NLRB Exerts Jurisdiction over Secular Teachers in Church-Operated Schools
In two recent cases involving faculty bargaining units at Catholic universities, the NLRB evolved the test for determining whether certain faculty of church-operated schools come within the Board’s jurisdiction. We are glad to see that the Board is asserting jurisdiction over these employees, whose jobs have nothing to do with religion.
Seattle University and Saint Xavier University Cases Clarify Test for Faculty at Religious Universities
In August, the Board decided two representation cases involving the issue of whether the Board has jurisdiction over faculty at schools affiliated with a recognized religious organization that provide a religious educational environment: Seattle University and Service Employees International Union, Local 925, 19-RC-122863 (Aug. 23, 2016); and Saint Xavier University Adjunct Faculty Organization, IEA-NEA, 13-RC-022025 (Aug. 23, 2016). In deciding those cases, the Board utilized a test it established in Pacific Lutheran University, 361 NLRB No. 157 (2014). There, the Board held that university faculty would be exempt from NLRB jurisdiction where (a) the school held itself out as providing a religious educational environment, and (b) the faculty members perform a specific role in creating or maintaining the religious educational environment. Applying this test in Seattle University and Saint Xavier University, the Board found, first, that both Catholic universities hold themselves out as providing a religious educational environment. Under the second prong of the test, however, the Board found in both cases that the majority of the petitioned-for-unit of non-tenure eligible faculty generally does not have a role in creating or maintaining a religious educational environment. It recognized an exception for eligible faculty in the theology, ministry and religious studies departments.
The Board correctly asserted jurisdiction over non-tenure faculty who do not teach religion or divinity, even though their employer schools are affiliated with a recognized religious organization. What does the teaching of a physics (or calculus or any number of other secular subjects) course have to do with creating or maintaining a religious educational environment? The answer is nothing. The same can be said of clerical, custodial or guard employees of those schools.
Appropriately, the Board’s new approach requires careful analysis of whether or not the role of the particular employee is religious. To exempt all such employees would throw a blanket of First Amendment religious free exercise/establishment protection over the entire employer, thus unfairly depriving non-religious employees of collective bargaining rights under the NLRA.