D.C. Circuit Rejects NLRB’s Test For Determining Whether It Has Jurisdiction Over Faculty At Religious Colleges And Universities
January 29, 2021
On January 28, 2020, a divided panel of the United States Court of Appeals for the District of Columbia Circuit issued a decision restricting the exercise of jurisdiction by the National Labor Relations Board (“the Board” or “the NLRB”) over religious schools in cases involving faculty organizing drives. Duquesne University of the Holy Spirit v. NLRB, (D.C. Cir. Jan. 28, 2020). The Duquesne decision will have a significant impact on how religious schools interact with their faculty and will reduce the number of faculty organizing drives at such schools.
Background of the Case
The case involves an organizing effort by certain adjunct faculty at Duquesne in 2012. A union filed a petition on their behalf with the NLRB seeking an election. The school, which has 6500 undergraduate and 3000 graduate students and describes itself as “a Catholic University in the Spiritan Tradition,” opposed the drive. A majority of the voting adjuncts voted in favor of union representation. From the outset, however, Duquesne argued that the NLRB could not exercise jurisdiction over the school without running afoul of the First Amendment. That argument was rejected by the NLRB’s Regional Director and the union was certified as the bargaining representative of the adjunct faculty. Duquesne refused to bargain with the newly-certified union, sparking an unfair labor practice charge by the union. A panel of the NLRB then ordered Duquesne to bargain with the union. It refused and instead challenged the Board’s jurisdiction by petitioning the D.C. Circuit for review.
The Circuit Court’s Analysis
The appellate opinion, authored by Judge Griffith and joined in by Judge Rogers, recounts with some detail the history of the Board’s exercise of jurisdiction over religious institutions dating back to the 1970’s. The Court noted that the NLRB, while disclaiming jurisdiction over religious institutions themselves, had increasingly asserted jurisdiction over religious schools and their teachers. Duquesne, at pp. 6-7. That trend however was slowed significantly by the Supreme Court’s decision in NLRB v. Catholic Bishop of Chicago, 449 U.S. 490 (1979), where the Supreme Court rejected the NLRB’s exercise of jurisdiction over religious schools whether the school was completely religious or merely religiously associated. Catholic Bishop, at 500, 507; Duquesne, at p. 7. Immediately following Catholic Bishop, the NLRB asserted jurisdiction over religious colleges and universities, concluding that Catholic Bishop was limited to elementary and primary schools. Barber-Scotia Coll., 245 NLRB 406 (1979). That distinction was eventually rejected by the First Circuit Court of Appeals in Universidad Central de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1985) (evenly divided en banc). There, then-Judge Breyer rejected the NLRB’s approach concluding that Catholic Bishop did not state it was limited to primary schools and the risk of governmental entanglement with religion appeared just as great with the Board’s exercise of jurisdiction over secondary schools. Universidad at 401.
Twenty years ago, in a case involving the University of Great Falls, the D.C. Circuit established a simple test to determine whether the Board may exercise jurisdiction over a religious institution. Specifically, it held 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. University of Great Falls v. NLRB, 278 F.3d 1335, 1347 (D.C. Cir. 2002). Such a bright-line test would avoid, according to the Court, “delving into matters of religious doctrine or motive.” Id. at 1345.
Years later in a case involving another religiously affiliated college, the D.C. Circuit again rejected the Board’s approach. The Court explained there that the Great Falls test was a bright-line test and a school that satisfies the test is exempt from the Board’s jurisdiction. Carroll Coll. v. NLRB, 558 F.3d 568, 572, 574 (D.C. Cir. 2009).
Following Carroll College, the Board revised its approach to faculty at religious schools in Pacific Lutheran University, 361 NLRB 1404 (2014).1 In that case, the Board refused to apply the D.C. Circuit’s Great Falls test and instead crafted its own test. The Board said a school must show that it holds itself out as providing a religious, educational environment. Pacific Lutheran, at 1414. Then the school must show that the petitioned-for faculty are held out by the school as “performing a specific role in creating or maintaining the college or university’s religious educational environment, as demonstrated by its representations to current or potential students and faculty members, and the community at large. Id. Applying this new test to the adjunct faculty at Pacific Lutheran University, the NLRB held that it could exercise jurisdiction over the faculty outside of the theology department because the other adjuncts were not held out as creating or maintaining Duquesne’s religious environment.
In its Duquesne decision, the D.C. Circuit rejected the NLRB’s attempt to revise or refine the Great Falls test. It similarly rejected the suggestion that the Board could somehow assert jurisdiction over faculty whose roles were non-religious. Id. at 17. Instead, the Court ruled, neither the Board nor the courts should be called upon to determine if the school is sufficiently religious or the faculty play a sufficiently religious role at the institution. Id. at 18. Such an inquiry into the religiosity of the school or of particular faculty is itself violative of the First Amendment.
The Court concluded where it began, relying upon its prior holdings in Great Falls and Carroll College. The test announced in these cases and the test that should be applied to determine whether the NLRB may lawfully exercise jurisdiction over a religious school is: Whether the institution --
- Holds itself out to the public as religious;
- Is it non-profit; and
- Is it religiously affiliated.
If these criteria are satisfied, the NLRB may not exercise jurisdiction.2
The dissent by Judge Pillard, while lengthy, departs from the majority in only two major aspects. First, it reads the NLRB’s Pacific Lutheran test as a consistent adaption of the Great Falls test. Dissent at p. 2. Second, the dissent argues at great length that the Court’s prior decisions did not deal with organizing efforts by adjunct faculty and that such faculty are inherently different than regular faculty. Dissent at pp. 4 -10.3
Takeaway for Religious Schools
The Duquesne decision should come as welcome news to religious schools struggling with faculty organizing drives. The test articulated by the appellate court is straightforward. A non-profit college or university that is religiously affiliated need only show that it holds itself out to the public as religious to avoid NLRB jurisdiction.
1 We described the Pacific Lutheran decision in our Client Alert of December 22, 2014.
2 It should be noted that the Court’s decision did not undermine another important aspect of the Pacific Luther case. In addition to setting out a test for the Board’s exercise of jurisdiction over religious colleges and universities, the Pacific Lutheran decision also established a new test for determining the managerial status of faculty members. The Board’s managerial test was previously approved by the D.C. Circuit in University of Southern California v. NLRB, (D.C. Cir. March 12, 2009).
3 The dissent points out that the Great Falls test is limited to the Board’s exercise of jurisdiction over faculty members. Dissent at p. 16. Presumably the Board’s exercise of jurisdiction in cases involving non-faculty members remains undisturbed.
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