NLRB Lacks Jurisdiction Over Teachers At Bona Fide Religious Educational Institutions

Category: Private Education Matters
Date: Jun 30, 2020 01:12 PM

Bethany College is a 501(c)(3) Lutheran liberal arts college located in Lindsborg, Kansas.  Bethany College is a ministry of the Evangelical Lutheran Church in America (ELCA) and is owned and operated by the Central States Synod and the Arkansas-Oklahoma Synod of the ELCA.  Bethany College faculty members Thomas Jorsch and Lisa Guinn filed unfair practice charges against the College with the National Labor Relations Board (NLRB or Board), which were subsequently consolidated.  Jorsch and Guinn alleged that Bethany College violated the National Labor Relations Act (NLRA) by unlawfully maintaining an overly broad confidentiality rule, prohibiting employees from engaging in concerted activity for the purposes of mutual aid and protection, prohibiting employees from discussing terms and conditions of employment, and discharging employees for engaging in protected, concerted activities.

In the hearing before the administrative law judge, the judge applied the test articulated in Pacific Lutheran University (2014) 361 NLRB 1404, for when the Board may exercise jurisdiction over a religious institution.  Using the Pacific Lutheran Test, the judge held that the Board could exercise jurisdiction over self-identified religious institutions of higher education and found that Bethany College violated the NLRA by engaging in the activity alleged by Jorsch and Guinn.

Subsequently, the case went before the Board.  The NLRB General Counsel urged the Board to reverse the judge’s decision against Bethany College, dismiss the complaint against the College, overrule Pacific Lutheran University, and adopt the test articulated in University of Great Falls v. NLRB (D.C. Cir. 2002) 278 F.3d 1335, for when the Board may exercise jurisdiction over a religious institution.  In determining whether to take the actions urged by the NLRB General Counsel, the Board analyzed the historical case law addressing the Board’s jurisdiction over religious schools.

In 1979, the United States Supreme Court held in NLRB v. Catholic Bishop of Chicago (1979) 440 U.S. 490, that the NLRA did not authorize Board jurisdiction over church-operated schools and their lay teachers.  The Supreme Court explained that doing so would pose a “‘significant risk that the First Amendment will be infringed,’ and the Court could be forced to ‘resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.’”

After the Catholic Bishop's decision, the Board continued to attempt to exercise jurisdiction over religiously affiliated schools if the school did not have a “substantial religious character.”  However, reviewing courts consistently rejected the Board’s attempts to exercise jurisdiction over religiously affiliated schools using the “substantial religious character” test in light of the Supreme Court’s decision in Catholic Bishop.

In one such case, the University of Great Falls v. NLRB (D.C. Cir. 2002) 278 F.3d 1335, the D.C. Circuit reviewed the Board’s exercise of jurisdiction over the faculty of a Roman Catholic University using the “substantial religious character” test.  The D.C. Circuit held that the test “involved the same ‘intrusive inquiry’ and same ‘exact kind of questioning into religious matters which Catholic Bishop specifically sought to avoid,’ with ‘the NLRB trolling through the beliefs of the University, making determinations about its religious mission, and that mission's centrality to the ‘primary purpose’ of the University.’” 

Instead of the “substantial religious character” test, the D.C. Circuit held that the Board must utilize a “bright-line” test based on objective facts to determine whether the Catholic Bishop exemption from Board jurisdiction over faculty members at an allegedly religiously affiliated school should apply.  The D.C. Circuit then created a three-prong test.  Under the test, the Board must decline to exercise jurisdiction over 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, 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 D.C. Circuit noted that the newly articulated Great Falls test allows the Board “to determine whether it has jurisdiction without delving into matters of religious doctrine or motive, and without coercing an educational institution into altering its religious mission to meet regulatory demands,” while assuring that the Catholic Bishop exemption is reserved for bona fide religious institutions.

In 2014, the Board addressed its jurisdiction over religious institutions again in Pacific Lutheran University (2014) 361 NLRB 1404.  In Pacific Lutheran, the Board added a new component to the first prong to the Great Falls test, namely that a religious college or university must also show that “it holds out the petitioned-for faculty members themselves as performing a specific role in creating or maintaining the college or university's religious educational environment, as demonstrated by its representations to current or potential students and faculty members, and the community at large” in order to qualify for the Catholic Bishop exemption.  In that case, the Board asserted jurisdiction over Pacific Lutheran University, because there was nothing in the University’s “governing documents, faculty handbook, website pages, or other material” that would suggest to students, faculty, or the community that the faculty members at issue “perform any religious function.”

In 2020, in the Duquesne University of the Holy Spirit v. NLRB (D.C. Cir. 2020) 947 F.3d 824, the D.C. Circuit rejected the decision in Pacific Lutheran, holding that the Pacific Lutheran decision resulted in the Board second-guessing the religious institution’s own views on what constitutes religious activity and risks infringement on First Amendment rights and conflict with the Religion Clauses of the Constitution.

In the instant case, and after reviewing the Catholic Bishop's decision and the subsequent historical case law addressing the Board’s jurisdiction over religious schools, the Board overruled Pacific Lutheran, finding that it was inconsistent with the Supreme Court’s decision in Catholic Bishop.  The Board noted that while the rights set forth in the NLRA are important, those rights are subordinate to the First Amendment of the Constitution, which prohibits Congress from making a law respecting an establishment of religion or prohibiting the free exercise of religion.  The Board held that it lacks jurisdiction over matters concerning teachers or faculty at bona fide religious educational institutions. 

The Board further held that the D.C. Circuit's Great Falls case is the correct test to use when determining whether it is proper for the Board to exercise jurisdiction over teachers or faculty at purported religious institutions because it “leave[s] 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.”  The Board also noted that the Great Falls test prevents the Board from making subjective judgments and intrusive inquiries into the nature of the institutions' activities or those of its faculty members.  Finally, the Board noted that the Great Falls test provides “the Board with a mechanism for determining when self-identified religious schools are not, in fact, bona fide religious institutions, therefore protecting the rights of employees working for those institutions.”

The Board then applied the Great Falls test to Bethany College and held that the College is exempt from the Board’s jurisdiction.  First, the Board found that the College meets the first prong of the Great Falls test because it holds itself out to students, faculty, and the community as providing a religious educational environment.  The Board noted that the College’s Handbook states that the:

… object and purpose of this Corporation shall be to establish and maintain a Christian institution of higher education to be known as ‘Bethany College’; to serve Jesus Christ and His church by training men and women who seek a liberal arts education under Christian auspices; and to acquaint these students with the cultural, intellectual, and religious forces in the field of higher education.

Also, the job postings that the College uses to recruit faculty members and employees note that the College is a college of the ELCA with a mission “to educate, develop, and challenge individuals to reach for truth and excellence as they lead lives of faith, learning, and service.” 

Second, the Board found that the College meets the second prong of the Great Falls test because it is a 501(c)(3) nonprofit organization.  Third, the Board found that the College meets the third prong of the Great Falls test because the College 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.”  Specifically, the College is owned and operated by the Central States Synod and the Arkansas-Oklahoma Synod of the ELCA.

Because the Board determined that Bethany College met all three prongs of the Great Falls test, the Board found that it could not exercise jurisdiction over the College and it dismissed the complaint alleging unfair labor practices committed against specific faculty members.

Bethany College and Thomas Jorsch and Lisa Guinn (June 10, 2020) 369 NLRB No. 98.

NOTE:

Under the Great Falls test, it is easier for a religious institution to show that the NLRB lacks jurisdiction over its employees.  In the March 2020 Private Education Matters newsletter, Liebert Cassidy Whitmore wrote an article about the decision in the Duquesne University of the Holy Spirit v. National Labor Relations Board (D.C. Cir. 2020) 947 F.3d 824.  The article is available here.

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