Duquesne Case Illustrates First Amendment Limits on Reach of Labor Law
The U.S. Court of Appeals for the District of Columbia has ruled that the National Labor Relations Board (Board) lacked jurisdiction over a dispute under the National Labor Relations Act (NLRA) between Duquesne University and its adjunct faculty. This new decision illustrates the powerful constraints of the First Amendment’s Free Exercise clause and the Establishment clause on government power over religious organizations.
Duquesne—formally, Duquesne University of the Holy Spirit—was founded by and
continues to be overseen by the Spiritans, a Catholic religious order. Its mission statement: “Duquesne serves God by serving students.”
Many adjunct faculty members teach classes in the school’s core curriculum—i.e., general education requirements including math, writing, science, philosophy, theology, and ethics. Apparently dissatisfied with the terms of their employment, a majority of the adjunct faculty in the school’s liberal arts college voted in 2012 to unionize. Duquesne asked the Board to vacate the election.
Duquesne’s essential argument was that the First Amendment deprived the Board of jurisdiction over the matter. The Board’s Regional Director disagreed. She reasoned
that Duquesne did not hold out to the public that its adjunct faculty performed specific religious roles. The Regional Director accordingly recommended that the union be certified as the bargaining representative of the adjunct faculty.
On review of that initial determination, the Board mostly agreed with the Regional Director, but excluded from the bargaining unit adjunct faculty who teach theology. In a follow-up decision the Board ordered Duquesne to bargain with the union over the terms and conditions of the adjunct faculty’s employment. Duquesne appealed to the Court of Appeals.
The Court of Appeals first discussed the history of the Board’s
efforts to assert jurisdiction over religious schools as well as the line of court rulings rejecting those efforts. The Court quoted the U.S. Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court's seminal decision on the “ministerial exception”: “[T]he Religion Clauses establish a “scrupulous policy . . . against a political interference with religious affairs.” The Court of Appeals summarized the Board’s historical approach: while the Board generally does not assert jurisdiction over churches or other “conventional” religious institutions, it 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.”
For example, the Board differentiated for a time between church schools and those that were merely “religiously associated.” The Supreme Court rejected that approach in 1979 in NLRB v. Catholic Bishop of Chicago. The Court reasoned that teachers play a “critical and unique role” in fulfilling the mission of a church-operated school, regardless of whether the teacher provides instruction in religious or secular subjects.
The Catholic Bishop ruling did not impede the Board. After 1979, the Board argued that Catholic Bishop applied only to primary and secondary schools. Courts instead found that it applies to colleges as well. Then, the Board held that it could assert jurisdiction over schools
that lacked a “substantial religious character.” The courts rejected that approach, too.
Eventually, the D.C. Court of Appeals adopted what it called a bright-line test: the Board lacks jurisdiction if the school (1) holds itself out to the public as a religious institution (i.e., as providing a “religious educational environment”); (2) is nonprofit; and (3) is religiously affiliated. And Duquesne satisfied each element: “Duquesne is a non-profit school affiliated with the Catholic Church and the Spiritan religious order, and Duquesne holds itself out as providing a religious educational environment by publicly identifying itself as a Catholic institution guided by Catholic principles, providing regular Catholic religious services on campus, and encouraging students to participate
in religious study groups, lectures, and projects.”
Essentially, the Board had taken the position that each Duquesne adjunct faculty member must hold himself, or herself, out as a “religious” faculty-member. That was improper, according to the Court, because it would entangle the Board in deciding what positions were sufficiently religious: “The Board may not “dig deeper” by examining whether faculty members play religious or non-religious roles, for ‘[d]oing so would only risk infringing upon the guarantees of the First Amendment’s Religion Clauses.’”
Presumably, the decision in the Duquesne case, assuming it is not altered on appeal, will bring an end to efforts by the
Board to assert jurisdiction over labor disputes involving faculty at religious schools. If you have any questions about this development or how it might apply to your organization, please contact us.
This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.