Saint Xavier University, (2017)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Saint Xavier University and Service Employees International Union, Local 1. Case 13–RC–092296

April 6, 2017

DECISION ON REVIEW

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

In this case, we examine the standard that the Board should apply in determining whether nonteaching employees at religious colleges or universities have collective-bargaining rights under the National Labor Relations Act. After careful consideration of the applicable case law, as well as the positions of the parties and amicus, we have decided to adhere to the Board’s established precedent. Under that precedent, the Board will assert jurisdiction over the nonteaching employees of religious institutions or nonprofit religious organizations unless their actual duties and responsibilities require them to perform a specific role in fulfilling the religious mission of the institution. See, e.g., Hanna Boys Center, 284 NLRB 1080 (1987), enfd. 940 F.2d 1295 (9th Cir. 1991), cert. denied 504 U.S. 985 (1992). Applying that standard here, we find that the housekeeping employees at Saint Xavier University (the University) are covered by the Act. Accordingly, we will assert jurisdiction in this case.

Procedural History

The University is a private, nonprofit university offering undergraduate and graduate degrees at its campuses in Chicago and Orland Park, Illinois. On October 30, 2012, the Petitioner, Service Employees International Union, Local 1, petitioned to represent a unit of full-time and regular part-time housekeepers at the University. The University opposed the petition, contending that it is exempt from the jurisdiction of the Act because of its status as a religious educational institution. On November 28, 2012, the Regional Director issued his initial decision in this case, finding that it was appropriate for the Board to assert jurisdiction. The University sought Board review of the Regional Director’s decision. On January 3, 2013, the Region conducted an election and impounded the ballots.

On February 20, 2013, the Board granted the University’s request for review. On December 16, 2014, the Board issued its decision in Pacific Lutheran University, 361 NLRB No. 157, setting out a new test for determining when the Board should decline to exercise jurisdiction over faculty at self-identified religious colleges and universities. On February 12, 2015, the Board vacated

its February 20, 2013 order and issued a new order remanding the case to the Regional Director “for further appropriate action consistent with Pacific Lutheran University.”

On June 23, 2015, the Acting Regional Director issued a supplemental decision and order. Applying the test articulated in Pacific Lutheran University, the Acting Regional Director determined that the University’s housekeeping employees are covered by the Act.¹ The University requested review, contending that, under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) (“Catholic Bishop”), and the test articulated by the United States Court of Appeals for the District of Columbia Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) (“Great Falls”), it is completely exempt from the Board’s jurisdiction because of its status as a religious educational institution.

By order dated November 3, 2015, the Board granted the University’s request for review. The Board requested that the parties address whether it should adhere to current precedent pursuant to which it will assert jurisdiction over the nonteaching employees of religiously-affiliated organizations (Hanna Boys Center); extend the test articulated in Pacific Lutheran University to nonteaching employees; or take a different approach. Both the Petitioner and the University filed briefs on review.²

Facts

The University is an institution of higher learning, established in 1846 by the Sisters of Mercy, a Roman Catholic religious order.³ The University retains its affiliation with the order through the Conference for Mercy Higher Education, the order’s corporate arm, which acts as the religious sponsor for the University and 15 other colleges and universities. The University is also listed in the official Catholic Directory, a listing of entities recognized as official ministries of the Roman Catholic Church.

The parties stipulated to the following facts regarding the petitioned-for housekeepers: offers of employment to housekeepers do not mention the Sisters of Mercy,

¹ The Acting Regional Director also rejected the University’s contention that the Board’s jurisdiction would violate the Religious Freedom Restoration Act. The University does not seek review of that determination.

² The Islamic Saudi Academy filed an amicus brief on review.

³ It is undisputed that the University is a religious educational institution. The University’s mission statement declares as follows: “Saint Xavier University, a Catholic institution inspired by the heritage of the Sisters of Mercy, educates men and women to search for truth, to think critically, to communicate effectively, and to serve wisely and compassionately in support of human dignity and the common good.” See St. Xavier University, 364 NLRB No. 85, slip op. at 1 (2016).

Catholicism, God, or religion; there is no requirement that housekeepers be Catholic or adhere to any specific religion; in the course of their duties, the housekeepers are not required to abide by any specific tenets of the Sisters of Mercy, Catholicism, or any religion, but, as with all employees, are invited to attend and participate in any program or activities that recognize or celebrate the University’s Catholic and Sisters of Mercy heritage; the job evaluations of housekeepers contain no reference to the Sisters of Mercy, Catholicism, or religion; and the housekeepers have never been instructed to disseminate the Catholic faith.

Relevant Precedent

In Catholic Bishop, the Supreme Court held that the Board could not assert jurisdiction over lay teachers employed by a group of parochial schools to teach both religious and secular subjects because it would create “a significant risk that the First Amendment will be infringed.”⁴ 440 U.S. at 502. The Court observed that “the raison d'etre of parochial schools is the propagation of a religious faith,” and emphasized the “critical and unique role of the teacher in fulfilling th[at] mission.” Id. at 503 and 501, quoting Lemon v. Kurtzman, 403 U.S. 602, 628 (Douglas, J., concurring) and 617 (1971). The Court predicted that the Board would be unable to “avoid entanglement with the religious mission of the school in the setting of mandatory collective bargaining,” because “nearly everything that goes on in the school affects teachers and is therefore arguably a ‘condition of employment.”’ Id. at 502–503. In the Court’s view, moreover, “the very process of inquiry leading to findings and conclusions” in Board proceedings involving the relationship between a religious school and its teachers risked intrusion on religious freedoms because such proceedings “will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the schools’ religious mission.” Id. at 502. In light of these factors, the Court saw “no escape from conflicts flowing from the Board’s exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions

⁴ The Court had granted certiorari to consider two questions: (a) Whether teachers in schools operated by a church to teach both religious and secular subjects are within the jurisdiction granted by the Act; and (b) if the Act authorizes such jurisdiction, does its exercise violate the Religion Clauses of the First Amendment? 440 U.S. at 490. As to the second question, the Court declined to rule directly on the constitutionality of Board jurisdiction, but instead invoked the doctrine of constitutional avoidance in which the federal courts will refrain from ruling legislation to be unconstitutional in the absence of “the affirmative intention of Congress clearly expressed” to enact the unconstitutional construction of the statute, when an alternative, permissible construction is available. Id. at 500.

that would follow.” Id. at 504. Accordingly, the Court held that, “in the absence of a clear expression of Congress' intent to bring teachers in church-operated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.” Id. at 507.

In Hanna Boys Center, supra, the Board found that neither the Supreme Court’s decision in Catholic Bishop nor the Religion Clauses of the First Amendment preclude the Board from asserting jurisdiction over nonteaching employees of religiously-affiliated organizations. The Board observed that the petitioned-for clerical employees and child-care workers, recreation assistants, cooks, and maintenance employees at Hanna Boys Center were not teachers and that there was no record evidence that their duties (save for those of the child-care workers) had any connection to the employer’s “possible religious mission.” 284 NLRB at 1083. Regarding the child care workers, the Board found that although Hanna Boys Center provided classroom instruction, including a moral guidance class taught by religious sisters, there was no indication in the record that the child-care workers were required to, or did in fact, involve themselves in religious or secular teaching. Id. In any case, the Board found that “[t]he...