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March 18, 2015

NLRB Jurisdictional Ruling Clears Path for Unionization of Religious Schools

A National Labor Relations Board (“NLRB”) Regional Director recently issued a ruling[1] that could clear the way for more unionization of faculty members at private, religious schools. The Regional Director for NLRB Region 19 decided that Seattle University, a Jesuit institution, did not satisfy the “religious institution” exemption,[2] and thus was subject to the NLRB’s jurisdiction. In accordance with the Petition for Election filed by the Service Employees International Union (“SEIU”) he ordered a union election among non-tenure-track faculty members.

Under current law, the NLRB will exercise jurisdiction over faculty members at colleges and universities that claim to be religious institutions unless: (1) the institution “holds itself out” as providing a religious educational environment; and (2) the institution holds the petitioned-for faculty out as “performing a specific role in creating and maintaining its religious educational environment.”[3]

Applying this two-prong test, the Regional Director held on March 3, 2015, that the NLRB had jurisdiction with respect to a petition filed by the SEIU, to represent Seattle University’s non-tenure-eligible contingent faculty.[4]

The University contended that the Board did not have jurisdiction because it was a religiously operated institution. Based on the University’s mission statement and on the themes discussed on its website, the Regional Director concluded that Seattle University consistently identified itself as a Jesuit Catholic institution and therefore the first prong of the Board’s test was met.

With respect to the second prong, however, the Regional Director concluded that statements in the faculty handbook stating that “each member of the faculty is expected to show respect for the religious dimension of human life” and other “generalized statements” were insufficient to meet the required burden. Such statements, without more, failed to establish that non-tenure-eligible contingent faculty served a specific role in creating or maintaining the institution’s religious educational environment. Accordingly, the Regional Director determined that the NLRB had jurisdiction and ordered an election, as requested by the SEIU.[5]

Religious educational institutions need to be aware of the new NLRB jurisdictional standards. If religious educational institutions wish to avoid the NLRB’s jurisdiction, they should consider revising their standards, policies and practices for the active involvement of their faculty in carrying out the institution’s religious mission.

Jerry Morales is Of Counsel in the Phoenix office of Snell & Wilmer. His practice is concentrated in labor, employment and construction law.

Jennifer Phillips is an associate in the Phoenix office of Snell & Wilmer. Her practice is concentrated in labor, employment and commercial litigation.

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Notes

[1] Case 19-RC-122863 (March 5, 2015). [back]
[2] As enumerated by the U.S. Supreme Court in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). [back]
[3] Pacific Lutheran University, 361 NLRB No. 157 (2014). [back]
[4] Case 19-RC-122863 (March 5, 2015). [back]
[5] The Regional Director also decided that the faculty members in the unit requested by the SEIU were not managerial employees. [back]

 

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