University of Great Falls v. N.L.R.B.

• Decision Date: 12 February 2002
• Docket Number: No. 00-1415.,00-1415.
• Citation: 278 F.3d 1335
• Parties: UNIVERSITY OF GREAT FALLS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Montana Federation of Teachers, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

278 F.3d 1335

UNIVERSITY OF GREAT FALLS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Montana Federation of Teachers, Intervenor.

No. 00-1415.

United States Court of Appeals, District of Columbia Circuit.

Argued December 4, 2001.

Decided February 12, 2002.

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

Nicholas Trott Long argued the cause and filed the briefs for petitioner.

Gene C. Schaerr argued the cause for amici curiae Association of Southern Baptist Colleges and Schools, et al., in support of petitioner. With him on the brief were James D. Jordan, Nicholas P. Miller, Joshua N. Schopf and Jeffrey A. Berman.

David A. Seid, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and David Habenstreit, Supervisory Attorney.

J.C. Weingartner and David J. Strom were on the brief for intervenor.

Before: SENTELLE and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

The University of Great Falls ("University") petitions this Court for review of a National Labor Relations Board's ("NLRB" or "Board") Decision and Order in an unfair labor practice proceeding against the University. University of Great Falls, 331 N.L.R.B. No. 188, 2000 WL 1283042 (Aug. 31, 2000) ("Great Falls"). The University argues that it is exempt from NLRB jurisdiction under the doctrine of NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), and the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. (1994). The Board, however, concluded that the University did not "have a `substantial religious character,'" and asserted jurisdiction. Great Falls, 331 N.L.R.B. No. 188, at 4. Because we agree with petitioner that it is exempt from NLRB jurisdiction under Catholic Bishop, we grant the petition for review, vacate the decision and order, and deny the Board's cross-petition for enforcement. Because we determine that the NLRB lacks jurisdiction over the University, we do not reach the University's alternative claim that the Board erred in its determination that the collective bargaining unit included faculty, but not deans, as non-managerial employees.

I. Background

On October 16, 1995, the Montana Federation of Teachers, AFT, AFL-CIO ("the Union") petitioned the NLRB to recognize the Union as the collective bargaining agent for the faculty of the University of Great Falls. The University declined to recognize the Union. The NLRB's Regional Director ordered a hearing. In that hearing and in all subsequent administrative proceedings, the University raised and preserved two principal objections to Board jurisdiction over it under the National Labor Relations Act ("NLRA" or "Act"). First, the University argued, the Board lacks jurisdiction over the University of Great Falls because it is a religiously operated institution not subject to the NLRA pursuant to 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). Second, the University argued, even if it were subject to the jurisdiction of the Board, the Board could not order it to engage in collective bargaining with the Union because to do so would violate the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. (1994) ("RFRA"), by substantially burdening the religious freedom of the University and its owners — Sisters of Providence, a Roman Catholic religious order — in the absence of a compelling governmental interest. While the University also preserved its objection to the bargaining unit, it is the religious/jurisdictional issues that are dispositive of the present litigation.

After the hearing, the NLRB Regional Director issued a decision extensively exploring the evidence of religious faith, practice and mission at the University and ultimately concluded that Catholic Bishop did not preclude Board jurisdiction over the University because "the propagation of a religious faith is not a primary purpose of UGF. Rather, the purpose and function of the institution are primarily secular." Decision and Direction of Election, University of Great Falls, Case 19-RC-13114, slip op. at 11 (NLRB Region 19, Feb. 20, 1996). As to the RFRA argument, the Director concluded that a collective bargaining order would not substantially burden the institution's free exercise of religion and that RFRA does not preclude the NLRB's assertion of jurisdiction over the employer. The Regional Director ordered the representation election by mail ballot of a defined faculty bargaining unit. The election occurred between March 8 and March 26, 1996, but the ballots were impounded pending an administrative review of the Director's decision. In the administrative review, the Board considered only the Religious Freedom Restoration Act issue and the bargaining unit objection. In November of 1997 it affirmed the Regional Director as to the bargaining unit, and ruled that the Religious Freedom Restoration Act argument was moot by reason of the Supreme Court's decision in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), which it construed as declaring the RFRA unconstitutional. See University of Great Falls, 325 N.L.R.B. 83, 83 n. 2, 1997 WL 730651 (1997).

Following affirmance, the Regional Director issued a supplemental order in January 1998 certifying the Union as the exclusive collective bargaining representative of the faculty bargaining unit. Thereafter, the Union requested that the University bargain collectively. The University refused. The Board's Acting General Counsel issued an unfair labor practice ("ULP") against the University for its refusal to bargain collectively. The Board heard the case on cross-motions for summary judgment. After receiving the briefs of the parties on the RFRA issue, and reviewing the evidence received by the Regional Director in the representation and election proceedings, the Board granted the summary judgment motion of the general counsel, denied the motion of the University, and held that the University had committed an unfair labor practice by its refusal to bargain with the Union as the exclusive representative of the bargaining unit under sections 8(a)(5) and (1) of the Act. Great Falls, 331 N.L.R.B. No. 188, at 4.

Unlike the earlier proceedings, the Board did not dispense with RFRA on the basis of its unconstitutionality under City of Boerne v. Flores. The Board recognized that City of Boerne addressed only the constitutionality of the Act as applied to state and local law; that two circuits, the Eighth in Christians v. Crystal Evangelical Free Church, 141 F.3d 854 (8th Cir.), cert. denied, 525 U.S. 811, 119 S.Ct. 43, 142 L.Ed.2d 34 (1998), and the Ninth in Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826 (9th Cir.1999), had held explicitly that the Supreme Court's decision did not invalidate RFRA as applied to federal law; and that two others, including this one, had issued decisions assuming without deciding that RFRA is constitutional as applied to federal law. See Adams v. Commissioner of Internal Revenue, 170 F.3d 173 (3d Cir.1999); Alamo v. Clay, 137 F.3d 1366 (D.C.Cir.1998). The Board further "recognized that it is beyond its authority, as an administrative agency, to adjudicate the constitutionality of congressional enactments ... a matter left to the courts." Great Falls, 331 N.L.R.B. No. 188, at 1. Therefore, the Board proceeded on the assumption that RFRA is constitutional as a limitation on federal statutory interpretation. The Board, however, ultimately determined that RFRA is not implicated in this case because, in the Board's view, the protection afforded the free exercise of religion under RFRA is less stringent than that provided to religious institutions under Catholic Bishop, and that therefore, if the Board's jurisdiction was not divested by Catholic Bishop, it plainly would survive the test of RFRA. The Board ruled that it did have jurisdiction under the Catholic Bishop test. The Board proceeded, then, to track the reasoning of the Regional Director, reviewing in detail the evidence of the religiosity of the University, and ultimately agreeing with the Regional Director that "the [University] is not involved with a religious institution in such a way that the Board's exercise of jurisdiction would even create a significant risk that First Amendment rights will be infringed." Id. at 4 (emphasis in original).

The Board therefore concluded that the Union continued as the exclusive representative of the bargaining unit under section 9(a) of the Act; that the refusal of the University to bargain was in violation of sections 8(a)(5) and (1) of the Act; and that the University had therefore engaged in unfair labor practices. The University filed the present petition for review.

II. Analysis

"Since Catholic Bishop, the Board has decided on a case-by-case basis whether a religion-affiliated school has a `substantial religious character'" and whether it is subject to the NLRB's jurisdiction and to the requirements of the National Labor Relations Act. Great Falls, 331 N.L.R.B. No. 188, at 2. "The Board has not relied solely on the employer's affiliation with a religious organization, but rather has evaluated the purpose of the employer's operations, the role of the unit employees in effectuating that purpose, and the potential effects if the Board exercised jurisdiction." Id. at 2-3 (emphasis added). In making this evaluation the "Board considers such factors as the involvement of the religious institution in the daily operation of the school, the degree to which the school has a religious mission and curriculum, and whether...