Duquesne University v. NLRB ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2018 Decided January 28, 2020
No. 18-1063
DUQUESNE UNIVERSITY OF THE HOLY SPIRIT,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED STEEL, PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ALLIED-INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION, AFL-CIO-CLC,
INTERVENOR
Consolidated with 18-1078
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Stanley J. Brown argued the cause for petitioner. With him
on the briefs were Arnold E. Perl, Joel Buckman, Ira M.
Feinberg, and Amy Folsom Kett.
Erin E. Murphy argued the cause for amicus curiae
Association of Catholic Colleges and Universities in support of
2
petitioner. With her on the brief were Paul D. Clement, Kasdin
M. Mitchell, and Lauren N. Beebe.
Heather S. Beard, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Peter B. Robb, General Counsel, John W. Kyle, Deputy
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, and Elizabeth Heaney, Supervisory Attorney.
James B. Coppess argued the cause for intervenor. With
him on the brief were Amanda Fisher and Nathan Kilbert.
Michael S. Wolly was on the brief for amicus curiae
American Association of University Professors in support of
respondent.
Before: ROGERS, GRIFFITH, and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Circuit Judge PILLARD.
GRIFFITH, Circuit Judge: The National Labor Relations
Board ordered Duquesne University, a Catholic school in
Pennsylvania, to bargain with a union representing the school’s
adjunct faculty. Duquesne petitions for review, arguing that its
religious mission places it beyond the Board’s jurisdiction. We
agree.
I
Duquesne was founded in 1878 by the priests and brothers
of the Congregation of the Holy Spirit, a Catholic religious
order also known as the Spiritans. Today, Duquesne is
organized as a non-profit corporation led by the Spiritans, who
3
have exclusive authority over the university’s mission and the
appointment of its board of trustees, president, and officers.
Duquesne describes itself as a “Catholic University in the
Spiritan Tradition.” J.A. 70. That tradition, Duquesne explains,
endeavors to “preach the Gospel to those who have never heard
it, or to those who have barely heard it, with particular attention
. . . to young people, and to our educational works.” J.A. 297.
As the university’s mission statement puts it, “Duquesne serves
God by serving students.” J.A. 70.
Approximately 6,500 undergraduate and 3,000 graduate
students attend Duquesne. They are taught by various types of
faculty: tenured, tenure-track, non-tenure-track, executive,
visiting, emeritus, and part-time adjuncts. Adjunct faculty
members are hired for one semester at a time, and each may
teach up to six credit hours per semester. In total, adjunct
faculty teach approximately 44% of all credit hours in the Core
Curriculum, which is what Duquesne calls its general-
education requirements. The Core Curriculum includes courses
in math, writing, science, philosophy, theology, and ethics.
In 2012, some of the adjuncts sought to unionize. The
United Steel, Paper and Forestry, Rubber, Manufacturing,
Allied-Industrial and Service Workers International Union,
AFL-CIO-CLC (the “Union”) petitioned the National Labor
Relations Board (NLRB or the “Board”) to certify it as the
exclusive bargaining representative for the adjunct faculty in
Duquesne’s liberal arts college. At the time of the election,
there were approximately eighty-eight such adjuncts in the
proposed bargaining unit, and a majority voted for the Union.
Duquesne ultimately asked the Board to vacate the election and
dismiss the Union’s petition. Relying on the Supreme Court’s
decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
(1979), and our decision in University of Great Falls v. NLRB,
4
278 F.3d 1335 (D.C. Cir. 2002), Duquesne argued that the
National Labor Relations Act (NLRA)—when read in light of
the Religion Clauses of the First Amendment—does not
authorize the Board to exercise jurisdiction in this matter.
The Board’s Regional Director rejected that argument.
Applying the Board’s decision in Pacific Lutheran University,
361 N.L.R.B. 1404 (2014), she concluded that the Board had
jurisdiction because Duquesne did not hold out to the public
that its adjunct faculty performed specific religious roles at the
school. She then recommended that the Union be certified as
the exclusive bargaining representative of the adjuncts. On
review, a divided three-member panel of the Board agreed with
the Regional Director, but the panel excluded from the
bargaining unit adjunct faculty who teach theology. Duquesne
Univ., No. 06-RC-080933, 2017 WL 1330294, at *1 & n.3
(N.L.R.B. Apr. 10, 2017). The dissenting member would have
held that the Board lacked jurisdiction. Id. at *1 (Member
Miscimarra, dissenting).
Duquesne refused to bargain with the Union, which drew
an unfair-labor-practice charge that was heard by a different
three-member panel of the Board. The panel ordered Duquesne
to bargain without revisiting the jurisdictional question.
Duquesne Univ., 366 N.L.R.B. No. 27, 2018 WL 1137769, at
*1, *3 (Feb. 28, 2018).
Duquesne now petitions for review of the Board’s decision
and order, arguing that the Board lacks jurisdiction and that the
Board’s order violates the Religious Freedom Restoration Act.
The Board cross-petitions for enforcement of its order. We
have jurisdiction over the petition for review under 29 U.S.C.
§ 160(f), and over the cross-petition under § 160(e).
II
5
The Board began asserting jurisdiction over religious
schools and their teachers in the 1970s. Since then, the Board
has justified its jurisdiction in a variety of ways, but the Board’s
efforts have not met with success in the courts. The Supreme
Court and the courts of appeals have held that the NLRA—read
in light of the Religion Clauses—does not allow the Board to
exercise jurisdiction in a series of cases over the past several
decades. We reach the same conclusion in this case.
The Religion Clauses of the First Amendment provide that
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.” U.S. CONST.
amend. I. The Establishment Clause limits governmental
involvement in the affairs of religious groups, and the Free
Exercise Clause safeguards the freedom to practice religion,
whether as an individual or as part of a group. See Hosanna-
Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S.
171, 181-90 (2012). In tandem, the Religion Clauses establish
a “scrupulous policy . . . against a political interference with
religious affairs.” Id. at 184 (quoting Letter from James
Madison to Bishop Carroll (Nov. 20, 1806)).
The First Amendment “gives special solicitude to the
rights of religious organizations,” id. at 189, guaranteeing them
“independence from secular control or manipulation,” id. at
199 (Alito, J., joined by Kagan, J., concurring) (quoting
Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 116 (1952)).
Religious organizations warrant First Amendment protections
in part because “religious activity derives meaning in large
measure from participation in a larger religious community.
Such a community represents an ongoing tradition of shared
beliefs, an organic entity not reducible to a mere aggregation
of individuals.” Corp. of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v. Amos, 483 U.S. 327, 342 (1987)
6
(Brennan, J., concurring in the judgment). For many
Americans, religion cannot be exercised apart from religious
organizations, and therefore “these organizations must be
protected” by the First Amendment. Id. at 341-42 (quoting
Douglas Laycock, Towards a General Theory of the Religion
Clauses: The Case of Church Labor Relations and the Right to
Church Autonomy, 81 COLUM. L. REV. 1373, 1389 (1981)).
Religious organizations are also employers potentially
subject to the Board’s jurisdiction under the NLRA. See 29
U.S.C. §§ 152(2), 158(a), 160(a). But recognizing the risk of
violating the Religion Clauses, the Board “generally will not
assert jurisdiction over nonprofit, religious organizations,” and
it disclaims jurisdiction over “religious institutions which
operate in a conventional sense using conventional means.” St.
Edmund’s Roman Catholic Church, 337 N.L.R.B. 1260, 1260
(2002). Typically, this means that the Board will not get
involved in disputes between churches and their employees for
fear of interfering with the churches’ religious missions. See,
e.g., id. at 1261, 1266 & n.7 (church custodians); Riverside
Church, 309 N.L.R.B. 806, 806-07 (1992) (church custodians,
electricians, plumbers, and garage attendants, among others);
Faith Ctr.-WHCT Channel 18, 261 N.L.R.B. 106, 107-08, 113
(1982) (broadcast engineers who worked at the church’s
television station); see also Motherhouse of the Sisters of
Charity, 232 N.L.R.B. 318, 318 (1977) (service employees
who worked at a religious order’s convent and nursing home).
Just like churches, schools may pursue a religious mission.
Indeed, education is at the core of religious activity for many
Americans. See Am. Br. of the Ass’n of Catholic Colls. &
Univs. 15-20; see also Hosanna-Tabor, 565 U.S. at 177, 191-
92; id. at 201 (Alito, J., joined by Kagan, J., concurring);
Catholic Bishop of Chi. v. NLRB, 559 F.2d 1112, 1118 (7th Cir.
1977), aff’d, 440 U.S. 490. Yet the Board has taken a different
approach to religious schools, asserting jurisdiction over them
7
and their teachers despite their religious missions, only to have
courts hold that the Board’s actions were not authorized by the
NLRA.
The seminal decision is NLRB v. Catholic Bishop of
Chicago, 440 U.S. 490 (1979). In the decades before that case,
the Board did not assert jurisdiction over private non-profit
schools. See id. at 497; Trs. of Columbia Univ. in the City of
N.Y., 97 N.L.R.B. 424, 425-27 (1951). This changed in the
1970s, when the Board began to assert jurisdiction over private
universities and high schools, including some religious
schools. See Cornell Univ., 183 N.L.R.B. 329, 334 (1970);
Shattuck Sch., 189 N.L.R.B. 886, 886 (1971); Roman Catholic
Archdiocese, 216 N.L.R.B. 249, 250 (1975). The Board
distinguished between schools it deemed “completely
religious,” which the Board continued to leave alone, and those
it thought only “religiously associated,” which the Board
regulated. Roman Catholic Archdiocese, 216 N.L.R.B. at 250;
Cardinal Timothy Manning, 223 N.L.R.B. 1218, 1218 (1976).
Using this approach, the Board compelled Catholic high
schools in Chicago and Indiana to bargain with unions
representing lay teachers. See Catholic Bishop, 440 U.S. at
493-94.
The Supreme Court rejected the Board’s approach.
Reading the NLRA 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.” Id.
at 500, 507. The Court explained that teachers play a “critical
and unique role . . . in fulfilling the mission of a church-
operated school.” Id. at 501. This holds true regardless of
whether the teacher provides instruction in religious or secular
subjects. See id. at 501-02. Given this vital role played by
8
teachers, exercising jurisdiction over disputes involving
teachers at any church-operated school presented a “significant
risk that the First Amendment will be infringed.” Id. at 502. For
example, if a school took action against teachers for failing to
comply with religious principles, an ensuing unfair-labor-
practice proceeding might call upon the Board to determine
whether the school’s actions were justified “by their religious
creeds.” Id. This would “involve inquiry into the good faith of
the position asserted by the clergy-administrators and its
relationship to the school’s religious mission.” Id. The “very
process” of such an inquiry threatened to “impinge on rights
guaranteed by the Religion Clauses.” Id. Furthermore,
exercising jurisdiction would entangle the Board in the “terms
and conditions of employment” of teachers, which would
involve the Board in “nearly everything that goes on” in
religious schools. Id. at 502-03 (internal quotation marks
omitted). It would also “[i]nevitably . . . implicate sensitive
issues that open the door to conflicts between clergy-
administrators and the Board, or conflicts with negotiators for
unions.” Id. at 503. Seeing “no escape from conflicts flowing
from the Board’s exercise of jurisdiction . . . and the consequent
serious First Amendment questions that would follow,” the
Supreme Court held that the Board lacked jurisdiction over
teachers in church-operated schools. Id. at 504, 507.
A few months after the Court rejected the Board’s
assertion of jurisdiction in Catholic Bishop, the Board claimed
authority over religious colleges and universities, arguing that
the holding of Catholic Bishop was limited to primary and
secondary schools. See Barber-Scotia Coll., 245 N.L.R.B. 406,
406 (1979). Religious colleges and universities were different,
the Board argued, because “college students are less
impressionable and less susceptible to religious
indoctrination,” “the internal discipline inherent in college
courses minimizes the possibility of sectarian influence,” and
9
“a high degree of academic freedom often exists at church-
related colleges and universities.” Id. The Board also decided
that Catholic Bishop did not keep it from regulating schools
that were “primarily concerned with providing a secular
education, rather than with inculcating particular religious
values.” Id. at 407; accord Universidad Cent. de Bayamon, 273
N.L.R.B. 1110, 1110, 1113 (1984).
The First Circuit declined to approve of the Board’s
position in Universidad Central de Bayamon v. NLRB, 793
F.2d 383 (1st Cir. 1985) (evenly divided en banc). Writing for
half of the en banc court, then-Judge Breyer explained that
Catholic Bishop prohibited the Board from distinguishing
between religious schools that primarily teach secular subjects
and those that seek to inculcate religious values more expressly
and overtly. See id. at 402-03. The very inquiry needed to make
that distinction would entangle the Board in religious affairs.
See id. Importantly, Judge Breyer observed that exercising
jurisdiction over either type of school risked violating the First
Amendment, for religious values may “permeate the
educational process” even at a school whose “predominant”
mission is providing students with a secular education. Id. at
401-02. Judge Breyer also explained that Catholic Bishop
applied to colleges and universities no less than other schools:
“[T]he language of Catholic Bishop itself does not distinguish
colleges from primary and secondary schools,” and the risk of
“state/religion entanglement . . . would seem as great in
colleges as in secondary schools.” Id. at 401. “Unfair labor
practice charges would seem as likely; the Board’s likely
scrutiny would seem at least as intense; the necessary
distinctions between religious and labor matters would seem no
easier to make; and whether one could readily ‘fence off’
subjects of mandatory bargaining with a religious content
would seem similarly in doubt.” Id. at 403.
 10
Following the Supreme Court’s decision in Catholic
Bishop and the First Circuit’s decision in Bayamon, the Board
developed a different approach to jurisdiction over religious
schools, this time asserting authority over schools that lacked a
“substantial religious character.” Univ. of Great Falls, 331
N.L.R.B. 1663 (2000).
We categorically rejected the Board’s test in University of
Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002), which
involved faculty at the University of Great Falls, a Catholic
school in Montana. We explained that determining whether a
school had a “substantial religious character” involved the
same “intrusive inquiry” and the “exact kind of questioning
into religious matters which Catholic Bishop specifically
sought to avoid,” with “the NLRB trolling through the beliefs
of the University, making determinations about its religious
mission, and that mission’s centrality to the ‘primary purpose’
of the University.” Id. at 1341-43. “[T]he nature of the Board’s
inquiry,” we observed, “boils down to ‘is [the University]
sufficiently religious?’” Id. at 1343. Such a question “creates
the same constitutional concerns that led to the Supreme
Court’s decision in Catholic Bishop,” as well its subsequent
decisions in Corp. of Presiding Bishop v. Amos, 483 U.S. 327
(1987), and Mitchell v. Helms, 530 U.S. 793 (2000). Great
Falls, 278 F.3d at 1341. In Mitchell, a plurality of the Supreme
Court “rejected ‘inquiry into . . . religious views’ as ‘not only
unnecessary but also offensive.’” Id. (quoting Mitchell, 530
U.S. at 828). The same “prohibition on such intrusive inquiries
into religious beliefs underlay the decision in Presiding
Bishop.” Id. at 1342. In that case, the Supreme Court “noted the
difficulty of judicially deciding which activities of a religious
organization were religious and which were secular,” id.,
observing that the line “is hardly a bright one . . . and an
organization might understandably be concerned that a judge
11
would not understand its religious tenets and sense of mission,”
id. (quoting Presiding Bishop, 483 U.S. at 336).
To avoid the First Amendment concerns raised by the
Board’s new policy, we concluded that Catholic Bishop, along
with Mitchell and Presiding Bishop, “require[d] a different
approach.” Id. at 1343. Thus was born our Great Falls test.
“[I]n determining whether an institution is exempt from the
NLRA under Catholic Bishop,” we held that “the Board should
consider whether the institution: (a) holds itself out to the
public as a religious institution; (b) is non-profit; and (c) is
religiously affiliated.” Id. at 1347. “If so, then the Board must
decline to exercise jurisdiction.” Id. We described this as a
“bright-line test” to “determine whether an entity is altogether
exempt from the NLRA.” Id. And we explained that the test
“will allow the Board to determine whether it has jurisdiction
without delving into matters of religious doctrine or motive,
and without coercing an educational institution into altering its
religious mission to meet regulatory demands,” thus avoiding
the pitfalls of the Board’s prior tests. Id. at 1345. At the same
time, this approach reasonably assures that the exemption “will
not be abused” because it applies only to schools that publicly
represent that they provide a religious environment. Id. at
1344-45. Such representations serve as a “market check”
because “public religious identification will no doubt attract
some students and faculty to the institution,” but “it will
dissuade others.” Id. at 1344.
After Great Falls, the Board issued several decisions
assuming without deciding that our test governed its
jurisdiction. See, e.g., Salvation Army, 345 N.L.R.B. 550, 551
(2005); Catholic Soc. Servs., 355 N.L.R.B. 929, 930 (2010).
But the Board did not follow our test in asserting jurisdiction
over a dispute involving faculty members at Carroll College, a
Presbyterian school in Wisconsin that satisfied the Great Falls
12
test. We rejected the Board’s decision even though the college
never raised the jurisdictional issue before the Board. Carroll
Coll. v. NLRB, 558 F.3d 568, 574 (D.C. Cir. 2009). The Board,
we held, “should have known immediately” that the college
was “patently beyond the NLRB’s jurisdiction.” Id. We
stressed that “Great Falls created a bright-line test,” and a
school that satisfies this test “is exempt from NLRB
jurisdiction.” Id. at 572, 574. We also explained that in light of
the Supreme Court’s commands, we had made clear in Great
Falls that the Board may not “question[] the sincerity of the
school’s public representations about the significance of its
religious affiliation” or conduct a “skeptical inquiry” into
whether an affiliated church exerts influence over the school.
Id. at 572-74. The permissible inquiry is simple and limited.
The Board must look “solely” at the school’s “public
representations as to its religious educational environment.” Id.
at 572-73. Anything more, “neither the Board nor we may do.”
Id. at 573.
In Pacific Lutheran University, 361 N.L.R.B. 1404 (2014),
the Board created a new way to determine its jurisdiction over
a religious school. Under the new test, a religious college or
university seeking to avoid the Board’s jurisdiction must first
show that “it holds itself out as providing a religious
educational environment.” Id. at 1414. This threshold
requirement is similar to our Great Falls test, but satisfying it
is not enough to avoid the Board’s jurisdiction. Id. at 1410. The
school must also 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.” Id. at 1414.
 13
Two members of the Board vigorously dissented.
According to Member Miscimarra, “the Board should simply
embrace and apply the three-part test articulated by the D.C.
Circuit in University of Great Falls.” Id. at 1429 (Member
Miscimarra, dissenting in part). He pointed out that “every
unfair labor practice decision by the Board may be appealed to
the D.C. Circuit”; thus, “even if one disagreed with Great
Falls, any attempt by the Board to chart a different path appears
predestined to futility.” Id. (citing 29 U.S.C. § 160(f)). Member
Johnson argued that the “specific religious role” requirement
of Pacific Lutheran “not only fails to avoid the First
Amendment questions, it plows right into them at full tilt” by
again calling on the Board “to judge the religiosity of the
functions that the faculty perform.” Id. at 1433-34 (Member
Johnson, dissenting).
A divided Board applied the Pacific Lutheran test in this
case. The panel acknowledged that Duquesne holds itself out
as providing a religious educational environment, but the
Board exercised jurisdiction because adjuncts outside the
Theology Department are not held out as performing a specific
role in creating or maintaining Duquesne’s religious
educational environment. See J.A. 69, 77-78; Duquesne Univ.,
No. 06-RC-080933, 2017 WL 1330294, at *1 & n.3. 1
1
The Board has applied Pacific Lutheran to assert jurisdiction
over several other religious schools, often with Board members
dissenting or expressing “no opinion” on whether Pacific Lutheran
was rightly decided. See, e.g., Loyola Univ. Chi. Emp’r, No. 13-RC-
168082, 2016 WL 3924182 (N.L.R.B. July 20, 2016); Seattle Univ.,
364 N.L.R.B. No. 84, 2016 WL 4437681 (Aug. 23, 2016); Bethany
Coll., No. 14-CA-201546, 2017 WL 6262290 (N.L.R.B. Dec. 6,
2017); Saint Xavier Univ., 366 N.L.R.B. No. 31, 2018 WL 1256649
(Mar. 9, 2018); Manhattan Coll., 366 N.L.R.B. No. 73, 2018 WL
2003450 (Apr. 27, 2018). Some of these religious schools have
petitioned us for review. We are holding their petitions in abeyance
14
III
Duquesne argues that Great Falls and Carroll College
foreclose the Board’s jurisdiction. Our review is de novo. See
Great Falls, 278 F.3d at 1340-41. We agree with Duquesne.
A
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.
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.
J.A. 768-70. Furthermore, the adjuncts possess the key attribute
of faculty members: They educate students. In fact, according
pending the decision in this case. See Order, Manhattan Coll. v.
NLRB, No. 18-1113 (D.C. Cir. June 26, 2018); Order, Saint Xavier
Univ. v. NLRB, No. 18-1076 (D.C. Cir. Sept. 19, 2018).
15
to the faculty handbook, their only responsibility is teaching.
See J.A. 770 (“As a rule, adjuncts are responsible only for
teaching.”). As we will explain below, it makes no difference
whether the adjuncts are faculty members who play a role in
Duquesne’s religious educational environment. Once we
determine that they are faculty members or teachers of any sort,
the Great Falls test applies, and that test does not permit us to
examine the roles played by the faculty members involved in
the case.
Applying Great Falls, the Board lacks jurisdiction. The
parties do not dispute that Duquesne satisfies the test. Nor
could they. As the Board’s Regional Director found, Duquesne
is a non-profit school affiliated with the Catholic Church and
the Spiritan religious order, and Duquesne holds itself out as
providing a religious educational environment by publicly
identifying itself as a Catholic institution guided by Catholic
principles, providing regular Catholic religious services on
campus, and encouraging students to participate in religious
study groups, lectures, and projects. J.A. 69-71, 76-77; see
Great Falls, 278 F.3d at 1345; Carroll Coll., 558 F.3d at 573-
74.
B
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
16
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).
The Board acknowledges that Pacific Lutheran cannot be
squared with our precedent. See Pac. Lutheran, 361 N.L.R.B.
at 1408-09. Indeed, in adopting its new test in Pacific Lutheran,
the Board rejected Great Falls as an “overreach[]” that “goes
too far.” Id. at 1409. Rather than arguing that Pacific Lutheran
follows our precedent, the Board claims that it “reasonably
found” that Great Falls’ “rationale for examining how a
university holds itself out extends to consideration of how it
holds out its faculty members.” NLRB Br. 28. But Great Falls
adopted a bright-line test, not a “rationale” that the Board may
“extend” in a way that asserts jurisdiction over schools that the
test places outside the Board’s power.
For its part, the Union argues that Pacific Lutheran
complies with our precedent because Great Falls “did not hold
that the Board must decide jurisdiction . . . without regard for
the role played by the faculty.” Union Br. 29. According to the
Union, the question simply “did not arise.” Id. To the contrary,
the question featured prominently in Great Falls. The test at
issue—the Board’s “substantial religious character” test—
assessed the roles of the teachers who sought to unionize. For
example, the test considered “the role of the unit employees in
17
effectuating the [college’s religious] purpose” and whether
“religious criteria are used for the appointment and evaluation
of faculty.” Great Falls, 278 F.3d at 1339 (quoting Great Falls,
331 N.L.R.B. 1663). And before us, the parties debated
whether the university’s faculty members played significant
religious roles. See, e.g., Univ. of Great Falls Br. 15-17, 24-25,
29-33, Univ. of Great Falls v. NLRB, No. 00-1415 (D.C. Cir.
July 23, 2001); NLRB Br. 33-38, Univ. of Great Falls v. NLRB,
No. 00-1415 (D.C. Cir. Sept. 10, 2001). Despite being
confronted by the issue, we did not hold that the Board’s
jurisdiction was affected by the religious or non-religious roles
played by the faculty members. Rather, we held that the NLRA
does not empower the Board to exercise jurisdiction in cases
involving schools with three particular features, none of which
depend on the role played by the petitioned-for faculty
members.
Our refusal to examine the roles played by various faculty
members followed directly from Catholic Bishop. There, the
Supreme Court recognized that teachers play a “critical and
unique role” in advancing the mission of religious schools.
Catholic Bishop, 440 U.S. at 501. This holds true, the Supreme
Court explained, regardless of whether the teachers provide
instruction in religious or secular subjects. No matter the
subject taught, “a teacher remains a teacher,” and “a teacher’s
handling” of even secular subjects may implicate the school’s
religious mission. Id. (internal quotation marks omitted).
Because a school’s religious mission may be “intertwined”
with even “secular instruction,” the Supreme Court did not
differentiate between teachers who play religious roles and
those who play secular roles, but rather held that the Board
lacked jurisdiction over all teachers at church-operated
schools. Id. at 501, 507 (internal quotation marks omitted).
18
Similarly, then-Judge Breyer explained in Bayamon that
creating and administering distinctions between religious and
secular instruction at religious universities “would itself
entangle the Board in religious affairs.” 793 F.2d at 402-03.
This entanglement could not be avoided by crafting a
bargaining unit that excludes faculty members who appear
most closely tied to a university’s religious mission; to create
and administer such distinctions “is to tread the path that
Catholic Bishop forecloses.” Id. at 402. Furthermore,
regardless of the roles played by the teachers involved in a case,
Judge Breyer observed that permitting the Board to exercise
jurisdiction risked entangling the government with the
university’s religious mission. See id. at 402-03. Board-
mandated bargaining involving any teachers at religious
universities would likely “concern the whole of school life,”
including the religious mission, id., for “nearly everything that
goes on in the school affects teachers and is therefore arguably
a condition of employment,” id. (quoting Catholic Bishop, 440
U.S. at 503).
Great Falls and Carroll College followed the same
principles in holding that the Board’s jurisdiction depends on
three features of the religious school, not the roles played by
the faculty members involved in the case. By contrast, 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, Pac. Lutheran,
361 N.L.R.B. at 1410; NLRB Br. 30, but such an inquiry would
still require the Board to define what counts as a “religious
role” or a “religious function.” Just as the Board may not
determine whether a university is “sufficiently religious,” Great
Falls, 278 F.3d at 1343, the Board may not determine whether
various faculty members play sufficiently religious roles.
Defining which roles qualify would be far outside the
19
competence of Board members and judges. See Presiding
Bishop, 483 U.S. at 336; Watson v. Jones, 80 U.S. 679, 729
(1871); Great Falls, 278 F.3d at 1341-42; Colo. Christian
Univ. v. Weaver, 534 F.3d 1245, 1265 (10th Cir. 2008)
(McConnell, J.). It would also lead to just “the sort of intrusive
inquiry that Catholic Bishop sought to avoid,” with the Board
“trolling through the beliefs of the University,” making
determinations about its religious mission and whether certain
faculty members contribute to that mission. Great Falls, 278
F.3d at 1341-42. This “is no business of the State.” Colo.
Christian Univ., 534 F.3d at 1264. The “very process” of such
an inquiry by the Board, as well as the Board’s conclusions,
would “impinge on rights guaranteed by the Religion Clauses.”
Great Falls, 278 F.3d at 1341 (quoting Catholic Bishop, 440
U.S. at 502); see also Presiding Bishop, 483 U.S. at 343-44
(Brennan, J., concurring in the judgment) (a “case-by-case”
inquiry into whether an organization’s activities are religious
or secular entangles the government in religious affairs and
“create[s] the danger of chilling religious activity” by
disrupting “the community’s process of self-definition”). 2
For example, consider how the Board intended to
determine which faculty roles count as sufficiently religious.
Some roles would qualify: “integrating the institution’s
religious teachings into coursework, serving as religious
2
In rejecting Pacific Lutheran, we do not address whether the
Board could exercise jurisdiction over a religious school that
formally and affirmatively disclaims any religious role for certain
faculty members. That issue is not presented here, for Pacific
Lutheran held that the Board has jurisdiction unless the religious
school shows that it holds out the faculty members as playing a
specific religious role, which is not the same as a standard that says
the Board lacks jurisdiction unless the religious school formally and
affirmatively disclaims any religious role for certain faculty
members.
20
advisors to students, propagating religious tenets, or engaging
in religious indoctrination or religious training.” Pac.
Lutheran, 361 N.L.R.B. at 1412. But, the Board said, “general
or aspirational statements” that faculty members must support
the religious mission of a school would not establish that they
play sufficiently religious roles, and “[t]his is especially true
when the university also asserts a commitment to diversity and
academic freedom, further putting forth the message that
religion has no bearing on faculty members’ job duties.” Id. at
1411-12.
With these distinctions, the Board impermissibly sided
with a particular view of religious functions: Indoctrination is
sufficiently religious, but supporting religious goals is not, and
especially not when faculty enjoy academic freedom. This
“threaten[s] to embroil the government in line-drawing and
second-guessing regarding matters about which it has neither
competence nor legitimacy.” Colo. Christian Univ., 534 F.3d
at 1264-65; see Great Falls, 278 F.3d at 1346; Bayamon, 793
F.2d at 402. And the Board’s distinctions refuse to accept that
faculty members might contribute to a school’s religious
mission by exercising their academic freedom, even though
many religious schools understand the work of their faculty to
be religious in just this way. Indeed, 194 schools (including
Duquesne) represent that academic freedom is an “essential
component” of their religious identities, critical to their mission
of “freely searching for all truth.” Am. Br. of the Ass’n of
Catholic Colls. & Univs. 16-17 (quoting U.S. Conference of
Catholic Bishops, Ex Corde Ecclesiae: The Application to the
United States art. 2 (June 1, 2000)). This commitment to
academic freedom does not become “any less religious” simply
because secular schools share the same commitment, nor
because it advances the school’s religious mission in an “open-
minded” manner as opposed to “hard-nosed proselytizing.”
Great Falls, 278 F.3d at 1346. Yet rather than accepting at face
21
value that academic freedom serves a religious function, the
Board sees academic freedom as the opposite: a sign that
“religion has no bearing on faculty members’ job duties.” Pac.
Lutheran, 361 N.L.R.B. at 1411. The Board may not “second-
guess” or “minimize the legitimacy of the beliefs expressed by
a religious entity” in this way. Colo. Christian Univ., 534 F.3d
at 1265-66; Great Falls, 278 F.3d at 1345.
C
In the dissent’s view, Great Falls and Carroll College
never addressed whether “adjunct faculty . . . retain their
NLRA rights.” Dissent at 1. Instead, those decisions exempted
only “permanent, full-time faculty.” Id. But the dissent’s theory
assumes that Great Falls and Carroll College already allow the
Board to retain jurisdiction over “non-faculty staff at avowedly
religious schools.” Id.; see also id. at 16-17. To the contrary,
some language in those decisions seems to suggest that our
“bright-line” test exempts institutions from the Board’s
jurisdiction—not categories of employees. E.g., Great Falls,
278 F.3d at 1343 (exempting “an institution”); Carroll College,
558 F.3d at 572 (exempting a “school”). Thus, the dissent’s
fundamental premise—that the Board may still assert
jurisdiction over some non-faculty employees—depends, at
best, on a debatable reading of those decisions.
In any event, the dissent errs by asserting that adjuncts are
somehow more like non-faculty employees than they are like
faculty. Parsing the adjuncts’ “terms of employment,” see
Dissent at 8-10, misses the forest for the trees. Adjuncts teach
students, thus performing the “critical and unique role of the
teacher in fulfilling the mission of a church-operated school.”
Catholic Bishop, 440 U.S. at 501. Indeed, Duquesne itself says
that a core element of its religious mission is education, see J.A.
70 (“Duquesne serves God by serving students.”), adjuncts
22
teach nearly half of the Core Curriculum, and these Core
classes “provide[] students with the opportunity to explore how
religious faith and spiritual values enrich human life,” J.A.
1090. In short, it is clear to us that adjuncts perform the
mission-critical task of educating students at a “Catholic
University in the Spiritan Tradition.” J.A. 70.
The dissent’s defense of Pacific Lutheran also underscores
that decision’s incompatibility with the Religion Clauses. In
this case, following Pacific Lutheran, the Board’s Regional
Director found that reasonable adjunct candidates “would not
conclude that any religious responsibilities were required by
their job duties.” J.A. 78 (emphasis added). The dissent sees
nothing wrong with this analysis, and it describes Pacific
Lutheran’s test as “non-intrusive.” Dissent at 11. To the
contrary, Pacific Lutheran led the Board’s Regional Director
to ask exactly the impermissible question: Would a “reasonable
candidate” (in the Board’s judgment, not Duquesne’s) think an
adjunct’s responsibilities were sufficiently “religious”? J.A.
78. That question compels the Board (and federal courts) to
“mak[e] determinations” about Duquesne’s “religious
mission” and about the “centrality” of these adjuncts to that
mission. Carroll College, 558 F.3d at 572 (internal quotation
marks omitted). Pacific Lutheran thus invites—and the dissent
would allow—the very constitutional harms that Great Falls
and Carroll College sought to avert.
***
In sum, Pacific Lutheran runs afoul of our decisions in
Great Falls and Carroll College, which continue to govern the
reach of the Board’s jurisdiction under the NLRA in cases
involving religious schools and their faculty members or
teachers. Accordingly, the Board has no jurisdiction here. We
therefore need not address Duquesne’s arguments that the
23
Board lacks jurisdiction for other reasons and that the Board
has violated the Religious Freedom Restoration Act. Also, we
need not resolve the extent of the Board’s jurisdiction under the
NLRA in cases involving religious schools and their non-
faculty employees, nor must we address the powers of other
agencies in cases involving different statutes or constitutional
provisions. This is not one of those cases.
IV
We grant the petition for review, vacate the Board’s
decision and order, and deny the cross-application for
enforcement.
So ordered.
PILLARD, Circuit Judge, dissenting: I disagree with my
colleagues that this case “begins and ends” with University of
Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002), and
Carroll College, Inc. v. NLRB, 558 F.3d 568 (D.C. Cir. 2009).
Maj. Op. at 14. 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 (NLRA), 29 U.S.C.
§ 151 et seq., that was drawn to account for the “critical and
unique role” of faculty in “fulfilling the mission of a church-
operated school.” NLRB v. Catholic Bishop of Chi., 440 U.S.
490, 501 (1979). The parties, my colleagues, and I agree that
full faculty are exempt, and that this case does not address the
applicability of the NLRA’s workplace protections to non-
faculty staff at avowedly religious schools. Instead, the dispute
is over application of the exemption to adjunct faculty, an issue
no court has yet decided. Are adjuncts exempted under
Catholic Bishop on religious grounds, like permanent faculty,
or do they, like religious schools’ other personnel, retain their
NLRA rights?
The test the National Labor Relations Board (Board or
NLRB) applied to resolve that open question derives not from
this case, but from Pacific Lutheran University, 361 N.L.R.B.
1404 (2014), yet this is the first petition asking us to review it.
The Board ruled that adjunct faculty may be exempted, but
only where the university “holds [them] out” as “performing a
specific role in creating or maintaining the university’s
religious purpose or mission.” Id. at 1411. This deferential
standard avoids any intrusive review of the teachers’ actual
duties, requiring only that schools provide clear notice that they
cast their adjuncts in a religious role. The Board then accepts
at face value the schools’ representations to that effect.
Applying a holding-out requirement to adjuncts seeks to ensure
that the exemption is not applied where it serves no purpose. I
believe that modest requirement is more consistent with the
competing concerns here than the majority’s blanket
2
conclusion that all adjuncts at a religious university serve a
religious function, even where their employer has never held
them out as doing so.
The Board’s approach has several advantages. It faithfully
adapts the holding-out method we articulated in Great Falls
and Carroll College, using it to apply Catholic Bishop to a type
of religious-school employee not yet addressed. 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.
I. Background
A. The Implied NLRA Religious-Teacher Exemption
The First Amendment’s Free Exercise Clause “does not
relieve an individual of the obligation to comply with a valid
and neutral law of general applicability.” Emp’t Div. v. Smith,
494 U.S. 872, 879 (1990). The NLRA is such a law. It protects
employees’ right to organize, join together, and bargain
collectively with their employers. See 29 U.S.C. § 157. It
defines “employee” without exception for teachers, id.
§ 152(3), and “employer” without exception for religiously
affiliated schools, id. § 152(2). In sustaining an NLRA
bargaining unit of professional opera singers, we quoted the
Supreme Court’s characterization of “[t]he breadth of § 2(3)’s
3
definition” of “employee” as “striking.” Seattle Opera v.
NLRB, 292 F.3d 757, 762 (D.C. Cir. 2002) (quoting Sure-Tan,
Inc. v. NLRB, 467 U.S. 883, 891 (1984)). “[T]he Act squarely
applies to ‘any employee.’ The only [textual] limitations are
specific exemptions for agricultural laborers, domestic
workers, individuals employed by their spouses or parents,
individuals employed as independent contractors or
supervisors, and individuals employed by a person who is not
an employer under the [Act].” Id. (emphasis omitted). And we
have been directed to “take care to assure that exemptions from
NLRA coverage are not so expansively interpreted as to deny
protection to workers the Act was designed to reach.” Holly
Farms Corp. v. NLRB, 517 U.S. 392, 399 (1996).
The Supreme Court implied an NLRA exemption for
regular parochial high school teachers in Catholic Bishop. See
440 U.S. at 493 n.5. The exemption sprang from both the
religious nature of the schools and “the critical and unique role
of the teacher in fulfilling the mission of a church-operated
school.” Id. at 501. In view of the teachers’ central role in “the
propagation of a religious faith,” which is a “raison d’être of
parochial schools,” id. at 503, the Court sought to avoid the
constitutional shoals of regulating teachers who are “under
religious control and discipline,” id. at 501 (quoting Lemon v.
Kurtzman, 403 U.S. 602, 617 (1971)). Invoking Establishment
Clause precedent disallowing governmental support to
parochial schools, the Court thought that collective bargaining
on behalf of religious-school teachers raised a risk—similar to
the risk from monitoring public funds—of governmental
“entanglement with the religious mission of the school.” Id.
at 502.
Rather than decide that teachers’ exercise of NLRA rights
at a religious high school would violate the First Amendment,
the Court in Catholic Bishop invoked constitutional avoidance
4
to read the statute as inapplicable to them. The Court
acknowledged that the NLRA “defined the Board’s jurisdiction
in very broad terms,” id. at 504, and that the legislative history
did not refer to religious schools or their teachers, see id. at
504-06. The absence of any “clear expression of Congress’
intent to bring teachers in church-operated schools within the
jurisdiction of the Board,” the Court reasoned, supported
construing the NLRA not to reach those teachers. Id. at 507.
The Court thus steered clear of “difficult and sensitive
questions arising out of the guarantees of the First Amendment
Religion Clauses” that might ensue from collective
representation of parochial-school teachers. Id.
The Court in Catholic Bishop “offered no test” for
applying the exemption, Carroll Coll., 558 F.3d at 571, so the
Board and lower courts worked to differentiate schools whose
teachers could legitimately be exempted from those whose
teachers could not. Because the Supreme Court has never
passed on how the size, complexity, heterogeneity, and
academic freedom that characterize many religious institutions
of higher education might differentiate them from the parochial
schools in Catholic Bishop, it has fallen to the appellate courts
to decide how to apply the religious-teacher exemption to
faculty at religious colleges and universities.
B. Our NLRA Cases Do Not Address Adjunct Faculty
In Great Falls, we rejected the Board’s attempt to apply
Catholic Bishop through a case-by-case inquiry into “whether
a religion-affiliated school has a substantial religious
character.” 278 F.3d at 1339. Instead, we adopted a three-part
analysis that, in the context of a petitioned-for faculty
bargaining unit, entitles a school to the Catholic Bishop
exemption if it (1) is “religiously affiliated;” (2) is “non-
profit;” and (3) “holds itself out to the public as religious.” Id.
5
at 1344-45. The central functions of Great Falls’ holding-out
test are twofold: First, by accepting a school’s publicly
communicated religious self-description, it prevents second-
guessing the school’s “motives or beliefs” to determine
whether it has a sufficiently “substantial religious character” to
claim the Catholic Bishop exemption. Id. at 1344. And,
second, because “public religious identification . . . comes at a
cost” to the school claiming it, the unusually deferential
holding-out inquiry provides “reasonable assurance that the
Catholic Bishop exemption will not be abused” to exempt
employees whose NLRA rights should be recognized. Id.
at 1344-45. We explained that, insofar as entitlement to the
exemption hinges on a school’s “public religious
identification,” it is unlikely to be claimed where it is not
warranted because the avowed religiosity “will no doubt attract
some students and faculty to the institution,” but “will dissuade
others.” Id. at 1344. We applied the exemption in Carroll
College even though the college had not asserted it before the
Board, reasoning that the exemption is jurisdictional so could
be “considered on review” even if not “raised before the
Board.” 558 F.3d at 574.
While Carroll College and Great Falls decided when a
nonprofit, religiously affiliated university sufficiently “holds
itself out to the public as a religious institution” to place
Catholic Bishop’s jurisdictional exemption in play, Great
Falls, 278 F.3d at 1347, those decisions 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. Critically, the petitioned-for
faculty bargaining units we confronted in Carroll College and
Great Falls expressly excluded adjuncts. See Carroll Coll.,
Inc., 350 N.L.R.B. No. 30 (2007), vacated, 558 F.3d at 575;
Univ. of Great Falls, 331 N.L.R.B. No. 188 (2000), vacated,
278 F.3d at 1348. The faculty unit at issue in Bayamon—a
6
decision that influenced us in Great Falls, see 278 F.3d at
1342-43—likewise excluded “all part-time teaching
personnel.” Universidad Cent. de Bayamon, 273 N.L.R.B.
1110, 1111 (1984), enforcement denied, Universidad Cent. de
Bayamon v. NLRB, 793 F.2d 383, 403 (1st Cir. 1985) (equally
divided en banc) (Breyer, J.). Instead, those cases each
addressed only bargaining units composed of regular faculty,
i.e., the university bodies most analogous to the parochial-
school faculty that Catholic Bishop saw as a conduit for the
propagation of the faith, so their analyses of institutional
religiosity and employees’ religious involvement merged in the
same way as in Catholic Bishop. But no court has previously
faced a situation where, as here, the proposed bargaining unit
is composed exclusively of adjunct teachers structurally
distinct from the main faculty and not held out as playing the
kind of role in the school’s religious mission that justified the
faculty exemption in Catholic Bishop.
Because adjuncts often have a very different role from
permanent faculty, it makes sense to treat as distinct the
question whether adjuncts are exempted. 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.”
N.Y. Univ., 205 N.L.R.B. 4, 6 (1973); see also Kendall Coll. v.
NLRB, 570 F.2d 216, 219-20 (7th Cir. 1978). Schools employ
adjuncts in many different ways, and those differences can be
material to whether recognition of adjuncts’ NLRA rights
would pose a risk to the university’s religious exercise. Asking
that the university hold out its adjuncts as part of its religious
function adequately accounts for any such risk.
7
The Board’s differentiation of adjuncts from full faculty
echoes another recognized distinction within university
teaching ranks that affects NLRA coverage: While permanent
faculty often participate in governance, adjuncts typically do
not. Thus, in the very first judicial decision applying Catholic
Bishop to higher education, the divided en banc First Circuit in
Bayamon stressed that its treatment of religious-university
faculty accorded with “the existence of other, related
limitations upon the Labor Board’s jurisdiction over university
teachers.” 793 F.2d at 398. The NLRA “limitation[]” to which
Bayamon adverted is the managerial exemption. The faculty
managerial exemption applies to faculty that participate in
faculty self-governance by virtue of “various ‘management’
prerogatives over appointments, schedules, and curriculum.”
Bayamon, 793 F.2d at 399 (quoting NLRB v. Yeshiva Univ.,
444 U.S. 672, 690 (1980)); see also Catholic Bishop, 440 U.S.
at 504-05 (noting Senate Committee’s reference to “a college
professor’s dispute with the college as an example of
employer-employee relations not covered by the Act”). In
Carroll College, we, too, recognized that the faculty we
exempted under Catholic Bishop were part of the College’s
“governance structure.” 558 F.3d at 570; see also Great Falls,
278 F.3d at 1337.
In the university setting, teachers’ roles vary in ways
material to their eligibility for collective representation.
Accordingly, in announcing the managerial-faculty exemption
in Yeshiva, the Supreme Court expressly acknowledged that
there might be faculty subgroups “who properly could be
included in a bargaining unit.” 444 U.S. at 690 n.31 (emphasis
added). Traditionally, the community of scholars within a
university that shares governance with the university’s central
administration comprises full faculty, not adjuncts. In recently
considering a claim that Yeshiva’s managerial-faculty
exemption encompasses part-time adjuncts, we echoed
8
Yeshiva’s recognition “that faculties are heterogeneous” and
that “non-managerial subsets may exist within a faculty
entrusted with managerial authority.” Univ. of S. Cal. v. NLRB,
918 F.3d 126, 129 (D.C. Cir. 2019). In light of those facts, we
held that the managerial exemption applies to an identified
subset of the faculty only insofar as “that subgroup is
structurally included within a collegial faculty body to which
the university has delegated managerial authority.” Id. at 137.
The religious-faculty and managerial-faculty exemptions
are not necessarily coterminous, but references to the
managerial exemption by courts developing the religious one
bespeak judicial recognition that university faculties are
structurally heterogenous, and, as Bayamon pointed out when
it first extended Catholic Bishop to higher education, most full-
time university faculty were already exempted as managerial.
In short, neither the holdings nor the logic of the religious-
teacher exemption cases requires uniform exemption of
“teachers of any sort,” Maj. Op. at 15, based on the
unsupported (and often inaccurate) presumption that every
religious educational institution’s adjuncts have the same
relationship to the school’s religious exercise as does its regular
faculty.
There are powerful practical and institutional reasons why
adjuncts need not and should not automatically be equated with
regular faculty under Catholic Bishop, but may fall closer to
non-faculty employees for purposes of NLRA jurisdiction.
The image many lawyers and judges have of an adjunct as a
salaried or retired professional who moonlights as a law-school
professor bears little resemblance to the circumstances of most
adjuncts—especially those for whom NLRA rights matter
most. Many adjuncts are trained academics seeking
opportunities for full faculty status in their chosen disciplines.
See U.S. Gov’t Accountability Office, GAO-18-49, Contingent
9
Workforce: Size, Characteristics, Compensation, and Work
Experiences of Adjunct and Other Non-Tenure-Track Faculty
14, 24-25 (Oct. 2017) (GAO Report). They fill many
“postsecondary instructional positions,” id. at 10, yet their
terms of employment often leave them with little time, space,
or opportunity for interaction with students outside of class,
with the institution’s staff or full-time faculty, or with broader
campus life and institutional mission, id. at 32, 47-49; see also
Am. Ass’n for Univ. Professors, Contingent Appointments and
the Academic Profession 173 (rev. 2014).
A 2017 governmental report found that more than half of
the nearly one million contingent teaching positions
nationwide “are part-time and have less-than annual contracts
or lack faculty status,” making them among the “least stable”
type of academic appointment. GAO Report at 12-13. The
report concluded that the “[p]art-time contingent faculty” it
surveyed earned “about 75 percent less per course” than other
instructors, id. at 35—with median annual earnings falling well
below $10,000, see id. at 34 tbl.5; see also Coal. on the Acad.
Workforce, A Portrait of Part-Time Faculty Members 2, 10-12
(June 2012)—and that far fewer than half of part-time adjuncts
received retirement, health, and life insurance benefits from
their employment, see GAO Report at 39.
The Duquesne adjuncts at issue here are no exception.
Notably, the Executive Resolutions of Duquesne’s Board
define “adjunct professors” as among the Auxiliary
Instructional Staff, who are “not members of the Faculty” and
“not entitled to Faculty benefits except to the extent these are
granted in the letter of appointment.” J.A. 737 (emphasis
added). (Duquesne’s bylaws provide that its Executive
Resolutions supersede the faculty handbook, see J.A. 397, to
which the majority refers, see Maj. Op. at 14-15.) The adjuncts
have no campus offices and no role in faculty governance. See
10
J.A. 74 (“Adjuncts are not provided with their own office
space.”), 770 (“Adjunct faculty members do not have voting
privileges . . . .”), 780 (defining Faculty Senate, consisting of
full-time faculty, as “the deliberative body, the voice, and the
primary agent of faculty involvement in University
governance”). Department heads at Duquesne contract with
adjuncts on a decentralized, per-course, per-semester basis.
See J.A. 72. “As a rule, adjuncts are responsible only for
teaching,” J.A. 770; see also J.A. 737, often handling
“[i]ntroductory language” and “skills courses” to free up “full-
time faculty to teach theme courses,” J.A. 926. The only record
evidence of Duquesne’s adjunct compensation shows a 2011
payment of $2,556 for a semester-long, three-credit English
course, J.A. 1109, consistent with national data on adjunct pay
at the college level, see Coal. on the Acad. Workforce at 10.
In sum, the terms of employment of adjuncts make clear
that they are not necessarily equivalent to the permanent
faculty exempt under Carroll College, Great Falls, and
Catholic Bishop. Recognizing potentially material differences,
the Board set out in Pacific Lutheran to adapt the holding-out
test we adopted in Great Falls to this new employee group.
II. The Board’s Approach
A. Pacific Lutheran University
The Board in Pacific Lutheran recognized that whether
and how Catholic Bishop’s exemption applies to adjunct
teachers at religiously affiliated universities presented an open
question of substantial importance, so it took up the issue in an
especially open and deliberative way. The Board “issued a
notice and invitation to file briefs . . . to the parties as well as
the general public.” 361 N.L.R.B. at 1405. Its notice elicited
comments on the series of questions it had posed and prompted
11
“a broad range of interested parties [to] file[] briefs in response
to the Board’s invitation.” Id. at 1405 & n.3.
In developing the test it applied here, the Board in Pacific
Lutheran acknowledged that it had to “accommodate two
competing interests”: First, it must respect the First
Amendment’s Religion Clauses and the cases applying them to
religious schools, “avoid[ing] any intrusive inquiry into the
character or sincerity of a university’s religious views;” and,
second, it must “protect[] workers’ exercise of their rights
under the [NLRA] to the fullest permissible extent” consistent
with the Religion Clauses. Id. at 1406. Guided by Great Falls,
the Board held that Catholic Bishop’s exemption would reach
adjuncts teaching secular subjects, provided the university
(1) “holds itself out as providing a religious educational
environment,” and (2) “holds out” the adjuncts “as performing
a specific role in creating or maintaining the university’s
religious purpose or mission.” Id. at 1410-11. Thus, for a
religious university to exempt its adjunct faculty, it need only
publicly make clear that it assigns them a religious role.
By adapting our non-intrusive “holding out” approach
from Great Falls to the question whether adjuncts count as
“faculty” for purposes of the Catholic Bishop exemption, the
Board explicitly eschewed any “second-guessing” of
religiosity. Id. at 1412. The Board rejected the test preferred
by the union in that case, which would have looked beyond
schools’ public representations of adjuncts’ religious role to
demand evidence that “teachers in the proposed unit perform
religious functions as part of their jobs.” Id. at 1408. The
Board refused that test out of concern that its “examination of
the actual functions performed by employees could raise the
same First Amendment concerns as an examination of the
university’s actual beliefs,” which we had rejected in Great
Falls. Id. at 1411. Instead, the Board held:
12
[W]e shall decline jurisdiction if the university “holds
out” [the adjunct faculty in the proposed bargaining
unit], in communications to current or potential
students and faculty members, and the community at
large, as performing a specific role in creating or
maintaining the university’s religious purpose or
mission. As the D.C. Circuit explained in Great Falls,
the “holding out” requirement eliminates the need for
a university to explain its beliefs, avoids asking how
effective the university is at inculcating its beliefs, and
does not “coerce[] an educational institution into
altering its religious mission to meet regulatory
demands.” 278 F.3d at 1344-1345.
Pac. Lutheran, 361 N.L.R.B. at 1411. The Board stressed that
it would “rely on the institution’s own statements about
whether” the school’s religious identity shaped the teachers’
roles “without questioning the institution’s good faith or
otherwise second-guessing those statements.” Id. at 1412.
The Board reasoned that taking at face value the
university’s representations about adjuncts’ religious role
would respect religious exercise but guard against unsupported
use of the exemption. The Board’s approach dovetails with
both the substantive protection of religious rights under
Catholic Bishop and the process by which we implemented that
protection in Great Falls, where we explained that relying on
the school’s public “holding out” rather than the Board’s
investigation into the school’s religious functions avoided
entanglement. See 278 F.3d at 1344. We were satisfied in
Great Falls that the holding-out approach notifies prospective
faculty of their role in a school’s religious environment and, by
requiring “public religious identification,” provides some
assurance that the exemption is warranted. Id.
13
The Board in Pacific Lutheran identified the key “holding
out” evidence for adjuncts as “documents concerning the
recruitment of future staff” that would notify applicants that
“performance of their faculty responsibilities would require
furtherance of the college or university’s religious mission.”
361 N.L.R.B. at 1412. This deferential approach asks nothing
more of the religious institution than that it hold out its adjuncts
as playing a role in creating or maintaining its religious
mission. It extends the Catholic Bishop exemption to adjuncts
only where a university intends and publicly represents that its
adjuncts play such role.
The Board in Pacific Lutheran calibrated its approach to
give a wider berth to schools’ religious freedom than did the
inquiry the Supreme Court established in Hosanna-Tabor
Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171
(2012), to decide the related question of which teachers qualify
for a “ministerial exception” to employment discrimination
laws. The Board recounted that the Court in Hosanna-Tabor
“did not simply accept the school’s assertion that the teacher
was a minister,” but “found it appropriate, for the purposes of
applying [the] ministerial exception, to evaluate the teacher’s
functions to determine whether the exception applied.” Pac.
Lutheran, 361 N.L.R.B. at 1413-14. In deciding whether a
“called teacher” at a religious school fell within the judicially
implied “ministerial exception” to federal employment
discrimination laws, the Court in Hosanna-Tabor started with
the same kind of question the Board posed in Pacific Lutheran:
whether the employer “held . . . out” the teacher as a minister.
565 U.S. at 178, 190-91. Justice Thomas would have stopped
there and held the exception applied on that basis alone. See
id. at 196-98 (Thomas, J., concurring). The rest of the Court,
however, proceeded to ask whether the plaintiff also “held
herself out as a minister of the Church by accepting the formal
call to religious service,” id. at 191, and probed beyond such
14
public representations to examine “the circumstances of [her]
employment,” id. at 190, including “the important religious
functions she performed for the Church,” id. at 192.
Hosanna-Tabor involved a different judicially fashioned
exemption from a different federal statute, but responded to
parallel First Amendment concerns. It thus suggests that the
Board’s own approach in Pacific Lutheran, which was
substantially more deferential to religious schools than the
Supreme Court’s inquiry in Hosanna-Tabor, gives ample
protection to school leadership’s free-exercise rights.
B. Duquesne University of the Holy Spirit
No party in Pacific Lutheran petitioned this court for
review, and the Board has since applied its adjunct-specific
holding-out test in other cases, including this one. See Maj.
Op. at 13 n.1. Adjuncts at Duquesne’s McAnulty College and
Graduate School of Liberal Arts voted overwhelmingly in
favor of the union, see J.A. 14, and Duquesne initially
stipulated to an election agreement, see J.A. 68, but later
changed course to assert that its adjuncts are jurisdictionally
exempt under Catholic Bishop, see J.A. 68-69 & n.5.
After receiving evidence and argument on Pacific
Lutheran’s application, the Regional Director determined that
Duquesne does not “hold[] out its adjunct professors who are
members of the petitioned-for bargaining unit as serving any
role in creating or maintaining the [University’s] religious
educational environment.” J.A. 78. (The Board later amended
the allowed bargaining unit to exclude the adjuncts teaching in
the religion department. See J.A. 138-139.) “While there is
voluminous evidence in the record concerning [Duquesne’s]
religious identity and its stated Mission,” the Regional Director
found, “there is scant evidence that adjuncts are expected to act
in any way to advance the [University’s] religious message or
15
to do anything with regard to it, other than to not be openly
hostile to it.” J.A. 77. There was, in particular, a “lack of
evidence that adjuncts are informed of any requirement of
participation with respect to conveying or supporting
[Duquesne’s] mission.” J.A. 78. The adjunct job
announcements, employment contracts, interviews, and other
aspects of Duquesne’s adjunct hiring process did not mention
any religious role, duties, or relation of the adjuncts to the
school’s religious mission. See J.A. 72-74.
At bottom, reasonable adjunct candidates “would not
conclude that any religious responsibilities were required by
their job duties” with Duquesne. J.A. 78. The Regional
Director noted that the adjuncts were undoubtedly aware that
Duquesne is a Catholic school, but found that such “awareness
is not the equivalent of contributing to” or “advocating for” the
school’s religious character or identity, and Duquesne “makes
no claim that the adjunct instructors . . . play any role in
contributing to the University’s mission or religious
environment.” J.A. 77.
Whether Duquesne’s adjuncts fall within Catholic
Bishop’s constitutional-avoidance-based religious-teacher
exemption is the only issue properly before us under 29 U.S.C.
§ 160(e), because Duquesne never claimed to the agency that
the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1,
“provides a separate and independent basis” to deny NLRA
protection, Pet’r Br. 52.
III. Pacific Lutheran Applies the NLRA Consistently with
Religion-Clause Precedent
A. Where We Agree and Disagree
Although I believe the majority errs in invalidating the
Board’s holding-out methodology for deciding when adjunct
16
teachers at religious schools fall within Catholic Bishop’s
exemption from the NLRA, our disagreement is relatively
narrow. I note especially three areas of substantial agreement.
First, Duquesne does not claim, and the court does not
rule, that Catholic Bishop exempts all employees of a religious
school from NLRA coverage. Duquesne acknowledges that
Great Falls applies only to “faculty,” Pet’r Br. 28, and that
Duquesne itself “collectively bargains with unions
representing non-faculty staff,” id. at 2. My colleagues, too,
limit their decision to teachers—albeit “teachers of any sort.”
Maj. Op. at 15; see id. at 23 (not addressing “cases involving
religious schools and their non-faculty employees”).
Indeed, no court has understood Catholic Bishop to
exempt all staff of any religious “institution” or “school” from
the NLRA. See Passaic Daily News v. NLRB, 736 F.2d 1543,
1556 n.20 (D.C. Cir. 1984) (“In Catholic Bishop, the only
question the Court addressed was whether the [NLRA]
conferred jurisdiction over teachers who taught both religious
and secular subjects in church operated schools.”); see also
Volunteers of Am., L.A. v. NLRB, 777 F.2d 1386, 1389-90 (9th
Cir. 1985) (not reading Catholic Bishop to exempt employees
of church-operated “alcohol treatment centers”); NLRB v.
Salvation Army of Mass. Dorchester Day Care Ctr., 763 F.2d
1, 6 (1st Cir. 1985) (same, as to church-operated day care center
employees); VOA-Minn.-Bar None Boys Ranch v. NLRB, 752
F.2d 345, 348-49 (8th Cir. 1985) (same, as to employees of a
church-operated residential treatment center); Denver Post of
the Nat’l Soc’y of the Volunteers of Am. v. NLRB, 732 F.2d 769,
772-73 (10th Cir. 1984) (same, as to employees at a religious
organization’s temporary shelter for women and children),
overruled on other grounds by Aramark Corp. v. NLRB, 179
F.3d 872, 874 & n.2 (10th Cir. 1999); St. Elizabeth Hosp. v.
NLRB, 715 F.2d 1193, 1196 (7th Cir. 1983) (same, as to a
17
religiously affiliated hospital’s employees); Tressler Lutheran
Home for Children v. NLRB, 677 F.2d 302, 305 (3d Cir. 1982)
(same, as to a church-affiliated nursing home’s employees).
Instead, courts have uniformly understood Catholic Bishop’s
application to turn on the “critical and unique role of the teacher
in fulfilling the mission of a church-operated school,” 440 U.S.
at 501, and not to extend to all employees of religiously
affiliated or managed institutions. See, e.g., Denver Post, 732
F.2d at 773 (citing Tressler, 677 F.2d at 305); NLRB v. St. Louis
Christian Home, 663 F.2d 60, 63-64 (8th Cir. 1981); NLRB v.
Bishop Ford Cent. Catholic High Sch., 623 F.2d 818, 822 (2d
Cir. 1980).
I read our prior cases’ references to the “institution,” Great
Falls, 278 F.3d at 1347, and the “school,” Carroll Coll.,
558 F.3d at 572, to decide only whether the entity is
sufficiently religious such that teachers in roles comparable to
those in Catholic Bishop fall outside the NLRA. Those cases
considered only the main faculty body—the same body
exempted in Catholic Bishop—and we passed on the school’s
eligibility for the religious-teacher exemption without
addressing bargaining units beyond the main faculty.
Second, there is no dispute within our panel that today’s
decision interprets an NLRA-specific exemption and does not
limit the applicability of any other workplace laws to religious-
school teachers, much less to any other staff. The majority
affirms that its opinion does not “address the powers of other
agencies in cases involving different statutes or constitutional
provisions.” Maj. Op. at 23. As already discussed, although
the judicially implied “ministerial exemption” responds to
concerns similar to those that animated Catholic Bishop, it
operates in a more functionally tailored way, and is a waivable
affirmative defense, not a jurisdictional bar. See Hosanna-
Tabor, 565 U.S. at 195 n.4. Similarly, the more limited
18
exemption of religious organizations from Title VII’s
prohibition of religious discrimination is explicit in the text of
that statute, 42 U.S.C. § 2000e-1(a); see also Corp. of the
Presiding Bishop of the Church of Jesus Christ of Latter-Day
Saints v. Amos, 483 U.S. 327, 339 (1987), and does not purport
to strip employees of NLRA coverage or any other workplace
rights, including protection against discrimination on grounds
other than religion. We should take care to avoid suggesting
that cases such as these support exempting entire “religious
organizations” from workplace regulation. Cf. Maj. Op. at 2,
6-7, 18-19.
Third, my colleagues and I agree that a religious school
should be able to decide that its adjunct faculty are not
encompassed within the Catholic Bishop exemption. As the
majority puts it, “whether the Board could exercise jurisdiction
over a religious school that formally and affirmatively
disclaims any religious role for certain faculty members”
remains an open question. Maj. Op. at 19 n.2. Thus, at the end
of the day, our difference may boil down to defining the default
rule: In my view, the Board appropriately treated the Catholic
Bishop exemption as presumptively limited to the regular
faculty unless the school holds out its adjuncts as playing a like
religious role, whereas the majority deems “teachers of any
sort” automatically exempt, but suggests those adjuncts might
have NLRA rights if their school “affirmatively disclaims” any
religious role for them.
I would affirm the Board’s approach because, as we
described in Great Falls, a key role of the holding-out
requirement was to “provide[] reasonable assurance that the
Catholic Bishop exemption will not be abused.” 278 F.3d
at 1345. The purpose of preventing over-claiming of the
exemption is served by the Board’s placement of the holding-
out burden on the school. As a practical matter, it seems natural
19
that a religious university that stands to benefit from a blanket
exemption might do nothing rather than make the disclaimer as
to its adjuncts. That seems especially likely where its
alternative is to “formally and affirmatively disclaim[] any
religious role” for its adjuncts—a step that a religious school
that does not cast its adjuncts in a religious role but still hopes
to attract them may not want to take. The Board’s contrary
default rule, while highly deferential of religious schools’ First
Amendment rights, is better designed to deter an institution
from treating as exempt adjuncts who should not be.
The exemption’s jurisdictional character further supports
requiring the school to invoke rather than disclaim the
exemption for its adjuncts. The majority does not explain how
even a formal and affirmative disclaimer would be effective to
waive a jurisdictional exemption. But we assuredly can give
religious schools that choice—and avoid ascribing religiosity
where a religious school itself did not—if we recognize that the
exemption’s application beyond the core faculty depends on
the school affirmatively holding out adjuncts in a way that
justifies the exemption’s application to them.
Pacific Lutheran is not fairly characterized as
“incompatib[le] with the Religion Clauses.” Maj. Op. at 22.
The Board’s Pacific Lutheran test asks whether an objective
observer would understand the university’s own
communications to “hold out” the employees it seeks to exempt
as having a role in “creating or maintaining the university’s
religious purpose or mission.” 361 N.L.R.B. at 1411. There is
nothing unconstitutional about making a religious university’s
eligibility for an implied statutory exemption turn on such a
holding-out inquiry. See Hosanna-Tabor, 565 U.S. at 190-92
(relying in part on an employee-specific holding-out inquiry);
Great Falls, 278 F.3d at 1344 (considering whether a school
“holds itself out to the public as religious”).
20
B. Pacific Lutheran’s Default Rule Respects Precedent
and Religious Freedom
The grounding of the Catholic Bishop exemption in
constitutional avoidance, notwithstanding the NLRA’s plain
text defining “employee” and “employer” without exception
for teachers at religiously affiliated schools, supports the
relatively circumspect approach the Board took in Pacific
Lutheran. The Board recognized the exemption of all
permanent faculty of any school that qualifies as religious
under Catholic Bishop, Great Falls, and Carroll College, but
decided against automatically sweeping in all short-term, part-
time adjuncts. See Pac. Lutheran, 361 N.L.R.B. at 1410-13.
Rather, the Board recognized the exemption of adjuncts only
where the university “holds out” its adjuncts as playing a
religious role—but in doing so it used a highly deferential,
easy-to-meet standard. See id. As already explained, that
additional holding-out requirement is warranted given that
adjuncts and full faculty frequently play materially different
roles in higher education, and thus may not equally implicate a
school’s religious exercise.
One need not question the holding of Catholic Bishop to
appreciate that, given its reliance on now-disfavored methods
of discerning statutory meaning and employing constitutional
avoidance, we should hesitate to expand its reach. Catholic
Bishop identified no relevant ambiguity in the NLRA’s “very
broad terms,” 440 U.S. at 504, nor any suggestion (beyond
silence) in the legislative history that Congress intended to
exclude teachers at religious schools from the Act’s coverage,
see id. at 504-06. The Court has recently reiterated that the
canon of constitutional avoidance “is a tool for choosing
between competing plausible interpretations of a provision”
that “‘has no application’ in the interpretation of an
unambiguous statute.” McFadden v. United States, 135 S. Ct.
21
2298, 2307 (2015) (quoting Warger v. Shauers, 574 U.S. 40,
50 (2014)). And because “silence in the legislative history
cannot” alter a statute’s explicit terms, Encino Motorcars, LLC
v. Navarro, 138 S. Ct. 1134, 1143 (2018), the NLRA legislative
history’s mere failure to mention religious schools does not
support building out Catholic Bishop’s constitutional-
avoidance construction.
The Supreme Court has also more recently described the
constitutional shoals that Catholic Bishop sought to avoid as
less monolithic than there described. Catholic Bishop worked
from the premise that “[r]eligious authority necessarily
pervades” even the apparently secular aspects of parochial
schools. 440 U.S. at 501 (quoting Lemon, 403 U.S. at 617).
But the Court has updated that “antiquated” view with a more
nuanced recognition that not every function of a religious
school necessarily instantiates the school’s religiosity.
Agostini v. Felton, 521 U.S. 203, 223 (1997); see also
Mitchell v. Helms, 530 U.S. 793, 858 (2000) (O’Connor, J.,
joined by Breyer, J., concurring in the judgment of the
plurality). The Court’s longstanding recognition that religion
is less likely to “permeate the area of secular education” in
“church-related colleges and universities” than in “primary and
secondary schools,” Hunt v. McNair, 413 U.S. 734, 746 (1973)
(quoting Tilton v. Richardson, 403 U.S. 672, 687 (1971)
(Burger, C.J.) (plurality opinion)), further suggests that Pacific
Lutheran’s decision to treat adjuncts at religious institutions of
higher education as not automatically exempt, but exempted
where the school holds out its adjuncts as helping to create or
promote its religious mission, does not raise the same serious
constitutional questions that Catholic Bishop contemplated.
The Board’s decision to require that a religious university
affords clear notice to adjuncts that it casts them in a role of
religious significance is especially warranted given the unusual
22
character of this exemption. It does not depend on any claim
on the school’s part that collective representation contravenes
its faith. And it reaches teachers without regard to whether they
are members of the faith, or even held out as furthering the
school’s religious mission. The Catholic Bishop exemption is
thus unlike the express Title VII exemption, 42 U.S.C.
§ 2000e-1(a), which merely allows religious organizations to
favor co-religionists. It is also unlike the ministerial
exemption, which removes antidiscrimination protections from
a subgroup of employees who work as “ministers”—i.e., co-
religionists of a faith-based employer who perform “important
religious functions” for it. Hosanna-Tabor, 565 U.S. at 192.
The exemption Duquesne claims here applies to adjuncts not
cast as “ministers,” and who are hired without regard to their
religion. See J.A. 72, 752-753, 755. It removes their NLRA
coverage on the premise that their teaching, regardless of its
advertised character and regardless of how the university holds
them out, carries undisclosed religious agency for the
university’s leadership with which collective representation
might interfere.
The majority’s categorical application is less respectful of
individuals’ religious liberty than is the Board’s more nuanced
approach. The exemption casts the adjuncts as instruments of
the Spiritan Catholic faith, notwithstanding that the adjuncts’
own internal motivation and understanding of the value of
teaching at Duquesne could be secular or even inspired by a
different faith. It is a hallmark of the religious and intellectual
pluralism and freedom of our society and our workplaces—
especially in universities and other institutions of higher
education—that people work together peacefully and
productively, fulfill shared expectations, and inspire one
another, even as they act with and for distinct and even
conflicting reasons, whether secular, religious, or both. Given
that reality, the Board does not ask too much in Pacific
23
Lutheran by requiring that a religious university claiming the
exemption of its adjuncts put them on notice that their work
will be treated as instrumental to their employer’s faith.
The majority’s categorical application is also less
respectful of the religious freedom of religious schools than is
the Board’s more nuanced approach. An automatic, blanket
exemption does not recognize that religious institutions of
higher education are not all religious in the same way, and that
those differences in how they define their religious
communities are central to religious pluralism and therefore
religious liberty. Unlike a jurisdictional presumption that all
adjuncts at every religious school function like the parochial-
school teachers in Catholic Bishop, the Board’s acceptance of
each religious university’s public representations as to whether
and how adjunct faculty play a role in its religious identity is
more respectful of universities’ religious freedom and thus
better comports with the Free Exercise Clause.
Not every religious school’s religious character
necessarily requires that its adjuncts leave their NLRA rights
at the door. A holding that presumes as a jurisdictional matter
that all genuinely religious universities have no labor law
coverage for their adjuncts imposes a fixed religious footprint
at corresponding cost on every religious school, including
schools that may not want, and adjuncts who may not have
expected, that cost. Because I conclude that the Board’s
answer to the open question whether Catholic Bishop applies
to adjunct teachers at religious schools better protects the
religious liberty the First Amendment secures and more
faithfully follows the NLRA’s broad, remedial scheme, I
respectfully dissent.