The Sunshine State will once again be the center of national attention in what could be one of the first battles before the Biden NLRB regarding the ever-shifting issue of the Board’s jurisdiction over religious educational institutions. In October 2020, central Florida-based St. Leo University formally withdrew recognition from its faculty union, citing the Board’s June 2020 Bethany College decision, which made it easier for religious educational institutions to assert their exclusion from the Board’s jurisdiction. The Union responded with its stated intent to file an unfair labor practice charge in the event the parties fail to reach an agreement by June 2021. With potential changes to the Board’s composition and the General Counsel position likely in 2021, this dispute could tee up the Biden Board’s first opportunity to address the issue.
The Board’s approach to determining whether a religious educational institution is exempt from its jurisdiction has continually evolved. The central question remains the same: at what point does the Board’s inquiry into the religious nature and mission of a school violate the First Amendment’s Religious Clauses? Most recently, in Bethany College, 369 NLRB No. 98 (June 10, 2020), the Board reversed the Obama Board’s decision in Pacific Lutheran, 361 NLRB 1404 (2014), which held that a religious educational institution was not exempt from jurisdiction unless it could demonstrate that it “held out” its employees as performing a specific role in creating or maintaining the religious educational environment, and such employees performed a specific role in creating or maintaining the religious educational environment. Stated simply, the Board would not decline to assert jurisdiction if the role of the employees in question was purely secular.
In Bethany College, the Board abandoned Pacific Lutheran, finding it inconsistent with Supreme Court precedent holding that exercising jurisdiction over a religious school could require an inquiry into the institution’s religious mission in violation of the First Amendment’s Religious Clauses. Instead, the Bethany Board held that it will decline jurisdiction over an institution that: 1) holds itself out as providing a religious educational environment; 2) is organized as a nonprofit; and 3) is affiliated with, owned or controlled by a recognized religious organization. This, of course, is a much easier burden for religious educational institutions to satisfy.
Under Bethany College, faculty of religious educational institutions are firmly shielded from the Board’s jurisdiction. However, with potential changes to the Board likely with the new administration, and a possible ULP charge in the pipeline, religious educational institutions should carefully analyze how they will respond to new union petitions and navigate their relationships with current bargaining units.