NLRB Declines to Assert Jurisdiction Over Religious School

By John F. Welsh

Over the past few years the National Labor Relations Board (“NLRB”) has been re-examining whether it can assert its jurisdiction over religious schools, universities and hospitals.  Recently, Bello Welsh LLP convinced the NLRB’s Division of Advice in Washington, D.C. that the NLRB lacked jurisdiction over our pro bono client, Nativity Preparatory School of Boston. The case is remarkable given that since April 2014, the NLRB has been expanding its jurisdiction inexorably over religious institutions based on its decision in .

A Jesuit–sponsored Catholic middle school, Nativity Prep provides tuition-free Jesuit education to a diverse group of boys from low income families.  At issue was whether asserting NLRB jurisdiction would violate rights guaranteed by the Religion Clauses of the First Amendment, which enforce the separation of church and state and prohibit the government from interfering with individuals’ freedom of religion.

The NLRB found that because Nativity Prep holds itself outs to students, faculty and the community as providing a religious educational environment, and holds out its faculty and social workers as performing a specific role in creating and maintaining the school’s religious educational environment, to assert jurisdiction would by necessity violate the First Amendment.

The NLRB decision leaves unaddressed our assertion that the Pacific Lutheran University decision itself is at odds with the Supreme Court’s 1979 decision, NLRB v.Catholic Bishop of Chicago, as well as the Religion Clauses of the First Amendment of the United States Constitution.   The NLRB also did not address application of the Religious Freedom Restoration Act of 1993 which, we contend, prevent the NLRB from asserting jurisdiction.

This may be the first NLRB decision where a religious school was able to meet the high burden established by Pacific Lutheran University, and convince the NLRB to decline jurisdiction.  Nevertheless, we expect the issue to remain in flux until the Circuit Courts, and ultimately the Supreme Court, weigh in.