Manhattan College

National Labor Relations Board - Unpublished Board Decisions

Apr 20, 2017

02-RC-023543 (N.L.R.B. Apr. 20, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MANHATTAN COLLEGE
Employer
and Case 02-RC-023543
MANHATTAN COLLEGE ADJUNCT
FACULTY UNION, NEW YORK STATE
UNITED TEACHERS AFT/NEA/AFL-CIO
Petitioner
DECISION ON REVIEW AND ORDER
The Employer’s Request for Review of the Regional Director’s Supplemental Decision
and Order is granted solely with regard to Regional Director’s inclusion of the Department of
Religious Studies faculty within the unit of adjunct faculty found appropriate. Applying the
Board’s recent decisions in Seattle University, 364 NLRB No. 84 (2016) and Saint Xavier
University, 364 NLRB No. 85 (2016), we find that the College holds out adjunct faculty in the
Department of Religious Studies as performing a specific role in maintaining the University’s
religious educational environment.1 As in those cases, a reasonable prospective applicant for an
adjunct position in the College’s Department of Religious Studies would expect that the
performance of their responsibilities would require furtherance of the College’s religious
mission. The record shows that faculty in the College’s Department of Religious Studies teach
courses presented as having religious content; undergraduates may take those courses to fulfill
core academic requirements; and faculty in the department have an expertise in Lasallian
theology, other faith-based traditions, or other aspects of the religious experience. Id., slip op. at
in each decision. Accordingly, adjunct faculty in the Department of Religious Studies are
excluded from the unit, and the College’s Request for Review is denied in all other respects.2

1 Our colleague advances arguments similar to those he made in his dissents in Seattle University and St. Xavier
University. For the reasons given in those decisions, we are not persuaded by those arguments. In particular, we
disagree with his view that NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), forbids the Board from
making a distinction between faculty who teach religious and secular courses because this type of inquiry alone
raises First Amendment concerns. To the contrary, excluding adjunct faculty in the Department of Religious Studies
does not mean that we have assessed the religious content of the courses they teach or otherwise compared the
content of those courses to those taught by faculty in other departments. Rather, we have assessed only the
College’s presentation of those courses to the faculty, students, and public at large. Seattle University, 364 NLRB
No. 84 (2016), slip op. at 2-3, n. 4-6; and Saint Xavier University, 364 NLRB No. 85 (2016), slip op. at 2-3, n. 3-5.
Although Member Pearce did not participate in Seattle University and Saint Xavier University and expresses no
view as to whether they were correctly decided, he agrees to apply them as precedent in this case.
2 The Regional Director correctly found that the ballots may be opened and counted, but, for the reasons stated here,
the ballots of unit faculty in the Department of Religious Studies may not be counted. If those ballots have been
commingled with other ballots, the Petitioner cannot be certified unless the Regional Director determines that it
achieved a majority of countable ballots.
ORDER
This case is remanded to the Regional Director for further appropriate action.
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
Acting Chairman Miscimarra, dissenting.
Contrary to my colleagues, I would grant in its entirety Manhattan College’s Request for
Review of the Regional Director’s Supplemental Decision and Order, in which the Regional
Director asserted jurisdiction over the College and directed an election in a unit of “[a]ll
individuals employed as part-time faculty with an adjunct academic rank who teach a minimum
of a three (3) credit college degree level course for a full semester (or the equivalent hours of a
semester length course).” My colleagues deny review of the Regional Director’s finding that the
Board should exercise jurisdiction over most of the petitioned-for unit faculty; however, they
grant review in part and reverse the Regional Director’s assertion of jurisdiction over faculty in
the College’s Department of Religious Studies. For three reasons, I believe there is a substantial
issue regarding whether the Board lacks jurisdiction over the entire petitioned-for unit.
First, as I explained in my dissenting opinions in Seattle University, 364 NLRB No. 84,
slip op. at 3–5 (2016) (Member Miscimarra, dissenting), and Saint Xavier University, 364 NLRB
No. 85, slip op. at 3–5 (2016) (Member Miscimarra, dissenting), the distinction my colleagues
draw between faculty who teach courses with “religious content” (who my colleagues find are
exempt from the Board’s jurisdiction) and the other petitioned-for unit faculty (who my
colleagues find are subject to the Board’s jurisdiction, presumably on the basis that those faculty
teach courses with exclusively “secular” content) is forbidden by the main teaching of NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490 (1979), where the Supreme Court emphasized that the
“very process of inquiry” associated with this type of evaluation raises First Amendment
concerns. Id. at 502.1
Second, as explained in my separate opinion in Pacific Lutheran University, 361 NLRB
No. 157, slip op. at 26–27 (2014) (Member Miscimarra, concurring in part and dissenting in
part), when determining whether a religious school or university is exempt from the Act’s
coverage based on First Amendment considerations, I believe the Board should apply the three-
part test articulated by the Court of Appeals for the District of Columbia Circuit in University of
Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002). Under that test, the Board has no
jurisdiction over faculty members at a school that (1) holds itself out to students, faculty and

1 My colleagues say that they have not assessed the religious content of the courses taught by faculty in the
College’s Department of Religious Studies, but “only the College’s presentation of those courses to the faculty,
students, and public at large.” However, whether the content of a course is examined by looking at a syllabus
distributed only to students taking the course or at publicly available documents is beside the point. Either way, it is
the content of the course that is being evaluated. Assessing the College’s “presentation” of a course means assessing
the course’s content as set forth in that presentation. See Seattle University, above, at 5 fns. 16-17 (Member
Miscimarra, dissenting); Saint Xavier University, above, at 5 fns. 17-18 (Member Miscimarra, dissenting).
community as providing a religious educational environment; (2) is organized as a nonprofit; and
(3) is affiliated with or owned, operated, or controlled, directly or indirectly, by a recognized
religious organization, or with an entity, membership of which is determined, at least in part,
with reference to religion. Id. at 1343. In my view, Manhattan College has clearly raised a
substantial issue regarding whether it is exempt from the Act’s coverage under that three-part
test. It is undisputed that the College holds itself out to the public as providing a religious
educational environment. Additionally, the College is organized as a nonprofit. Further, the
College, which was founded by the De La Salle Christian Brothers, is affiliated with the Catholic
Church, is a member of the Lasallian Association of Colleges and Universities, and is subject to
guidelines that the Catholic Church has issued for universities. Accordingly, I would grant the
College’s request for review because substantial questions exist regarding (i) whether the Board
lacks jurisdiction over the College as a religiously affiliated educational institution, and (ii)
whether the Pacific Lutheran standard is unconstitutional under the First Amendment. I would
consider these jurisdictional and constitutional issues on the merits.
Third, even if one applies Pacific Lutheran’s two-pronged test, I would grant review. As
stated above, it is undisputed that Manhattan College holds itself out as providing a religious
educational environment. Further, I believe that the College has raised a substantial issue
regarding whether individuals in the petitioned-for unit play a specific role in creating or
maintaining the College’s religious educational environment. Specifically, I believe substantial
questions exist with respect to the specific role played by part-time faculty, regardless of
department, in furthering the College’s religious mission, including by systematically promoting
the emphasis on the interplay of faith and reason and by encouraging dialogue with other
traditions to help accomplish the Catholic Church’s intellectual work, which the College asserts
is an important aspect of a Lasallian Catholic education. See Great Falls, supra, 278 F.3d at
1346 (“That a secular university might share some goals and practices with a Catholic or other
religious institution cannot render the actions of the latter any less religious.”); Pacific Lutheran
University, supra, slip op. at 31 (Member Johnson, dissenting) (“The majority also errs
fundamentally here by assuming a false dichotomy between ‘religious’ and ‘secular’
instruction.”).
For these reasons, I believe the Board should grant review of the Regional Director’s
decision that the Board has jurisdiction over the petitioned-for part-time faculty members.
Accordingly, I respectfully dissent.
Dated, Washington, D.C., April 20, 2017.
PHILIP A. MISCIMARRA, ACTING CHAIRMAN