Blame It on Catholic Bishop: The Question of NLRB Jurisdiction over Religious Colleges and Universities

Abstract

My focus in this Article is on how the National Labor Relations Board (the NLRB or the Board) determines whether to exercise jurisdiction over religious colleges and universities, subjecting them to the collective bargaining requirements of the National Labor Relations Act (the NLRA). The NLRB’s current approach is to examine whether the educational institution has a “substantial religious character,” in the absence of which it will exercise jurisdiction. As evidenced by two recent decisions by NLRB regional directors in cases involving efforts by adjunct faculty to form unions—one involving Saint Xavier College and one involving Manhattan College and both of which are currently on appeal to the full Board—the substantial religious character test is an unnecessarily intrusive one that substitutes the government’s views about what it means to be religious for the views of the institution and the religious community with which it is affiliated.