The D.C. Circuit recently rebuffed the National Labor Relations Board’s attempt to assert jurisdiction over adjunct faculty at Duquesne University, a religious college. Duquesne University v. NLRB, No. No. 18-1063 (D.C. Cir. Jan. 28, 2020). In the process, the court rejected the Board’s approach to religious institutions in general and reaffirmed that the Board cannot insert itself into disputes between those institutions and their employees.
The Board has a long history of trying to assert jurisdiction over religious schools. In general, the First Amendment’s religion clauses prevent the Board from regulating traditional religious institutions, such as churches. But in the 1970s, the Board took a different position toward religious schools. It asserted that it had jurisdiction over schools that were only “religiously associated”—i.e., not “completely religious.” The Supreme Court, however, rejected that approach. In Catholic Bishop of Chicago,1 it held that even asking whether a school was “completely religious” entangled the Board in questions about religious doctrine. So the Board could not draw lines between schools based on whether they were, in the Board’s view, sufficiently religious.
After Catholic Bishop, the Board repeatedly tried to reformulate its approach to religious schools—and it was repeatedly rejected by federal courts. Most recently, in University of Great Falls v. NLRB,2 the D.C. Circuit held that the Board could not assert jurisdiction over any school or university meeting a three-part test: (1) the school held itself out as a religious institution; (2) the school was a nonprofit; and (3) the school was religiously affiliated.
Duquesne is just such an institution. It was founded in 1878 by members of the Congregation of the Holy Spirit, a Catholic religious order. In 2012, the university’s adjunct faculty voted to unionize. The university resisted the vote and argued that the Board lacked jurisdiction to certify the election. In a divided decision, the Board disagreed. It held that it could assert jurisdiction over any faculty members not serving a religious function. Thus, it certified a bargaining unit of all adjuncts except those teaching theology.
On review, the D.C. Circuit rejected that conclusion. There was no dispute, the court explained, that Duquesne met the Great Falls criteria, which the court called a “bright-line test.” And the Board had no discretion to depart from those criteria. Just as it could not decide whether a particular university had a sufficiently religious mission, it could not decide which faculty members played a sufficiently religious role. Such questions inevitably drew the Board into disputes about religious doctrine—disputes that, under the First Amendment, it was powerless to resolve.
The court’s decision shows once again that in the workplaces of religious universities, the Board has no role to play.