The Catholic University of America

 Cases

 

Adjunct Union Organizing Efforts at Religious IHEs

Marywood University, Board Decision, May 5, 2017. 

The Board denied the petition for review and affirmed the Regional Director's Decision to dismiss based upon the managerial employees exclusion. However, the Board did not adopt the rationale of the prior decision. The Chairman of the Board would have applied the Pacific Lutheran test and found that the University is a religiously affiliated institution exempt from the Board's juridisdiction. 

Marywood University, Case Number: 04-RC-173160, Regional Director's Decision and Order, 5-11-16.

The Marywood University Faculty Association, representing full-time and pro-rata Marywood faculty, but not adjuncts, brought a collective bargaining petition against their employer, Marywood (PA) University. Applying the test in Pacific Lutheran, the Region 4 Office of the NLRB dismissed the petition despite finding that Marywood was unable to make the requisite showing for a religious exemption that would have denied the Board jurisdiction. The NLRB nonetheless found that the petition should be dismissed because the faculty members were managerial employees excluded from the benefits of collective bargaining under the National Labor Relations Act.

Religious exemption unavailable. Under Pacific Lutheran, generalized statements that faculty are expected to support an employer's mission are insufficient to qualify for a religious exemption. A university must show that its faculty members perform “a specific role in creating or maintaining the school’s religious educational environment.” While the Board said it would “not look behind a school’s description of faculty responsibilities,” it gave weight to the Faculty Handbook’s guarantee of academic freedom and the observation that nearby non-religious colleges promoted similar values as those cited by Marywood (respect, empowerment, service, and excellence) without citing a religious basis for them. Without a showing “that faculty members are expected to integrate the schools’ religious teachings into coursework” or serve in explicitly religious roles, a school is unlikely to prevail under Pacific Lutheran. The University presented testimony from its leadership about the religious source for its mission statement and “core values” but the NLRB concluded that they were “expressed largely in non-religious terms” and had no real impact on the teaching obligations of the faculty.

Management analysis. The Board distinguished this case from Pacific Lutheran in finding that Marywood faculty were managerial employees. The members of the proposed unit in Pacific Lutheran had yearly contracts, were not permitted to participate in faculty committees, and had a very limited voice in university governance. Marywood faculty members lacked similar limitations on their employment relationship and had a significant role in determining major university policies, including heavy participation on dozens of committees and substantial if not conclusive involvement on key matters of academics (“the faculty largely determine the product”) and enrollment. This case has limited applicability to the typical petition regarding adjunct or part-time faculty, because the organizers in this case represented a unit comprised overwhelmingly of full-time faculty (168) and a small number of “pro-rata” (part-time) faculty (17) and it expressly excluded adjuncts.

Manhattan College and Manhattan College Adjunct Faculty, Case No. 02-RC-023543, Supplemental Decision and Order, August 26, 2015.

This case was heard on remand from the NLRB. The Region 2 Director ordered the election to proceed finding adjunct faculty not exempt from oversight of the Board, applying  Pacific Lutheran University (361 NLRB No. 157). The Director found the College met part one of the Pacific Lutheran test, that the College holds itself out as providing a religious education environment. In reaching this finding, the Director wrote seven pages of the opinion looking at the religious nature and environment of the College and its faculty. The decision hinged on part two of the Pacific Lutheran test, "how the institution holds out the petitioned for employees" and whether or not they perform a "specific religious function". The College argued this two pronged test entails the same improper inquiry discussed and found unconstitutional in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). In the case of Manhattan College, the regional director found that although the adjunct faculty were all informed they must support and respect the Catholic College's identity;  were given a copy of a book explaining the Catholic Culture of the College, and required to  sign a mission statement agreeing to abide by the document, along with similar language in the Salary Agreement, this was not enough for the regional director to find the faculty were held out as performing a specific religious function.


Seattle University and SEIU, Case No. 19-RC-122863
, 2nd Supplemental Decision and Order, August 17, 2015*

Applying the test in Pacific Lutheran instead of the test in Great Falls, (D.C. Circuit in Univ. of Great Falls v. NLRB, 278 F. 3d 1335 (D.C. Cir. 2002)), the Region 19 Office of the NLRB found that the contingent faculty do not perform a religious function at the University. This included the faculty in the School of Theology and Ministry. The University was founded by the Jesuits, and is listed in the registry of U.S. Catholic Universities maintained by the Catholic Church. Quoting Pacific Lutheran, the Regional Director set forth a dichotomy of academic freedom versus religious identification and sectarian influence. (see page 10) In applying this standard, where faith and reason cannot co-exist, the NLRB found that the Employer had not established that non-tenure track faculty, even those teaching in the School of Theology and Ministry, serve a specific role in creating or maintaining a religious educational environment, and thus the NLRB can assert jurisdiction.  Seattle University will appeal the decision.

Duquesne University of the Holy Spirit and United Steelworkers, Region 6 NLRB decision, June 2015.

Order from Region 6 of the National Labor Relations Board (Board) holding that adjunct faculty at Duquesne University of the Holy Spirit (University) may unionize on the grounds that the adjunct faculty were not held out as performing a specific role in maintaining the University's religious educational environment. In reaching this decision, the Board applied the two-pronged test from Pacific Lutheran University, which held that the Board would exercise jurisdiction over an employee unless the employer could demonstrate that: (1) it holds itself out as providing a religious educational environment; and (2) the employer holds the petitioned-for employees out as performing a specific role in creating or maintaining the university's religious educational environment. To determine if the adjuncts were performing specific religious duties, the Board looked at the adjuncts' contracts, courses, and orientation, as well as the University's hiring practices. For updates see the Duquesne U web page and the NLRB web page, which includes the April 10, 2017 Board Decision to grant the request to overrule the Regional Director solely with regard to the inclusion of the Department of Theology adjunct faculty.

St. Xavier University, NLRB Region 13 Decision and Order June 2015
Order by Region 13 of the National Labor Relations Board (Board) finding that, with limited exceptions, ballots for adjuncts at Saint Xavier University (University) should be counted in a union election because the University failed to demonstrate that adjuncts play a specific role in creating its religious educational environment. The case was remanded to Region 13 in light of Pacific Lutheran University, in which the Board held that it would exercise jurisdiction over an employee unless the employer could demonstrate that: (1) it holds itself out as providing a religious educational environment; and (2) the employer holds the petitioned-for employees out as performing a specific role in creating or maintaining the university's religious educational environment.

Pacific Lutheran University and SEIU, Local 925, Petitioner, Case 19-RC-102521, 361 NLRB No. 157,   December 16, 2014, Tacoma, Washington

Region 19 of the NLRB reexamined two key bodies of caselaw in deciding this case. The facts involved a petition by the Service Employees International Union to represent all nontenure-eligible contingent faculty members employed by Pacific Lutheran University. The University challenged the petition on two grounds:

1) Pacific Lutheran (PLU) argued it is a church operated institution exempt from the Board's jurisdiction under NLRB v. Catholic Bishop of Chicago, 440 US 490 (1979) and

2) Certain of its contingent faculty are managerial under the test set forth in NLRB v. Yeshiva University, 444 US 672 (1980) and thus must be excluded from the unit proposed.

The NLRB held that it will exercise jurisdiction over faculty members at a college or university that claims to be a religious institution unless the college or university first demonstrates, as a threshold matter, that it holds itself out as providing a religious educational environment, and, once that threshold is met, the university “must then show that it holds out the petitioned-for faculty members themselves as a performing a specific role in creating or maintaining the college or university’s religious educational environment, as demonstrated by its representation to current or potential students and faculty members, and the community at large.”

A new test was also set forth in determining managerial status, with different factors set forth than used in Yeshiva.

First Amendment

The analysis that led the Board to exercise jurisdiction over a religious university did not follow the test set forth in University of Great Falls, 331 NLRB 1663 (2000). In Great Falls, a three part test was proposed. The Board would assert jurisdiction unless the college or university (a) holds itself out to students, faculty and community as providing a religious educational environment; (b) is organized as a non-profit; and (c) is affiliated with, or owned, operated or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, as least in part, with reference to religion.The NLRB only followed the first two prongs of the Great Falls test, and made the third prong much more restrictive. 

Applying the new test, the NLRB found PLU to not meet the new standard and jurisdiction was thus exercised. In revising prong three of the Great Falls test, the NLRB decided to zero in on the faculty members themselves instead of the University as a whole. The faculty member, to be excluded, would have to be shown to be performing a specific religious function. The examples included integrating religion into the coursework, serving as religious advisors, propagating tenets of the faith, or engaging in religious indoctrination. Documents recruiting faculty would be looked at to see if an applicant would conclude that performance of faculty responsibilities would require furtherance of the religious mission.

This new test was seen by two members of the Board as suffering from same infirmities and pitfalls identified and denounced by the Supreme Court in Catholic Bishop and by the D.C. Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002): a risk of conflict with the Religion Clauses of the First Amendment. Member Johnson noted that the majority test seems to require "proselytization, orthodoxy, and exclusion" something he concludes is a total misread of the religious values of the Lutheran religion and an "outright caricature-of all that a religion is and how a religion's conception of its earthly mission may translate into a university environment."

Managerial Issue

In determining if faculty exercise managerial control, the new test would ask whether faculty actually or effectively exercise control over decision-making pertaining to central university policies by examining the faculty’s participation in the following decision-making areas:  academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions, and giving greater weight to the first three areas than the last two. The Board concluded that the contingent faculty's involvement in decision making areas was short of actual control or effective recommendation. Member Johnson stated the religious impediment should have prevented the Board from reaching this issue, but he and Member Miscimarra believed the Board was wrong to increase the burden of proof for what it considers to be "effective" recommendation of policies to establish managerial status.

For more see Labor Board Sets New Tests for whether Private-College Faculty Members Can Unionize. (Chronicle of Higher Education-Dec. 21, 2014)  

 

Contraceptive Mandate Cases

Zubik et al. v. Burwell et al., (U.S. Supreme Court, May 16, 2016)

The Supreme Court vacated the prior decisions of the lower courts in the collection of cases that were presented in this case before the Supreme Court. The Catholic University of America was one of the plaintiffs in this case. While the Court did not rule on the merits of the case, it confirmed both sides agreed that contraceptive coverage could be provided without religious organizations needing to take any positive step toward facilitating the coverage. On remand the lower courts are to find an approach that accommodates the plaintiffs' religious exercise while ensuring women have access to contraception. The Court noted that through this litigation the petitioners have put the Government on notice they do not wish to provide contraceptive coverage. Since the Government is now on notice, it may not impose taxes or penalties or on petitioners for failing to provide notice. The Court did not address the merits of the case. See the Becket Fund page on the case for more on the Court's action.

 

Priests for Life, et al. v. U.S. Dept. of Health and Human Services, (C.A. D.C. Cir.), May 20, 2015, No. 13-5368 (Note: This is the case in which Catholic University is one of the Appellants)

On May 20, 2015, the Court of Appeals for the D.C. Circuit denied the motion filed by CUA and its co-plaintiffs for an en banc rehearing of their case by a 6-3 majority. The majority agreed with the previous panel’s opinion that the Health and Human Services regulation that requires religious organizations to submit required opt-out paperwork to their insurer or to the Government or pay large fines, does not substantially burden Appellants’ religious exercise. The majority distinguished Appellants’ case from the Supreme Court’s Hobby Lobby case, finding that the requirement to submit the religious accommodation paperwork does not make them facilitators or a party to contraceptive and abortifacient coverage. Further arguing that there is no substantial burden on religious organizations, the court found that the HHS mandate, requiring contraception coverage, is a mandate on insurers not on religious organizations.

In two extensive and strongly worded dissents, the judges that would have granted a rehearing of the case disagreed with the majority that the religious accommodation is not substantially burdensome. They argued that it was not the court’s role to determine the factual correctness of one’s religious belief but only whether it was sincerely held. The fact that the Appellants’ sincerely believed that by submitting the accommodation forms they would be facilitating delivery of contraception and abortifacients is all that is required to find a substantial burden under the Religious Freedom Restoration Act. While the dissenting opinions disagree as to whether the government has a compelling interest in free access to contraception and abortifacients, all agree that the religious accommodation requirements were not the least restrictive means the government has to provide women with free access to them.

 For more mandate cases see the mandate page

 

Other First Amendment Cases

Trinity Lutheran Church v. Missouri DNR,  Case No. 15-577, (U. S. Supreme Court, June 26, 2017) 

 

At issue in this case was whether a preschool/child care center could qualify for a state grant program that assisted with playground resurfacing using recycled tires. The Trinity Lutheran Church applied for such a grant, and would have received one, but for the fact that the state interpreted Art.1, Section 7 of the Missouri Constitution (a Blaine Amendment) to prohibit use of state funds for an entity affiliated with a Church. The Supreme Court held that the Free Exercise Clause of the First Amendment prohibits the state from denying an otherwise available public benefit to the Church on account of its religious status. For an in depth analysis see the SCOTUSblog article by Hillary Byrnes, USCCB, The Constitution provides a level playing field for people of faith.

International Refugee Assistance Project et al. v. Trump, No. 17-1351, (C.A. 4th Cir.), May 25, 2017, 2017 WL 2273306.  

In a 205 page opinion the 4th Circuit affirmed in substantial part the district court's issuance of a nationwide preliminary injunction barring enforcement of the revised travel ban issued by the President which would have limited travel from 6 predominantly Muslim countries.  The Court of Appeals found the order unconstitutional in a 10-3 opinion. 

The focus of the case was on section 2(C) of the challenged  Executive Order 13780, Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period, 82 Fed. Reg. 13209, March 6, 2017. ) 

The suit sought relief claiming violation of the Establishment Clause of the First Amendment, the equal protection component of the Fifth Amendment, the Immigration and Nationality Act, the Religious Freedom Restoration Act, the Refugee Act, and the Administrative Procedure Act. The relief granted was based upon the Establishment Clause claim.  The Court of Appeals found that plaintiffs had plausibly alleged that the second Executive Order's stated national security interest was provided in bad faith, as a pretext for its religious purpose. 

The decision opened with this paragraph: 

The question for this Court, distilled to its essential form, is whether the
Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.

The decision quoted from the President's Statement on Preventing Muslim Immigration, posted during Trump's campaign, along with many other anti-Muslim statements made by the candidate.

At page 70 the Court of Appeals noted: 

The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers. We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.

The government filed a petition for review with the Supreme Court on June 1, 2017. The respondents were given until June 12, 2017 to file a response. 

See the New York Times Appeals Court Will Not Reinstate Trump's Revised Travel Ban, May 25, 2017. 

Miscellaneous 

Advocate Health Care Network v. Stapleton, Case No. 16-74, (U.S. Supreme Ct. June 5, 2017) 

In a unanimous 8-0 decision, the Supreme Court of the United States declared that church and church-affiliated nonprofits’ pension plans are not subject to ERISA’s strict funding and disclosure requirements. The Employee Retirement Income Security Act (“ERISA”), enacted in 1974, protects employee retirement benefits by requiring employers to ensure their pension plans are sufficiently funded. ERISA sought to remedy the trend of employees paying into their pensions during employment, only to learn upon retirement that the pension fund was empty.

Strictly exempt from ERISA’s pension requirements is the “church-plan,” defined as “[a] plan established and maintained for its employees . . . by a church . . . [which] includes a plan maintained by an organization . . . the principal purpose . . . of which is the administration or funding of [such] plan . . . for the employees of a church . . . if such organization is controlled by or associated with a church” (referred to as “principal-purpose organizations”). Since 1980, religiously affiliated organizations such as schools, hospitals, orphanages, and other nonprofits have been operating under this “church-plan” exemption without issue.

Current and former employees of three religiously affiliated hospitals operating under this exemption sued their employers, contending they should not qualify for the “church-plan” exemption to ERISA because their pension plans were not “established” by a church. These employees argued that the text of the ERISA statute itself exempts only those pension plans both created and managed by churches, thereby excluding most hospitals, schools, and other church-affiliates. The district and appellate courts in all three cases agreed with this statutory interpretation, deciding that the hospitals had been improperly skirting ERISA regulations for over 30 years, and now owed significant sums to their pensioned employees – estimated to be an aggregate $4 billion.

On March 27, 2017, the hospitals argued to the Supreme Court on appeal that, the ERISA exemption extends to their pension plans, as the statutory language does not require that the “principal-purpose organizations” have been “established” by a church. Justice Kagan, writing for a unanimous Court, reversed the lower courts, and stressed there is no “establishment” requirement. This decision, in effect, allows church-affiliated organizations to continue administering their pensions independently of ERISA funding and disclosure requirements.    

See Supreme Court Backs Church Hospitals, Schools in Case on Pension Rules for commentary on this decision’s effect on Catholic schools.

 

new page 6-13-17, updated 7-3-17 (MM)