Part 2: An Update - Testing the PLU Standard
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Last year, we reported on how the National Labor Relations Board decided that it could exercise its jurisdiction over faculty members at a religious college. In that case, which dealt with Pacific Lutheran University (PLU) faculty, the NLRB came up with a two-prong test (the PLU standard) that it held should be applied to future cases. Recently, a Catholic college in Montana was tested under the PLU standard, but this time, the hearing officer declined to exercise jurisdiction, interpreting the standard liberally in favor of the school.
Under the PLU standard, the NLRB will exercise jurisdiction over faculty members at a religious university unless the school demonstrates two factors: (1) it holds itself out as providing a religious educational environment, and (2) it holds the faculty in question out as performing a specific role in creating or maintaining the university’s religious educational environment.
In the latest application of the PLU standard, everyone agreed that the College met the first prong. The fight was over whether the College held out faculty as performing a specific role in shaping the university’s religious educational environment. At first, the very detailed facts made this seem doubtful. Faculty were not required to integrate religious tenets into coursework, and did not have to attend religious functions at the school. Faculty applicants and faculty were not required to be Catholic. The College even held itself out as an equal opportunity employer, and the President of the College testified that the College cannot ask applicants about Catholic religious affiliation under this policy.
However, the College Handbook also contained a provision that faculty could be discharged for serious cause, which included “continued serious disrespect or disregard for the Catholic character or mission” of the College.
As it turned out, that provision made all the difference. For the hearing officer—who repeatedly mentioned he was bound to follow the Board’s opinion—it all came down to a footnote in the PLU opinion where the NLRB stated that it would decline jurisdiction so long as the university’s public representations made it clear that faculty members are subject to employment-related decisions that are based on religious considerations. Here, faculty members could be discharged if they acted inconsistently with the Catholic character or mission of the school, so this was enough to satisfy the second prong.
The Carroll College case applied a pretty narrow view of the PLU standard, and provides substantial deference to a religious school’s “holding-out” of faculty as crucial to the school’s religious character. Because this was just a hearing officer decision, both sides have appealed the hearing officer’s decision to the NLRB, with the College challenging the constitutionality of the PLU standard, so this story is not over.
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