Should the NLRB continue its practice of asserting jurisdiction over secular, non-teaching employees of religiously affiliated organizations? Extend the test articulated in Pacific Lutheran University, 361 NLRB No. 157 (2014)? Or something else? Those are the questions the Board will be deciding in the Islamic Saudi Academy case. [Order in Islamic Saudi Academy] The Islamic Saudi Academy, a private school for grades K-12 in Alexandria, Virginia, clearly is a religious school – providing a religious educational environment. An NLRB Regional Director has decided that the NLRB cannot exercise jurisdiction over the school's teachers, but can exercise jurisdiction over its non-teaching employees.
It all started with NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), holding that schools operated by a church to teach both religious and secular subjects are not within the NLRB's jurisdiction, but that case really applied only to teachers. Then we got Pacific Lutheran University, 361 NLRB No. 157 (2014), which pushed the envelope a bit. In that case the NLRB said the Board will not decline to exercise jurisdiction over a unit of faculty members at a school claiming to be a religious institution unless the school demonstrates that it:
(1) holds itself out as providing a religious educational environment,
(2) holds out the petitioned-for faculty members as performing a specific role in creating or maintaining the school’s religious educational environment.
The Regional Director in the Islamic Saudi Academy case [Regional Director's Order] applied these same principles to non-teachers, and decided that
- "The Employer holds itself out as providing a religious educational environment"
- "The evidence does not establish that the Employer holds out non-teaching employees as performing a specific religious function"
So yesterday the Board granted a request to review the Regional Director's decision. [Order in Islamic Saudi Academy] And now begins the sluggish process of moving to a decision by the NLRB itself. By the time that happens the Board's makeup will have changed. [See Shrinking membership at the NLRB] There are now only four Members (three Democrats and one Republican), and in August a Democrat Member's term will expire which will bring the Board down to three Members. A lot of politics at the level of President and Senate will need to play out before the Board is back up to five Members, and there is no telling whether they will wait for that to take place.