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
No. 18-1063
United States Court of Appeals, FOR THE DISTRICT OF COLUMBIA CIRCUIT
January 28, 2020
Argued December 11, 2018. Consolidated with 18-1078. On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Stanley J. Brown argued the cause for petitioner. With him on the briefs were Arnold E. Perl, Joel Buckman, Ira M. Feinberg, and Amy Folsom Kett.
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.
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 argued the cause for intervenor. With him on the brief were Amanda Fisher and Nathan Kilbert.
Michael S. Wolly was on the brief for amicus curiae American Association of University Professors in support of respondent.
Before: ROGERS, GRIFFITH, and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Circuit Judge PILLARD.
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.
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
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
The Religion Clauses of the
The
Religious organizations are also employers potentially subject to the Board’s jurisdiction under the
The seminal decision is NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). In the decades before that case, the Board did not assert jurisdiction over private non-profit schools. See id. at 497; Trs. of Columbia Univ. in the City of N.Y., 97 N.L.R.B. 424, 425-27 (1951). This changed in the 1970s, when the Board began to assert jurisdiction over private universities and high schools, including
The Supreme Court rejected the Board’s approach. Reading the
A few months after the Court rejected the Board’s assertion of jurisdiction in Catholic Bishop, the Board claimed authority over religious colleges and universities, arguing that the holding of Catholic Bishop was limited to primary and secondary schools. See Barber-Scotia Coll., 245 N.L.R.B. 406, 406 (1979). Religious colleges and universities were different, the Board argued, because “college students are less impressionable and less susceptible to religious indoctrination,” “the internal discipline inherent in college courses minimizes the possibility of sectarian influence,” and “a high degree of academic freedom often exists at church-related colleges and universities.” Id. The Board also decided that Catholic Bishop did not keep it from regulating schools that were “primarily concerned with providing a secular education, rather than with inculcating particular religious values.” Id. at 407; accord Universidad Cent. de Bayamon, 273 N.L.R.B. 1110, 1110, 1113 (1984).
The First Circuit declined to approve of the Board’s position in Universidad Central de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1985) (evenly divided en banc). Writing for half of the en banc court, then-Judge Breyer explained that Catholic Bishop prohibited the Board from distinguishing between religious schools that primarily teach secular subjects and those that seek to inculcate religious values more expressly and overtly. See id. at 402-03. The very inquiry needed to make that distinction would entangle the Board in religious affairs. See id. Importantly, Judge Breyer observed that exercising jurisdiction over either type of school risked violating the
Following the Supreme Court’s decision in Catholic Bishop and the First Circuit’s decision in Bayamon, the Board developed a different approach to jurisdiction over religious schools, this time asserting authority over schools that lacked a “substantial religious character.” Univ. of Great Falls, 331 N.L.R.B. 1663 (2000).
We categorically rejected the Board’s test in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002), which involved faculty at the University of Great Falls, a Catholic school in Montana. We explained that determining whether a school had a “substantial religious character” involved the same “intrusive inquiry” and the “exact kind of questioning into religious matters which Catholic Bishop specifically sought to avoid,” with “the NLRB trolling through the beliefs of the University, making determinations about its religious mission, and that mission’s centrality to the ‘primary purpose’ of the University.” Id. at 1341-43. “[T]he nature of the Board’s inquiry,” we observed, “boils down to ‘is [the University] sufficiently religious?’” Id. at 1343. Such a question “creates the same constitutional concerns that led to the Supreme Court’s decision in Catholic Bishop,” as well its subsequent decisions in Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987), and Mitchell v. Helms, 530 U.S. 793 (2000). Great Falls, 278 F.3d at 1341. In Mitchell, a plurality of the Supreme Court “rejected ‘inquiry into religious views’ as ‘not only unnecessary but also offensive.’” Id. (quoting Mitchell, 530 U.S. at 828). The same “prohibition on such intrusive inquiries into religious beliefs underlay the decision in Presiding Bishop.” Id. at 1342. In that case, the Supreme Court “noted the difficulty of judicially deciding which activities of a religious organization were religious and which were secular,” id., observing that the line “is hardly a bright one . . . and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission,” id. (quoting Presiding Bishop, 483 U.S. at 336).
To avoid the
After Great Falls, the Board issued several decisions assuming without deciding that our test governed its jurisdiction. See, e.g., Salvation Army, 345 N.L.R.B. 550, 551 (2005); Catholic Soc. Servs., 355 N.L.R.B. 929, 930 (2010). But the Board did not follow our test in asserting jurisdiction over a dispute involving faculty members at Carroll College, a Presbyterian school in Wisconsin that satisfied the Great Falls test. We rejected the Board’s decision even though the college never raised the jurisdictional issue before the Board. Carroll Coll. v. NLRB, 558 F.3d 568, 574 (D.C. Cir. 2009). The Board, we held, “should have known immediately” that the college was “patently beyond the NLRB’s jurisdiction.” Id. We stressed that ”Great Falls created a bright-line test,” and a school that satisfies this test “is exempt from NLRB jurisdiction.” Id. at 572, 574. We also explained that in light of the Supreme Court’s commands, we had made clear in Great Falls that the Board may not “question[] the sincerity of the school’s public representations about the significance of its religious affiliation” or conduct a “skeptical inquiry” into whether an affiliated church exerts influence over the school. Id. at 572-74. The permissible inquiry is simple and limited. The Board must look “solely” at the school’s “public representations as to its religious educational environment.” Id. at 572-73. Anything more, “neither the Board nor we may do.” Id. at 573.
In Pacific Lutheran University, 361 N.L.R.B. 1404 (2014), the Board created a new way to determine its jurisdiction over a religious school. Under the new test, a religious college or university seeking to avoid the Board’s jurisdiction must first show that “it holds itself out as providing a religious educational environment.” Id. at 1414. This threshold requirement is similar to our Great Falls test, but satisfying it is not enough to avoid the Board’s jurisdiction. Id. at 1410. The school must also show that “it holds out the petitioned-for faculty members themselves as performing a specific role in creating or maintaining the college or university’s religious educational environment, as demonstrated by its representations to current or potential students and faculty members, and the community at large.” Id. at 1414.
Two members of the Board vigorously dissented. According to Member Miscimarra,
A divided Board applied the Pacific Lutheran test in this case. The panel acknowledged that Duquesne holds itself out as providing a religious educational environment, but the Board exercised jurisdiction because adjuncts outside the Theology Department are not held out as performing a specific role in creating or maintaining Duquesne’s religious educational environment. See J.A. 69, 77-78; Duquesne Univ., No. 06-RC-080933, 2017 WL 1330294, at *1 & n.3.1
III
Duquesne argues that Great Falls and Carroll College foreclose the Board’s jurisdiction. Our review is de novo. See Great Falls, 278 F.3d at 1340-41. We agree with Duquesne.
A
This case begins and ends with our decisions in Great Falls and Carroll College. In Great Falls, we established a “bright-line” test for determining whether the
As an initial matter, the adjuncts here are clearly faculty members. In Duquesne’s faculty handbook, the adjuncts who make up the bargaining unit are identified as “adjunct faculty” and listed among the different types of faculty at Duquesne. J.A. 768-70. Furthermore, the adjuncts possess the key attribute of faculty members: They educate students. In fact, according to the faculty handbook, their only responsibility is teaching. See J.A. 770 (“As
Applying Great Falls, the Board lacks jurisdiction. The parties do not dispute that Duquesne satisfies the test. Nor could they. As the Board’s Regional Director found, 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. J.A. 69-71, 76-77; see Great Falls, 278 F.3d at 1345; Carroll Coll., 558 F.3d at 573-74.
B
Apparently unpersuaded by Great Falls and Carroll College, the Board used its new Pacific Lutheran test to assert jurisdiction over Duquesne. Pacific Lutheran runs afoul of our precedent by claiming jurisdiction in cases that we have placed beyond the Board’s reach. That is, Pacific Lutheran extends the Board’s jurisdiction to cases involving faculty at schools that satisfy the Great Falls test, specifically those schools that (according to the Board) do not hold out the faculty members as playing a specific role in the school’s religious educational environment. Pac. Lutheran, 361 N.L.R.B. at 1410. But our precedent is clear: Great Falls is a bright-line test. If it is satisfied, the school is “altogether exempt from the
The Board acknowledges that Pacific Lutheran cannot be squared with our precedent. See Pac. Lutheran, 361 N.L.R.B. at 1408-09. Indeed, in adopting its new test in Pacific Lutheran, the Board rejected Great Falls as an “overreach[]” that “goes too far.” Id. at 1409. Rather than arguing that Pacific Lutheran follows our precedent, the Board claims that it “reasonably found” that Great Falls’ “rationale for examining how a university holds itself out extends to consideration of how it holds out its faculty members.” NLRB Br. 28. But Great Falls adopted a bright-line test, not a “rationale” that the Board may “extend” in a way that asserts jurisdiction over schools that the test places outside the Board’s power.
For its part, the Union argues that Pacific Lutheran complies with our precedent because Great Falls “did not hold that the Board must decide jurisdiction . . . without regard for the role played by the faculty.” Union Br. 29. According to the Union, the question simply “did not arise.” Id. To the contrary, the question featured prominently in Great Falls. The test at issue—the Board’s “substantial religious character” test—assessed the roles of the teachers who sought to unionize.
Our refusal to examine the roles played by various faculty members followed directly from Catholic Bishop. There, the Supreme Court recognized that teachers play a “critical and unique role” in advancing the mission of religious schools. Catholic Bishop, 440 U.S. at 501. This holds true, the Supreme Court explained, regardless of whether the teachers provide instruction in religious or secular subjects. No matter the subject taught, “a teacher remains a teacher,” and “a teacher’s handling” of even secular subjects may implicate the school’s religious mission. Id. (internal quotation marks omitted). Because a school’s religious mission may be “intertwined” with even “secular instruction,” the Supreme Court did not differentiate between teachers who play religious roles and those who play secular roles, but rather held that the Board lacked jurisdiction over all teachers at church-operated schools. Id. at 501, 507 (internal quotation marks omitted).
Similarly, then-Judge Breyer explained in Bayamon that creating and administering distinctions between religious and secular instruction at religious universities “would itself entangle the Board in religious affairs.” 793 F.2d at 402-03. This entanglement could not be avoided by crafting a bargaining unit that excludes faculty members who appear most closely tied to a university’s religious mission; to create and administer such distinctions “is to tread the path that Catholic Bishop forecloses.” Id. at 402. Furthermore, regardless of the roles played by the teachers involved in a case, Judge Breyer observed that permitting the Board to exercise jurisdiction risked entangling the government with the university’s religious mission. See id. at 402-03. Board-mandated bargaining involving any teachers at religious universities would likely “concern the whole of school life,” including the religious mission, id., for “nearly everything that goes on in the school affects teachers and is therefore arguably a condition of employment,” id. (quoting Catholic Bishop, 440 U.S. at 503).
Great Falls and Carroll College followed the same principles in holding that the Board’s jurisdiction depends on three features of the religious school, not the roles played by the faculty members involved in the case. By contrast, Pacific Lutheran impermissibly intrudes into religious matters. The Board suggests that it can avoid constitutional problems by considering only whether a religious school “holds out” faculty members as playing a specific religious role, Pac. Lutheran, 361 N.L.R.B. at 1410; NLRB Br. 30, but such an inquiry would still require the Board to define what counts as a “religious role” or a
For example, consider how the Board intended to determine which faculty roles count as sufficiently religious. Some roles would qualify: “integrating the institution’s religious teachings into coursework, serving as religious advisors to students, propagating religious tenets, or engaging in religious indoctrination or religious training.” Pac. Lutheran, 361 N.L.R.B. at 1412. But, the Board said, “general or aspirational statements” that faculty members must support the religious mission of a school would not establish that they play sufficiently religious roles, and “[t]his is especially true when the university also asserts a commitment to diversity and academic freedom, further putting forth the message that religion has no bearing on faculty members’ job duties.” Id. at 1411-12.
With these distinctions, the Board impermissibly sided with a particular view of religious functions: Indoctrination is sufficiently religious, but supporting religious goals is not, and especially not when faculty enjoy academic freedom. This “threaten[s] to embroil the government in line-drawing and second-guessing regarding matters about which it has neither competence nor legitimacy.” Colo. Christian Univ., 534 F.3d at 1264-65; see Great Falls, 278 F.3d at 1346; Bayamon, 793 F.2d at 402. And the Board’s distinctions refuse to accept that faculty members might contribute to a school’s religious mission by exercising their academic freedom, even though many religious schools understand the work of their faculty to be religious in just this way. Indeed, 194 schools (including Duquesne) represent that academic freedom is an “essential component” of their religious identities,
value that academic freedom serves a religious function, the Board sees academic freedom as the opposite: a sign that “religion has no bearing on faculty members’ job duties.” Pac. Lutheran, 361 N.L.R.B. at 1411. The Board may not “second-guess” or “minimize the legitimacy of the beliefs expressed by a religious entity” in this way. Colo. Christian Univ., 534 F.3d at 1265-66; Great Falls, 278 F.3d at 1345.
C
In the dissent‘s view, Great Falls and Carroll College never addressed whether “adjunct faculty . . . retain their NLRA rights.” Dissent at 1. Instead, those decisions exempted only “permanent, full-time faculty.” Id. But the dissent‘s theory assumes that Great Falls and Carroll College already allow the Board to retain jurisdiction over “non-faculty staff at avowedly religious schools.” Id.; see also id. at 16-17. To the contrary, some language in those decisions seems to suggest that our “bright-line” test exempts institutions from the Board‘s jurisdiction—not categories of employees. E.g., Great Falls, 278 F.3d at 1343 (exempting “an institution“); Carroll College, 558 F.3d at 572 (exempting a “school“). Thus, the dissent‘s fundamental premise—that the Board may still assert jurisdiction over some non-faculty employees—depends, at best, on a debatable reading of those decisions.
In any event, the dissent errs by asserting that adjuncts are somehow more like non-faculty employees than they are like faculty. Parsing the adjuncts’ “terms of employment,” see Dissent at 8-10, misses the forest for the trees. Adjuncts teach students, thus performing the “critical and unique role of the teacher in fulfilling the mission of a church-operated school.” Catholic Bishop, 440 U.S. at 501. Indeed, Duquesne itself says that a core element of its religious mission is education, see J.A. 70 (“Duquesne serves God by serving students.“), adjuncts teach nearly half of the Core Curriculum, and these Core classes “provide[] students with the opportunity to explore how religious faith and spiritual values enrich human life,” J.A. 1090. In short, it is clear to us that adjuncts perform the mission-critical task of educating students at a “Catholic University in the Spiritan Tradition.” J.A. 70.
The dissent‘s defense of Pacific Lutheran also underscores that decision‘s incompatibility with the Religion Clauses. In this case, following Pacific Lutheran, the Board‘s Regional Director found that reasonable adjunct candidates “would not conclude that any religious responsibilities were required by their job duties.” J.A. 78 (emphasis added). The dissent sees nothing wrong with this analysis, and it describes Pacific Lutheran‘s test as “non-intrusive.” Dissent at 11. To the contrary, Pacific Lutheran led the Board‘s Regional Director to ask exactly the impermissible question: Would a “reasonable candidate” (in the Board‘s judgment, not Duquesne‘s) think an adjunct‘s responsibilities were sufficiently “religious“? J.A. 78. That question compels the Board (and federal courts) to “mak[e] determinations”
***
In sum, Pacific Lutheran runs afoul of our decisions in Great Falls and Carroll College, which continue to govern the reach of the Board‘s jurisdiction under the NLRA in cases involving religious schools and their faculty members or teachers. Accordingly, the Board has no jurisdiction here. We therefore need not address Duquesne‘s arguments that the Board lacks jurisdiction for other reasons and that the Board has violated the
IV
We grant the petition for review, vacate the Board‘s decision and order, and deny the cross-application for enforcement.
So ordered.
PILLARD, Circuit Judge, dissenting: I disagree with my colleagues that this case “begins and ends” with University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002), and Carroll College, Inc. v. NLRB, 558 F.3d 568 (D.C. Cir. 2009). Maj. Op. at 14. It is not at all apparent that temporary, part-time adjuncts whom the school does not even hold out as agents of its religious mission necessarily fall within an exemption from the
The test the National Labor Relations Board (Board or NLRB) applied to resolve that open question derives not from this case, but from Pacific Lutheran University, 361 N.L.R.B. 1404 (2014), yet this is the first petition asking us to review it. The Board ruled that adjunct faculty may be exempted, but only where the university “holds [them] out” as “performing a specific role in creating or maintaining the university‘s religious purpose or mission.” Id. at 1411. This deferential standard avoids any intrusive review of the teachers’ actual duties, requiring only that schools provide clear notice that they cast their adjuncts in a religious role. The Board then accepts at face value the schools’ representations to that effect. Applying a holding-out requirement to adjuncts seeks to ensure that the exemption is not applied where it serves no purpose. I believe that modest requirement is more consistent with the competing concerns here than the majority‘s blanket conclusion that all adjuncts at a religious university serve a religious function, even where
The Board‘s approach has several advantages. It faithfully adapts the holding-out method we articulated in Great Falls and Carroll College, using it to apply Catholic Bishop to a type of religious-school employee not yet addressed. It recognizes the significant structural and functional differences between adjuncts and full faculty at many schools, as well as the heterogeneity of schools’ religious exercise. It thereby not only respects precedent and protects religious exercise, but also affords schools leeway to delineate for themselves the scope of the academic teaching corps that embodies their religious mission. In contrast to the automatic presumption of religiosity that the court adopts today, the Board‘s approach adds a measure of tailoring at the exemption‘s outer edge, eliminating needless sacrifice of adjuncts’ NLRA rights but extending the exemption to them where called for by a religious role the school itself identifies.
I. Background
A. The Implied NLRA Religious-Teacher Exemption
The
The Supreme Court implied an NLRA exemption for regular parochial high school teachers in Catholic Bishop. See 440 U.S. at 493 n.5. The exemption sprang from both the religious nature of the schools and “the critical and unique role of the teacher in fulfilling the mission of a church-operated school.” Id. at 501. In view of the teachers’ central role in “the propagation of a religious faith,” which is a “raison d‘être of parochial schools,” id. at 503, the Court sought to avoid the constitutional shoals of regulating teachers who are “under religious control and discipline,” id. at 501 (quoting Lemon v. Kurtzman, 403 U.S. 602, 617 (1971)). Invoking Establishment Clause precedent disallowing governmental support to parochial schools, the Court thought that collective bargaining on behalf of religious-school teachers raised a risk—similar to the risk from monitoring public funds—of governmental “entanglement with the religious mission of the school.” Id. at 502.
The Court in Catholic Bishop “offered no test” for applying the exemption, Carroll Coll., 558 F.3d at 571, so the Board and lower courts worked to differentiate schools whose teachers could legitimately be exempted from those whose teachers could not. Because the Supreme Court has never passed on how the size, complexity, heterogeneity, and academic freedom that characterize many religious institutions of higher education might differentiate them from the parochial schools in Catholic Bishop, it has fallen to the appellate courts to decide how to apply the religious-teacher exemption to faculty at religious colleges and universities.
B. Our NLRA Cases Do Not Address Adjunct Faculty
In Great Falls, we rejected the Board‘s attempt to apply Catholic Bishop through a case-by-case inquiry into “whether a religion-affiliated school has a substantial religious character.” 278 F.3d at 1339. Instead, we adopted a three-part analysis that, in the context of a petitioned-for faculty bargaining unit, entitles a school to the Catholic Bishop exemption if it (1) is “religiously affiliated;” (2) is “non-profit;” and (3) “holds itself out to the public as religious.” Id. at 1344-45. The central functions of Great Falls’ holding-out test are twofold: First, by accepting a school‘s publicly communicated religious self-description, it prevents second-guessing the school‘s “motives or beliefs” to determine whether it has a sufficiently “substantial religious character” to claim the Catholic Bishop exemption. Id. at 1344. And, second, because “public religious identification . . . comes at a cost” to the school claiming it, the unusually deferential holding-out inquiry provides “reasonable assurance that the Catholic Bishop exemption will not be abused” to exempt employees whose NLRA rights should be recognized. Id. at 1344-45. We explained that, insofar as entitlement to the exemption hinges on a school‘s “public religious identification,” it is unlikely to be claimed where it is not warranted because the avowed religiosity “will no doubt attract some students and faculty to the institution,” but “will dissuade others.” Id. at 1344. We applied the exemption in Carroll College even though the college had not asserted it before the Board, reasoning that the exemption is jurisdictional so could be “considered on review” even if not “raised before the Board.” 558 F.3d at 574.
While Carroll College and Great Falls decided when a nonprofit, religiously affiliated university sufficiently “holds itself out to the public as a religious institution” to place Catholic Bishop‘s jurisdictional exemption in play, Great Falls, 278 F.3d at 1347, those decisions did not address whether a bargaining unit composed of temporary, part-time adjuncts, like units of other, non-faculty employees of the institution,
Because adjuncts often have a very different role from permanent faculty, it makes sense to treat as distinct the question whether adjuncts are exempted. Indeed, the Board has long differentiated adjuncts from full faculty, concluding that “the differences between the full-time and part-time faculty are so substantial in most colleges and universities” that certain “part-time faculty“—including “adjunct professors“—“do not share a community of interest with full-time faculty and, therefore, should not be included in the same bargaining unit.” N.Y. Univ., 205 N.L.R.B. 4, 6 (1973); see also Kendall Coll. v. NLRB, 570 F.2d 216, 219-20 (7th Cir. 1978). Schools employ adjuncts in many different ways, and those differences can be material to whether recognition of adjuncts’ NLRA rights would pose a risk to the university‘s religious exercise. Asking that the university hold out its adjuncts as part of its religious function adequately accounts for any such risk.
The Board‘s differentiation of adjuncts from full faculty echoes another recognized distinction within university teaching ranks that affects NLRA coverage: While permanent faculty often participate in governance, adjuncts typically do not. Thus, in the very first judicial decision applying Catholic Bishop to higher education, the divided en banc First Circuit in Bayamon stressed that its treatment of religious-university faculty accorded with “the existence of other, related limitations upon the Labor Board‘s jurisdiction over university teachers.” 793 F.2d at 398. The NLRA “limitation[]” to which Bayamon adverted is the managerial exemption. The faculty managerial exemption applies to faculty that participate in faculty self-governance by virtue of “various ‘management’ prerogatives over appointments, schedules, and curriculum.” Bayamon, 793 F.2d at 399 (quoting NLRB v. Yeshiva Univ., 444 U.S. 672, 690 (1980)); see also Catholic Bishop, 440 U.S. at 504-05 (noting Senate Committee‘s reference to “a college professor‘s dispute with the college as an example of employer-employee relations not covered by the Act“). In Carroll College, we, too, recognized that the faculty we exempted under Catholic Bishop were part of the College‘s “governance structure.” 558 F.3d at 570; see also Great Falls, 278 F.3d at 1337.
In the university setting, teachers’ roles vary in ways material to their eligibility for
The religious-faculty and managerial-faculty exemptions are not necessarily coterminous, but references to the managerial exemption by courts developing the religious one bespeak judicial recognition that university faculties are structurally heterogenous, and, as Bayamon pointed out when it first extended Catholic Bishop to higher education, most full-time university faculty were already exempted as managerial. In short, neither the holdings nor the logic of the religious-teacher exemption cases requires uniform exemption of “teachers of any sort,” Maj. Op. at 15, based on the unsupported (and often inaccurate) presumption that every religious educational institution‘s adjuncts have the same relationship to the school‘s religious exercise as does its regular faculty.
There are powerful practical and institutional reasons why adjuncts need not and should not automatically be equated with regular faculty under Catholic Bishop, but may fall closer to non-faculty employees for purposes of NLRA jurisdiction. The image many lawyers and judges have of an adjunct as a salaried or retired professional who moonlights as a law-school professor bears little resemblance to the circumstances of most adjuncts—especially those for whom NLRA rights matter most. Many adjuncts are trained academics seeking opportunities for full faculty status in their chosen disciplines. See U.S. Gov‘t Accountability Office, GAO-18-49, Contingent Workforce: Size, Characteristics, Compensation, and Work Experiences of Adjunct and Other Non-Tenure-Track Faculty 14, 24-25 (Oct. 2017) (GAO Report). They fill many “postsecondary instructional positions,” id. at 10, yet their terms of employment often leave them with little time, space, or opportunity for interaction with students outside of class, with the institution‘s staff or full-time faculty, or with broader campus life and institutional mission, id. at 32, 47-49; see also Am. Ass‘n for Univ. Professors, Contingent Appointments and the Academic Profession 173 (rev. 2014).
A 2017 governmental report found that more than half of the nearly one million contingent teaching positions nationwide “are part-time and have less-than annual contracts or lack faculty status,” making them among the “least stable” type of academic appointment. GAO Report at 12-13. The report concluded that the “[p]art-time contingent faculty” it surveyed earned “about 75 percent less per course” than other instructors, id. at 35—with median annual earnings falling well below $10,000, see id. at 34 tbl.5; see also Coal. on the Acad. Workforce, A Portrait of Part-Time Faculty Members 2, 10-12 (June 2012)—and that far fewer than half
The Duquesne adjuncts at issue here are no exception. Notably, the Executive Resolutions of Duquesne‘s Board define “adjunct professors” as among the Auxiliary Instructional Staff, who are “not members of the Faculty” and “not entitled to Faculty benefits except to the extent these are granted in the letter of appointment.” J.A. 737 (emphasis added). (Duquesne‘s bylaws provide that its Executive Resolutions supersede the faculty handbook, see J.A. 397, to which the majority refers, see Maj. Op. at 14-15.) The adjuncts have no campus offices and no role in faculty governance. See J.A. 74 (“Adjuncts are not provided with their own office space.“), 770 (“Adjunct faculty members do not have voting privileges . . . .“), 780 (defining Faculty Senate, consisting of full-time faculty, as “the deliberative body, the voice, and the primary agent of faculty involvement in University governance“). Department heads at Duquesne contract with adjuncts on a decentralized, per-course, per-semester basis. See J.A. 72. “As a rule, adjuncts are responsible only for teaching,” J.A. 770; see also J.A. 737, often handling “[i]ntroductory language” and “skills courses” to free up “full-time faculty to teach theme courses,” J.A. 926. The only record evidence of Duquesne‘s adjunct compensation shows a 2011 payment of $2,556 for a semester-long, three-credit English course, J.A. 1109, consistent with national data on adjunct pay at the college level, see Coal. on the Acad. Workforce at 10.
In sum, the terms of employment of adjuncts make clear that they are not necessarily equivalent to the permanent faculty exempt under Carroll College, Great Falls, and Catholic Bishop. Recognizing potentially material differences, the Board set out in Pacific Lutheran to adapt the holding-out test we adopted in Great Falls to this new employee group.
II. The Board‘s Approach
A. Pacific Lutheran University
The Board in Pacific Lutheran recognized that whether and how Catholic Bishop‘s exemption applies to adjunct teachers at religiously affiliated universities presented an open question of substantial importance, so it took up the issue in an especially open and deliberative way. The Board “issued a notice and invitation to file briefs to the parties as well as the general public.” 361 N.L.R.B. at 1405. Its notice elicited comments on the series of questions it had posed and prompted “a broad range of interested parties [to] file[] briefs in response to the Board‘s invitation.” Id. at 1405 & n.3.
In developing the test it applied here, the Board in Pacific Lutheran acknowledged that it had to “accommodate two competing interests“: First, it must respect the
[W]e shall decline jurisdiction if the university “holds out” [the adjunct faculty in the proposed bargaining unit], in communications to current or potential students and faculty members, and the community at large, as performing a specific role in creating or maintaining the university‘s religious purpose or mission. As the D.C. Circuit explained in Great Falls, the “holding out” requirement eliminates the need for a university to explain its beliefs, avoids asking how effective the university is at inculcating its beliefs, and does not “coerce[] an educational institution into altering its religious mission to meet regulatory demands.” 278 F.3d at 1344-1345.
Pac. Lutheran, 361 N.L.R.B. at 1411. The Board stressed that it would “rely on the institution‘s own statements about whether” the school‘s religious identity shaped the teachers’ roles “without questioning the institution‘s good faith or otherwise second-guessing those statements.” Id. at 1412.
The Board reasoned that taking at face value the university‘s representations about adjuncts’ religious role would respect religious exercise but guard against unsupported use of the exemption. The Board‘s approach dovetails with both the substantive protection of religious rights under Catholic Bishop and the process by which we implemented that protection in Great Falls, where we explained that relying on the school‘s public “holding out” rather than the Board‘s investigation into the school‘s religious functions avoided entanglement. See 278 F.3d at 1344. We were satisfied in Great Falls that the holding-out approach notifies prospective faculty of their role in a school‘s religious environment and, by requiring “public religious identification,” provides some assurance that the exemption is warranted. Id.
The Board in Pacific Lutheran identified the key “holding out” evidence for adjuncts as “documents concerning the recruitment of future staff” that would notify applicants that “performance of their faculty responsibilities would require furtherance of the college or university‘s religious mission.” 361 N.L.R.B. at 1412. This deferential approach asks nothing more of the religious institution than that it hold out its adjuncts as playing a role in creating or maintaining its religious mission. It extends the Catholic Bishop exemption to adjuncts only where a university intends and publicly represents that its adjuncts play such role.
The Board in Pacific Lutheran calibrated its approach to give a wider berth to schools’ religious freedom than did the inquiry the Supreme Court established in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012), to decide the related question of which teachers qualify for a “ministerial exception” to employment discrimination laws. The
Hosanna-Tabor involved a different judicially fashioned exemption from a different federal statute, but responded to parallel
B. Duquesne University of the Holy Spirit
No party in Pacific Lutheran petitioned this court for review, and the Board has since applied its adjunct-specific holding-out test in other cases, including this one. See Maj. Op. at 13 n.1. Adjuncts at Duquesne‘s McAnulty College and Graduate School of Liberal Arts voted overwhelmingly in favor of the union, see J.A. 14, and Duquesne initially stipulated to an election agreement, see J.A. 68, but later changed course to assert that its adjuncts are jurisdictionally exempt under Catholic Bishop, see J.A. 68-69 & n.5.
After receiving evidence and argument on Pacific Lutheran‘s application, the Regional Director determined that Duquesne does not “hold[] out its adjunct professors who are members of the petitioned-for bargaining unit as serving any role in creating or maintaining the [University‘s] religious educational environment.” J.A. 78. (The Board later amended the allowed bargaining unit to exclude the adjuncts teaching in the religion department. See J.A. 138-139.) “While there is voluminous evidence in the record concerning [Duquesne‘s] religious identity and its stated Mission,” the Regional Director found, “there is scant evidence that adjuncts are expected to act in any way to advance the [University‘s] religious message or to do anything with regard to it, other than to not be openly hostile to it.” J.A. 77. There was, in particular, a “lack of evidence that adjuncts are informed of any requirement of participation with respect to conveying or supporting [Duquesne‘s] mission.” J.A. 78. The adjunct job announcements, employment contracts, interviews, and other aspects of Duquesne‘s adjunct hiring process did not mention any religious role, duties, or relation of the adjuncts to the school‘s religious mission. See J.A. 72-74.
At bottom, reasonable adjunct candidates “would not conclude that any religious responsibilities were required by their job duties” with Duquesne. J.A. 78.
Whether Duquesne‘s adjuncts fall within Catholic Bishop‘s constitutional-avoidance-based religious-teacher exemption is the only issue properly before us under
III. Pacific Lutheran Applies the NLRA Consistently with Religion-Clause Precedent
A. Where We Agree and Disagree
Although I believe the majority errs in invalidating the Board‘s holding-out methodology for deciding when adjunct teachers at religious schools fall within Catholic Bishop‘s exemption from the NLRA, our disagreement is relatively narrow. I note especially three areas of substantial agreement.
First, Duquesne does not claim, and the court does not rule, that Catholic Bishop exempts all employees of a religious school from NLRA coverage. Duquesne acknowledges that Great Falls applies only to “faculty,” Pet‘r Br. 28, and that Duquesne itself “collectively bargains with unions representing non-faculty staff,” id. at 2. My colleagues, too, limit their decision to teachers—albeit “teachers of any sort.” Maj. Op. at 15; see id. at 23 (not addressing “cases involving religious schools and their non-faculty employees“).
Indeed, no court has understood Catholic Bishop to exempt all staff of any religious “institution” or “school” from the NLRA. See Passaic Daily News v. NLRB, 736 F.2d 1543, 1556 n.20 (D.C. Cir. 1984) (“In Catholic Bishop, the only question the Court addressed was whether the [NLRA] conferred jurisdiction over teachers who taught both religious and secular subjects in church operated schools.“); see also Volunteers of Am., L.A. v. NLRB, 777 F.2d 1386, 1389-90 (9th Cir. 1985) (not reading Catholic Bishop to exempt employees of church-operated “alcohol treatment centers“); NLRB v. Salvation Army of Mass. Dorchester Day Care Ctr., 763 F.2d 1, 6 (1st Cir. 1985) (same, as to church-operated day care center employees); VOA-Minn.-Bar None Boys Ranch v. NLRB, 752 F.2d 345, 348-49 (8th Cir. 1985) (same, as to employees of a church-operated residential treatment center); Denver Post of the Nat‘l Soc‘y of the Volunteers of Am. v. NLRB, 732 F.2d 769, 772-73 (10th Cir. 1984) (same, as to employees at a religious organization‘s temporary shelter for women and children), overruled on other grounds by Aramark Corp. v. NLRB, 179 F.3d 872, 874 & n.2 (10th Cir. 1999); St. Elizabeth Hosp. v. NLRB, 715 F.2d 1193, 1196 (7th Cir. 1983) (same, as to a religiously affiliated hospital‘s employees); Tressler Lutheran Home for Children v. NLRB, 677 F.2d 302, 305 (3d Cir. 1982) (same, as to a church-affiliated nursing home‘s employees). Instead, courts have uniformly understood Catholic Bishop‘s application to turn on the “critical and unique role of the teacher in fulfilling the mission of a church-operated school,” 440 U.S. at 501, and not to extend to all employees of religiously affiliated or managed institutions. See, e.g., Denver Post, 732 F.2d at 773 (citing Tressler, 677 F.2d at 305); NLRB v. St. Louis Christian Home, 663 F.2d 60, 63-64 (8th Cir. 1981); NLRB v. Bishop Ford Cent. Catholic High Sch., 623 F.2d 818, 822 (2d Cir. 1980).
I read our prior cases’ references to the “institution,” Great Falls, 278 F.3d at 1347, and the “school,” Carroll Coll., 558 F.3d at 572, to decide only whether the entity is sufficiently religious such that teachers in roles comparable to those in Catholic Bishop fall outside the NLRA. Those cases considered only the main faculty body—the same body exempted in Catholic Bishop—and we passed on the school‘s eligibility for the religious-teacher exemption without addressing bargaining units beyond the main faculty.
Second, there is no dispute within our panel that today‘s decision interprets an NLRA-specific exemption and does not limit the applicability of any other workplace laws to religious-school teachers, much less to any other staff. The majority affirms that its opinion does not “address the powers of other agencies in cases involving different statutes or constitutional provisions.” Maj. Op. at 23. As already discussed, although the judicially implied “ministerial exemption” responds to concerns similar to those that animated Catholic Bishop, it operates in a more functionally tailored way, and is a waivable affirmative defense, not a jurisdictional bar. See Hosanna-Tabor, 565 U.S. at 195 n.4. Similarly, the more limited exemption of religious organizations from
Third, my colleagues and I agree that a religious school should be able to decide that its adjunct faculty are not encompassed within the Catholic Bishop exemption. As the majority puts it, “whether the Board could exercise jurisdiction over a religious school that formally and affirmatively disclaims any religious role for certain faculty members” remains an open question. Maj. Op. at 19 n.2. Thus, at the end of the day, our difference may boil down to defining the default rule: In my view, the Board appropriately treated the Catholic Bishop exemption as presumptively limited to the regular faculty unless the school holds out its adjuncts as playing a like religious role, whereas the majority deems “teachers of any sort” automatically exempt, but suggests those adjuncts might have NLRA rights if their school “affirmatively disclaims” any religious role for them.
I would affirm the Board‘s approach because, as we described in Great Falls, a key role of the holding-out requirement was to “provide[] reasonable assurance that the Catholic Bishop exemption will not be abused.” 278 F.3d at 1345. The purpose of preventing over-claiming of the exemption is served by the Board‘s placement of the holding-out burden on the school. As a practical matter, it seems natural that a religious university that stands to benefit from a blanket exemption might do nothing rather than make the disclaimer as to its adjuncts. That seems especially likely where its alternative is to “formally and affirmatively disclaim[] any religious role” for its adjuncts—a step that a religious school that does not cast its
The exemption‘s jurisdictional character further supports requiring the school to invoke rather than disclaim the exemption for its adjuncts. The majority does not explain how even a formal and affirmative disclaimer would be effective to waive a jurisdictional exemption. But we assuredly can give religious schools that choice—and avoid ascribing religiosity where a religious school itself did not—if we recognize that the exemption‘s application beyond the core faculty depends on the school affirmatively holding out adjuncts in a way that justifies the exemption‘s application to them.
Pacific Lutheran is not fairly characterized as “incompatib[le] with the Religion Clauses.” Maj. Op. at 22. The Board‘s Pacific Lutheran test asks whether an objective observer would understand the university‘s own communications to “hold out” the employees it seeks to exempt as having a role in “creating or maintaining the university‘s religious purpose or mission.” 361 N.L.R.B. at 1411. There is nothing unconstitutional about making a religious university‘s eligibility for an implied statutory exemption turn on such a holding-out inquiry. See Hosanna-Tabor, 565 U.S. at 190-92 (relying in part on an employee-specific holding-out inquiry); Great Falls, 278 F.3d at 1344 (considering whether a school “holds itself out to the public as religious“).
B. Pacific Lutheran‘s Default Rule Respects Precedent and Religious Freedom
The grounding of the Catholic Bishop exemption in constitutional avoidance, notwithstanding the NLRA‘s plain text defining “employee” and “employer” without exception for teachers at religiously affiliated schools, supports the relatively circumspect approach the Board took in Pacific Lutheran. The Board recognized the exemption of all permanent faculty of any school that qualifies as religious under Catholic Bishop, Great Falls, and Carroll College, but decided against automatically sweeping in all short-term, part-time adjuncts. See Pac. Lutheran, 361 N.L.R.B. at 1410-13. Rather, the Board recognized the exemption of adjuncts only where the university “holds out” its adjuncts as playing a religious role—but in doing so it used a highly deferential, easy-to-meet standard. See id. As already explained, that additional holding-out requirement is warranted given that adjuncts and full faculty frequently play materially different roles in higher education, and thus may not equally implicate a school‘s religious exercise.
One need not question the holding of Catholic Bishop to appreciate that, given its reliance on now-disfavored methods of discerning statutory meaning and employing constitutional avoidance, we should hesitate to expand its reach. Catholic Bishop identified no relevant ambiguity in the NLRA‘s “very broad terms,” 440 U.S. at 504, nor any suggestion (beyond silence) in the legislative history that Congress intended to exclude teachers at religious schools from the Act‘s coverage, see id. at 504-06. The Court has recently reiterated that the canon of constitutional avoidance “is a tool for choosing between competing plausible interpretations of a provision” that “‘has no application’ in the interpretation of an unambiguous statute.” McFadden v. United States, 135 S. Ct. 2298, 2307 (2015) (quoting Warger v. Shauers, 574 U.S. 40, 50 (2014)). And because “silence in the legislative history cannot” alter a statute‘s explicit terms, Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1143 (2018), the NLRA legislative history‘s mere failure to mention religious schools does not support building out Catholic Bishop‘s constitutional-avoidance construction.
The Supreme Court has also more recently described the constitutional shoals that Catholic Bishop sought to avoid as less monolithic than there described. Catholic Bishop worked from the premise that “[r]eligious authority necessarily pervades” even the apparently secular aspects of parochial schools. 440 U.S. at 501 (quoting Lemon, 403 U.S. at 617). But the Court has updated that “antiquated” view with a more nuanced recognition that not every function of a religious school necessarily instantiates the school‘s religiosity. Agostini v. Felton, 521 U.S. 203, 223 (1997); see also Mitchell v. Helms, 530 U.S. 793, 858 (2000) (O‘Connor, J., joined by Breyer, J., concurring in the judgment of the plurality). The Court‘s longstanding recognition that religion is less likely to “permeate the area of secular education” in “church-related colleges and universities” than in “primary and secondary schools,” Hunt v. McNair, 413 U.S. 734, 746 (1973) (quoting Tilton v. Richardson, 403 U.S. 672, 687 (1971) (Burger, C.J.) (plurality opinion)), further suggests that Pacific Lutheran‘s decision to treat adjuncts at religious institutions of higher education as not automatically exempt, but exempted where the school holds out its adjuncts as helping to create or promote its religious mission, does not raise the same serious constitutional questions that Catholic Bishop contemplated.
The Board‘s decision to require that a religious university affords clear notice to adjuncts that it casts them in a role of religious significance is especially warranted given the unusual character of this exemption. It does not depend on any claim on the school‘s part that collective representation contravenes its faith. And it reaches teachers without regard to whether they are members of the faith, or even held out as furthering the school‘s religious mission. The Catholic Bishop exemption is thus unlike the express
The majority‘s categorical application is less respectful of individuals’ religious liberty than is the Board‘s more nuanced approach. The exemption casts the adjuncts as instruments of the Spiritan Catholic faith, notwithstanding that the adjuncts’ own internal motivation and understanding of the value of teaching at Duquesne could be secular or even inspired by a different faith. It is a hallmark
The majority‘s categorical application is also less respectful of the religious freedom of religious schools than is the Board‘s more nuanced approach. An automatic, blanket exemption does not recognize that religious institutions of higher education are not all religious in the same way, and that those differences in how they define their religious communities are central to religious pluralism and therefore religious liberty. Unlike a jurisdictional presumption that all adjuncts at every religious school function like the parochial-school teachers in Catholic Bishop, the Board‘s acceptance of each religious university‘s public representations as to whether and how adjunct faculty play a role in its religious identity is more respectful of universities’ religious freedom and thus better comports with the Free Exercise Clause.
Not every religious school‘s religious character necessarily requires that its adjuncts leave their NLRA rights at the door. A holding that presumes as a jurisdictional matter that all genuinely religious universities have no labor law coverage for their adjuncts imposes a fixed religious footprint at corresponding cost on every religious school, including schools that may not want, and adjuncts who may not have expected, that cost. Because I conclude that the Board‘s answer to the open question whether Catholic Bishop applies to adjunct teachers at religious schools better protects the religious liberty the