Duquesne Univ. of the Holy Spirit v. Nat'l Labor Relations Bd.

Decision Date28 January 2020
Docket NumberNo. 18-1063,C/w 18-1078,18-1063
Parties DUQUESNE UNIVERSITY OF THE HOLY SPIRIT, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent United Steel, Paper and Forestry, Rubber, Manufacturing, Allied-Industrial and Service Workers International Union, AFL-CIO-CLC, Intervenor
CourtU.S. Court of Appeals — District of Columbia Circuit

Stanley J. Brown, New York, NY, argued the cause for petitioner. With him on the briefs were Arnold E. Perl, Memphis, TN, Joel Buckman, Washington, DC, Ira M. Feinberg, New York, NY, and Amy Folsom Kett, Tysons, VA.

Erin E. Murphy, argued the cause for amicus curiae Association of Catholic Colleges and Universities in support of petitioner. With her on the brief were Paul D. Clement, Kasdin M. Mitchell, and Lauren N. Beebe, Washington, DC.

Heather S. Beard, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Peter B. Robb, General Counsel, John W. Kyle, Deputy General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Elizabeth Heaney, Supervisory Attorney.

James B. Coppess, Washington, DC, argued the cause for intervenor. With him on the brief were Amanda Fisher and Nathan Kilbert.

Michael S. Wolly, Washington, DC, was on the brief for amicus curiae American Association of University Professors in support of respondent.

Before: Rogers, Griffith, and Pillard, Circuit Judges.

Dissenting opinion filed by Circuit Judge Pillard.

Griffith, Circuit Judge:

The National Labor Relations Board ordered Duquesne University, a Catholic school in Pennsylvania, to bargain with a union representing the school’s adjunct faculty. Duquesne petitions for review, arguing that its religious mission places it beyond the Board’s jurisdiction. We agree.

I

Duquesne was founded in 1878 by the priests and brothers of the Congregation of the Holy Spirit, a Catholic religious order also known as the Spiritans. Today, Duquesne is organized as a non-profit corporation led by the Spiritans, who have exclusive authority over the university’s mission and the appointment of its board of trustees, president, and officers.

Duquesne describes itself as a "Catholic University in the Spiritan Tradition." J.A. 70. That tradition, Duquesne explains, endeavors to "preach the Gospel to those who have never heard it, or to those who have barely heard it, with particular attention ... to young people, and to our educational works." J.A. 297. As the university’s mission statement puts it, "Duquesne serves God by serving students." J.A. 70.

Approximately 6,500 undergraduate and 3,000 graduate students attend Duquesne. They are taught by various types of faculty: tenured, tenure-track, non-tenure-track, executive, visiting, emeritus, and part-time adjuncts. Adjunct faculty members are hired for one semester at a time, and each may teach up to six credit hours per semester. In total, adjunct faculty teach approximately 44% of all credit hours in the Core Curriculum, which is what Duquesne calls its general-education requirements. The Core Curriculum includes courses in math, writing, science, philosophy, theology, and ethics.

In 2012, some of the adjuncts sought to unionize. The United Steel, Paper and Forestry, Rubber, Manufacturing, Allied-Industrial and Service Workers International Union, AFL-CIO-CLC (the "Union") petitioned the National Labor Relations Board (NLRB or the "Board") to certify it as the exclusive bargaining representative for the adjunct faculty in Duquesne’s liberal arts college. At the time of the election, there were approximately eighty-eight such 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 , 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), and our decision in University of Great Falls v. NLRB , 278 F.3d 1335 (D.C. Cir. 2002), Duquesne argued that the National Labor Relations Act (NLRA)—when read in light of the Religion Clauses of the First Amendment—does not authorize the Board to exercise jurisdiction in this matter.

The Board’s Regional Director rejected that argument. Applying the Board’s decision in Pacific Lutheran University , 361 N.L.R.B. 1404 (2014), she 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. She then recommended that the Union be certified as the exclusive bargaining representative of the adjuncts. On review, a divided three-member panel of the Board agreed with the Regional Director, but the panel excluded from the bargaining unit adjunct faculty who teach theology. Duquesne Univ. , No. 06-RC-080933, 2017 WL 1330294, at *1 & n.3 (N.L.R.B. Apr. 10, 2017). The dissenting member would have held that the Board lacked jurisdiction. Id. at *1 (Member Miscimarra, dissenting).

Duquesne refused to bargain with the Union, which drew an unfair-labor-practice charge that was heard by a different three-member panel of the Board. The panel ordered Duquesne to bargain without revisiting the jurisdictional question. Duquesne Univ. , 366 N.L.R.B. No. 27, 2018 WL 1137769, at *1, *3 (Feb. 28, 2018).

Duquesne now petitions for review of the Board’s decision and order, arguing that the Board lacks jurisdiction and that the Board’s order violates the Religious Freedom Restoration Act. The Board cross-petitions for enforcement of its order. We have jurisdiction over the petition for review under 29 U.S.C. § 160(f), and over the cross-petition under § 160(e).

II

The Board began asserting jurisdiction over religious schools and their teachers in the 1970s. Since then, the Board has justified its jurisdiction in a variety of ways, but the Board’s efforts have not met with success in the courts. The Supreme Court and the courts of appeals have held that the NLRA—read in light of the Religion Clauses—does not allow the Board to exercise jurisdiction in a series of cases over the past several decades. We reach the same conclusion in this case.

The Religion Clauses of the First Amendment provide that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. CONST. amend. I. The Establishment Clause limits governmental involvement in the affairs of religious groups, and the Free Exercise Clause safeguards the freedom to practice religion, whether as an individual or as part of a group. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC , 565 U.S. 171, 181-90, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012). In tandem, the Religion Clauses establish a "scrupulous policy ... against a political interference with religious affairs." Id. at 184, 132 S.Ct. 694 (quoting Letter from James Madison to Bishop Carroll (Nov. 20, 1806)).

The First Amendment "gives special solicitude to the rights of religious organizations," id. at 189, 132 S.Ct. 694, guaranteeing them "independence from secular control or manipulation," id. at 199, 132 S.Ct. 694 (Alito, J., joined by Kagan, J., concurring) (quoting Kedroff v. Saint Nicholas Cathedral , 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952) ). Religious organizations warrant First Amendment protections in part because "religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals." Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos , 483 U.S. 327, 342, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (Brennan, J., concurring in the judgment). For many Americans, religion cannot be exercised apart from religious organizations, and therefore "these organizations must be protected" by the First Amendment. Id. at 341-42, 107 S.Ct. 2862 (quoting Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy , 81 COLUM. L. REV. 1373, 1389 (1981) ).

Religious organizations are also employers potentially subject to the Board’s jurisdiction under the NLRA. See 29 U.S.C. §§ 152(2), 158(a), 160(a). But recognizing the risk of violating the Religion Clauses, the Board "generally will not assert jurisdiction over nonprofit, religious organizations," and it disclaims jurisdiction over "religious institutions which operate in a conventional sense using conventional means." St. Edmund’s Roman Catholic Church , 337 N.L.R.B. 1260, 1260 (2002). Typically, this means that the Board will not get involved in disputes between churches and their employees for fear of interfering with the churches’ religious missions. See, e.g. , id. at 1261, 1266 & n.7 (church custodians); Riverside Church , 309 N.L.R.B. 806, 806-07 (1992) (church custodians, electricians, plumbers, and garage attendants, among others); Faith Ctr.-WHCT Channel 18 , 261 N.L.R.B. 106, 107-08, 113 (1982) (broadcast engineers who worked at the church’s television station); see also Motherhouse of the Sisters of Charity , 232 N.L.R.B. 318, 318 (1977) (service employees who worked at a religious order’s convent and nursing home). Just like churches, schools may pursue a religious mission. Indeed, education is at the core of religious activity for many Americans. See Am. Br. of the Ass’n of Catholic Colls. & Univs. 15-20; see also Hosanna-Tabor , 565 U.S. at 177, 191-92, 132 S.Ct. 694 ; id. at 201, 132 S.Ct. 694 (Alito, J., joined by Kagan, J., concurring); Catholic Bishop of Chi. v. NLRB , 559 F.2d 1112, 1118 (7th Cir. 1977), aff’d , 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533. Yet the Board has taken a different approach to religious schools, asserting jurisdiction over them and their teachers despite their religious missions, only to have courts hold that the Board’s actions were not authorized by the NLRA.

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