United States: NLRB Asserts Jurisdiction Over Non-Teaching Employees Of A Private Religious University

Executive Summary: In an April 6, 2017, decision, Saint Xavier University, 365 NLRB No. 64 (2017), the National Labor Relations Board (NLRB) determined that it was appropriate to exercise jurisdiction over a petitioned-for unit of housekeeping employees at a religious university, since they were non-teaching employees, and since their "actual duties and responsibilities [did not] require them to perform a specific role in fulfilling the religious mission of the institution." The NLRB found that its decision to exercise jurisdiction under the National Labor Relations Act (NLRA or the Act) was consistent with existing Board precedent [Hanna Boys Center, 284 NLRB 1080 (1987), and Pacific Lutheran University, 361 NLRB No. 157 (2014)] and the U.S. Supreme Court's decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). Acting Chairman Miscimarra dissented from the majority opinion, stating that the majority's reliance on Pacific Lutheran (a case he dissented in) was inconsistent with Catholic Bishop, and that he would have applied the test articulated by the District of Columbia Circuit Court of Appeals in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002), and would decline to exercise jurisdiction over the petitioned-for unit.

Background

SEIU filed a petition to represent a proposed unit of full-time and regular part-time housekeepers at Saint Xavier University, which was opposed by the University. The University is a private non-profit institution of higher learning, established in 1846 by the Sisters of Mercy, a Roman Catholic religious order, and maintains an affiliation through the Conference for Mercy Higher Education.

The parties stipulated that "offers of employment to housekeepers do not mention the Sisters of Mercy, Catholicism, God, or religion; there is no requirement that housekeepers be Catholic or adhere to any specific religion; in the course of their duties, the housekeepers are not required to abide by any specific tenets of the Sisters of Mercy, Catholicism, or any religion, but, as with all employees, are invited to attend and participate in any program or activities that recognize or celebrate the University's Catholic and Sisters of Mercy heritage; the job evaluations of housekeepers contain no reference to the Sisters of Mercy, Catholicism, or religion; and the housekeepers have never been instructed to disseminate the Catholic faith."

The NLRB's Decision

The Board began its analysis by initially examining the Supreme Court's decision in Catholic Bishop. In Catholic Bishop, the Court "held that the Board could not assert jurisdiction over lay teachers employed by a group of parochial schools to teach both religious and secular subjects because it would create 'a significant risk that the First Amendment will be infringed.'" 440 U.S. at 502. The Board noted that the Court focused on the "critical and unique role of the teacher in fulfilling" the central purpose of a parochial school which is "the propagation of a religious faith." Id. at 501, 503. Because of the nature of NLRB proceedings, the Court found that the resultant inquiries into the relationship of teachers and the school administrators in church- operated schools would raise "serious First Amendment questions" if the Board was permitted to exercise jurisdiction. Id. at 502, 504. In light of the potential for conflict with First Amendment guarantees, the Court declined to interpret the NLRA in a manner to include parochial school teachers within its coverage, especially without evidence of a clear congressional intent to do so. Id. at 507.

The NLRB next examined its earlier decision in Hanna Boys Center, which held that "asserting jurisdiction over nonteaching employees of religiously-affiliated organizations" did not conflict with the Court's holding in Catholic Bishop or First Amendment guarantees. In Hanna Boys Center, the NLRB found that there was no evidence that the petitioned-for unit of non-teaching employees (except for the child-care workers) had a connection to the employer's "possible religious mission." As for the child-care workers, the Board found no evidence that they "were required to, or did in fact, involve themselves in religious or secular teaching" and distinguished this group from teachers who were more involved in the "religious inculcation of the entrants." Therefore, the NLRB reasoned that the Court's concerns in Catholic Bishop over potential First Amendment issues were not implicated. The Board further relied on the reasoning of the Ninth Circuit Court of Appeals in its decision enforcing the Board's order in Hanna Boys Center. In the Board's view the Ninth Circuit found that Catholic Bishop "did not create a blanket exemption from the Act's coverage for religious institutions and that its holding was limited to 'the employment relationship between church-operated schools and its teachers.'" 940 F.2d 1295, 1301-02. Further, the Board noted the Ninth Circuit's statement that the "pervasively secular" duties [of the petitioned-for unit employees] ensured that Board jurisdiction would not impermissibly interfere with the Establishment or Free Exercise clauses of the First Amendment." Id. at 1306.

Finally, the NLRB addressed its decision in Pacific Lutheran, where the Board "reexamined its standard for determining, in accordance with Catholic Bishop, when the Board should decline to exercise jurisdiction over faculty members at self-identified religious colleges and universities." In Pacific Lutheran, the Board "held that it will decline to assert jurisdiction over faculty members if the college or university demonstrates that: (1) it holds itself out as providing a religious educational environment and (2) it holds the faculty out 'as performing a specific role in creating or maintaining' that environment." In conducting its inquiry, the Board stated that it would defer to the institution's religious mission statements and the role of teachers in "perform[ing] religious functions as part of their duties 'without questioning the institution's good faith or otherwise second-guessing those statements.'" The NLRB stated that this approach would avoid an examination of the "university's religious beliefs and practices," which was the concern of the Court in Catholic Bishop. The Board further noted that in Pacific Lutheran it declined to adopt the D.C. Circuit's test formulated in Great Falls, which held that "the Board has no jurisdiction over a school that (1) holds itself out to students, faculty and community as providing a religious educational environment; (2) is organized as a nonprofit; and (3) 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." 278 F. 3d 1335, 1343. The Great Falls test, in the Board's opinion, failed to give consideration to "the petitioned-for employees' role in supporting the institution's religious mission," which "could deny the protections of the Act to faculty members who teach in completely nonreligious educational environments if the college or university is able to point to any statement suggesting the school's . . . connection to religion, no matter how tenuous that connection may be."

Turning to arguments presented by the University, the NLRB rejected the contention that application of its tests in Pacific Lutheran or Hanna Boys Center ran counter to the Court's direction in Catholic Bishop, since they involved "the type of intrusive inquiry that Catholic Bishop sought to avoid and they fail to address the [First Amendment] entanglement problems related to the Board's role in enforcing the Act against a religious college or university." The NLRB further declined the University's invitation to apply the Great Falls test and rejected its argument that the housekeeping employees should be outside the Act's coverage since "cleanliness" was central to Catholicism and the housekeepers "provide[d] vital services toward the religious mission of the University."

The NLRB continued its analysis and determined that its Hanna Boys Center decision should be applied "to determine whether non-teaching employees at religious colleges or universities have collective-bargaining rights under the Act" since the standard does not create "an unacceptable risk of conflict with the Religion Clauses of the First Amendment." The Board further stated that the Supreme Court in Catholic Bishop "did not intend to create a categorical exemption from the Act's coverage for religious institutions" but rather limited its holding to teachers in religious institutions "who play a 'critical and unique role' in creating and sustaining a religious environment." In addition, the NLRB noted that its holding in Pacific Lutheran University did not "extend to nonteaching employees, such as the housekeepers at issue in this case" since they are "nonteaching employees who do not play a similar role in carrying out the religious mission of the school" and do not implicate "First Amendment concerns of excessive entanglement."

The Board concluded by finding that the housekeepers in the petitioned-for unit were covered by the Act. The NLRB stated that since the housekeepers "provide wholly secular services and there is no indication that they are expected to perform a specific role in furthering the religious mission of the University," First Amendment concerns are not implicated and the Board's exercise of jurisdiction is appropriate.

Acting Chairman Miscimarra, in his dissent, took issue with the majority's decision to exercise jurisdiction, stating that "when the Board must determine whether to assert jurisdiction over any employees—teachers or otherwise—employed by a school or university that claims to be religiously affiliated, [he] would apply the test... articulated by the Court of Appeals for the D.C. Circuit" in Great Falls.

Employers' Bottom Line

The NLRB's decision in Xavier University will make it easier for unions to organize non-teaching employees at religious colleges and universities (and other religious institutions) where such employees provide "secular services" and do not "perform a specific role in furthering the religious mission" of the institution.

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