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Duquesne University v. National Labor Relations Board, 947 F.3d 824 (D.C. Cir. 2020)

On January 28, 2020, in a case in which the AAUP filed an amicus brief, the United States Court of Appeals for the District of Columbia Circuit (the “DC Circuit”) issued a decision finding that adjunct faculty did not have the right to unionize at a religiously affiliated university under federal labor law. Duquesne University v. National Labor Relations Board, 947 F.3d 824 (D.C. Cir. 2020) (“Duquesne”). The core issue was whether in applying federal labor law, the National Labor Relations Act (NLRA), to the faculty, the NLRB and the courts would risk interfering in the religious affairs of Duquesne, thereby violating the Religion Clauses of the First Amendment. The NLRB used the test it set forth in Pacific Lutheran University, 361 NLRB 1404 (2014)(“Pacific Lutheran”), and found there was no danger of unconstitutional entanglement because the faculty in question did not perform a specific role in creating or maintaining Duquesne’s religious educational environment. The amicus brief supported the NLRB test and pointed to the AAUP’s limitations clause as an example of how a comparable test has been applied in higher education. However, in a 2 to 1 decision, the DC Circuit rejected the Pacific Lutheran test, and applying a narrower bright-line test held that the NLRB did not have jurisdiction and therefore the adjunct faculty could not unionize under the NLRA.

This case stemmed from Duquesne’s refusal to recognize a group of unionized adjunct faculty in the McAnulty College of Liberal Arts. While the faculty overwhelmingly voted for the union, Duquesne refused to deal with the union, asserting that requiring it to do so would constitute government entanglement in its religious activities in violation of the US Constitution. The NLRB applied the test it set forth in Pacific Lutheran, the primary component being whether Duquesne “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,” and particularly whether the faculty were “held out as performing a specific religious function.” Pacific Lutheran, at 1410-1411. The 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 AAUP filed an amicus brief that focused primarily on AAUP’s pivotal 1940 Statement of Principles on Academic Freedom and Tenure and the 1940 Statement’s “limitations clause” and argued that these provide support for the position that the NLRB can assert jurisdiction over religiously-affiliated universities under the jurisdictional test outlined in Pacific Lutheran. “The relevance of the 1940 Statement’s limitations clause to the issues before this Court goes beyond simply a description of its similarity to the Board’s Pacific Lutheran test . . . the 1940 Statement—with its limitations clause—has been adopted by hundreds of colleges and universities, including many religiously affiliated universities. In adopting the 1940 Statement, religiously affiliated universities have recognized the central importance of adhering to the norms of faculty academic freedom that are shared by the community of institutions of higher education. At the same time, religiously affiliated universities recognize that the 1940 Statement’s limitations clause protects their institutional autonomy to define faculty positions that entail specifically articulated religiously based job functions.”

The amicus brief demonstrated that the AAUP’s “limitations clause” is comparable to the NLRB’s Pacific Lutheran standard for determining whether to assert jurisdiction over religiously affiliated universities. Both use an objective “holding out” standard that “defers to the university’s definition of faculty functions that are religious-based functions.” The AAUP’s “limitations clause” relies on the university’s decision to inform a faculty member at the time of appointment of the specific religious functions required for the faculty position; and the NLRB’s jurisdictional test follows similar logic—it protects the autonomy of religiously affiliated universities to define faculty positions that require the performance of “religious function.” The amicus brief argued that both tests provide a clear and workable framework to determine the scope of an exemption from AAUP standards or NLRB jurisdiction. Both tests respect the autonomy of the religiously affiliated university to define religious-based functions of its faculty, while also protecting rights of faculty outside the scope of a religious-based exemption.

On appeal Duquesne argued that the faculty at religiously affiliated universities, including Duquesne, were exempt from board jurisdiction. The principles regarding the religious exemption were established by the Supreme Court in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)(Catholic Bishop) where the court held that the Board could not assert jurisdiction over the petitioned-for lay teachers because to do so would create a “significant risk” that First Amendment religious rights would be infringed. Id. at 502, 507. However, the Supreme Court did not provide a specific test for applying the exemption. The DC Circuit subsequently advanced a bright-line test for the exemption in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) and Carroll College v. NLRB, 558 F.3d 568 (D.C. Cir. 2009). The NLRB advanced a more nuanced test in Pacific Lutheran. In Duquesne, the DC Circuit’s majority decision reiterated that the test from its earlier decisions applied, and foreclosed NLRB jurisdiction.

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 NLRA authorizes the Board to exercise jurisdiction in cases involving religious schools and their teachers or faculty. 278 F.3d at 1347. Under this 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. Id. at 1343-44. Seven years after Great Falls, we reiterated in Carroll College that this test governs the Board's jurisdiction, 558 F.3d at 572, 574, and we do so again today. This case involves faculty members and Duquesne satisfies the Great Falls test. The NLRA therefore does not empower the Board to exercise jurisdiction.

The majority explicitly noted that this ruling did not apply to non-faculty employees, or to the power of other agencies in cases involving different statutes or constitutional provisions.

In a dissent, Judge Pillard argued that the decision of the NLRB allowing the adjunct faculty to unionize should have been upheld. She noted that Catholic Bishop had not articulated a specific test, nor required the bright line test advanced by the majority, and that some of the force of Catholic Bishop had been undermined by subsequent Supreme Court decisions. Judge Pillard also pointed out that the NLRB’s approach in Pacific Lutheran appropriately balanced the desires of the university to maintain its religious autonomy and the desires of the adjunct faculty to organize under the protection of the NLRA.