On March 13, 2009, the United States Court of Appeals for the District of Columbia Circuit decided the case of Carroll College, Inc. v. NLRB, 558 F.3d 568 (D.C. Cir., 2009) (“Carroll College”), holding that the National Labor Relations Board (“NLRB”) lacked jurisdiction to order Carroll College (“the College”) to bargain with its faculty’s recognized collective bargaining agent. The decision makes it easier for academic institutions to claim a religious affiliation and, as a result, avoid being subject to the jurisdiction of the NLRB. This is significant because the NLRB is unable to order such institutions to recognize or bargain with employee unions. Accordingly, many academic institutions that publicize a religious affiliation will be outside the NLRB’s jurisdiction and, as a consequence, will be able to remain union-free.
Relying on the United States Supreme Court decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct.1313, 59 L.Ed.2d 533 (1979) (“Catholic Bishop”) and its own precedent in Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) (“Great Falls”), the court in Carroll College concluded that the NLRB lacked jurisdiction over the College as a result of the Religion Clauses of the First Amendment, which were applicable because the nonprofit College provided a religious educational environment and was affiliated with a religious organization, namely the United Presbyterian Church. In reaching this conclusion, the court utilized the three-part test from Great Falls to determine whether a school is beyond the NLRB’s jurisdiction. According to the three-part Great Falls test, a school is exempt from NLRB jurisdiction if it: (1) holds itself out to students, faculty and the community as providing a religious educational environment; (2) is organized as a nonprofit; and (3) is affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.
To analyze the first element of the test, the court in Carroll College noted that it was only necessary to look at a school’s course catalogue, mission statement, student bulletin, and other public documents to determine if it holds itself out as providing a religious educational environment. Notably, unlike the NLRB’s own test that probed into a school’s religious beliefs to see if a school had a “substantial religious character,” the Great Falls test focuses solely on a school’s public representations as to its religious educational environment to determine if the school is exempt from jurisdiction. Digging deeper, according to the court, would only risk infringing upon the guarantees of the First Amendment’s Religion Clauses.
In Carroll College, there was no dispute that the College was a nonprofit institution and, therefore, satisfied the second element of the Great Falls test. As to the third element (i.e., “is affiliated with... a recognized religious organization”), the court looked at the College’s Articles of Incorporation and found that they provided that the College is “related” to the Synod of Lakes and Prairies of the United Presbyterian Church. In addition, pursuant to an agreement between the College and the Synod, the College is bound to “recognize and affirm its origin and heritage in the concern of the Church.” Furthermore, the Course Catalogue noted that “[t]he college is affiliated with the Presbyterian Church.” On these facts, the court found that the College is affiliated with a recognized religious organization, noting that the test is met with affiliation alone and the religious organization need not own, operate or control the College.
A nonprofit academic institution seeking to take advantage of the Carroll College decision should examine its Articles of Incorporation, mission statement, course catalogue, student bulletins, and other public documents and statements to assess whether the institution satisfies all three elements of the three-part Great Falls test. An institution that believes it meets the test should consult with legal counsel to develop an appropriate strategy to take advantage of the decision.