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CASE TYPE: Establishment clause CASE: University of Great Falls v. NLRB COURT: U.S. Court of Appeals for the D.C. Circuit RESULT: NLRB cannot recognize union at religious college Articulating a new test, the U.S. Court of Appeals for the D.C. Circuit said Feb. 12 that the National Labor Relations Board has no jurisdiction over a religiously affiliated university and cannot recognize a faculty union there. University of Great Falls v. NLRB, No. 00-1415. In recognizing a chapter of the Montana Federation of Teachers, the NLRB had ruled that the university lacked a “substantial religious character.” For instance, the board noted, the curriculum did not have a particular emphasis on Catholicism, and only 32 percent of the student body was Catholic. But the D.C. Circuit agreed with the school that “the very inquiry by the NLRB into the University’s religious character” violated the principles of a 1979 U.S. Supreme Court case, NLRB v. Catholic Bishop of Chicago. Writing for the court, Circuit Judge David B. Sentelle characterized the board’s inquiry as, “is [the school] sufficiently religious?” But, the court said, if the school is “open-minded, that does not make it any less religious, nor NLRB interference any less a potential infringement of religious liberty.” The court adopted a bright-line, three-part test proposed by amici curiae, a group of educational associations and religious schools. The test took its cues from Catholic Bishop and a 1986 1st Circuit case, Universidad Central de Bayamon v. NLRB, authored by then-Circuit Judge Stephen G. Breyer. It exempts an institution from NLRB jurisdiction if the school holds itself out as providing a religious environment; is nonprofit; and is affiliated with, or owned, operated or controlled, directly or indirectly, by a recognized religious organization. The court did not adopt “the full expanse” of the third step because it was undisputed that the university is affiliated with an order of Catholic nuns. The test was crafted by Sidley Austin Brown & Wood partner Gene C. Schaerr and associate Nicholas P. Miller, who both work in the Chicago firm’s Washington, D.C., office. “Because we represented the amici, we had the luxury of focusing on Catholic Bishop, which we felt was of most interest to our clients,” Schaerr said. “We felt the NLRB had legitimate concerns, but we also wanted to preserve the autonomy of religious schools.” Schaerr said an en banc rehearing is unlikely because the decision was unanimous. Nicholas Trott Long, a Providence, R.I., solo practitioner who represented the university, explained why the school didn’t recognize the union. “The faculty really is part of university management,” he said. “You can’t take a model developed for the industrial workplace and apply it to higher education.” He added, “if the university is required to engage in collective bargaining on matters covered by the strictures of the Roman Catholic church [it] may have to insist that an issue is not negotiable, exposing it to claims of unfair labor practices or failure to bargain in good faith.” Disagreeing, David. J. Strom of Washington, D.C., co-counsel for the union, said collective bargaining was flexible enough to accommodate such situations. He said he does not know yet what the faculty will do next, but “the institution can still recognize the union if it wants to.” The NLRB said its policy was not to comment on cases.

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