NLRB Asserts Jurisdiction Over Certain Employees Of Religious, Nonprofit Organizations

Generally, the National Labor Relations Board (NLRB) asserts jurisdiction over nonteaching employees of religious institutions or nonprofit religious organizations unless their actual duties or responsibilities require them to perform a specific role in fulfilling the religious mission of the institution. Hanna Boys Center, 284 NLRB 1080 (1987), enf d. 940 F.2d 1295 (9th Cir. 1991). The NLRB adhered to this precedent in two recent decisions that could have significant impact on union organizing activity in these areas.

In Saint Xavier University, 365 NLRB No. 45 (April 6, 2017), the Service Employees International Union, Local 1, petitioned to represent a unit of employees composed of full-time and regular part-time housekeepers. The University, a private, nonprofit religious institution that offers undergraduate and graduate degrees in Chicago and Orland Park, Illinois, opposed the petition, arguing it was exempt from the jurisdiction of the National Labor Relations Act (Act) because it was a religious educational institution.

The Union argued the NLRB had jurisdiction over the housekeeping staff because the employees did not perform any duties related to the University’s religious mission. The Union focused on the fact that the housekeeping staff’s offers of employment did not mention the University’s religious mission, the University did not create a specific religious requirement for the housekeeping staff, and they were not required to perform their work duties pursuant to any religious tenet. The Regional Director agreed with the Union and the University sought review before the NLRB.

On review, the University contended it was exempt from the Act’s jurisdiction and proposed a new three-part test to avoid any intrusive inquiry that would violate the First Amendment’s Religious Clause. Under the University’s proposed test, the NLRB would have no jurisdiction over a religious school that (1) holds itself out to students, faculty, and community as providing a religious educational environment; (2) is organized as a nonprofit; and (3) is affiliated with or owned, operated, controlled, or directed by a recognized religious organization.

The University further argued the Regional Director ignored the NLRB’s longstanding practice of declining to assert jurisdiction over secular employees of nonprofit, religious organizations where the employee provides a vital service towards the mission of the religious organization. The University contended the housekeeping staff provided vital service toward the University’s mission of emphasizing the cleanliness of Catholicism.

The NLRB declined to adopt the University¬ís proposed three-part test, holding it went too far in diminishing individuals Section 7 rights. Consequently, the Board adhered to its established precedent to determine whether nonteaching employees at religious institutions have the right to bargain collectively under the Act. The NLRB held the University’s housekeeping staff are nonteaching employees who do not play a role in carrying out the religious mission of the school and, therefore, an inquiry into their actual duties would not impinge on their First Amendment rights.

Further demonstrating the Board’s view regarding its jurisdiction over religious organizations, in a separate, unpublished decision, the NLRB ruled that part-time adjunct theology professors were not covered by the Act because they teach courses that further Duquesne University’s religious mission. Duquesne University of the Holy Spirit, Case No. 06-RC-080933 (April 10, 2017).

These cases demonstrate that religious, nonprofit schools and organizations do not have a blanket exemption under the Act. In order to balance both religious freedoms and employee’s Section 7 rights, the NLRB will examine whether the employee’s job duties further the organization’s religious mission. Religious, nonprofit schools and organizations should prepare for possible unionization attempts of nonteaching employees and teaching employees who do not further the religious mission and act appropriately, including reviewing policies and procedures and having a plan in place to respond to organizing activity.

If you have a question, the St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.