Punching In: NLRB Lawyers Want More Colleges in Board’s Purview

Monday morning musings for workplace watchers.

NLRB and Religious Colleges|Take Two for ETA Nominee

Parker Purifoy: Lawyers for the National Labor Relations Board have signaled they plan to push the board to overturn a Trump-era ruling and bring more religious colleges under the agency’s umbrella.

During a December hearing in a separate case that’s attempting to get student athletes classified as employees, attorneys for the NLRB’s general counsel’s office asked an administrative judge to overturn the board’s 2020 Bethany College ruling.

Under that decision, organizations are exempt from the NLRB’s jurisdiction if can show they’re nonprofit, hold themselves publicly as religious, and are religiously affiliated.

NLRB attorneys now say Bethany College was “wrongly decided” and are asking to return to a doctrine set in the board’s 2014 Pacific Lutheran University ruling, with “some modifications.”

The lawyers didn’t say what those modifications are, and an NLRB spokesperson didn’t provide clarification. Pacific Lutheran requires that an employer provide a religious education, with faculty members performing religious functions, to be exempt from the National Labor Relations Act. This stricter standard would bring more religious institutions under the NLRB’s purview and give their employees protections provided by the NLRA.

The arguments were introduced in a case where NLRB General Counsel Jennifer Abruzzo is already seeking to stretch the agency’s authority to cover student athletes.

The Dec. 18 hearing was for the general counsel’s office to present evidence in support of the NLRB’s allegations that the University of Southern California, the Pac-12 Conference, and the NCAA are joint employers of the university’s football and basketball players. The complaint, filed in May 2023, also accuses the trio of illegally failing to classify the players as employees protected under federal labor law.

USC isn’t a religiously affiliated school and the Pac-12 Conference doesn’t have any religiously affiliated members. The bid to overturn Bethany College suggests a broader move to bring more colleges and universities under the agency’s jurisdiction after the board declined to extend its reach 10 years ago.

In a case involving a unionization drive among Northwestern University football players, the NLRB wouldn’t assert jurisdiction to order an election. Doing so would create an unbalanced labor environment because many of the other colleges in the NCAA Big 10 Conference are public institutions that aren’t covered by the NLRA, the board said at the time.

Agency attorneys are also looking to get around this issue by bringing the complaint against the NCAA and PAC-12 Conference, both of which are private institutions. By establishing these two as joint employers of student athletes, the NLRB can argue that players at public universities are covered by the NLRA.

READ MORE:

• NCAA Hit With NLRB Complaint Over Athletes’ Worker Status
• NLRB Declines Jurisdiction Over Faculty at Religious Colleges
• NLRB Targets College Athletes’ Busy Schedules in NCAA Trial
• NCAA Student Athletes As Employees Case Is ‘Pandora’s Box’
• Florida College Is Exempt From Labor Law, NLRB Judge Finds

José Javier Rodríguez testifies during a June 2020 U.S. Senate Finance Committee hearing on unemployment insurance during the pandemic.

Photographer: Caroline Brehman/Pool/AFP via Getty Images

Diego Areas Munhoz: José Javier Rodríguez is expected to get another shot at being confirmed to head the US Labor Department’s Employment and Training Administration this week, and this time his odds are looking better.

Senate Majority Leader Chuck Schumer has teed up a procedural cloture vote to advance Rodríguez’s nomination, giving him a second chance to clear the Senate floor. The signs point to Rodríguez, whose nomination’s been pending since July 2021, having an easier time during this voting round, even though it may require Vice President Kamala Harris to break a tie.

Rodríguez’s nomination to lead the DOL’s largest subagency was blocked in November in part because of a no vote from Sen. Bob Menendez (D-N.J.). But a spokesman for the senator told Bloomberg Law that Menendez will now support Rodríguez on the floor, reversing his earlier stance.

Yet Rodríguez isn’t likely to have the same luck with Sen. Joe Manchin of West Virginia, the other Democratic defection, who has indicated he takes issue with the nominee’s “political activism and lack of experience.”

If all senators are present for the cloture vote, that would leave Rodríguez at a 50-50 tie, which Harris would likely break.

Menendez casting a crucial vote in favor of Rodríguez’s long-awaited confirmation, would place the former Florida state senator at the ETA’s helm during a very busy time for the subagency.

The ETA just released a proposed overhaul of the US apprenticeship system that has drawn a mixed reception. Lawmakers are also working through a revamp of the Workforce Innovation and Opportunity Act—a massive $3 billion workforce program that the ETA is responsible for administering.

Rodríguez’s second chance also is likely to have more success, as his failed cloture vote in November was caught in the crossfire between Menendez and the Biden administration.

Manchin often voted against President Joe Biden’s nominees in 2023, but Menendez’s opposition to Rodríguez came as a surprise to many. The longtime New Jersey senator told Bloomberg Law in November that his opposition had nothing to do with Rodríguez himself, but was a protest against the administration.

Menendez was the only Democrat to vote against a Biden nominee on two more occasions afterward.

Menendez has been indicted by the Justice Department for taking bribes to help Egypt and Qatar, and a majority of Democratic senators have asked him to resign. In addition, the senator has expressed frustration at being left out—along with other Hispanic lawmakers—of current negotiations over changes to US immigration laws.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.