In a recent ruling, Saint Xavier University and Service Employees International, Local 1, Case 13-RC-092296, the National Labor Relations Board (the “Board” or “NLRB”) held that housekeepers at a religiously affiliated higher education institution had collective bargaining rights under the National Labor Relations Act (the “Act”).
In its decision, the Board reaffirmed its position that it may assert jurisdiction over employees of religiously affiliated institutions unless their “actual duties and responsibilities require them to perform a specific role in fulfilling the religious mission of the institution.”
In St. Xavier, the Service Employees International Union, Local 1, petitioned to represent a unit of housekeepers employed by Saint Xavier University (the “University”). The University, a private, non-profit higher education institution in Illinois established under and affiliated with the Roman Catholic Church, opposed the petition on the basis that it was fully exempt from the Act under the U.S. Supreme Court’s ruling in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). In Catholic Bishop, the Supreme Court held that the Board could not assert jurisdiction over lay teachers employed by a group of parochial schools because doing so would create a significant risk of government entanglement with the religious mission of the schools, in violation of the First Amendment’s Establishment Clause.
For decades, however, the Board has maintained that Catholic Bishop does not categorically preclude it from exercising jurisdiction over all employees at religiously-affiliated institutions. Thus, in Hanna Boys Center, 284 NLRB 1080 (1987), enf’d, 940 F.2d 1295 (9th Cir. 1991), cert. denied, 504 U.S. 985 (1992), the Board held that it could appropriately exercise jurisdiction over non-teaching employees of a religious institution who do not play a specific role in fulfilling the religious mission of the organization.
Along similar lines, in Pacific Lutheran University, 361 NLRB No. 157 (2014), the Board announced that it would decline to exercise jurisdiction over faculty members of a self-identified religious college or university if the institution (1) holds itself out as providing a religious educational environment, and (2) holds the faculty out “as performing a specific role in creating or maintaining” that environment. (Given the clearly non-teaching roles of the University’s housekeepers, the Board did not directly apply this standard in St. Xavier.)
The Board’s St. Xavier Decision
In St Xavier, the Board adhered to the precedent it had established in Hanna Boys Center. Specifically, the NLRB found that because the University’s housekeepers provide wholly secular services, with no expectation that they further the University’s religious mission, exercising jurisdiction over them would not implicate the types of First Amendment concerns that the Supreme Court cited in Catholic Bishop.
The Board emphasized several specific factors in support of its ruling:
• The employees’ job offer letters contained no reference to religion.
• The University did not require that the employees be of, or abide by, any religious faith or beliefs.
• The employees’ job evaluations contained no reference to religion.
• At no time were the employees instructed to proselytize or engage in similar religious activities.
In rendering its decision, the Board rejected the far more restrictive standard set forth by the D.C. Circuit Court of Appeals in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002). In Great Falls, the D.C. Circuit held that the very act of analyzing the job functions of employees at a religiously-affiliated institution runs afoul of the First Amendment, and, therefore, that the NLRB may never assert jurisdiction over employees of such institutions.
In his dissent in St. Xavier, Acting Chairman Philip A. Miscimarra agreed with Great Falls, cautioning that while “this case might look like an easy one – most would view housekeeping as a secular activity – cases involving nonteaching employees may present facts that lead the Board into even deeper entanglements with an institution’s religious mission.” The Board majority in St. Xavier, however, concluded that Great Falls sweeps too broadly in restricting collective bargaining rights afforded to employees under the Act.
Implications For Employers
Despite St. Xavier and similar Board rulings entrenching the NLRB’s purview over certain employees at religiously-affiliated educational institutions, the larger legal landscape remains unsettled. The D.C. Circuit’s ruling in Great Falls illustrates a contrary position and suggests that other courts (including, potentially, the Supreme Court) may similarly reject the Board’s reasoning in this area.
In addition, all employers, regardless of geographic location, generally have a right to appeal to the D.C. Circuit from adverse Board decisions. As the Great Falls holding suggests, the D.C. Circuit is likely to be much more sympathetic than the Board to a school’s argument that its religious affiliation precludes the NLRB from asserting jurisdiction over its employees.
Thus, pending greater clarity in this area, religiously-affiliated educational institutions should stay alert for further developments and promptly notify legal counsel upon learning of a union representation petition filed on behalf of any of their employees.
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If you have any questions about the Board’s St. Xavier decision or its implications, or if you would like guidance regarding any other union issue affecting your organization, please do not hesitate to contact one of our experienced labor attorneys.