June 10,
2020
Washington DC - In a decision
released today in Bethany College, 369 NLRB No. 98, the Board held
that it has no jurisdiction over the faculty at religious institutions of
higher education. In so doing, the Board overruled the prior jurisdictional
standard set forth in Pacific Lutheran University, 361 NLRB 1404
(2014), a test that had been criticized by the United States Court of Appeals
for the District of Columbia Circuit as incompatible with Supreme Court
precedent. In place of the Pacific Lutheran standard,
the Board adopted the jurisdictional test announced by 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,
the Board “must decline to exercise jurisdiction” over faculty at an
institution that (a) “holds itself out to students, faculty, and community as
providing a religious educational environment”; (b) is “organized as a
nonprofit”; and (c) is “affiliated with, or owned, operated, or controlled,
directly or indirectly, by a recognized religious organization, or with an
entity, membership of which is determined, at least in part, with reference to
religion.”
The Board concluded that the Pacific
Lutheran test was fatally flawed, as it required consideration of
whether faculty members at religiously affiliated institutions of higher learning
are performing a specific religious function. To make such an assessment, the
Board would have to engage in an inquiry, impermissibly intrusive into an area
safeguarded by the Religion Clauses of the First Amendment, “into what does and
what does not constitute a religious function.” By adopting the
bright-line Great Falls test, the Board “will leave the
determination of what constitutes religious activity versus secular activity
precisely where it has always belonged: with the religiously affiliated
institutions themselves, as well as their affiliated churches and, where
applicable, the relevant religious community.”
Chairman John F. Ring was joined by
Members Marvin E. Kaplan and William J. Emanuel in the opinion.
The decision can be found here.
Established in 1935, the National
Labor Relations Board is an independent federal agency that protects employees
and employers, and unions from unfair labor practices and protects the right of
private sector employees to join together, with or without a union, to improve
wages, benefits and working conditions. The NLRB conducts hundreds of workplace
elections and investigates thousands of unfair labor practice charges each
year.
For more information contact us at http://www.beverlyhillsemploymentlaw.com/
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