RELEASE - NLRB Declines Jurisdiction Over Faculty at Religious Institutions

Washington DC- June 10, 2020 – In a decision released today in Bethany College, 369 NLRB No. 98, the Board held that it has no jurisdiction over the faculty at religious institutions of higher education. In so doing, the Board overruled the prior jurisdictional standard set forth in Pacific Lutheran University, 361 NLRB 1404 (2014), a test that had been criticized by the United States Court of Appeals for the District of Columbia Circuit as incompatible with Supreme Court precedent. In place of the Pacific Lutheran standard, the Board adopted the jurisdictional test announced by the District of Columbia Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002).

Under the Great Falls test, the Board “must decline to exercise jurisdiction” over faculty at an institution that (a) “holds itself out to students, faculty, and community as providing a religious educational environment”; (b) is “organized as a nonprofit”; and (c) is “affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.”

The Board concluded that the Pacific Lutheran test was fatally flawed, as it required consideration of whether faculty members at religiously affiliated institutions of higher learning are performing a specific religious function. To make such an assessment, the Board would have to engage in an inquiry, impermissibly intrusive into an area safeguarded by the Religion Clauses of the First Amendment, “into what does and what does not constitute a religious function.” By adopting the bright-line Great Falls test, the Board “will leave the determination of what constitutes religious activity versus secular activity precisely where it has always belonged: with the religiously affiliated institutions themselves, as well as their affiliated churches and, where applicable, the relevant religious community.”

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the opinion.