The National Labor Relations Board (NLRB) has been getting as close as they can to asserting their jurisdiction over all of the employees of religiously affiliated colleges and universities. Recently after applying a test from the 80s, the board ruled that housekeepers at a Catholic university have the option to unionize.
In 1979, the United States Supreme Court that the NLRB could not assert jurisdiction over lay teachers at religious schools. In NLRB v. The Catholic Bishop of Chicago, the U.S. Supreme Court said the exercise of “the Board's jurisdiction presents a significant risk that the First Amendment will be infringed.” This was the beginning of the concerns.
In 1987, the NLRB asserted that the board had jurisdiction over non-teaching employees at institutions that are religiously affiliated in Hanna Boys Center. The Ninth Circuit Court of Appeals affirmed the notion saying, the “school's cooks, cook's helpers, recreation assistants, maintenance workers, and even child-care workers were secular employees with no teaching function and, thus, those employees were within NLRB's statutory jurisdiction.”
In 2014, the NLRB inched closer to the line when ruling in their decision by the name of Pacific Lutheran University. Pacific Lutheran ended an automatic exemption for teachers at religiously affiliated schools. Now, a college or university must hold itself out to provide a “religious educational environment,” and the school must show that the teachers perform specific roles in “creating or maintaining” that environment. If there is no connection between the teacher’s roles and the school’s religious affiliation, then they may unionize as well.
Now, the NLRB has once again asserted their jurisdiction over non teaching employees at religiously affiliated institutions. In a 2-1 ruling, the board said that they have jurisdiction over housekeepers at the Saint Xavier University in Chicago. The decision focused on the idea that there is no conflict with the religious freedom protections of the First Amendment.
The board followed precedent recognized in Hanna Boys Center, despite some warning from the acting chairman. The Chairman’s dissent regarded the mere inquiry in the religious institutions operations would lead to the government getting overly entangled. The Chairman would have applied a test that came from the D.C. Circuit Court of Appeals, University of Great Falls. The case held that an “inquiry into religious views as not only unnecessary but also offensive… [C]ourts should refrain from trolling through a person’s or an institution’s religious beliefs.”
The idea of the NLRB subjecting religiously affiliated institutions to the board’s standards is not a new one. In the end, the board may end up in the Supreme Court again, assessing the lengths of separation of church and state.