Wednesday, February 19, 2020

DC Circuit on NLRB jurisdiction over religious universities

The D.C. Circuit recently published its opinion in Duquesne University of the Holy Spirit v. NLRB. Basically, a bunch of adjunct faculty at Duquesne, a Catholic school in Pittsburgh, sought to unionize.

The D.C. Circuit pointed to past precedent in Great Falls and Carroll College:
Not official use.
[W]e 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. Under this test, the [NLRB] 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. 
 (reformatted). Long story short, the majority concluded that his case "begins and ends" with the prior precedent. Duquesne holds itself out as a religious school, is a nonprofit, and is religiously affiliated. Case closed. The NLRB has no jurisdiction.

The majority did not endeavor to address other arguments, including the Religious Freedom Restoration Act (RFRA) minefield.

The dissent would have looked at the actual employees (the adjuncts) involved, concluding that "[n]ot every religious school’s religious character necessarily requires that its adjuncts leave their NLRA rights at the door."

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