St. Patrick's Church, Larkspur, Calif.

No Union Rights for non-Religious Adjuncts

A federal appeals court expanded the ability of religious schools to block labor union representation on constitutional religious freedom grounds.

A divided District of Columbia Court of Appeals said Tuesday the NLRB had no jurisdiction over Catholic Duquesne University’s adjunct faculty members who sought to unionize in 2012.

Duquesne University, with nearly 10,000 undergraduate and graduate students was founded in 1878 by priests and brothers of the Congregation of the Holy Spirit, known as Spiritans.  Today it is still run by the order and as a non-profit.

It has faculty that is tenured, non-tenured, visiting professors and part-time adjunct professors, who are hired for one semester at a time and teach up to six credit hours per semester. The adjuncts teach about 44 percent of all credit hours in core curriculum, including math, writing, science, philosophy, theology and ethics.

In 2014, the NLRB ruled the adjuncts could be represented by the AFL-CIO union and ordered Duquesne to negotiate. It refused to bargain citing NLRB lack of jurisdiction under the Religious Freedom Restoration Act and the Constitution’s religion clauses and first amendment. It appealed.

The majority opinion noted that since 1979 the Supreme Court had limited the NLRB authority to assert jurisdiction over private, non-profit schools.

In 1979, the court refused to allow the NLRB to compel Catholic high schools in Chicago and Indiana to bargain with unions representing lay teachers.

In 1985, the 1st Circuit Court of Appeals, in an opinion by now Supreme Court Justice Stephen Breyer, rejected a new approach by the NLRB that universities were different from primary and secondary schools. The NLRB argued it could regulate schools primarily concerned with providing secular education.

Breyer found that allowing that distinction would entangle the board in religious affairs and NLRB authority was again rejected.

By 2002, the NLRB asserted authority over religious schools that it said lacked “substantial religious character.”

The DC Circuit rejected that test as well in a Montana case over the University of Great Falls.

To assert jurisdiction, the NLRB must consider if an institution holds itself out as a public religious institution; is non-profit and is religiously affiliated. If a school meets those test the NLRB must be hands-off.

In 2014, the NLRB created a new jurisdiction test, saying a university must “hold itself out as providing a religious educational environment” and it used that test in the case of the Duquesne adjunct professors.

Judge Thomas Griffith, joined by Judge Judith Rogers, rejected this new standard. “Duquesne satisfies the Great Falls test. The [National Labor Relations Act] therefore does not empower the board to exercise jurisdiction,” he said.

In dissent, Judge Cornelia Pillard, “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 NRLA.”

“Not every religious school’s religious character necessarily requires that its adjuncts leave their NLRA rights at the door,” she said. The majority ruling presumes 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 way, and adjuncts who may not have expected, that cost.”

Case: Duquesne University v. NLRB, No. 18-1063

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