NLRB Adopts New Jurisdictional Standard for Faculty at Religious Colleges and Universities | Practical Law

NLRB Adopts New Jurisdictional Standard for Faculty at Religious Colleges and Universities | Practical Law

In Bethany College, the National Labor Relations Board (NLRB) adopted the three-pronged Great Falls jurisdictional test for determining whether the NLRB can exercise jurisdiction over the faculty of a self-identified religious institution of higher education and overruled in relevant part its holding in Pacific Lutheran University.

NLRB Adopts New Jurisdictional Standard for Faculty at Religious Colleges and Universities

by Practical Law Labor & Employment
Law stated as of 19 Feb 2021 • USA (National/Federal)
In Bethany College, the National Labor Relations Board (NLRB) adopted the three-pronged Great Falls jurisdictional test for determining whether the NLRB can exercise jurisdiction over the faculty of a self-identified religious institution of higher education and overruled in relevant part its holding in Pacific Lutheran University.
On June 10, 2020, in Bethany College, the panel (Board) heading the NLRB's judicial and election functions held that the NLRB lacks jurisdiction over teachers and faculty at bona fide religious educational institutions, including colleges and universities (369 N.L.R.B. No. 98 (June 10, 2020)).
The Board:
  • Adopted the three-pronged jurisdictional test articulated by the US Court of Appeals for the District of Columbia Circuit in University of Great Falls v. NLRB (278 F.3d 1335 (D.C. Cir. 2002)). Under the Great Falls test, an educational institution is exempt from the NLRA and the NLRB must decline to exercise jurisdiction if that institution:
    • holds itself out to students, faculty, and community as providing a religious educational environment;
    • is organized as a nonprofit; and
    • is affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity whose membership is determined at least in part with reference to religion.
    (278 F.3d 1335, 1347 (D.C. Cir. 2002).)
  • Overruled Pacific Lutheran University in relevant part as fundamentally inconsistent with the US Supreme Court's mandate in NLRB v. Catholic Bishop of Chicago to avoid inquiries that impermissibly intrude on and risk infringement of the protections guaranteed by the Religion Clauses of the First Amendment of the Constitution (361 N.L.R.B. 1404 (2014); 440 U.S. 490 (1979)). (For more information on Pacific Lutheran, see Legal Update, NLRB Sets New Jurisdiction Test for Religious Universities, Managerial Test for University Faculty Members.)
  • Did not review and therefore did not overrule Pacific Lutheran's standard for determining managerial status of college and university faculty because the case did not present that issue. The Board noted that the managerial status issue would be moot in any case concerning a religiously affiliated school deemed exempt from NLRB jurisdiction under the Great Falls standard.
The bright-line Great Falls test allows the NLRB to determine whether it has jurisdiction without unnecessarily examining questions of religious doctrine or motive, or parsing the relationship between the roles of specific faculty members and the institution's overall religious mission. Consequently, there should be fewer uncertainties about whether, and fewer circumstances when, the NLRB would exercise jurisdiction over faculty at religiously affiliated schools. The NLRB still may apply the Pacific Lutheran managerial status test concerning colleges and universities without religious affiliations, but the Board may also overrule that in an appropriate case because the DC Circuit has found parts of it to be unworkable (see Legal Update, DC Circuit Largely Defers to NLRB's Managerial Test for University Faculty Members; Questions Test's Application to Subgroups).

UPDATE

On February 19, 2021, in Elon University, the Board modified the Pacific Lutheran University standard for evaluating whether a petitioned-for faculty subgroup at a college or university is managerial, adopting the framework articulated by the DC Circuit in University of Southern California v. NLRB (370 N.L.R.B. No. 91 (Feb. 19, 2021); see 361 N.L.R.B. 1404 (2014); 918 F.3d 126 (D.C. Cir. 2019)). For more information on Elon University, see Legal Update, NLRB Adopts DC Circuit Framework for Evaluating Managerial Status of College and University Faculty Subgroups, Rejects Subgroup Majority Status Rule.