The National Labor Relations Board has historically declined to assert jurisdiction over religious colleges and universities if they met the Board’s “substantial religious character” test. However, in a recent decision, the Board changed its standard such that it would assert jurisdiction unless an institution (1) holds itself out as “providing a religious educational environment” and (2) holds out “those employees that a union seeks to represent” as performing a specific role in creating or maintaining the university’s religious educational movement.

Most religious colleges and universities will meet the first prong, but the second prong is more difficult to meet, especially for adjunct faculty members. In two recent decisions, Regional Directors have exercised jurisdiction over proposed bargaining units consisting of adjunct faculty members and concluded that the adjunct faculty members did not meet the second prong, pointing to factors such as the university’s lacking religious selection criteria for these faculty members and a lack of evidence that the adjuncts were informed of any participation requirement for supporting the university’s religious message.

These decisions likely will be appealed, but we expect the Board will continue to find ways to allow adjuncts at religious universities to unionize. This Board has heightened the standard for meeting the substantial religious character test to the point where, some argue, only ordained clergy may now meet it.