The Salvation Army - Decision Summary
The Salvation Army (13-CA-39080; 345 NLRB No. 38) Chicago, IL Aug. 27, 2005. The Board upheld the administrative law judge’s finding that the Respondent violated Section 8(a)(1) of the Act by discharging Kalaveeta Dean because she engaged in protected concerted activity.
The Board denied the Respondent’s motion to reopen the record to adduce evidence relating to the contention that the Board lacks jurisdiction pursuant to the test for religiously affiliated educational institutions established by the D.C. Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (2002). In that case, the Board, in asserting jurisdiction over faculty members at a university owned by a Roman Catholic religious order, applied the “substantial religious character test” set forth in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), and found that the university’s purpose and function to be primarily secular. The Court decided that the Board applied the wrong test and should decline to assert jurisdiction over an educational institution if it (1) “holds itself out to students, faculty and community as providing a religious educational environment”; (2) “is organized as a nonprofit”; and (3) “is affiliated with, or owned, operated or controlled, directly or indirectly, by a recognized religious institution, or with an entity, membership of which is determined at least in part, with reference to religion . . . .” University of Great Falls, 278 F.3d 1343.
Chairman Battista and Member Liebman found it appropriate to assert jurisdiction here, noting that while the Respondent is a religious institution, the function involved, unlike those found in University of Great Falls, is not one of religious education, and the employee at issue is not a teacher. They concluded that the Board’s decision in Hanna Boys Center, 284 NLRB 1080, 1083 (1987), enfd. 940 F.2d 1295 (9th Cir. 1991), cert. denied 504 U.S. 985 (1992), is applicable. Hanna involved a Catholic residential facility for boys and a unit of child-care workers, recreation assistants, cooks, cooks-helpers, and maintenance employees. The Board asserted jurisdiction, saying that “[t]he sensitive first amendment issues surrounding the assertion of jurisdiction over teachers noted by the Court in Catholic Bishop are not involved in the assertion of jurisdiction over the child-care workers and other unit members in the present case.”
Chairman Battista and Member Liebman observed that the Salvation Army is an international not-for-profit organization engaged in many charitable and social service programs. The program involved in this case is the Community Correctional Center that the Salvation Army maintains within the City of Chicago under contracts with the Federal Bureau of Prisons to provide pre-release services for persons released from prison and for persons serving probationary sentences. The residents are assigned a case manager or resident advisor (RA), like the employee at issue here. The RA description lists 22 enumerated job responsibilities and four qualifications for the job, including one that refers to the “Salvation Army’s vision of human service and social justice.”
Chairman Battista and Member Liebman, noted that the Board, with court approval has previously asserted jurisdiction over Salvation Army facilities similarly devoted to its “vision of human and social justice,” including over teachers, a janitor, a cook, and a social worker at a Salvation Army child care center after finding that the day care center was primarily concerned with custodial care of young children. They decided that the Salvation Army here is also primarily concerned with rehabilitative care, albeit of adults. Accordingly, Chairman Battista and Member Liebman were satisfied that the sensitive issues raised by the Board’s assertion of jurisdiction over religiously affiliated educational institutions are not present in this case and denied the Respondent’s motion to reopen the record.
In his concurring opinion, Member Schaumber said he agreed with his colleagues in denying the Respondent’s motion to reopen the record. He wrote separately to provide a fuller discussion of the applicable case law.
Charge filed by Kalaveeta Dean, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Chicago, Aug. 6-7, 2001. Adm. Law Judge C. Richard Miserendino issued his decision Feb. 12, 2002.