By The Book - August 2013: The National Labor Relations Board’s Jurisdiction Over Religious Colleges and Universities

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The Acting Regional Director of Region 2 of the National Labor Relations Board (NLRB) issued a decision that the NLRB had jurisdiction to conduct an election for adjunct faculty members employed by Manhattan College, a College sponsored by the De La Salle Christian Brothers. The issue was whether the NLRB could assert jurisdiction over the College in light of the Supreme Court decision in National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) where the Supreme Court held that exercise of NLRB jurisdiction over church-operated schools would raise serious constitutional questions arising out of the First Amendment Religion Clauses, and the National Labor Relations Act must be construed in a manner to avoid such questions. The Court held that where the purpose of a parochial school was a propagation of a religious faith, the NLRB could not exercise jurisdiction over such school.

Although the NLRB at one time held that Catholic Bishop applied only to parochial elementary and secondary schools, the Board now considers the application of Catholic Bishop to educational institutions at all levels on a case-by-case basis. Thus, in St. Joseph’s College, 282 N.L.R.B. 65, 66 (1986), the Board declined to exercise jurisdiction on the basis that the College was financially dependent on a Religious Order; all members of the Board of Trustees were required to be members of the Order; the Bishop of the Diocese in which the college was located was authorized to remove faculty members whose conduct was “not in harmony” with church teachings; and faculty members were prohibited from inculcating ideas contrary to the position of the Catholic church. However, in the Manhattan College decision, the Regional Director found that National Labor Relations Board v. Catholic Bishop did not preclude jurisdiction, based on an exhaustive analysis of the governance, mission, employment policies, admission policies and academic requirements of Manhattan College.

The Regional Director found that although Manhattan College is sponsored by the Christian Brothers and has a commitment to a continued relationship with the Christian Brothers, the College also affirmed its commitment to academic freedom and to institutional autonomy. The Regional Director noted that the majority of the Board of Trustees were lay people, that the financial support provided by the Christian Brothers was minimal compared to the overall budget of the College, and although faculty appointments included an agreement to respect the College’s Catholic identity and LaSallian tradition, the purpose of the College was primarily secular and not the “propagation of a religious faith.” Nat’l Labor Relations Bd., 440 U.S. at 503. The decision quoted from the College’s own statement: “The mission of the College within the Church is strikingly different from that of parochial schools and Catholic high schools where indoctrination in the faith and insistence on religious observance is seen as part of their mission.” Manhattan Coll., No. 2-RC-23543, 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *21 (Jan. 10, 2011). The College stated that it had “no intention of imposing Church affiliation and religious observance as a condition for hiring or admission, to set quotas based on religious affiliation, to require loyalty oaths, attendance at religious services, or courses in Catholic theology.” Id. at *31-32 (internal quotations and citation omitted). The decision further noted that the role of the adjunct faculty was to fulfill academic obligations and not to advance a religious mission, and concluded that exercising jurisdiction would not lead to unconstitutional entanglement.

This decision confirms that even where Catholic colleges are sponsored by a Religious Order and have a continuing commitment to remain Catholic, the NLRB will examine the governance, the mission, the curriculum and the documents prepared by the colleges themselves, and will likely exercise jurisdiction over most Catholic colleges and universities.

If you would like more information about the NLRB’s jurisdiction over religious colleges and universities, contact James R. Grasso, Partner in the Education Practice, at (716) 847-5422 or jgrasso@phillipslytle.com.