Further and Further, Amen: Expanded National Labor Relations Board Jurisdiction over Religious Schools

INTRODUCTIONAcross the United States, thousands of elementary and high schools affiliated with the Catholic Church educate approximately two million students each year.1 It is a fundamental aspect of these schools' educational and spiritual mission to incorporate religion into their operation. 2 Despite the schools' religious leadership and identity, their teachers and professional staff are overwhelmingly laypersons.3One such school is Nativity Preparatory School ("Nativity Prep"), a private, Catholic middle school in Jamaica Plain, Massachusetts affiliated with and sponsored by the Society of Jesus ("Jesuits"), led by a Jesuit president, and indirectly controlled by the regional Jesuit Provincial, who must approve appointments to the Board of Trustees.4 Recently, the National Labor Relations Board ("NLRB" or "the Board") opened an unfair labor practice charge against Nativity Prep.5 The case stemmed from Nativity Prep's termination of a social worker who allegedly spoke out, during staff orientation, about the school's "increased emphasis on God."6 The social worker allegedly said numerous times, during the orientation and afterwards, that she "rejected" Nativity Prep's Jesuit mission and felt oppressed by the school's emphasis on God.7One might expect the clergy administrators of a religious school, when faced with a staff member actively and openly undermining the school's religious mission, to determine that the employment relationship is no longer viable.8 That it what occurred in the case of Nativity Prep-a religious school wanted its faculty and staff to support its religious message, and therefore terminated an employee not aligned with those goals.9 Now, however, Nativity Prep could face an investigation into the circumstances of the termination to determine whether the school's action constituted an unfair labor practice-whether the clergy administrators of the school acted in good faith in reaching the conclusion that the social worker was undermining the school's religious mission.10Such a scenario would previously have been unthinkable, for the U.S. Supreme Court nearly half a century ago firmly concluded that parochial schools were outside NLRB jurisdiction.11 But in 2014, in Pacific Lutheran University, the Board introduced a new standard for determining its jurisdiction.12 By focusing on the role of the specific employees of religiously affiliated colleges and universities, rather than the institutions as a whole, the Board made jurisdictional claims over schools like Nativity Prep a far more likely possibility.13With Pacific Lutheran, the Board expanded its reach dramatically in announcing a new two-part test that would evaluate not only how a college or university held itself out as an institution, but how it held out the roles of its faculty.14 If the university did not hold out specific faculty as performing a specific function in providing the school's religious educational environment, those employees would be eligible for unionization through NLRBcertified elections.15 The NLRB would also have the power to resolve unfair labor practice claims made by those employees.16 Since Pacific Lutheran, an NLRB Regional Director has already approved jurisdiction over a number of Catholic colleges and universities, and the Board has signaled plans to further expand jurisdiction over religious schools.17Although the holding of Pacific Lutheran applied, on its face, only to colleges and universities, its principles and its test mark a worrisome turn for religious elementary and secondary schools.18 If it is no longer the institution, but the specific employee, that must be performing a religious function, then the de facto moratorium on parochial school jurisdiction that has continued since Catholic Bishop may be in jeopardy.19This Note argues that the NLRB's expanding jurisdiction over religious schools is inappropriate, and probably unconstitutional-particularly in the case of parochial schools. …