Court: Ease up religious affiliation inquiry

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For the past few years, Carroll University in Waukesha has found itself in the midst of a legal debate regarding how much evidence of a religious presence and influence a college or university with a religious affiliation needs to show in order to be exempt from collective bargaining requirements under the National Labor and Relations Act (NLRA).

The Court of Appeals for the District of Columbia answered this question last month with a resounding ‘not much.’

Carroll University, a private university founded as Carroll College in 1846, has been affiliated since nearly its inception with the Synod of Lakes and Prairies of the United Presbyterian Church of the U.S.A. Listed in its Articles of Incorporation is a statement that Carroll’s purpose is to “maintain[ ] and conduct[ ] [itself] as a Christian liberal arts college dedicated to God.” Further, its mission statement declares that the school will “demonstrate Christian values by … example.” In 2008, Carroll College became Carroll University.

In 2004, the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW (UAW) filed a petition with the National Labor and Relations Board (NLRB) seeking certification as the collective bargaining representative for Carroll’s faculty.

Carroll challenged the NLRB’s jurisdiction, arguing that it was exempt from collective bargaining requirements, as it would unduly burden its First Amendment free exercise rights, in violation of the Religious Freedom Restoration Act (RFRA) (http://www.welcomehome.org/rainbow/nfs-regs/rfra-act.html) . 42 U.S.C. § 2000bb-1 (2000). Carroll also asserted that its faculty members were managerial employees and, thus, not covered by the NLRA.

The NLRB rejected both arguments. In 2005, the NLRB issued a decision holding that Carroll was not sufficiently church-operated, so that compliance with the NLRA would “substantially burden its ability to freely exercise its sincere religious beliefs.” CARROLL COLL., 345 N.L.R.B. 254 (2005) The NLRB examined the university’s operations and found that the Presbyterian Church asserted no administrative control. The trustees were not required to be church members, and the church did not own any of the school property. The NLRB also evaluated the amount of religion that played a role in student life at Carroll. It noted that students were not required to attend religious services and that, while students were required to take one religious course to graduate, this requirement had been interpreted so broadly that classes titled “Bioethics,” “Literature in Black America,” and “Playing Crazy: Cultural Constructions of Madness” fulfilled it.

In 2007, the NLRB issued a separate order finding that Carroll’s faculty were not managerial employees excluded from the NLRA, in large part because the administration, rather than the faculty, exercised substantial control over the content of the curriculum.

CARROLL COLL., INC., 350 N.L.R.B. No. 030 (2007) Further, the NLRB noted, while the faculty members determined the content of the courses that they taught, designed their own syllabi, created their attendance policies and set their own office hours, they did not determine their class size or the scheduling of their courses. The NLRB noted that Carroll once again asserted the argument that it was exempt from coverage of the NLRA by virtue of the RFRA, but it refused to consider the argument, holding that it was an improper request to reconsider its 2005 decision. The NLRB ordered Carroll to recognize and bargain with the UAW.

Carroll petitioned the board’s 2007 order, and on March 13, 2009, the Court of Appeals for the District of Columbia ruled in Carroll’s favor. The D.C. Circuit, in Carroll College, Inc., 2009 WL 635114 (C.A.D.C. March 13, 2009), considered Carroll’s RFRA exemption argument, even though the NLRB did not consider the merits of this argument in the decision that was appealed. The D.C. Circuit rejected the board’s position that a more than superficial inquiry into the extent that religion played in the school’s operations was permissible.

The D.C. Circuit cited to a 1979 U.S. Supreme Court decision, NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) and its own holding in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C.Cir. 2002). In Catholic Bishop, the U.S. Supreme Court found that the NLRB lacked jurisdiction over church-operated schools. Central to the court’s reasoning was a concern that the inquiry itself into the school’s relationship with religion would impugn on the school’s free exercise rights.

Subsequent to the Catholic Bishop decision, the D.C. Circuit, in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002), devised a three-part test to determine whether an education institution is exempt from NLRB jurisdiction. This test asked:

(1) Does the school hold itself out to the students, faculty and the community as providing a religious educational environment?

(2) Is the school organized as a nonprofit?

(3) Is the school affiliated with, or owned, operated, or controlled by a recognized religious organization, or an entity that membership of which is determined, at least in part, with reference to religion?

Applying this test to Carroll, the D.C. Circuit held that Carroll “easily satisfie[d]” it. The statements in its Articles of Incorporation and mission statement were sufficient to satisfy the first element. Further, there was no question that Carroll was a non-profit organization. Finally, the D.C. Circuit held that the third element was met by Carroll’s simple affiliation with the Presbyterian Church and that Carroll was not required to show anything more to satisfy this prong of the test.

The D.C. Circuit criticized the NLRB’s “skeptical” inquiry into the actual influence that the Presbyterian Church influenced over Carroll. There was no need to dig so deeply into the school’s relation with its affiliated religious institution, as “[d]oing so would only risk infringing upon the guarantees of the First Amendment’s Religion Clauses.”

Critics of the Carroll decision argue that the test is so devoid of any meaningful inquiry that a school need only claim a religious affiliation in order to claim an exemption.

Having found that Carroll is exempt from the NLRB’s jurisdiction, the D.C. Circuit did not address whether Carroll’s faculty members are managerial employees.