On June 10, 2020, the National Labor Relations Board (“NLRB” or “the Board”) ruled that it would no longer exercise jurisdiction over faculty members at religious colleges and universities.  The decision reestablishes the Great Falls test as the prevailing metric for determining whether a religious education institution is subject to the NLRB’s rules. The Board’s decision will provide religious colleges and universities with the ability to oppose faculty organizing drives and with greater freedom in establishing and administering rules and standards for faculty members.

Background

The case, Bethany College, 369 NLRB No. 98 (June 10, 2020), involved a Kansas liberal arts college owned and operated by an evangelical Lutheran church. The case did not arise in the context of a union organizing drive.  Instead, two of Bethany College’s former assistant professors complained that the institution had violated the National Labor Relations Act (“NLRA”) by terminating them after they raised issues concerning Bethany College’s broad confidentiality rules. They also alleged that Bethany used stringent rules to prohibit discussions among faculty members about the terms and conditions of their employment, including a proposed tenure plan.

In 2017, an NLRB administrative law judge sided with the pair and ordered Bethany College to cease and desist from discharging and retaliating against employees for engaging in protected activities. Bethany College rejected these allegations and appealed to the Board.  Relying upon the bright line test established in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002), the Board sided with Bethany College.

The Decision

As we previously reported, the courts and NLRB have historically held that the Board’s jurisdiction does not extend to religious colleges and universities. However, in Pacific Lutheran University, 361 NLRB 1404 (2014), the Board revised its approach to determining whether a religious institution’s faculty are outside the scope of NLRA. In that decision, the Board established that faculty at religious educational institutions can unionize through the NLRB’s procedures if their jobs do not involve a specific religious function. Pacific Lutheran was recently rejected in Duquesne University of the Holy Spirit v. NLRB, (D.C. Cir. Jan. 28, 2020), in which the Court applied the Great Falls test to determine whether the NLRB had jurisdiction over Duquesne University.  The Bethany College decision also relied upon Great Falls, which states that the NLRB cannot exercise jurisdiction over faculty at an institution 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, 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.

Applying this standard, the Board sided with Bethany College and dismissed the unfair labor practice charge – finding that the NLRB did not have jurisdiction over the institution.  Under the first prong of the test, the NLRB found that Bethany College holds itself out to students, faculty and the community as providing a religious educational environment as evidenced by the religious mission stated in its handbook and job postings.  The Board next found that the second prong of the Great Falls test was satisfied by Bethany College’s status as a 501(c)(3) nonprofit institution. Finally, the third prong of the Great Falls test was established because Bethany College is owned and operated by the Central States Synod and the Arkansas/Oklahoma Synod of the Evangelical Lutheran Church in America.

Takeaway

The Board’s return to the simple, three-step test utilized by the D.C. Circuit in Great Falls and in Duquesne University should be welcome news to colleges and universities that are affiliated with or run by religious institutions. To avoid falling within the scope of the NLRA, religious educational institutions should thoroughly document their religious mission, status as a nonprofit organization, and their affiliation and/or ownership by a recognized religious organization.  Religious educational institutions should therefore review their handbooks, mission statements, policies, job postings and other communications to ensure that their religious mission is plainly and clearly communicated.

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Putney, Twombly, Hall & Hirson LLP

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