Nlra Case Notes

• Citation: Vol. 31 No. 4
• Publication year: 2017
• Author: By Jeff Bosley and Colin Wells

NLRA Case Notes

By Jeff Bosley and Colin Wells

Jeffrey S. Bosley is a partner in the Labor and Employment Department of Davis Wright Tremaine LLP, and represents employers and management in labor and employment law matters. He can be reached by email at jeffbosley@dwt.com. Colin D. Wells is a labor and employment associate at Davis Wright Tremaine LLP, where he represents employers in labor relations and employment law issues. He can be reached by email at colinwells@dwt.com.

Board Asserts Jurisdiction Over Nonteaching Employees at Religious Institution

Saint Xavier Univ., 365 NLRB No. 54 (Apr. 6, 2017)

A divided National Labor Relations Board (Board) voted 2-1 to assert jurisdiction under the National Labor Relations Act (Act) over non-faculty staff at Saint Xavier University (the University). Members Pearce and McFerran wrote for the majority, and Acting Chairman Miscimarra dissented.

The decision arises from a petition seeking to represent housekeepers at the University. The University is a Catholic institution. The parties stipulated that the housekeepers in the petition were not required to be Catholic, adhere to any specific religion, or abide by any specific tenets of the Sisters of Mercy, Catholicism, or any other religion. Offer letters also did not mention Catholicism, the Sisters of Mercy, or any other religion. The University maintained that it was completely exempt from the Board's jurisdiction under the three-part test articulated by the District of Columbia Circuit in Great Falls v. NLRB.¹ Under the Great Falls test, an institution is exempt from the Board's jurisdiction if it: (1) holds itself out to the public as a religious institution; (2) is non-profit; and (3) is religiously affiliated. The union asserted that the Board's jurisdiction was proper under Hanna Boys Center.² In Hanna Boys Center, the Board found jurisdiction was appropriate over a unit comprised of clerical employees, child care workers, recreation assistants, cooks, and maintenance employees at a charitable institution founded by two Catholic priests.

After an election had been directed, and while a request for review was pending, the Board adopted a new standard for evaluating jurisdiction over faculty at religious institutions in Pacific Lutheran University.³ In Pacific Lutheran, the Board held that it would decline to assert jurisdiction over faculty members if a college or university demonstrated that: (1) it held itself out as providing a religious educational environment; and (2) it held the faculty out as "performing a specific role in creating or maintaining" that environment. In light of this decision, the Board remanded the petition so that the parties could address whether the Pacific Lutheran standard or another standard should be applied. The Regional Director found that Pacific Lutheran should be applied to nonteaching employees at the University, and then found jurisdiction existed under that standard. The University again sought review.

The majority affirmed jurisdiction, but on the basis of Hanna Boys Center, not Pacific Lutheran. The majority wrote, "[T]he Board will assert jurisdiction over the nonteaching employees of religious institutions or nonprofit religious organizations unless their actual duties and responsibilities require them to perform a specific role in fulfilling the religious mission of the institution."⁴ While the majority recognized the potential First Amendment concerns raised by the case, it reasoned that "where the petitioned-for employees are nonteaching employees who do not play a similar role [to teaching employees] in carrying out the religious mission of the school, the sensitive First Amendment concerns of excessive entanglement are not implicated and the process of inquiring into the actual duties and responsibilities of such employees will not impinge on rights guaranteed by the Religion Clauses."⁵

In dissent, Acting Chairman Miscimarra argued that the appropriate test to determine Board jurisdiction in this context is the D.C. Circuit's test in Great Falls. Under that standard, he would find that the University was completely exempt from Board jurisdiction, both for teaching and nonteaching employees. He also criticized the majority's application of Hanna Boys Center as flawed because "it requires the Board to conduct an inquiry to determine whether the duties and responsibilities of employees...