Duquesne University v. NLRB

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.