Jurisdiction of National Labor Relations Board Over Religious Schools Circumscribed
When the National Labor Relations Board (NLRB or the Board) ordered Carroll College in Waukesha, Wisconsin, to collective bargaining on the theory that the College was not religious enough to be exempt from the NLRB’s jurisdiction under the National Labor Relations Act, the College appealed and prevailed in Carroll College v. National Labor Relations Board, No. 07-1315, 07-1383, 2009 WL 635114 (D.C. March 13, 2009). Multiple times now, federal courts have held that the Board lacks jurisdiction over religious schools at any level because its exercise inevitably impinges upon religious orthodoxy. The Board, however, has sought to exert authority anyway by making the type of inquiry and applying the sort of religiosity test warned against in these decisions.
In Carroll College, the NLRB considered documents such as the College’s mission statement as merely “inspirational, even when the mission statement provided that the school will “demonstrate Christian values by … example” and had a “Statement of Christian Purpose” which indicated that the school provides “a learning environment devoted to academic excellence and congenial to Christian witness.” The Board found insufficient complementary “evidence of actual religious influence or control over the college or the education it provides.” The Board also rejected the College’s argument that it was a “church-operated school” by virtue of its affiliation with the Synod of Lakes and Prairies of the United Presbyterian Church of the U.S.A. because the Synod did not “sponsor” the College, own its campus, or “have any right of ultimate control over it.”
Process of Inquiry Is Key
The District of Columbia Court of Appeals viewed it differently. As the Supreme Court held in Catholic Bishop, “[i]t is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.” The Court reaffirmed its holding in University of Great Falls v. NLRB, 278 F. 3d 1335 (D.C. Cir. 2002), interpreting NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), that to be exempt from the Act, a school need only show that it (1) holds itself out to students, faculty and the community as providing a religious educational environment; (2) is organized as a “nonprofit”; and (3) “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 Court held the three-part inquiry was easily met in this case:
- First, the Court found that, under Catholic Bishop, the Board may not “ask how effective the institution is at inculcating its beliefs” and thereby question the sincerity of the school’s public representations. The public representations themselves are the market safeguard against shams, inasmuch as not all students will be attracted to religious schools.
- Second, the Court held the College to be a nonprofit institution.
- Third, the Court found that the Articles of Incorporation of the College state that it is “related” to the Synod. The Court held that this is adequate without ownership, operation or control to demonstrate affiliation with a religious organization.
Religious schools interested in fitting within the Carroll College-Catholic Bishop exception to the National Labor Relations Act, with potential complementary impacts under Title VII and other employment laws, should examine carefully their course catalogues, mission statements, student bulletins, website content, articles of incorporation, bylaws and other public documents to be sure that they consistently hold out the institution to the public as religious and specify a clear affiliation with a church or other religious organization. In these circumstances, the ability of the NLRB to inquire skeptically into the College’s religiosity will be circumscribed.