Duquesne University v. NLRB (SLIP OPINION FORMAT) ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed On: September 17, 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
On Petition for Rehearing En Banc
2
Before: SRINIVASAN, Chief Judge; HENDERSON, ROGERS,
TATEL, GARLAND, GRIFFITH**, MILLETT, PILLARD*, WILKINS,
KATSAS, RAO AND WALKER***, Circuit Judges.
ORDER
Upon consideration of the petition of intervenor for
rehearing en banc, the responses thereto, and the absence of a
request by any member of the court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
* A statement by Circuit Judge Pillard, concurring in the denial
of rehearing en banc, is attached.
** Circuit Judge Griffith was a member of the panel that
decided this case but retired prior to the disposition of the
petition.
*** Circuit Judge Walker did not participate in this matter.
PILLARD , Circuit Judge, concurring in the denial of
rehearing en banc: I continue to believe that, under our
precedent, this case was wrongly decided for the reasons stated
in my dissent. The majority abrogates Pacific Lutheran
University, 361 N.L.R.B. 1404 (2014), without even
acknowledging the extraordinary deference that decision paid
to religious schools. The whole point of the NLRB’s Pacific
Lutheran analysis was to studiously avoid examination of the
faculty members’ actual religious duties by looking to whether
a religious school itself “holds out” faculty members as playing
an identified role in its religion. See Duquesne Univ. of the
Holy Spirit v. NLRB, 947 F.3d 824, 843-44 (D.C. Cir. 2020)
(Pillard, J., dissenting). Like the analysis this court fashioned
in Carroll College, Inc. v. NLRB, 558 F.3d 568 (D.C. Cir.
2009), and University of Great Falls v. NLRB, 278 F.3d 1335
(D.C. Cir. 2002), the Board’s approach in Pacific Lutheran
stopped short of looking behind the openly stated positions of
the schools regarding their own religious practice. In other
words, the NLRB went out of its way to demonstrate the
respect for religious schools that the First Amendment’s
Religion Clauses require. Yet the majority concludes that this
doctrine “impermissibly intrudes into religious matters” as
reason to hold Duquesne’s adjuncts unprotected by the baseline
workplace rights Congress afforded in the NLRA. Duquesne,
947 F.3d at 834.
If anything, Pacific Lutheran’s “holding out” approach
went beyond what the First Amendment requires. There is
strong reason to believe that a school’s public representations,
taken alone, cannot justify carving out textually rootless
exemptions from religiously neutral, generally applicable
workplace laws. The panel majority assumes that “examining
whether faculty members play religious or non-religious
roles . . . ‘would only risk infringing upon the guarantees of the
First Amendment Religion Clauses.’” Id. at 833 (quoting
Carroll Coll., 558 F.3d at 572). But the Supreme Court has
repeatedly held in the parallel context of the “ministerial
2
exception” to employment discrimination laws that the EEOC
and the courts may look to employees’ actual religious roles—
not just the titles or descriptions proffered, or “held out,” by
religious employers—without running afoul of the Religion
Clauses. See Our Lady of Guadalupe Sch. v. Morrissey-Berru,
140 S. Ct. 2049, 2063-65 (2020); Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 192-94
(2012); id. at 198 (Alito, J., concurring). The panel never
explains why the Board’s Pacific Lutheran analysis threatened
religious exercise even though it was substantially more
deferential to religious schools than the Supreme Court’s
ministerial exception.
The panel defends its holding as following ineluctably
from NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
(1979), and this court’s ensuing decisions in Great Falls and
Carroll College. We are, of course, bound by Catholic Bishop,
as we are by our own decisions unless and until we convene en
banc to revisit them. But, for reasons that I have already
explained, see Duquesne, 947 F.3d at 839-43, this case is
materially different from each of those, and, fairly read, Pacific
Lutheran honored all the precedents the majority invokes to the
contrary. On its own terms, then, the majority gets it wrong.
Id.
More fundamentally, our precedent extending Catholic
Bishop is unmoored and increasingly untenable. We should
take the opportunity in an appropriate case to reconsider it. En
banc review in this case would give us an opportunity to
reverse the majority’s erroneous holding. But because no party
asked us to revisit Great Falls and Carroll College—the cases
on which the majority’s holding builds—en banc review is not
now the right vehicle to correct our wrong turn.
3
Looking ahead, two points bear emphasis. First, Catholic
Bishop rests on an outmoded form of constitutional avoidance.
Even as we respect it as binding precedent, we should not
extend its reach beyond what the decision requires. To the
extent that we have done so not only in this case, but in Carroll
College and Great Falls, the decisions may need to be
rethought. Cf. Allegheny Def. Project v. FERC, 964 F.3d 1, 17-
18 (D.C. Cir. 2020) (en banc) (holding departure from circuit
precedent justified in part because it was “grounded in a mode
of statutory construction that ha[d] been foreclosed by the
Supreme Court”). Second, constitutional avoidance is
inapplicable once the constitutional difficulty said to be
avoided has been surmounted, as has occurred regarding the
ostensible entanglement problem that motivated our adoption
of Great Falls’ “holding out” test in the first place.
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, 576 U.S.
186, 197 (2015) (quoting Warger v. Shauers, 574 U.S. 40, 50
(2014)). The Supreme Court in Catholic Bishop identified no
ambiguity in the NLRA’s “very broad terms.” 440 U.S. at 504.
Five years later, the Court described the breadth of the NLRA’s
definition of “employee” as “striking”—“subject only to
certain specifically enumerated exceptions,” none of which
relate to religious schools. Sure-Tan, Inc v. NLRB, 467 U.S.
883, 891 (1984). The Catholic Bishop Court, however, located
ambiguity in the legislative history; it concluded that the
absence of express congressional committee or floor discussion
of collective bargaining in connection with “church-operated
schools” justified constitutional avoidance, the text’s plain
scope notwithstanding. See 440 U.S. at 504-06. That inverted
method of statutory interpretation—bypassing clear text and
4
looking to silence in the legislative history as ground for a
judicial carveout—was abandoned a generation ago.
In fact, in a case decided just six years after Catholic
Bishop, a unanimous Court got the analysis right: faced with a
claim by a religious foundation that it was not subject to the
Fair Labor Standards Act, the Court first held that the statute’s
“exceedingly broad” definition of “employees” extended to the
foundation’s associates and only then turned to address the
constitutional question directly. Tony & Susan Alamo Found.
v. Sec’y of Labor, 471 U.S. 290, 295-306 (1985). Today,
“silence in the legislative history, ‘no matter how “clanging,”’
cannot defeat the better reading of the text and statutory
context” or create ambiguity where there is none. Encino
Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1143 (2018)
(quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495 n.13
(1985)). There is no statutory basis whatsoever on which to
conclude that Congress intended to exempt parochial-school
teachers from the NLRA. The doctrine of constitutional
avoidance does not empower courts to drop ordinary principles
of statutory interpretation to cut our own holes in enacted laws
whenever a serious constitutional issue appears on the horizon.
To be sure, Catholic Bishop’s holding is binding on this
court whether or not we convene en banc to reconsider our own
cases extending it. The Supreme Court has made clear that
“[p]rinciples of stare decisis . . . demand respect for precedent
whether judicial methods of interpretation change or stay the
same.” CBOCS W., Inc. v. Humphries, 553 U.S. 442, 456
(2008). And the Court’s recent ministerial exception decisions
suggest Catholic Bishop’s core holding—that parochial high
school teachers are exempt from NLRA coverage—remains on
firm foundation substantively. In Hosanna-Tabor and Our
Lady of Guadalupe, the Court required that school teachers
who serve an important “role in conveying [a religious
5
school’s] message and carrying out its mission” be exempted
from federal employment discrimination laws. Our Lady of
Guadalupe, 140 S. Ct. at 2063 (quoting Hosanna-Tabor, 565
U.S. at 192). Much of the reasoning in these cases is consistent
with the logic behind Catholic Bishop. Compare, e.g., id. at
2055 (exempting decisions about “the selection and
supervision of the teachers” responsible for “education and
formation of students” in religious schools to avoid
“undermin[ing] the independence of religious institutions in a
way that the First Amendment does not tolerate”), with
Catholic Bishop, 440 U.S. at 496 (citing concern that Board
jurisdiction would “impinge upon the freedom of church
authorities to shape and direct teaching in accord with the
requirements of their religion”). The Supreme Court’s
conclusion in Catholic Bishop would appear to stand even
absent the screen of constitutional avoidance.
But respect for the binding force of Catholic Bishop does
not demand the “holding out” approach we devised as further
avoidance. We cannot kick the can down the road indefinitely,
never actually deciding whether and how the NLRA’s
application to distinct categories of employees is limited by the
Religion Clauses. Catholic Bishop’s stature as binding
precedent as to high school teachers responsible for guiding
students’ religious education does not license us to expand its
holding to cut out from the NLRA additional categories of
“employers” or “employees” based on unfocused Religious
Clause concerns brought to bear via miscast constitutional-
avoidance reasoning. See Catholic Bishop, 440 U.S. at 502
(noting that “we are not compelled to determine whether the
entanglement is excessive as we would were we considering
the constitutional issue”). The Supreme Court has never
applied Catholic Bishop to institutions of higher education nor
has any majority decision for an appellate court other than ours.
Cf. Universidad Cent. de Bayamon v. NLRB, 793 F.2d 383, 401
6
(1st Cir. 1985) (equally divided en banc) (Breyer, J.)
(describing the question whether an “institution of higher
education falls within the strictures of Catholic Bishop” as “an
important, likely recurring, question that calls for Supreme
Court guidance”). It is not immediately clear why an NLRA
carveout designed for teachers at parochial schools should
apply to part-time, non-religious, college or university adjunct
instructors—or what would then stop its further extension to
information technology support staff, cafeteria workers, or
campus security, or, for that matter, to hundreds of thousands
of other employees at religious hospitals or other religiously
governed organizations. The constitutional rationale for
excluding from the NLRA teachers with a role in transmitting
the faith is not obviously implicated in the case of teachers
lacking such function. It is even less clear why other
employees the NLRA’s plain text reaches but who lack any
demonstrated role in the employer’s faith mission might also
be excepted. As I have explained, neither adjuncts, nor the
wide range of non-teaching staff that religious educational
institutions employ, should simply be equated with the
parochial-school teachers in Catholic Bishop. See Duquesne,
947 F.3d at 840-42 (Pillard, J., dissenting); cf. id. at 836
(majority opinion) (suggesting the question whether NLRB
“may . . . assert jurisdiction over some non-faculty employees”
remains open). Faced with a religious university’s claim that
the choice by a distinct category of its adjuncts to be
represented by a union interfered with its religious exercise,
entangling the NLRB in its religious workings, we should have
identified and decided the constitutional question, as the Court
itself did in the parallel context of Hosanna-Tabor and Our
Lady of Guadalupe. When we skirt such questions on
constitutional avoidance grounds, we carve out ill-defined
exemptions from duly enacted statutes, likely exceeding what
the Constitution itself compels.
7
Addressing the constitutional question head-on, the
Court’s ministerial exception cases show that we took a wrong
turn in Great Falls and Carroll College. Just two months ago,
in Our Lady of Guadalupe, the Court signaled that there is no
constitutional impediment to distinguishing employees who
are the heart of the religious mission from those who are not.
The Court rejected any “rigid test” for determining who falls
within the ministerial exception, requiring that courts instead
“take all relevant circumstances into account and . . . determine
whether each particular position implicated the fundamental
purpose of the exception.” 140 S. Ct. at 2067. Only two
Justices endorsed the view that courts ought to just outright
“defer to religious organizations’ good-faith claims that a
certain employee’s position is ‘ministerial.’” Id. at 2069-70
(Thomas, J., concurring). By contrast, while recognizing the
fact that the schools at issue “expressly saw [their employees]
as playing a vital part in carrying out the mission of the church”
as “important,” the majority also weighed “abundant record
evidence that [the employees at issue] performed vital religious
duties.” Id. at 2066 (majority opinion). In so doing, it
suggested that inquiry into an employee’s religious role does
not present any First Amendment problem. Cf. id. at 2071
(Thomas, J., concurring) (“[C]oncerns of entanglement have
not prevented the Court from weighing in on the theological
questions of which positions qualify as ‘ministerial.’”). These
decisions call into question the reasoning that underlies Great
Falls and Carroll College—cases that seem to hold any inquiry
behind a religious school’s public representations to be
necessarily out of bounds. See Carroll Coll., 558 F.3d at 573;
Great Falls, 278 F.3d at 1344. Such a hands-off approach risks
“deny[ing] protection to workers the [NLRA] was designed to
reach” for no good First Amendment reason. Holly Farms
Corp. v. NLRB, 517 U.S. 392, 399 (1996).
8
Duquesne sidesteps the teaching of the ministerial
exception cases, emphasizing that the NLRA and
antidiscrimination statutes constitute distinct bodies of law.
See Resp. to Pet. for Reh’g at 14-16. But the question is
whether their differences are constitutionally relevant.
Duquesne characterizes antidiscrimination law as
“retrospective” in an effort to distinguish the ministerial
exception’s “more searching review.” Id. at 15.
Antidiscrimination statutes are “necessarily focused on the
individual bringing suit,” says Duquesne, so unlike the NLRA,
which facilitates “bargaining over a variety of as-yet-unknown
conditions of employment.” Id. But reality reflects no such
neat dichotomy. Both bodies of law have retrospective force:
the initial adjudicating agency may differ (EEOC versus the
NLRB), but under either regime employees may present claims
that their workplace rights have been violated. Both bodies of
law also operate prospectively, projecting compliance
obligations on employers that shape their ongoing interactions
with employees.
The suggestion that the NLRA imposes intrusive,
continuous duties whereas antidiscrimination law does not thus
overlooks the effects of the latter on employers’ hiring,
recruitment, and evaluation. See, e.g., Albemarle Paper Co. v.
Moody, 422 U.S. 405, 417 (1975) (describing Title VII’s
“primary objective” as “prophylactic”). To the extent that there
is a difference, the NLRA arguably entails less substantive
imposition because it is limited to process: it sets the rules that
govern negotiations toward agreed-upon contracts but, unlike
antidiscrimination law, does not impose substantive terms of
employment top-down. In the absence of any reason why
merely negotiating with their employees’ chosen
representatives interferes with religious schools’ constitutional
prerogatives, the Religion Clauses must afford the same leeway
9
to operation of the NLRA as they do federal employment
discrimination laws.
In any event, these questions are worth examining in a
future case. The NLRB’s recent decision to “adopt” the
majority’s understanding of Great Falls’ test and disavow
jurisdiction over all teachers, including adjunct faculty “of self-
identified religious schools,” Bethany Coll., 369 N.L.R.B. No.
98, 2020 WL 3127965 (June 10, 2020), does not eliminate our
obligation to resolve the extent to which the Religion Clauses
curtail the application of the NLRA to teachers at religious
schools. Indeed, insofar as “refusal by the agency to institute
proceedings [is] based solely on the belief that it lacks
jurisdiction” under Great Falls and Catholic Bishop, the
NLRB’s decision will command our review. Heckler v.
Chaney, 470 U.S. 821, 833 n.4 (1985). Given that cases raising
these issues are already waiting in the wings, see Duquesne,
947 F.3d at 832 n.1 (noting our orders in Manhattan College v.
NLRB, No. 18-1113 (D.C. Cir. June 26, 2018), and Saint Xavier
University v. NLRB, No. 18-1076 (D.C. Cir. Sept. 19, 2018),
holding both petitions for review in abeyance pending
Duquesne’s resolution), I expect there will soon be an
opportunity to reconsider our precedent expanding on Catholic
Bishop.
When that opportunity does arrive, we must be
exceedingly careful to ensure that any course correction we
undertake does not “depriv[e] [a] church of control over the
selection of those who will personify its beliefs.” Hosanna-
Tabor, 565 U.S. at 188. As the Supreme Court has reminded
us, employment matters have the potential to “affect[] the faith
and mission of [a] church itself.” Id. at 190. These
constitutionally prized attributes of religious practice deserve
our continued respect. Such respect need not come at the
expense of workplace rights of those employees who do not
10
personify a religious school’s beliefs, nor does it depend on
conferring the broadest exemption at institutions whose
religious character might readily accommodate labor
protections alongside their faith. I trust that we can discern the
extent to which the First Amendment requires religious schools
be shielded from NLRA obligations in a manner appreciative
of the autonomy they maintain over their mission. See Our
Lady of Guadalupe, 140 S. Ct. at 2060. Because those
important issues have not been squarely raised before us in this
case, I concur in denial of the petition for rehearing en banc.