Can you have a union at a religious college? Only if the National Labor Relations Board (NLRB) can exercise its jurisdiction over faculty members. NLRB has tried to do this several times, and has gotten smacked back by the courts. Shortly before Christmas in 2014, the NLRB developed a new test that lets it take jurisdiction over the faculty at Pacific Lutheran University (PLU). Of course, the courts could still disagree.
The NLRB has tried to take jurisdiction over religious schools several times before, and has been reversed by the courts on constitutional grounds. The NLRB created a new test that it hopes will pass scrutiny. The NLRB’s new test has two factors that a college or university must meet if it doesn’t want the NLRB providing rights (such as collective bargaining) to its faculty. First, the college can’t just claim to be a religious institution—it must also hold itself out as providing a religious educational environment. Next, it must also hold out its faculty members as “performing a religious function” or “a specific role in creating or maintaining the university’s religious educational environment.” Unfortunately for PLU, the NLRB said that college failed to establish that its large number of contingent (nontenure) faculty perform a religious function—so the NLRB took jurisdiction. And that in turn means collective bargaining at PLU.
The NLRB conceded that it could not inquire into the good faith of the university’s religious position or examine how it implements its religious mission. So instead, it adopted the “hold itself out” test for whether the institution is religious. It adopted a similar test as to whether the faculty members are “expected to perform a specific role in creating or maintaining the school’s religious educational environment.” In other words, the NLRB will not look at faculty’s actual performance, but will require that they do perform a “specific religious function.”
The NLRB then applied this test to PLU and decided that it met the first factor—it holds itself out as creating a religious educational environment—but not the second factor, because it does not state that these contingent faculty members perform a specific role in creating or maintaining the religious educational environment.
This decision was signed by three of the Board members. But Member Miscimarra argued that the decision was in error by requiring that faculty members be held out as “performing a specific role” as to the religious educational environment. He believed that PLU was outside the Board’s jurisdiction because of its religious affiliation.
Johnson, the last Board member, agreed with Miscimarra. He began, “The story of this case fundamentally starts with—and should end with—the Constitution.” As the Constitution trumps the federal labor relations statute, there are no “competing interests” to be “balanced.” Johnson disagreed completely with the second prong of the test, because in order to decide whether faculty members perform a specific religious function, the Board has to inquire into religious beliefs. Even worse, because the majority of the Board said that “norms shared by both a religion and by wider society” will not count to show a specific religious role, the NLRB is now requiring (and analyzing) a unique religious belief. If the organization’s religious beliefs include diversity, academic freedom, or other types of dialogue, in contrast to straight proselytizing, the school will fail the test in the same way that PLU did. And having the NLRB involved could easily violate the school’s religious principles. For instance, in PLU’s case, for the NLRB to help faculty certify bargaining representatives and adjudicate unfair labor complaints violates the Lutheran doctrine that disputes among Christian should be resolved internally.
Is this over? Johnson predicted the courts would once more teach the NLRB a lesson in constitutional doctrine. It will be interesting to see if he is right.