Why does SCU want to take the faculty unionization straight to the NLRB? Because they could reverse every unionization on every Jesuit and other “religious” university

From Philip Miscimarra, current Trump-appointed chair of the NLRB, in his dissent (when he was minority) in both the Duquesne and the Loyola University cases of 2017:

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 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, Loyola University has clearly raised a substantial issue regarding whether it is exempt from the Act’s coverage under that three-part test. As stipulated by the parties, the University holds itself out to the public as providing a religious educational environment. Additionally, the University is organized as a nonprofit, and it is affiliated with the Catholic Church and the Society of Jesus. Accordingly, I would grant the University’s request for review because substantial questions exist regarding (i) whether the Board lacks jurisdiction over the University as a religiously affiliated educational institution, and (ii) whether the Pacific Lutheran standard is unconstitutional under the First Amendment. I would consider these jurisdictional and constitutional issues on the merits.

About mkevane

Economist at Santa Clara University and Director of Friends of African Village Libraries.
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