Susan J. Stabile (U. of St. Thomas School of Law) has posted Blame It on Catholic Bishop: The Question of NLRB Jurisdiction over Religious Colleges and Universities. The abstract follows.
My focus in this Article is on how the National Labor Relations Board (the NLRB or the Board) determines whether to exercise jurisdiction over religious colleges and universities, subjecting them to the collective bargaining requirements of the National Labor Relations Act (the NLRA). The NLRB’s current approach is to examine whether the educational institution has a “substantial religious character,” in the absence of which it will exercise jurisdiction. As evidenced by two recent decisions by NLRB regional directors in cases involving efforts by adjunct faculty to form unions—one involving Saint Xavier College and one involving Manhattan College and both of which are currently on appeal to the full Board—the substantial religious character test is an unnecessarily intrusive one that substitutes the government’s views about what it means to be religious for the views of the institution and the religious community with which it is affiliated.
Section II of this Article gives a brief history of the NLRB’s approach to the exercise of jurisdiction over religious colleges and universities. Section III addresses the weakness of the NLRB’s substantial religious character test. Section IV addresses the central question of whether and under what circumstances the exercise of jurisdiction by NLRB over religious colleges and universities would create a risk of substantial entanglement. Finally, drawing from the conclusions of Section IV, Section V lays out some considerations to guide the NLRB in determining when it should exercise jurisdiction when employees of religious colleges and universities seek to unionize. Because both the Supreme Court guidance on this issue and the recent NLRB decisions have involved Catholic colleges and universities, they are the primary focus of this analysis. The analysis and conclusions, however, are intended to guide the NLRB’s approach to the exercise of jurisdiction over other religious colleges and universities as well.