Thursday, January 30, 2020
As noted by Jon Hannah, the D.C. Circuit has issued its decision in Duquesne v. NLRB regarding jurisdiction over adjunct faculty unionization efforts at religiously-affiliated universities. As I argued some years ago in testimony (here) before a House subcommittee, the D.C. Circuit precedents on this issue are straightforward, and the NLRB's 2014 decision in the Pacific Lutheran case (discussed here) was at odds with those precedents. A bit from Judge Griffith's decision:
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 non-profit; 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.
Apparently unpersuaded by Great Falls and Carroll College, the Board used its new Pacific Lutheran test to assert jurisdiction over Duquesne. Pacific Lutheran runs afoul of our precedent by claiming jurisdiction in cases that we have placed beyond the Board’s reach. That is, Pacific Lutheran extends the Board’s jurisdiction to cases involving faculty at schools that satisfy the Great Falls test, specifically those schools that (according to the Board) do not hold out the faculty members as playing a specific role in the school’s religious educational environment. Pac. Lutheran, 361 N.L.R.B. at 1410. But our precedent is clear: Great Falls is a bright-line test. If it is satisfied, the school is “altogether exempt from the NLRA,” and “the Board must decline to exercise jurisdiction.” Great Falls, 278 F.3d at 1347; accord Carroll Coll., 558 F.3d at 572, 574-75. The Board may not “dig deeper” by examining whether faculty members play religious or non-religious roles, for “[d]oing so would only risk infringing upon the guarantees of the First Amendment’s Religion Clauses.” Carroll Coll., 558 F.3d at 572. We have no power to revisit this precedent. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc); Am. Hosp. Ass’n v. Price, 867 F.3d 160, 165 (D.C. Cir. 2017).