NLRB Finds Board has No Jurisdiction Over Faculty at Religious Schools and Universities

June 16, 2020 by Kena Cador

In an additional blow to union organizing at schools and universities, the Trump NLRB has overturned Obama-era precedent that facilitated collective bargaining rights for faculty members not directly involved in religious education.

In Pacific Lutheran University (2014) the Board laid out a two-step test for a religious school to avoid NLRB jurisdiction over faculty members: The school had to prove, first, that it held itself out “as providing a religious educational environment,” and, second, that it “portrayed faculty as performing a specific role in creating or maintaining the university’s religious educational environment.”

In Bethany College, released June 10, 2020 the NLRB ruled that the Pacific Lutheran test was fatally flawed. According to the Trump Board, the second step of the analysis “entails an impermissible inquiry into what does and what does not constitute a religious function.” Under the new rule, the NLRB “must decline to exercise jurisdiction” over all faculty members if the institution merely (1) holds itself out to students, faculty and community as providing a religious educational environment; (2) is organized as a non-profit; and (3) is affiliated with or controlled by a “recognized religious organization” or with an entity, membership of which is determined, at least in part, with “reference to religion.”

The especially liberal test established here for allowing religious schools and universities to deny their faculty members collective bargaining rights will make it all but impossible to organize faculty at such institutions. Wrapping themselves in the mantle of the First Amendment’s protection for religious freedom, Trump’s appointees to the Board have now effectively denied to faculty at religious schools the same collective bargaining rights enjoyed by faculty at secular schools.

The full opinion can be downloaded here: https://www.nlrb.gov/case/14-CA-201546

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