
The NLRB has several cases involving religious schools lined
up for review, the earliest of which has been awaiting decision since 2011. These
include cases involving Manhattan College, St. Xavier University, Duquesne
University of the Holy Spirit and Islamic Saudi Academy. In all of these, unionization
of the workforce, faculty and/or otherwise, is immediately at stake. The NLRB’s
retention of the cases for review points to the likelihood of its opening the
door to union organizing at private and religious schools at all levels, from
primary through graduate schools. Of course, this would mean major potential
changes in the labor relations and operations of such schools. NLRB review is
expected to happen sooner rather than later now that the NLRB has a full
complement of five confirmed members as well as a confirmed General Counsel.
The U.S. Supreme Court ruled in 1979 that the NLRB could not
assert jurisdiction over two Catholic high schools in Chicago because to do so
would violate the First Amendment by excessively entangling the NLRB in
religious affairs. In response to that case and to cases handed down from the
District of Columbia Court of Appeals, the NLRB has adopted a test for deciding
whether it may assert jurisdiction over a particular private school without
running afoul of the U.S. Constitution. With the cases it has on tap for its
newly confirmed majority of Democratically-appointed board members, the NLRB is
strongly positioned to either directly reject its previous test for exercising
jurisdiction or to apply it in a very much narrowed way, such that it will assert
jurisdiction over, and afford collective bargaining rights to faculty and
workers at, more religious and religion-affiliated schools than ever before.
If the Board asserts jurisdiction over these schools and their
workforces then vote in favor of unionization, school management will be required
to collectively bargain with faculty, and potentially other employees, over the
basic terms and conditions of employment. And even if there is never a successful
unionization effort at the schools, they will be under the federal labor law
and will have to deal with the NLRB’s well-known and extensive efforts to
affect all manner of policies in the name of protecting workers’ rights to join
together in advocacy against their employer.
The NLRB also has on its agenda for review cases in which it
has received friend-of-the court briefing on questions relating to the status
of graduate assistants and faculty under the federal labor law. Combined with
the cases involving religious schools, these indicate powerful winds blowing at
the NLRB that could substantially affect labor relations at many private and
religious schools, including institutions of higher education. Private schools
with religious affiliation and institutions of higher education that have an
interest in avoiding unionization and NLRB jurisdiction over their workforce
relations should watch here for developments and further comment.
No comments:
Post a Comment