NLRB Advice Memoranda, Stepping Stones Children"s Center, National Labor Relations Board, (Apr 13, 2023)

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Good morning, Ms. Kerwin:

The Region submitted this case for advice on whether the Board may assert jurisdiction over teachers in a child-care center owned and operated by a church. We conclude that the Region should dismiss the current charge, absent withdrawal, because under governing precedent Board jurisdiction is absent here. [1]

Glen Lake New Life Church of the Nazarene d/b/a Stepping Stones Children's Center (“the Employer”) is a Michigan, nonprofit corporation that owns and operates a church (“Glen Lake Church”) and a child-care center (“Stepping Stones”). [2] Glen Lake Church is affiliated with the Church of the Nazarene. [3] The corporation's bylaws specify that Glen Lake Church shall be controlled by a board of ministers and Stepping Stones by a board of governors. Glen Lake Church's board selects all of the members of Stepping Stones' board and possesses veto authority over the terms and conditions of employment for teachers working at Stepping Stones. The bylaws also specify that Glen Lake Church owns all of the equipment, supplies, and other assets used at Stepping Stones and that Stepping Stones cannot become independent of Glen Lake Church unless a majority of the Church's ministry board vote in favor of independence and a senior advisory board in the Northern Michigan District of the Church of the Nazarene also approves. Lastly, the bylaws declare that Stepping Stones is subject to the “Manual” of the Church of the Nazarene. [4]

Glen Lake Church and Stepping Stones at one time shared the same building, but Stepping Stones came to occupy the entire structure when its enrollment expanded. Although Glen Lake Church no longer conducts worship services at the building, [5] Christian crosses remain over its two entrances and a sign on the building reads, “THE ROCK – A Ministry of the Church of the Nazarene.” [6] The website maintained by Stepping Stones advertises “faith based” child care, [7] which is consistent with statements in Stepping Stones' parent handbook explaining that children are furnished a “Christ-centered environment,” that a climate exists there to develop a “confident self-image as one loved and accepted by God,” and that “teachers have the opportunity to show students the love of God from a Christian world view.” The staff handbook for Stepping Stones' teachers requires each of them to agree in writing to “heartily support the Christ-centeredness” of the care provided to children and to follow the policies, procedures, and guidelines expressed in the parent handbook.

The Charging Party was employed at Stepping Stones as the ​     ​. They filed the current charge in response to actions taken by Glen Lake Church's ​     ​ and Stepping Stones' ​     ​, [8] who during the COVID pandemic announced a new rule prohibiting employees from discussing their salaries and other benefits with each other and requiring each of them to sign a non-disclosure agreement to the same effect. The rule was instituted following staffing shortages caused by the pandemic and the resulting reallocation of job responsibilities among those yet able to work. At a staff meeting on ​     ​, 2022, one of the employees protested that a coworker had received a pay raise in connection with the reallocation but that ​     ​ had not. The Employer discharged the protesting employee soon thereafter. That adverse action motivated the Charging Party to file their charge on ​     ​, 2022 and to later quit. The charge alleges, among other accusations, that the Employer violated Section 8(a)(1) by maintaining an overbroad work rule prohibiting employees from discussing their wages and other benefits and by discharging the protesting employee for engaging in Section 7 activity.

We conclude that the Board does not have jurisdiction over the Employer's teachers under current precedent. In Bethany College, the Board adopted the D.C. Circuit's three-part test for assessing whether the Board can exercise jurisdiction over teachers at religious schools. See 369 NLRB No. 98, slip op. at 1, 3, 5 (quoting University of Great Falls v. NLRB, 278 F.3d 1335, 1344, 1347 (D.C. Cir. 2002)). Under that test, a school is a bona fide religious institution outside the Board's jurisdiction if it: (1) holds itself out to the public as a religious institution, (2) is nonprofit, and (3) is religiously affiliated. Bethany College, 369 NLRB No. 98, slip op. at 1. Insofar as the third factor is concerned, religious affiliation can mean “owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.” Id., slip op. at 3 (again quoting University of Great Falls v. NLRB, 278 F.3d at 1343); accord Carroll College, Inc. v. NLRB, 558 F.3d 568, 572 (D.C. Cir. 2009), denying enforcement of 345 NLRB 254 (2005).

Applying Bethany College's three-factor test, we conclude that the Board would be unable to exercise jurisdiction here. The first factor is satisfied because that part of the Employer operating as Stepping Stones holds itself out to the public as a religious institution in many ways. Stepping Stones and Glen Lake Church initially occupied the same building, which still has Christian crosses above its entrances and an outdoor sign reading, “THE ROCK – A Ministry of the Church of the Nazarene.” Thus, it would be difficult for anyone approaching the facility to be unaware that Stepping Stones has a religious connection. Indeed, Glen Lake Church apparently continues to hold an evening Bible study class at the facility once per week. Stepping Stones also uses its website to hold itself out to the public as a religious institution by stating that it offers “faith based” child care. This message is reinforced by statements in the parent handbook that children are furnished a “Christ-centered environment,” that a climate exists there to develop a “confident self-image as one loved and accepted by God,” and that “teachers have the opportunity to show students the love of God from a Christian world view.” The staff handbook further requires teachers to agree in writing to “heartily support the Christ-centeredness” of the care provided to children. Taken together, these expressions send the unambiguous message that religion is integral to the Employer's composition.

The remaining two factors in the Bethany College test are also clearly satisfied because the Employer is indisputably organized under Michigan law as a nonprofit corporation and is unmistakably affiliated with a religion. Under its bylaws, Stepping Stones is subject to the control of Glen Lake Church's board of ministers, who select all members of Stepping Stones' board of governors and who have veto authority over the employment terms of the teachers working there. The bylaws also specify that Stepping Stones cannot become independent of Glen Lake Church unless a majority of the Church's board of ministers vote in favor of independence and a senior advisory board in the Northern Michigan District of the Church of the Nazarene also approves. Furthermore, the bylaws provide that all of the equipment, supplies, and other property Stepping Stones uses for child care belongs to Glen Lake Church and that Stepping Stones must adhere to the Manual of the Church of the Nazarene in caring for the children enrolled there. In short, Stepping Stones is owned, operated, and controlled by a recognized religious organization.

Based on the preceding analysis, the Board cannot assert jurisdiction over the Employer's teachers.

Although the General Counsel disagrees with the Board's decision in Bethany College, [9] because there is no viable theory here for issuing complaint under extant law, this case is not a good vehicle for urging the Board to reconsider that precedent. [10] Thus, absent withdrawal, the charge should be dismissed.

This e-mail message closes the subject case in Advice. Please contact us if you have any further questions. – ​     ​

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