with Jorsch on May 19, to inform him that he would not concur
with the Faculty Review Committee’s recommendation of him
for counsel until he successfully completed the plan. It is also
undisputed that the plan contained a provision precluding Jorsch
from discussing or sharing it with others or he could face legal
action. See Flex Frac Logistics, LLC, 358 NLRB 1131, 1131
(2012) (finding unlawful employer’s rule prohibiting employees
from disclosing “personal information and documents” to
nonemployees with the threat of “termination” or “legal action”
for violating the rule); Taylor Made Transportation Services,
Inc., 358 NLRB 427, 434–435 (2012) (finding unlawful em-
ployer’s issuance of a memorandum reminding employees of its
unlawful policy prohibiting discussions about wages with threat
of discipline up to and including termination). See Kinder-Care
Learning Centers, supra. (employer rule prohibiting employees
from discussing their terms and conditions of employment with
parents of children enrolled in the school violates the Act); Ver-
izon Wireless, 349 NLRB 640 (2007) (banning employees from
discussing workplace concerns about discipline violates the
Act). The Respondent produced no evidence to show why its
action did not violate Section 7 of the Act; and I draw an adverse
inference that if the Respondent had complied with my order to
respond to the General Counsel’s subpoena duces tecum and
subpoena ad testificandum the evidence would have shown the
Respondent could not prove that its action did not violate the
Act.
Accordingly, I find that Respondent violated Section 8(a)(1)
of the Act when the Respondent threatened Jorsch with legal ac-
tion for discussing terms and conditions of employment with
“others”, which would include coworkers.
C. June 23, Respondent Prohibited Employees from Discussing
Terms and Conditions of Employment with Fellow Workers
The General Counsel argues that Jones’ June 23 email re-
sponse to Jorsch’s open letter explicitly “expressly discourages
any continued discussion of the issues raised in Dr. Jorsch’s open
letter” in “an attempt to coerce, interfere, or restrain his exercise
of those Section 7 rights and violates Section 8(a)(1) of the Act.”
(GC Br. 27.) Since the Respondent refused to participate in the
administrative trial, it did not present an argument or evidence to
refute this allegation.
Employers cannot interfere with, restrain, or coerce employ-
ees in the exercise of rights guaranteed to them in Section 7 of
the Act. Yoshi’s Japanese Restaurant & Jazz House, 330 NLRB
1339, 1339 fn. 3 (2000). The evidence is irrefutable that in his
response to Jorsch’s open letter, Jones referred to the plan as
“confidential” and noted he would not share any information
from the plan. In addition, Jones specifically wrote he did not
want the College faculty to discuss the issues raised in Jorsch’s
BETHANY COLLEGE 17
open letter, nor discuss those issues related to the College’s mis-
sion and core values and their relationship to tenure. (GC Exh.
17.) I find that Jones’ statements coupled with the terminations
of Jorsch because of his open-letter and Guinn because of her
relationship to Jorsch are strong evidence of the Respondent’s
attempt to coerce, interfere or restrain employees in the exercise
of their Section 7 rights.
Accordingly, I find that the Respondent, through Jones’ June
23 email, prohibited employees from discussing terms and con-
ditions of employment with each other in violation of Section
8(a)(1) of the Act.
D. June 26, Respondent Notified Employees of Termination for
Engaging in Protected Concerted Activity
The General Counsel argues that the letter of termination
Jones issued to Jorsch on June 26, violated the Act because it
expressly informed Jorsch that he would be discharged because
of his communication with other faculty about terms and condi-
tions of their employment. Since the Respondent refused to par-
ticipate in the administrative trial, it did not present an argument
or evidence to refute this allegation.
The evidence is undisputed that in the June 22 email Jorsch
sent to Jones and the entire College faculty, Jorsch raised con-
cerns about the tenure process as it related to him and current and
future faculty. The tenure process affects faculty members’
terms and conditions of employment, and therefore, their discus-
sions among themselves or with others about it is protected under
the Act. The evidence establishes that in the termination letter
issued to Jorsch, Jones wrote that the action was being taken spe-
cifically because of Jorsch’s open letter to him and the College
faculty in which he raised concerns about the tenure process.
Jones wrote, “Your letter to me was [a] blatant act of insubordi-
nation and was exacerbated by your choice to publicize the is-
sues by sending copies of the letter to the Bethany College fac-
ulty and others. For that reason, I have determined that your em-
ployment with Bethany College is terminated immediately.”
(GC Exh. 18.) Jones’ letter can be no clearer evidence that the
Respondent notified employees that they would be terminated
for engaging in protected concerted activity.
Accordingly, I find that the Respondent, through Jones’ June
26 letter of termination to Jorsch, informed employees that they
were being terminated for engaging in protected, concerted ac-
tivities in violation of Section 8(a)(1) of the Act.
E. Jorsch’s Termination
The General Counsel argues that under a Wright Line10 anal-
ysis the Respondent unlawfully discharged Jorsch because he en-
gaged in protected concerted activity. In its answer to the com-
plaint, the Respondent admits to discharging Jorsch but denies
that it was done for unlawful reasons. (GC Exh. I-S.)
An employer violates Section 8(a)(1) of the Act if it disci-
plines or discharges an employee for engaging in activity that is
“concerted” within the meaning of Section 7 of the Act. If it is
determined that the activity is concerted, a violation of Section
8(a)(1) will be found if the employer knew of the concerted na-
ture of the employee’s activity, the concerted activity was
10 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert denied 455 U.S. 989 (1982).
protected by the Act, and the adverse employment action was
motivated by the employee’s protected, concerted activity. Mey-
ers Industries, 268 NLRB 493, 497 (1984), remanded sub nom.
Prill v. NLRB 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474
U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied
487 U.S. 1205 (1988). Once the General Counsel establishes
such an initial showing of discrimination, the employer may pre-
sent evidence, as an affirmative defense, showing it would have
taken the same action even in the absence of the protected activ-
ity. The General Counsel may offer evidence that the employer’s
articulated reasons are pretext or false. Id.
As with 8(a)(3) discrimination cases, the Board applies the
Wright Line11 analysis to 8(a)(1) concerted activity cases that in-
volve disputes about an employer’s motivation for taking an ad-
verse employment action against employees. The burden is on
the General Counsel to initially establish that a substantial or mo-
tivating factor in the employer’s decision to take adverse em-
ployment action against an employee was the employee’s union
or other protected activity. Under the Wright Line framework,
as developed by the Board, the elements required for the General
Counsel to show that protected activity was a motivating factor
in an employer’s adverse action are: (1) union or protected activ-
ity; (2) an employer’s knowledge of that activity; and (3) dis-
criminatory animus on the part of the employer. Adams & Asso-
ciates, Inc., 363 NLRB No. 193, slip op. at 6 (2016); Libertyville
Toyota, 360 NLRB 1298, 1301 (2014); enf. 801 F.3d 767 (7th
Cir. 2015). Once the General Counsel has met its initial showing
that the protected conduct was a motivating or substantial reason
in employer’s decision to take the adverse action, the employer
has the burden of production by presenting evidence the action
would have occurred even absent the protected concerted activ-
ity. The General Counsel may offer proof that the employer’s
articulated reason is false or pretextual. Iron Mountain Forge
Corp., 278 NLRB 255, 263 (1986). Ultimately, the General
Counsel retains the ultimate burden of proving discrimination.
Wright Line, id. However, where “the evidence establishes that
the reasons given for the Respondent’s action are pretextual—
that is, either false or not in fact relied upon—the Respondent
fails by definition to show that it would have taken the same ac-
tion for those reasons, absent the protected conduct, and thus
there is no need to perform the second part of the Wright Line
analysis.” Golden State Foods Corp., 340 NLRB 382, 385
(2003) (citing Limestone Apparel Corp., 255 NLRB 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982)). The Wright Line analysis is
not applicable when there is no dispute that the employer took
action against the employee because the employee engaged in
protected concerted activity. Phoenix Transit System, 337 NLRB
510, 510 (2002), enfd. 63 Fed.Appx. 524 (D.C. Cir. 2003).
i. Jorsch’s Actions Constitute Protected Concerted and Union
Activity and Respondent was aware of the protected
concerted nature of his activities
In Meyers Industries (Meyers I), 268 NLRB 493 (1984), and
Meyers Industries (Meyers II), 281 NLRB 882 (1986), the Board
11 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert denied 455 U.S. 989 (1982).
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
held that “concerted activities” protected by Section 7 are those
“engaged in with or on the authority of other employees, and not
solely by and on behalf of the employee himself.” However, the
activities of a single employee in enlisting the support of fellow
employees in mutual aid and protection is as much concerted ac-
tivity as is ordinary group activity. Individual action is concerted
if it is engaged in with the object of initiating or inducing group
action. Whittaker Corp., 289 NLRB 933 (1988); MCPC, Inc.,
360 NLRB 216 (2014).
Jorsch engaged in protected concerted and union activity
when (1) he contacted AAUP with his concerns about the Re-
spondent’s actions involving his tenure review and its possible
impact on current and future faculty; and (2) he wrote the email
to Jones and copied the faculty detailing his fears that Jones had
degraded the integrity of the tenure process for himself and cur-
rent and future faculty. Jorsch specifically noted in his faculty-
wide email to Jones that he wrote it to start an open dialogue
among the faculty and management about the “breakdown” in
the College’s tenure process and restore integrity to the system
for current and future tenure candidates. (GC Exh. 16.) Like-
wise, he sought assistance from AAUP in reaching out to the
College to fix its tenure process so that it comports with the
standards and criteria AAUP and HLC member institutions have
committed to using in making decisions on tenure. See, Fresh &
Easy Neighborhood Market, Inc., 361 NLRB 151, 153 (2014)
(explaining the “mutual aid or protection” analysis focuses on
whether there is a connection between the activity “and matters
concerning the workplace or employees’ interests as employ-
ees.”); Caesar’s Palace, 336 NLRB 271 (2001); Verizon Wire-
less, 349 NLRB 640, 658–659 (2007).
It is undisputed that the Respondent was aware of Jorsch’s
protected concerted activity because the day after Jorsch wrote
the open letter Jones responded to it. Likewise, the evidence is
undisputed the Respondent was that Jorsch contacted AAUP to
advocate on behalf of him and current and future faculty mem-
bers who are or will go through the tenure process.
ii. The Respondent’s Motivation for Discharging Jorsch
In KHRG Employer, LLC d/b/a Hotel Burnham & Atwood
Cafe, 366 NLRB No. 22 (2018), the Board wrote that “[w]hen,
. . ., an employer defends a discharge based on employee mis-
conduct that is a part of the res gestae of the employee’s pro-
tected concerted activity, the employer’s motive is not at issue.
Instead, such discharges are considered unlawful unless the mis-
conduct at issue was so egregious as to lose the protection of the
Act. See, e.g., Consumers Power Co., 282 NLRB 130, 132
(1986) (“[W]hen an employee is discharged for conduct that is
part of the res gestae of protected concerted activities, the rele-
vant question is whether the conduct is so egregious as to take it
outside the protection of the Act . . .”) (footnote omitted). To
answer this question, the Board balances employees’ right to en-
gage in concerted activity, allowing some leeway for impulsive
behavior, against employers’ right to maintain order and respect.
Piper Realty Co., 313 NLRB 1289, 1290 (1994); NLRB v. Thor
Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965), enfg. 148
NLRB 1379 (1964). KHRG at slip op. at 2.
Based on the evidence, I find that the Respondent’s motive for
terminating Jorsch is not at issue because the Respondent admits
that it discharged Jorsch solely because he sent Jones a letter
complaining about Jones’ deviation from the College’s estab-
lished tenure process and its effect on him and current and future
tenure candidates. In the termination letter issued to Jorsch,
Jones wrote that Jorsch’s open letter “crossed a professional
line” and it was the sole reason for his termination. Moreover,
there is nothing in Jorsch’s email to Jones and the faculty to show
that the email violates any of the Respondent’s lawful rules, reg-
ulations, or guidelines. Despite Jones’ contention to the con-
trary, I also find nothing in the record to indicate that Jorsch’s
action “crossed a professional line.” Consequently, I find that the
Respondent did not established its burden of showing that Jorsch
lost protection of the Act because of his action.
Accordingly, I find that the Respondent discharged Jorsch in
violation of Section 8(a)(1) and (3) of the Act.
F. Guinn’s Termination
The General Counsel argues that Guinn was discharged be-
cause of her husband’s protected activity; and points to the tim-
ing of her termination as evidence of the Respondent’s unlawful
motivation. The Respondent outright denies discharging Guinn.
Id.
The Board considers several factors in determining whether
an inference of discriminatory animus can be sustained. The fac-
tors to consider are proffering false reasons in defense of taking
the adverse action, disparate treatment of certain employees with
similar work records or offenses, deviation from past practice,
and the proximity in time of the discipline to the protected activ-
ity. Embassy Vacation Resorts, 340 NLRB 846, 847 (2003); Aus-
tal USA, LLC, 356 NLRB 363, 363 (2010); Lucky Club Co, 360
NLRB 271 (2014).
I find that the timing of the Respondent’s decision to not to
renew Guinn’s appointment almost simultaneously to Jorsch’s
protected activity is strong evidence that the action was taken
because of the Respondent’s animus towards Jorsch’s exercising
his Section 7 rights. In early or mid-April, Guinn passed Pigge
in the hallway on campus and Pigge mentioned to her that she
had submitted the requests for adjunct professor approvals for
the fall semester. A few weeks after that encounter, Guinn re-
ceived an email from Pigge asking her to pick the books for the
history classes Guinn was teaching in the fall so that Pigge could
order the books. I am taking an adverse inference that if the Re-
spondent had complied with my order to compel Pigge to testify
she would have corroborated Guinn’s version of their interac-
tions and conversations. It is undisputed that in early May,
Guinn received an email from Assistant Dean of Academic Af-
fairs Professor Melody Steed (Steed) asking her to teach two
freshman courses.
There is no evidence that from May until Jorsch sent his fac-
ulty-wide email on June 22 that the Respondent had changed its
plan to renew Guinn’s contract. However, the same day that
Jorsch sent his open-letter, Guinn’s College email account was
terminated, Pigge informed Jorsch that Guinn would not be al-
lowed to take over his classes, and Pigge told Jorsch that Guinn
would no longer be allowed to teach history courses. Since she
was appointed to teach history, it is obvious that Pigge was con-
veying to Jorsch that Guinn’s contract would not be renewed.
The Respondent proffered no reason for its decision to cancel
BETHANY COLLEGE 19
Guinn’s email account, preclude her from teaching Jorsch’s clas-
ses after his termination, and not renew her teaching contract.
Likewise, there is no documentary evidence to support a legiti-
mate non-discriminatory reason for the Respondent’s refusal to
renew Guinn’s contract. The absence of evidence to show the
Respondent had a legitimate non-discriminatory reason for its
action which was not pretext for discrimination coupled with the
timing of the Respondent’s failure to renew Guinn’s contract,
leads me to a finding that the Respondent’s action was taken be-
cause of discriminatory animus.
Accordingly, I find that the Respondent violated Section
8(a)(1) and (3) of the Act when it discharged (or failed to renew
the teaching appointment) Guinn.
CONCLUSIONS OF LAW
1. The Respondent, Bethany College, is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Respondent violated the Act by the following conduct:
(a) Discharging Thomas Jorsch and Lisa Guinn on June 27,
2017
(b) Since about December 29, 2016, promulgating and main-
taining a rule prohibiting its employees from speaking about
terms and conditions of employment with each other or others
(c) On about May 19, 2017, asked employees to sign an agree-
ment not to disclose a proposed Tenure Plan
(d) On about June 23, 2017, prohibited employees from dis-
cussing terms and conditions of employment with each other or
others
(e) On about June 26, 2017, informed employees that they
were being discharged for engaging in protected concerted activ-
ities
3. The above violations are unfair labor practices that affects
commerce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not violated the Act except as set forth
above.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily discharged its em-
ployees, Thomas Jorsch and Lisa Guinn, must offer Thomas
Jorsch and Lisa Guinn reinstatement and make them whole for
any loss of earnings and other benefits they suffered as a result
of the discrimination against them from the date of the discrimi-
nation to the date of their reinstatement. Further, the Respondent
must remove from its files (both official and unofficial) all ref-
erences to the discharges of Thomas Jorsch and Lisa Guinn.
Backpay because of the discriminatory discharge shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as provided in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010). The Respond-
ent shall file a report with the Social Security Administration
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
allocating backpay to the appropriate calendar quarters. The Re-
spondent shall also compensate Thomas Jorsch and Lisa Guinn
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year, Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB
101 (2014).
As I concluded that the Respondent’s confidentiality provi-
sion is unlawful, the recommended order requires that the Re-
spondent revise or rescind the unlawful rule, and advise its em-
ployees in writing that the said rule has been so revised and re-
scinded.
Further, the Respondent will be required to post and com-
municate by electronic post to employees the attached Appendix
and notice that assures its employees that it will respect their
rights under the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, Bethany College, Lindsborg, Kansas, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against its em-
ployees in retaliation for their protected concerted activities.
(b) Promulgating and maintaining a confidentiality policy
that requires its employees to refrain from discussing their terms
and conditions of employment with each other or others.
(c) Asking employees to sign an agreement not to disclose the
details of a proposed Tenure Plan.
(d) Prohibiting employees from discussing the terms and con-
ditions of their employment with each other or others.
(e) Informing employees that they are being discharged for
engaging in protected concerted activities.
(f) In any like or related manner, interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the purposes and policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Thomas Jorsch and Lisa Guinn full reinstatement to their former
positions or, if those positions no longer exists, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Within 14 days from the date of the Board’s Order, make
Thomas Jorsch and Lisa Guinn whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges of
Thomas Jorsch and Lisa Guinn, and within 3 days thereafter no-
tify Thomas Jorsch and Lisa Guinn in writing that this has been
completed and that the discharges will not be used against them
in any way.
(d) Preserve and, within 14 days of a request, or such
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
additional time as the Regional Director may allow for good
cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Lindsborg, Kansas, copies of the attached notice marked
“Appendix.”13 Copies of the notice, on forms provided by the
Regional Director for Region 14 (Sub-Region 17), after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees and members are customarily posted. In addition to
physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respondent cus-
tomarily communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since December 29, 2016.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. October 31, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT ask you about your discussions with employees.
YOU HAVE THE RIGHT to terms and conditions of employment
with other employees and WE WILL NOT do anything to interfere
with your exercise of that right.
WE WILL NOT instruct you not to speak to each other about
terms and conditions of employment.
WE WILL NOT threaten you with prosecution or legal action for
talking to other employees, customers or the general public re-
garding your working conditions.
WE WILL NOT fire employees because they exercise their right
to discuss terms and conditions of employment with other em-
ployees.
WE WILL NOT in any like or related manner interfere with your
rights under Section 7 of the Act.
WE WILL offer Thomas Jorsch and Lisa Guinn their jobs back
along with their seniority and all other rights or privileges.
WE WILL pay with interest Thomas Jorsch and Lisa Guinn for
the wages and other benefits they lost because we fired them.
WE WILL compensate Thomas Jorsch and Lisa Guinn for the
adverse tax consequences, if any, of receiving a lump-sum back-
pay award.
WE WILL file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar quar-
ters.
WE WILL remove from our files all references to the discharges
of Thomas Jorsch and Lisa Guinn and WE WILL notify them in
writing that this has been done and that the discharge will not be
used against them in any way.
BETHANY COLLEGE
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/14-CA-201546 or by using the QR code below.
Alternatively, you can obtain a copy of the decision from the Exec-
utive Secretary, National Labor Relations Board, 1015 Half Street,
S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”