A federal appeals court ruled Tuesday that Duquesne University’s status as a Roman Catholic institution exempts it from National Labor Relations Board's rules on forming an adjunct union.
If upheld, the ruling would effectively kill a union drive at the Pittsburgh university.
But the 2-1 ruling by the U.S. Court of Appeals for the District of Columbia suggests that more litigation in the case may be possible.
The majority framed the issue as one of religious rights. The dissenting judge saw the issue as primarily about the rights of adjuncts.
Adjuncts first sought to create a union in 2012, with the United Steel, Paper and Forestry, Rubber, Manufacturing, Allied-Industrial and Service Workers International Union. Adjuncts teach 44 percent of all credit hours in the university's core curriculum, which is the general education program. It includes math, writing, science, philosophy, theology and ethics. When the adjuncts voted to unionize, Duquesne asked the NLRB to disallow the union because the university is a religious institution. The NLRB refused, and the university sued.
The appeals court said the "seminal decision" on whether to consider unions at a religious college is NLRB v. Catholic Bishop of Chicago, a 1979 Supreme Court ruling that set strict limits on the NLRB. These limits were designed to prevent the "risk" of government interference with the religious work of an organization. In a key part of the ruling, cited by the appeals court, the Supreme Court said that it did not matter (as the NLRB had ruled) if the school or college required all of its teachers to hold to a faith or hired teachers who did not.
"The Supreme Court rejected the board’s approach," the appeals court said. "Reading the National Labor Relations Act to avoid the risk of violating the Religion Clauses, the court held in Catholic Bishop that the NLRA does not authorize the board to exercise jurisdiction over teachers in a church-operated school, no matter whether the school is 'completely religious' or merely 'religiously associated.'"
"Given this vital role played by teachers, exercising jurisdiction over disputes involving teachers at any church-operated school presented a 'significant risk that the First Amendment will be infringed,'" the appeals court noted.
The appeals court said that the Catholic Bishop decision set up a clear way to determine if unionization was permitted.
"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."
The court found that the Duquesne adjuncts fit those criteria. "As an initial matter, the adjuncts here are clearly faculty members. In Duquesne’s faculty handbook, the adjuncts who make up the bargaining unit are identified as 'adjunct faculty' and listed among the different types of faculty at Duquesne. Furthermore, the adjuncts possess the key attribute of faculty members: They educate students," the decision said.
Further, the appeals court said that "it makes no difference whether the adjuncts are faculty members who play a role in Duquesne’s religious educational environment."
The appeals court ruling was written by Judge Thomas B. Griffith, and his decision was backed by Judge Judith W. Rogers.
Judge Cornelia T. L. Pillard filed a dissent.
She agreed with the majority decision that full-time faculty members could not unionize because of Duquesne's religious ties. But she said adjuncts were different.
"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 National Labor Relations Act that was drawn to account for the 'critical and unique role' of faculty in 'fulfilling the mission of a church-operated school,'" she said.
Further, she said that court rulings adhering to the Catholic Bishop decision "did not address whether a bargaining unit composed of temporary, part-time adjuncts, like units of other, non-faculty employees of the institution, falls beyond that line."
"Because adjuncts often have a very different role from permanent faculty, it makes sense to treat as distinct the question whether adjuncts are exempted," she added. "Indeed, the board has long differentiated adjuncts from full faculty, concluding that 'the differences between the full-time and part-time faculty are so substantial in most colleges and universities' that certain 'part-time faculty' -- including 'adjunct professors' -- 'do not share a community of interest with full-time faculty and, therefore, should not be included in the same bargaining unit.'"
Reacting to the Decision
The Association of Catholic Colleges and Universities released a statement that said, "Our faculty are invited to show students the faith-based motivations of famous artists, composers, writers, economists, political theorists, philosophers and more. No government office should ever have the power to decide, department-by-department, course-by-course, which ones are doing the Church’s work and which ones are not. As a member association, we have consistently noted that unions have been welcomed on a number of our Catholic campuses. Our point is more fundamental: Empowering government offices to decide which components of a university are faith-based is simply the wrong way to protect faculty."
Gabriel Welsch, a spokesman for Duquesne, said, “The university is grateful that the court recognized the importance of our religious mission in rendering this significant decision. The Constitution’s First Amendment protection of religious freedom from government intrusion and regulation is one of America’s most important rights, and we are pleased that the court upheld the religious rights of Duquesne University of the Holy Spirit.”
He also noted that the university works with four nonfaculty unions and has "deep respect and appreciation" for unions.
The union seeking to organize the university's adjuncts issued this statement: “We are disappointed with the court’s decision and even more concerned that Duquesne’s administration would fight this hard to keep their workers from having a voice on the job. Unlike other Catholic universities that recognized adjunct faculty unions, the Duquesne administration decided to invoke its status as a religiously affiliated institution in an effort to stop adjuncts from joining together to improve their working conditions and the university community. Adjuncts in Duquesne’s McAnulty College voted in favor of union representation. They deserve the same rights to come together and bargain collectively as all workers.”