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Divided DC Circuit Panel Rejects NLRB's Jurisdiction Test for Religious Schools' Adjunct Faculty
Practical Law Legal Update w-023-8325 (Approx. 5 pages)
Divided DC Circuit Panel Rejects NLRB's Jurisdiction Test for Religious Schools' Adjunct Faculty
by Practical Law Labor & Employment
| Law stated as of 11 Jun 2020 • USA (National/Federal) |
In Duquesne University of the Holy Spirit v. NLRB, a divided panel of the US Court of Appeals for the District of Columbia Circuit rejected the National Labor Relations Board's (NLRB) jurisdictional test for adjunct faculty at religious colleges and universities expressed in Pacific Lutheran University.
On January 28, 2020, in Duquesne University of the Holy Spirit v. NLRB, Duquesne University of the Holy Spirit (Duquesne), a Catholic university, challenged the NLRB's exercising jurisdiction over it and certifying a union as the representative of its adjunct faculty, by:
- Refusing to bargain with the certified union.
- Petitioning the US Court of Appeals for the District of Columbia Circuit (DC Circuit) for review of the NLRB's unfair labor practice (ULP) decision and order requiring it to bargain with the union.
A divided panel of the DC Circuit:
- Rejected the NLRB's jurisdictional test for adjunct faculty at religious colleges and universities expressed in Pacific Lutheran University (361 N.L.R.B. 1404 (2014); see Legal Update, NLRB Sets New Jurisdiction Test for Religious Universities, Managerial Test for University Faculty Members).
- Granted Duquesne's petition for review.
- Vacated the NLRB's decision and order.
- Denied the NLRB's cross-application for enforcement of its order.
The DC Circuit held that the Pacific Lutheran standard:
- Runs afoul of the religion clauses in the First Amendment.
- Disregards US Supreme Court precedent declining to parse teachers' roles in secular instruction from a religious school's religious mission (see NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)).
- Directly conflicted with DC Circuit precedent on the NLRB's prospective jurisdiction over religious schools. Under that precedent, the Board lacks jurisdiction if the school:
- holds itself out to the public as providing a "religious educational environment";
- is nonprofit; and
- is religiously affiliated.
Every NLRB ULP decision may be appealed to the DC Circuit. The NLRB likely will soon revisit and overrule the Pacific Lutheran standard because any decision based on it is bound to be challenged in and vacated by the DC Circuit.
UPDATE
On June 10, 2020, the Board overruled in part Pacific Lutheran, and adopted the three-pronged jurisdictional test outlined by the DC Circuit in Great Falls for determining whether the NLRB may exercise jurisdiction over teachers or faculty at religious schools, including colleges and universities (Bethany Coll., 369 N.L.R.B. No. 98 (June 10, 2020); for more information, see Legal Update, NLRB Adopts New Jurisdictional Standard for Faculty at Religious Colleges and Universities).