Bargaining Rights at Religious Institutions

By Kelly Hand

In September the AAUP filed an amicus brief in the US Court of Appeals for the District of Columbia Circuit in Duquesne University v. National Labor Relations Board. This case stems from the refusal of Duquesne, a Catholic university, to recognize a group of unionized adjunct faculty in the McAnulty College of Liberal Arts. While the faculty overwhelmingly voted to unionize, Duquesne refused to recognize the union, asserting that requiring it to do so would be an unconstitutional government entanglement in its religious activities. The National Labor Relations Board (NLRB) found that Duquesne did not hold out its adjunct faculty (other than those in the Department of Theology) as performing a “specific religious function” and determined that Duquesne committed an unfair labor practice by refusing to bargain with the union. The NLRB rejected Duquesne’s claim of a religious exemption and Duquesne appealed to the DC Circuit.

The amicus brief focuses primarily on the AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure and its “limitations clause,” arguing that the Statement provides support for the position that the NLRB can assert jurisdiction over religiously affiliated universities under the jurisdictional test outlined in its 2014 Pacific Lutheran decision. Both the AAUP’s “limitations clause” and the NLRB’s jurisdictional test respect the autonomy of the religiously affiliated university to define religion-based functions of its faculty while also protecting rights of faculty outside the scope of a religion-based exemption.

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