Tuesday, December 23, 2014

NLRB Announces New Test For Jurisdiction Over Religious Colleges

In an important decision handed down last week, the National Labor Relations Board-- interpreting the U.S. Supreme Court's 1979 decision in NLRB v. Catholic Bishop of Chicago-- developed a new test for when the Board will assert jurisdiction over religiously-affiliated colleges.  In a 3-2 decision in Pacific Lutheran University, (NLRB, Dec. 16, 2014), the Board held:
... when a college or university argues that the Board cannot exercise jurisdiction over a petitioned-for unit of faculty members because the university is a religious one, the university must first demonstrate, as a threshold requirement, that First Amendment concerns are implicated by showing that it holds itself out as providing a religious educational environment.  Once that threshold requirement is met, the university must then show that it holds out the petitioned-for faculty members themselves as performing a specific role in creating or maintaining the college or university’s religious educational environment, as demonstrated by its representations to current or potential students and faculty members, and the community at large.
Applying this test, the majority held that
... although [Pacific Lutheran University] meets the threshold requirement of holding itself out as creating a religious educational environment, it does not hold out the petitioned-for contingent faculty members as performing a religious function in support of that environment.
In a dissenting opinion, Member Johnson said in part:
The majority decision today represents yet another effort to push back against the Supreme Court’s mandate that we avoid striving for jurisdictional boundaries that could violate the First Amendment. Although the majority announces its intent to “articulate a new test that is . . . faithful to the holding of Catholic Bishop,” the majority’s new test falls short in that goal in many regards.
Member Miscimarra, dissenting in part, agreed with this portion of Member Johnson's dissent.  The Board's decision also rejected the argument that the faculty involved were exempt managerial employees.

Chronicle of Higher Education reports on the NLRB's decision. [Thanks to Larry Hansen for the lead.]