The Board may not “question the sincerity of the school’s public representations about the significance of its religious affiliation” or conduct a “skeptical inquiry” into whether an affiliated church exerts influence over the school.
The religious mission of a Catholic university placed it beyond the jurisdiction of the NLRB, ruled a divided D.C. Circuit in a 2-1 decision. The Board had ordered the university to bargain with a union representing its adjunct faculty. However, the appeals court found that the Board’s 2014 ruling in Pacific Lutheran University runs afoul of its decisions in University of Great Falls v. NLRB and Carroll College v. NLRB. Under the bright-line test announced by the D.C. Circuit in Great Falls, it makes no difference whether or not the adjuncts are faculty members who play a role in Duquesne’s religious educational environment. The test did not permit an examination of the roles played by the faculty members. Judge Pillard filed a separate dissenting opinion (Duquesne University of the Holy Spirit v. NLRB, January 28, 2020, Griffith, T.).
Duquesne University, a Catholic University in Pennsylvania, was founded by a religious order. The order has exclusive authority over the university’s mission and the appointment of its board of trustees, president, and officers. Students at the university are taught by various types of faculty, including tenured, non-tenure track, visiting, and part-time adjuncts. Adjunct faculty members are hired for one semester at a time and may teach up to six credit hours per semester. Adjunct faculty teach approximately 44 percent of all credit hours for general education requirements.
Jurisdictional question. In 2012, some of the adjuncts sought to unionize. A union petitioned the Board to certify it as the exclusive bargaining representative for the adjunct faculty in the liberal arts college. At the time of the election, there were approximately 88 adjuncts in the proposed bargaining unit, and a majority voted for the union. Duquesne ultimately asked the Board to vacate the election and dismiss the union’s petition.
Relying on the Supreme Court’s decision in NLRB v. Catholic Bishop of Chicago, and the D.C. Circuit’s decision in Great Falls, Duquesne argued that the NLRA—when read in light of the Religion Clauses of the First Amendment—does not authorize the Board to exercise jurisdiction in this matter. A regional director of the Board rejected this argument. Applying Pacific Lutheran University, the regional director concluded that the Board had jurisdiction because Duquesne did not hold out to the public that its adjunct faculty performed specific religious roles at the school. The Board agreed with the regional director.
However, Duquesne refused to bargain with the union, but the Board ordered it to bargain without reviewing the jurisdictional question. The university petitioned for review, arguing that the Board lacked jurisdiction and that its order violated the Religious Freedom Restoration Act. The appeals court agreed.
The Board began asserting jurisdiction over religious schools in the 1970s. However, the Supreme Court and courts of appeals have held that the NLRA—when read in light of the Religion Clauses of the First Amendment—does not authorize the Board to exercise jurisdiction.
Religious Clauses. Turning to the Religious Clauses, the D.C. Circuit observed that the Establishment Clause limits governmental involvement in the affairs of religious groups, and the Free Exercise Clause safeguards the freedom to practice religion. Religious organizations are also employers and potentially subject to the Board’s jurisdiction. Typically, the Board will not get involved with disputes between churches and their employees for fear of interfering with the churches’ religious missions.
However, the Board has taken a different approach to religious schools, asserting jurisdiction over them and their teachers despite their religious missions. The Board distinguished between schools it deemed “completely religious” and those it characterized as only “religiously associated.” Using this approach, the Board compelled Catholic high schools to bargain with unions representing lay teachers. However, the Supreme Court in Catholic Bishop rejected that approach, holding that the NLRA does not authorize the Board to exercise jurisdiction over teachers in a church-operated school, whether the school is “completely religious” or merely “religiously associated.”
Substantial religious character. After Catholic Bishop, the Board developed a different approach to jurisdiction over religious schools, asserting authority over schools that lacked a “substantial religious character.” However, in its 2002 decision in Great Falls, the D.C. Circuit categorically rejected the Board’s test, explaining that it involved the same “intrusive inquiry” and the “exact kind of questioning of religious matters which Catholic Bishop specifically sought to avoid.”
To avoid the First Amendment concerns raised by the Board’s new policy, the D.C. Circuit developed the Great Falls test, which provides that in determining whether an institution is exempt from the NLRA under Catholic Bishop, “the Board should consider whether the institution: (a) holds itself out to the public as a religious institution; (b) is non-profit; and (c) is religiously affiliated.” This test was designed to allow the Board to determine whether it has jurisdiction without delving into matters of religious doctrine or motive, and without coercing an educational institution into altering its religious mission to meet regulatory demands.
But the Board did not follow the appeals court’s test in asserting jurisdiction over a dispute involving faculty members in Carroll College. The appeals court stressed that “Great Falls created a bright line test,” and a school that satisfies that test “is exempt from NLRB jurisdiction.” The Board may not “question the sincerity of the school’s public representations about the significance of its religious affiliation” or conduct a “skeptical inquiry” into whether an affiliated church exerts influence over the school.
Religious educational environment. In Pacific Lutheran, the Board created a new way to determine jurisdiction over a religious school. Under this test, a religious college or university seeking to avoid the Board’s jurisdiction must first show that “it holds itself out as providing a religious educational environment.” The school must also show that it holds out the petitioned-for faculty members themselves as performing a specific role in creating or maintaining the college or university’s religious educational environment.
In this case, a divided Board applied Pacific Lutheran and exercised jurisdiction because adjuncts outside the Theology Department were not held out as performing a specific role in creating or maintaining Duquesne’s religious educational environment.
No jurisdiction. The appeals court agreed with Duquesne that Great Falls and Carroll College foreclosed the Board’s jurisdiction. This case involved faculty members and Duquesne satisfied the Great Falls test. Therefore, the NLRA does not empower the Board to exercise jurisdiction. The adjuncts are clearly faculty members and they educate students; it makes no difference whether the adjuncts are faculty members who play a role in Duquesne’s religious educational environment. Once it was determined that they were faculty members or teachers, the Great Falls test applied, and that test did not permit an examination of the roles played by the faculty members.
Pacific Lutheran runs afoul of the court’s precedent by claiming jurisdiction in cases that it has placed beyond the Board’s reach. Great Falls is a bright line test. If it is satisfied, the school is “altogether exempt from the NLRA.” The Board may not “dig deeper” by examining whether faculty members play religious or non-religious roles, for doing so would risk infringing upon the guarantees of the First Amendment’s Religion Clauses. Thus, Pacific Lutheran impermissibly intrudes into religious matters because it still requires the Board to define what counts as a “religious role,” or a “religious function.”
Accordingly, the appeals court granted the petition for review and vacated the Board’s decision and order.
Dissent. In a dissenting opinion, Judge Pillard argued that it was not apparent that temporary, part-time adjunct faculty whom the school does not hold out as agents of its religious mission necessarily fall within an exemption from the NLRA. The Board ruled that adjunct faculty may be exempted, but only where the school holds them out as performing a specific role in creating and maintaining the university’s religious mission.
Pillar would find that this deferential standard avoids any intrusive review of the teacher’s actual duties, requiring that the school provide clear notice that they cast their adjuncts in a religious role. He believed that this modest requirement is more consistent with the competing concerns than the majority’s blanket conclusion that all adjuncts at a religious university serve religious function, even where their employer has never held them out as doing so.
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