In Reversal, NLRB Decides It Lacks Jurisdiction Over Religious College

Overruling a prior decision, the National Labor Relations Board (NLRB) has determined that it cannot exercise jurisdiction over the faculty of Bethany College, a college associated with the Evangelical Lutheran Church of America (ELCA), because exercising jurisdiction would inevitably involve inquiry into its religious tenets. To determine whether it may exercise jurisdiction, the NLRB has now adopted a three-part, bright-line test and will ask whether an institution 1) holds itself out to the public as a religious institution, 2) is nonprofit and 3) is religiously affiliated. If the institution fits these criteria, the NLRB lacks jurisdiction over a faculty member's unfair labor claim.

Background

In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the U.S. Supreme Court concluded that if the National Labor Relations Act authorized NLRB jurisdiction over church-operated schools and their lay teachers, there would be a significant risk that the First Amendment would be infringed. The court determined that even the inquiry leading to findings about the good faith of the position asserted by clergy-administrators into unfair labor practice charges, not merely the conclusions reached, would impinge on the Religion Clauses and give rise to entangling church-state relationships.

Nevertheless, the NLRB continued to decide on a case-by-case basis whether a religiously affiliated school had a "substantial religious character," and to exercise jurisdiction over it if the NLRB decided that the school did not. The NLRB's efforts were commonly rebuffed in courts. As a result of the ruling in Bethany College, the NLRB has overruled Pacific Lutheran Univ., 361 NLRB 1404 (2014), and aligned itself with University of Great Falls v. NLRB, 278 F. 3d 1335 (D.C. Cir. 2002) and Duquesne Univ. of the Holy Spirit v. NLRB, 947 F. 3d 824 (D.C. Cir. 2020), petition for en banc consideration filed No. 18-1063 (D.C. Cir. Feb. 25, 2020).

In Great Falls, the D.C. Circuit determined that the "substantial religious character" test that the NLRB previously employed involved the same "intrusive inquiry" and same "exact kind of questioning into religious matters which Catholic Bishop specifically sought to avoid." The court in Great Falls announced and called then for the NLRB to adopt the three-part test. Later, in Carroll College v. NLRB, 558 F. 3d 568 (D.C. Cir. 2009), in a case involving a Roman Catholic-affiliated college, the court invalidated an NLRB order requiring the college to engage in collective bargaining as patently beyond the Board's jurisdiction per Great Falls.

In now-overruled Pacific Lutheran, despite finding that the university held itself out as "creating a religious educational environment," the NLRB invented an additional holding-out test: The religious college must also 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." The NLRB decided that it had jurisdiction over faculty "who are not expected to perform a specific role in creating or maintaining the school's religious educational environment."

The dissent in Pacific Lutheran (Philip Miscimarra and Harry Johnson) objected that the new test "not only fails to avoid the First Amendment questions, it plows right into them at full tilt" by demanding that the NLRB "judge the religiosity of the functions that the faculty perform."

In Duquesne Univ., the D.C. Circuit agreed with the dissent in Pacific Lutheran, and explained that its refusal in Great Falls to examine the roles played by faculty members followed directly from Catholic Bishop, where the U.S. Supreme Court did not differentiate between teachers who play religious roles and those who play secular roles but rather held that the NLRB lacked jurisdiction over all teachers at church-operated schools. The court rejected the NLRB's line-drawing exercise in Pacific Lutheran, distinguishing faculty allegedly subject to its jurisdiction from faculty who were not according to whether their conduct was "sufficiently religious"; conduct that could not be investigated included "religious indoctrination," as contrasted with conduct "supporting religious goals."

Bethany College Decision

In Bethany College, the NLRB treated Pacific Lutheran as "defying the risks of First Amendment infringement rather than avoiding them"; called its previous two-part, holding-out test "fatally flawed" as involving "an impermissible inquiry into what does and what does not constitute a religious function"; and treated the decision as "irreconcilable with" Catholic Bishop. "Because the Supreme Court has clearly decided this matter, and because we find the rationale set forth in Catholic Bishop and in the circuit court decisions interpreting that seminal case to be persuasive, we now hold that the Board does not have jurisdiction over matters concerning teachers or faculty at bona fide religious educational institutions." The manner in which the bona fides of a religious institution may be tested by the NLRB in the wake of Bethany College is now restricted to the three-part Great Falls bright-line test.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.