Certiorari Denied in Catholic School Teacher's Suit Against His Union

The U.S. Supreme Court yesterday denied review in Jusino v. Federation of Catholic Teachers, Inc., (Docket No. 22-662, certiorari denied 3/27/2023). (Order List). In the case, the U.S. 2nd Circuit Court of Appeals held  that the National Labor Relations Act does not apply to a Catholic parochial school teacher's duty-of-fair-representation claim against his union.

NLRB Reduces Its Jurisdiction Over Religious Colleges

In Bethany College, (NLRB, June 10, 2020), the National Labor Relations Board overruled its 2014 decision in Pacific Lutheran that had expanded NLRB jurisdiction over religiously-affiliated colleges.  The NLRB said in part:

[W]e now hold that the Board does not have jurisdiction over matters concerning teachers or faculty at bona fide religious educational institutions. We further hold that the test set forth in the D.C. Circuit’s Great Falls case is the appropriate test.... Under this bright-line test, the Board will leave the determination of what constitutes religious activity versus secular activity precisely where it has always belonged: with the religiously affiliated institutions themselves, as well as their affiliated churches and, where applicable, the relevant religious community. Applying the Great Falls test will remove any subjective judgments about the nature of the institutions’ activities or those of its faculty members.... It will prevent the type of intrusive inquiries that the Supreme Court prohibited in Catholic Bishop.... Finally, and importantly, it will provide the Board with a mechanism for determining when self-identified religious schools are not, in fact, bona fide religious institutions, therefore protecting the rights of employees working for those institutions.

[Thanks to Steven H. Sholk for the lead.]

DC Circuit Rejects NLRB's Test For Jurisdiction Over Adjunct Faculty At Religiously-Affiliated Colleges

In Duquesne University of the Holy Spirit v. NLRB, (DC Cir., Jan. 28, 2020), the Court of Appeals for the DC Circuit, in a 2-1 decision, held that the National Labor Relations Board lacks jurisdiction over adjunct faculty at Duquesne University.  In doing so, the majority rejected the test developed by the National Labor Relations Board in its 2014 Pacific Lutheran decision. The NLRB took the position that it lacks jurisdiction over adjunct faculty at non-profit religiously-affiliated colleges only if both the school holds itself out to the public as a religious institution and the particular faculty group petitioning performs a specific religious role. The majority held that the role played by the particular faculty may not be considered:

Pacific Lutheran impermissibly intrudes into religious matters. The Board suggests that it can avoid constitutional problems by considering only whether a religious school “holds out” faculty members as playing a specific religious role, ... but such an inquiry would still require the Board to define what counts as a “religious role” or a “religious function.” ... Defining which roles qualify would be far outside the competence of Board members and judges.

Judge Pillard dissenting said in part:

The Board’s approach has several advantages.... It recognizes the significant structural and functional differences between adjuncts and full faculty at many schools, as well as the heterogeneity of schools’ religious exercise. It thereby not only respects precedent and protects religious exercise, but also affords schools leeway to delineate for themselves the scope of the academic teaching corps that embodies their religious mission. In contrast to the automatic presumption of religiosity that the court adopts today, the Board’s approach adds a measure of tailoring at the exemption’s outer edge, eliminating needless sacrifice of adjuncts’ NLRA rights but extending the exemption to them where called for by a religious role the school itself identifies.

Pittsburgh Post-Gazette reports on the decision.

Case Again Examines NLRB Jurisdiction Over Religious Colleges

Last year in the Pacific Lutheran University case, the National Labor Relations Board developed a new test for when it will assert jurisdiction over a religiously-affiliated college. Even if the college holds itself out as providing a religious educational environment, the NLRB will assert jurisdiction unless the faculty members seeking to organize are themselves held out as performing a specific role in maintaining the college's religious character. (See prior posting.) Last March, applying that test, an NLRB Regional Director held that it had jurisdiction over a faculty union election at Seattle University. (See prior posting.) The University appealed to the full NLRB, and in June it ordered the Regional Director to reopen the record so the parties could introduce additional evidence relevant to the NLRB's new Pacific Lutheran test. (Docket).

In an August 17, 2015 opinion (full text), the Regional Director examined at length that additional evidence relating to how the faculty is held out and again concluded that the NLRB has jurisdiction over them.  Lexology analyzes that decision. On August 31, the University filed a 50-page request for review of the Regional Director's latest decision (full text), arguing not just that the Pacific Lutheran test was misapplied, but arguing also:

The new test under PLU  contravenes the United States Supreme Court’s holding in  National Labor Relations Board v. Catholic Bishop of Chicago ... which held that Congress did not intend to bring teachers at church-operated schools within the  jurisdiction of the Act. The PLU  test contains the same constitutional infirmities as existed in the Board’s former “substantial religious character” test, which caused the D.C. Circuit Court of Appeals to require a simple, “bright line” test to determine Board jurisdiction over religiously-affiliated colleges and universities..... 

NLRB Asserts Jurisdiction Over Faculty Election At Jesuit College

In Seattle University v. Service Employees International Union, (NLRB Reg. Dir., March 3, 2015), an NLRB Regional Director Supplemental Decision, the Regional Director applied the NLRB's new standard  for religious colleges to hold that the NLRB has jurisdiction over a faculty union election at Seattle University. The Director held that while the University holds itself out as a Jesuit Catholic institution, it does not hold faculty members out as performing a religious function.

NLRB Announces New Test For Jurisdiction Over Religious Colleges

In an important decision handed down last week, the National Labor Relations Board-- interpreting the U.S. Supreme Court's 1979 decision in NLRB v. Catholic Bishop of Chicago-- developed a new test for when the Board will assert jurisdiction over religiously-affiliated colleges.  In a 3-2 decision in Pacific Lutheran University, (NLRB, Dec. 16, 2014), the Board held:

... when a college or university argues that the Board cannot exercise jurisdiction over a petitioned-for unit of faculty members because the university is a religious one, the university must first demonstrate, as a threshold requirement, that First Amendment concerns are implicated by showing that it holds itself out as providing a religious educational environment.  Once that threshold requirement is met, the university must then show that it 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, as demonstrated by its representations to current or potential students and faculty members, and the community at large.

Applying this test, the majority held that

... although [Pacific Lutheran University] meets the threshold requirement of holding itself out as creating a religious educational environment, it does not hold out the petitioned-for contingent faculty members as performing a religious function in support of that environment.

In a dissenting opinion, Member Johnson said in part:

The majority decision today represents yet another effort to push back against the Supreme Court’s mandate that we avoid striving for jurisdictional boundaries that could violate the First Amendment. Although the majority announces its intent to “articulate a new test that is . . . faithful to the holding of Catholic Bishop,” the majority’s new test falls short in that goal in many regards.

Member Miscimarra, dissenting in part, agreed with this portion of Member Johnson's dissent.  The Board's decision also rejected the argument that the faculty involved were exempt managerial employees.

Chronicle of Higher Education reports on the NLRB's decision. [Thanks to Larry Hansen for the lead.]