In a decision released on June 10, 2020, the National Labor Relations Board reversed its prior position regarding whether the Board may exercise jurisdiction over faculty at religious institutions of higher education.  The decision, Bethany College, 369 NLRB No. 98, overturns the Board’s test from its 2014 Pacific Lutheran decision,¹ finding that it impermissibly required an intrusive inquiry into the schools’ religious tenets.  Adopting, instead, the bright-line test promulgated by the U.S. Court of Appeals for the D.C. Circuit in Great Falls,² the Board concluded that it lacked jurisdiction over religious educational institutions.

Background

In 1979, the U.S. Supreme Court held that the National Labor Relations Act did not authorize Board jurisdiction over church-operated schools, even if the schools taught both religious and secular subjects.³ The Court held that exercising jurisdiction would necessarily entail inquiries into a school’s religious mission and the terms and conditions of employment there—inquiries that are impermissible under the religious freedom clauses of the First Amendment.  In a 1986 opinion written by then-Judge Stephen Breyer, the First Circuit held this same reasoning applied to religious institutions of higher education.⁴

Drawing on Judge Breyer’s opinion, the D.C. Circuit adopted the three-prong Great Falls test for determining when the Board must decline jurisdiction.  Under this test, the school must show the following:

1. it holds itself out to the public as providing a religious educational environment;
2. it is organized as a nonprofit; and
3. it is affiliated with, or owned or operated by, a recognized religious institution.

Notwithstanding this precedent from the higher courts, the Board majority in Pacific Lutheran adopted an additional “holding out” inquiry to determine jurisdiction:  an institution of higher education seeking exemption under the Act must also show that the school “holds out the petitioned-for faculty members themselves as performing a specific role in creating or maintaining the [school’s] religious educational environment.”⁵

The Board’s most recent decision reverses Pacific Lutheran, overturning the additional “holding out” test as precisely the type of inquiry held impermissible since the Supreme Court’s 1979 decision in Catholic Bishop.  The Board instead returns to the bright-line test under Great Falls, holding that Bethany College is exempt from jurisdiction under the Act, having satisfied all three prongs of that test.  The decision also eliminates from the Board’s analysis any distinction between secular and non-secular duties, “leav[ing] the determination of what constitutes religious activity versus secular activity precisely where it has always belonged:  with the religiously affiliated institutions themselves.”⁶ 

Practical Implications

The decision is likely to have a wide-reaching impact on religious institutions, which may no longer face union organizing drives or liability for unfair labor practice charges.  While many institutions of higher education have seen campus organizing efforts in recent years, particularly among adjunct faculty and teaching assistants, religiously affiliated institutions can expect the Board to decline jurisdiction as long as the institution meets the three prongs of the Great Falls test.  Religiously affiliated schools seeking exemption from the Act should assess their handbooks, job postings, and mission statements to ensure these communications reflect the religious nature of the school’s educational environment.