For approximately thirty years, religious colleges and universities could sleep easy at night knowing that the Establishment and Free Exercise clauses of the First Amendment generally shielded them from the long arms of the National Labor Relations Act. However, a recent decision from the National Labor Relations Board greatly expands the reach of the NLRA and establishes a new test for union organizing at religious schools.
Pacific Lutheran University and Service Employees International Union, Local 25, decided by the NLRB on December 16, 2014, arose out of SEIU attempts to organize non-tenure track faculty at PLU. PLU resisted, arguing that it is a religious school exempted from the NLRB and that the subject faculty were managerial. The Regional Director rejected both arguments, and PLU appealed.
The Board took the opportunity to reexamine current law and, not liking what it saw, craft new law that makes it easier to organize at religious institutions. In doing so, the Board weighed the religious aspects of the First Amendment against the competing interests of the right to organize found in the NLRA. Prior to PLU, the Board would abstain from exercising jurisdiction over schools with a “substantial religious character,” based on the Supreme Court’s decision in NLRB v. Catholic Bishop, 440 U.S. 490 (1979). However, in the years after Catholic Bishop, competing tests arose that generally found in favor of the religious school.
After both parties urged the Board to discard the “substantial religious character” test, the Board adopted a new test that incorporated some of the prior law but added a new element to the mix. Pursuant to the Board’s new test, a religious school is exempt from the NLRA if it shows, as a threshold element, that “it holds itself out as providing a religious educational environment.” If that element is met, then the school must show that “it holds out the [subject faculty] as performing a specific role in creating or maintaining the [school’s] religious educational environment.” Thus, both the school and the faculty are examined for religious aspects. The Board’s rationale is if the faculty at a religious school has no religious involvement and is no different from lay faculty at a secular school, it should not be treated differently for organizing purposes.
The Board’s decision is an indication that it does not want to involve itself in examining how the school or faculty actually conducts it religious aspects, preferring to limit its inquiry into how the school presents itself and the subject faculty to third parties. For example, the Board could look at the school’s handbooks, mission statements, course catalogs, and public statements. In regard to the faculty’s specific role in establishing and maintaining a religious environment, the Board cold look to job descriptions, employment contracts, faculty handbooks, and statements to prospective applicants. Importantly, the Board makes clear that it will not look behind these statements and examine actual faculty performance, instead limiting its inquiry into how faculty are held out to others.