Carroll College, Inc. v. N.L.R.B.

• Decision Date: 13 March 2009
• Docket Number: No. 07-1383.,No. 07-1315.,07-1315.,07-1383.
• Citation: 558 F.3d 568
• Parties: CARROLL COLLEGE, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

558 F.3d 568

CARROLL COLLEGE, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Intervenor.

No. 07-1315.

No. 07-1383.

United States Court of Appeals, District of Columbia Circuit.

Argued December 4, 2008.

Decided March 13, 2009.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Edward A. Brill argued the cause and filed the briefs for petitioner. Lawrence Z. Lorber entered an appearance.

Arnold E. Perl and Ada Meloy were on the brief of amici curiae American Council on Education et al. in support of petitioner.

Steven B. Goldstein, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Ronald E. Meisburg, General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney.

Catherine Trafton argued the cause for intervenor. With her on the brief was James B. Coppess.

Before HENDERSON, ROGERS, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

The National Labor Relations Board ordered Carroll College to bargain with the recognized collective bargaining agent of its faculty. In this petition for review, the college argues that its religious educational environment and affiliation with the United Presbyterian Church place it beyond the Board's jurisdiction under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), and University of Great Falls v. NLRB, 278 F.3d 1335 (D.C.Cir.2002). We agree.

I.

Established in 1846, Carroll College is a private college located in Waukesha, Wisconsin, and affiliated with the Synod of Lakes and Prairies of the United Presbyterian Church of the U.S.A. The college has a school of liberal arts and sciences for undergraduates and a school of graduate and professional studies. Its governance structure is composed of a board of trustees, an administration, and a faculty.

In November 2004, the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW, filed a petition with the NLRB seeking certification as the collective bargaining representative for Carroll's faculty. Carroll challenged the Board's jurisdiction, arguing that requiring it to bargain with the union would substantially burden its free exercise rights in violation of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1 (2000). In the alternative, Carroll argued that its faculty members are managerial employees not covered by the National Labor Relations Act (NLRA), 29 U.S.C. §§ 152(3), 157 (2000), under NLRB v. Yeshiva University, 444 U.S. 672, 100 S.Ct. 856, 63 L.Ed.2d 115 (1980).

After a hearing to consider the union's petition, the Regional Director for the NLRB rejected both of the college's arguments. On the question of jurisdiction, the Regional Director saw no need to address the college's RFRA argument, interpreting Board precedent to foreclose such a challenge unless a school can show under Catholic Bishop that it is "church operated." See J.A. at 21-22 (citing Catholic Bishop, 440 U.S. at 507, 99 S.Ct. 1313 (holding that church-operated schools are not subject to NLRB jurisdiction)). Carroll's affiliation with the Synod, the Regional Director concluded, was insufficient to meet this requirement. Reaching the merits, the Regional Director concluded that Carroll's faculty members are not managerial employees. J.A. at 38-45. Carroll filed a timely request to review the Regional Director's decision on jurisdiction and the merits, but stressed that its argument against NLRB jurisdiction was based solely on RFRA and not Catholic Bishop. See Resp't Br. add. 8.

The NLRB granted Carroll's request for review on the jurisdictional issue alone and concluded that it was no violation of RFRA to apply the NLRA's duty to bargain to the college. CARROLL COLL., INC., 345 N.L.R.B. 254, 254, 257-60 (2005). In the wake of the NLRB's decision, the Regional Director certified the union as the exclusive representative of Carroll's faculty. Carroll refused to bargain with the union, which drew an unfair labor practice charge from the General Counsel alleging a violation of sections 8(a)(5) and (1) of the NLRA. In its defense before the Board Carroll presented once again the RFRA and managerial employee arguments it had first made to the Regional Director.

The NLRB granted the General Counsel's motion for summary judgment and ordered Carroll to recognize and bargain with the union. CARROLL COLL., INC., 350 N.L.R.B. No. 30, at 1 (2007). With respect to Carroll's RFRA challenge, the NLRB repeated its earlier analysis and concluded again that the duty to bargain did not substantially burden the college's free exercise rights. Id. at 2-3. With respect to Carroll's argument that its faculty members are managerial employees, the Board used the Regional Director's earlier analysis and likewise concluded that they are not. Id. at 1-2. Carroll now petitions for review, and the NLRB cross-petitions for enforcement of its order. The union has intervened in support of the Board.¹ We have jurisdiction under 29 U.S.C. § 160(e), (f).

II.

Before us, Carroll abandons the argument that the NLRB cannot, consistent with RFRA, order it to bargain with the union. Instead, Carroll asserts for the first time that the NLRB has no jurisdiction under Catholic Bishop. We begin with an explanation of Catholic Bishop and its progeny.

In Catholic Bishop, the Supreme Court read the NLRA in light of the Religion Clauses of the First Amendment to hold that the NLRB lacks jurisdiction over church-operated schools. 440 U.S. at 507, 99 S.Ct. 1313. Central to the Court's reasoning was a concern that despite the best of intentions, a Board authorized to order collective bargaining at church-operated schools would, in many cases, find itself inquiring "into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission." Id. at 502, 99 S.Ct. 1313. The First Amendment does not permit such inquiry. "It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions." Id. (emphasis added). The Court saw "no escape" from these "serious First Amendment questions" if the Board was permitted to exercise jurisdiction over church-operated schools. Id. at 504, 99 S.Ct. 1313.

But the Court offered no test for determining whether a school is beyond Board jurisdiction. In a series of decisions following Catholic Bishop, the NLRB created a framework for analysis that looked to whether a school has a "substantial religious character" to determine if it is exempt from jurisdiction. See, e.g., Livingstone Coll., 286 N.L.R.B. 1308, 1309-10 (1987); Jewish Day Sch. of Greater Wash., Inc., 283 N.L.R.B. 757, 760-61 (1987); Trustee of St. Joseph's Coll., 282 N.L.R.B 65, 68 n. 10 (1986). The Board weighed, inter alia, the involvement of the affiliated religious group in the school's day-to-day affairs, the degree to which the school has a religious mission, and whether religious criteria play a role in faculty appointment and evaluation. See Livingstone Coll., 286 N.L.R.B. at 1309-10. The "substantial religious character" test allowed the Board to consider "all aspects of a religious school's organization and function that [it deemed] relevant." St. Joseph's Coll., 282 N.L.R.B. at 68 n. 10.

In Great Falls, we held that the Board's approach involved just "the sort of intrusive inquiry that Catholic Bishop sought to avoid," with "the NLRB trolling through the beliefs of [schools], making determinations about [their] religious mission, and that mission's centrality to the `primary purpose' of the [school]." 278 F.3d at 1341-42. Accordingly, we read Catholic Bishop to require a much different and less intrusive inquiry. Drawing in large part on then-Judge Breyer's opinion in Universidad Central de Bayamon v. NLRB, 793 F.2d 383 (1st Cir.1986) (en banc), we fashioned a three-part inquiry. A school is exempt from NLRB jurisdiction if it (1) "`holds itself out to students, faculty and the community' as providing a religious educational environment," Great Falls, 278 F.3d at 1343 (quoting Bayamon, 793 F.2d at 400); (2) "is organized as a `nonprofit,'" id.; and (3) "is affiliated with, or 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. We intended this test to create a "bright-line" rule for determining jurisdiction "without delving into matters of religious doctrine or motive." Id. at 1345. It would ensure that schools claiming a Catholic Bishop exemption "are bona fide religious institutions," id. at 1344, while avoiding Board inquiry into the substance and contours of their religious beliefs and missions, see id. at 1344-45.

To determine whether the University of Great Falls held itself out as "providing a religious educational environment," we looked to its course catalogue, mission statement, student bulletin, and other public documents. Id. at 1345. There was no inquiry into the content of the school's religious beliefs nor skepticism whether those beliefs were followed. Probing into the school's religious views would "needlessly engage in the `trolling' that ... Catholic Bishop itself sought to avoid." Id. The second and third questions were easily answered. The school operated as a nonprofit and it was undisputed that it was affiliated with a recognized religious institution. See id. at 1343-45. There was no need to dig deeper. Doing so would only risk infringing upon the guarantees of the ...