Contracts and the First Amendment: Union Edition

I was today years old (writing in December 2024) when I learned of the 2020 National Labor Relations Board (NLRB) decision finding that it had no jurisdiction over faculty at religious institutions. Overruling its own 2014 decision (Pacific Lutheran), the NLRB in 2020 adopted the D.C. Circuit’s approach in a case involving Duquesne University as more consistent with SCOTUS’s 1979 precedent in NLRB v. Catholic Bishop of Chicago. In that case, SCOTUS rejected NLRB jurisdiction over employment decisions at religious institutions that might reflect protected First Amendment values.

In Pacific Lutheran, the NLRB thought it could exercise jurisdiction over faculty unionization efforts without violating constitutional protections for religious freedom. In that case, the NLRB found that nothing in the University’s “governing documents, faculty handbook, website pages, or other material” suggested that the faculty members at issue “perform any religious function.” That standard, the NLRB held in 2020, was inconsistent with Catholic Bishop. Instead, the NLRB adopted the D.C. Circuit’s Great Falls test, according to which, the NLRB has no jurisdiction over any institution that

(a) “holds itself out to students, faculty, and community as providing a religious educational environment”; (b) is “organized as a nonprofit”; and (c) 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.”

Religious institutions may choose to recognize unions, but the NLRB cannot force them to do so.

I bring all this up today because I just read Heidi Schlumpf’s reporting from November 25, 2024 in The National Catholic Reporter on the situation at Marquette University.  Ms. Schlumpf writes of full-time, non tenure-track Marquette professors who have to supplement their incomes as Uber drivers or working for food delivery services. Some have given up on teaching altogether, because they could not support their families on the salary they received from Marquette. Unionization might help, but Marquette has availed itself of the religious exemption to refuse to recognize the union. In so doing, Marquette follows the examples set by Boston College, Seattle University and St. Leo University, all of which have refused to recognize unions. There is a longer list of Catholic universities that have allowed unions.

Marquette University cites financial difficulties as the reason why it will not recognize the union. Employees note that they are underpaid compared to their peers at other universities and that Marquette has chosen to send resources towards upper administration rather than instruction.  

In any case, how are financial difficulties grounds for a religious exemption? Isn’t the fact that some Catholic universities voluntarily recognize unions evidence that there is no religious ground for excluding them? At the very least, shouldn’t the NLRB ask Marquette to explain how the a union burdens its free exercise of religion while not burdening the religious exercise of other universities that claim adherence to that same religion?

I have staked out my position on contracts and the First Amendment in a series of posts and law review articles, including this one and that one. I won’t go on at length here. Following Jamal Greene, I call oppose rights absolutism and advocate for rights mediation. You are a religious institution. Fine. Courts should protect your Free Exercise rights. But you still have to make a showing that those rights are meaningfully burdened by the existence of union on your campus. There may well be a connection, but the person claiming a burden on their rights has to make that showing in each case. The result might well be that the private parties work out their own accommodations of contractual and constitutional rights, and whatever they come up with is likely to be a lot better than an absolute bar on worker representation at religious educational institutions.