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