National Labor Relations Board Still Does Not Have Jurisdiction Over Religious Schools, For Now

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Mar 24, 2023

Saint Leo University is a private non-profit university in Saint Leo, Florida. Benedictine monks established the University in 1889. The Saint Leo Benedictine Abbey includes a monastery church, and the monks’ residences and offices are located near the middle of campus. The Benedictine Sisters’ residences are located just off campus. There is a student chapel, and religious statues and crosses throughout campus. The mission references Benedictine values and the University’s website contains repeated references to the University’s identity as Catholic/Benedictine.

In May 1976, the University’s union was certified as the exclusive collective-bargaining unit of all full-time faculty members employed at the university campus.

On October 23, 2020, the Board passed a resolution immediately withdrawing the Union, creating a shared governance model, and replacing the existing University senate with a new faculty senate. The same day, the University announced this decision to the Union and all faculty via email. In creating the new faculty senate, the University bypassed the Union and dealt directly with unit employees by soliciting faculty input for the faculty handbook. These handbook changes modified the terms and conditions of employment for faculty. Similarly, the University announced and later implemented most terms of the interim handbook, without affording the Union an opportunity to bargain.

The Union filed suit against the University due to the University withdrawing recognition of the Union and changing the terms and conditions of employment without the Union’s consent in violation of the National Labor Relations Act (NLRA). The University argued that it was privileged to do so because (1) it is a religious institution exempt from the NLRA’s provisions under the case, Bethany College, 369 NLRB No. 98 (2020), and/or (2) its full-time faculty members are managerial employees, which are excluded from the NLRA’s coverage.

The NLRA grants private sector workers the right to have labor unions and also gives certain protections to employees who work in non-union environments. The National Labor Relations Board (NLRB) enforces the NLRA.

In the Bethany College case, the Board held that under the NLRA, the NLRB did not have jurisdiction over the faculty of an educational institution if the institution: (a) holds itself out to the public as a religious institution, (b) is a nonprofit, and (c) is religiously affiliated.

Here, the Administrative Law Judge found that the University, “clearly meets the Bethany College criteria for a religious exemption from the Act’s coverage: it is [a] nonprofit; religiously affiliated; and in many and highly visible ways, both on campus and on online, regularly holds itself out to the public and to students as a religious institution guided by Catholic principles.” The Judge noted that the Bethany College standards do not require a certain degree of affiliation or religious participation by faculty and students for the exemption. In other words, there is no requirement that faculty or students be Catholic or participate in religious activities in order for the exemption to apply. As a result, the Administrative Law Judge found the University was exempt from the NLRB’s jurisdiction as a religious institution.

Nonetheless, the Administrative Law Judge considered the University’s second argument that faculty members are considered managerial employees and therefore excluded from the NLRA’s coverage. The Judge did this to prepare for the possibility that the Board decides to change or overturn the religious institution exemption framework under Bethany College.

To analyze whether faculty members are managerial employees and therefore exempt from the NLRA, the Judge must: (1) examine the faculty’s participation in academic programs, enrollment management, finances, academic policy, and personnel policies and decisions, giving greater weight to the first three areas; and (2) then determine whether, in the context of the University’s decision-making structure and the nature of the faculty employment relationship with the university, the faculty actually control or make effective recommendations over those areas.

The Judge found that, here, the role of full-time faculty in the University’s decision-making process was either none or very limited. Faculty do not set overall general admission standards, establish graduation standards, establish tuition and fees, determine the size of the student body, create the budget, decide the distribution of financial aid, or decide the renewal of contracts for instructors. They do not decide whether to establish new colleges or centers, implement department chairs, or schedule classes. The senate, through its committees, does make some recommendations, but few are accepted by the administration. The administration maintains a high degree of control over all aspects of University operations and, therefore, faculty members are considered employees rather than managers. The faculty members would not be subject to the managerial employee exemption and the University would be subject to the NLRA.

The Judge noted that should the Board review this decision and decide that the religious institution exemption does not apply, the University’s actions in withdrawing recognition of the Union and changing the terms and conditions of employment without the Union’s consent would be a violation of the NLRA.

Saint Leo Univ. Inc. & United Faculty of Saint Leo, Nat’l Educ. Ass’n Florida Educ., Am. Fed’n of Teachers, Afl-Cio (Feb. 23, 2023) 2023 WL 2212789.

Note: Administrative Law Judge decisions are not binding unless later adopted by the full Board. In this case, the Judge allowed the NLRB General Counsel to develop a full record during the hearing, arguing that the NLRB should abandon the Bethany College framework and return to a prior standard when considering whether the NLRB has jurisdiction over religious institutions. This signals that the full Board will likely consider this issue and may overturn the current framework outlined in Bethany College.  LCW will monitor this case for future developments.  

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