NAICU Washington Update

Religious Institutions No Longer Subject to NLRB Jurisdiction

June 12, 2020

In a decision that has broad implications for religious institutions of higher education, the National Labor Relations Board (NLRB) has ruled that it lacks jurisdiction over faculty at religious colleges and universities. As a result of the decision, religiously affiliated nonprofit colleges and universities that hold themselves out as religious institutions are exempt from the agency’s jurisdiction over faculty.
The NLRB’s ruling comes in response to a legal challenge by Bethany College, a Lutheran institution. In its decision, the NLRB cites NLRB v. Catholic Bishop of Chicago, a First Amendment case in which the Supreme Court ruled that the NLRB does not have jurisdiction over instructors in schools that have a religious affiliation. According to the NLRB, it is the religious character of the educational institution, not the role the faculty plays in furthering that religious mission that determines whether the NLRB can exercise jurisdiction. To rule otherwise would allow the NLRB to impermissibly intrude into religious matters.
The NLRB’s decision in Bethany College reverses its 2014 ruling in Pacific Lutheran University.  In that case, the Board held that religious colleges and universities seeking an exemption from the NLRB’s jurisdiction must demonstrate that the faculty members in question perform a specific role in creating or maintaining the institution’s religious educational environment.
The ruling in Bethany College comes on the heels of a similarly-reasoned appellate court decision involving Duquesne University. In that case, a divided Court of Appeals for the District of Columbia Circuit ruled that Duquesne University, a Catholic institution in Pittsburgh, is not subject to the NLRB’s jurisdiction and is therefore exempt from complying with the NLRB’s rules governing the formation of adjunct unions.

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