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), enfd. 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 Universitys religious mission. The Union focused on the fact that the housekeeping staffs offers of employment did not mention the Universitys 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 Acts jurisdiction and proposed a new three-part test to avoid any intrusive inquiry that would violate the First Amendments Religious Clause. Under the Universitys 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 NLRBs 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 Universitys mission of emphasizing the cleanliness of Catholicism.
The NLRB declined to adopt the Universitys 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 Universitys 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 Boards 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 Universitys 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 employees Section 7 rights, the NLRB will examine whether the employees job duties further the organizations 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.
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