NLRB rejects right-to-work crowd’s attempt to use health care ruling vs. union drive

WASHINGTON (PAI) – The National Labor Relations Board has rejected, for now, the anti-worker “right to work” crowd’s initial attempt to use the U.S. Supreme Court’s Hobby Lobby ruling letting employers refuse to offer women’s health care coverage to justify banning unions in religious-sponsored universities.

Instead, the NLRB took note of the RTW crowd’s stand, but did not say how it would rule one way or the other.

The case involves Service Employees Local 925’s attempt to organize full-time and part-time contingent faculty at Pacific Lutheran University in Tacoma, Washington. The Pacific Lutheran drive is one of several SEIU is conducting among contingent faculty nationwide.

The National Right to Work Legal Defense Foundation argued the Religious Freedom Restoration Act (RFRA) lets universities ban unions on religious grounds.

In Hobby Lobby, the 5-member GOP-named court majority said the private company’s owners could use their freedom of religion and religious beliefs, covered by RFRA, to justify banning contraceptive coverage under the new comprehensive health care law.

“The court thought the legislature intended that RFRA would effectuate a complete separation from 1^st Amendment case law ‘in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution,'” the right to work crowd’s lawyers argued.

According to Hobby Lobby, they contended, “The term ‘religious exercise’ now includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

“As applied to this case, Pacific Lutheran University’s religious identity and its Lutheran mission are part of the broad protection of the free exercise of religion protected by RFRA in the aftermath of Hobby Lobby,” the right wing group’s lawyers claimed. And since corporations are “persons” RFRA covers, according to Hobby Lobby, “RFRA should be understood to include the university the same way that Hobby Lobby intended to include corporations.”

The labor board took notice of the argument, but refused to let the right to work group file its full brief. The board said in late October that the right-to-workers sufficiently raised their argument in a prior letter outlining their position.

The AFL-CIO and the Service Employees both opposed the right-to-workers’ use of Hobby Lobby. But their briefs concentrated on urging the board to review its test for when universities can use religion to battle unionization.

“The board should abandon the ‘substantial religious character’ test it adopted,” SEIU General Counsel Judy Scott’s brief says. “Such an inquiry into the nature of the institution as a whole is logically distinct from the question that is relevant: Whether the board can assert jurisdiction over a particular unit of teachers without creating a risk of entanglement between government and religion.”

The board is wrestling with that religious university question in other cases. In one, Catholic universities, led by Duquesne University in Pittsburgh, also claim that freedom of religion lets them bar unionization of their adjunct professors. The other has SEIU battling a Chicago Catholic college’s claim that freedom of religion lets it bar unionization of its janitors. The NLRB has yet to rule on any of the cases.

But the board’s past religion test “also raises the specter of a wide-ranging, constitutionally problematic inquiry into whether a school is ‘sufficiently religious,'” SEIU said.

“And it wrongly suggests” that the prior NLRB ruling about “substantial religious character applies to non-teachers, and thus that cleaners, food service workers, security officers, and other non-teaching employees at religiously affiliated colleges and universities across the country do not have rights under the National Labor Relations Act.

“Instead, the board should ask whether the teachers” at Pacific Lutheran “perform religious functions as part of their jobs – specifically, whether it is part of their job duties to teach or inculcate religious beliefs, and whether they can be terminated or disciplined based on religious criteria. This approach should be based on the institution’s own public statements about the nature of the teachers’ jobs.”

Photo: SEIU Local 925, Facebook.