Carroll College, Inc. v. National Labor Relations Board

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 4, 2008               Decided March 13, 2009

                        No. 07-1315

                  CARROLL COLLEGE, INC.,
                       PETITIONER

                              v.

           NATIONAL LABOR RELATIONS BOARD,
                     RESPONDENT

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &
    AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,
                     INTERVENOR


                 Consolidated with 07-1383


     On Petition for Review and Cross-Application for
  Enforcement of an Order of the National Labor Relations
                          Board


     Edward A. Brill argued the cause and filed the briefs for
petitioner. Lawrence Z. Lorber entered an appearance.

     Arnold E. Perl and Ada Meloy were on the brief of amici
curiae American Council on Education et al. in support of
petitioner.
                               2
    Steven B. Goldstein, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were Ronald E. Meisburg, General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, and Robert J. Englehart,
Supervisory Attorney.

     Catherine Trafton argued the cause for intervenor. With
her on the brief was James B. Coppess.

    Before: HENDERSON, ROGERS, and GRIFFITH, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge GRIFFITH.

     GRIFFITH, Circuit Judge: The National Labor Relations
Board ordered Carroll College to bargain with the recognized
collective bargaining agent of its faculty. In this petition for
review, the college argues that its religious educational
environment and affiliation with the United Presbyterian
Church place it beyond the Board’s jurisdiction under NLRB
v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), and
University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir.
2002). We agree.

                               I.

    Established in 1846, Carroll College is a private college
located in Waukesha, Wisconsin, and affiliated with the
Synod of Lakes and Prairies of the United Presbyterian
Church of the U.S.A. The college has a school of liberal arts
and sciences for undergraduates and a school of graduate and
professional studies. Its governance structure is composed of
a board of trustees, an administration, and a faculty.
                               3
     In November 2004, the International Union, United
Automobile, Aerospace & Agricultural Implement Workers
of America-UAW, filed a petition with the NLRB seeking
certification as the collective bargaining representative for
Carroll’s faculty. Carroll challenged the Board’s jurisdiction,
arguing that requiring it to bargain with the union would
substantially burden its free exercise rights in violation of the
Religious Freedom Restoration Act (RFRA), 42 U.S.C.
§ 2000bb-1 (2000). In the alternative, Carroll argued that its
faculty members are managerial employees not covered by
the National Labor Relations Act (NLRA), 29 U.S.C.
§§ 152(3), 157 (2000), under NLRB v. Yeshiva University,
444 U.S. 672 (1980).

     After a hearing to consider the union’s petition, the
Regional Director for the NLRB rejected both of the college’s
arguments. On the question of jurisdiction, the Regional
Director saw no need to address the college’s RFRA
argument, interpreting Board precedent to foreclose such a
challenge unless a school can show under Catholic Bishop
that it is “church operated.” See J.A. at 21–22 (citing Catholic
Bishop, 440 U.S. at 507 (holding that church-operated schools
are not subject to NLRB jurisdiction)). Carroll’s affiliation
with the Synod, the Regional Director concluded, was
insufficient to meet this requirement. Reaching the merits, the
Regional Director concluded that Carroll’s faculty members
are not managerial employees. J.A. at 38–45. Carroll filed a
timely request to review the Regional Director’s decision on
jurisdiction and the merits, but stressed that its argument
against NLRB jurisdiction was based solely on RFRA and not
Catholic Bishop. See Resp’t Br. add. 8.

     The NLRB granted Carroll’s request for review on the
jurisdictional issue alone and concluded that it was no
violation of RFRA to apply the NLRA’s duty to bargain to the
                                  4
college. Carroll Coll., Inc., 345 N.L.R.B. 254, 254, 257–60
(2005). In the wake of the NLRB’s decision, the Regional
Director certified the union as the exclusive representative of
Carroll’s faculty. Carroll refused to bargain with the union,
which drew an unfair labor practice charge from the General
Counsel alleging a violation of sections 8(a)(5) and (1) of the
NLRA. In its defense before the Board, Carroll presented
once again the RFRA and managerial employee arguments it
had first made to the Regional Director.

     The NLRB granted the General Counsel’s motion for
summary judgment and ordered Carroll to recognize and
bargain with the union. Carroll Coll., Inc., 350 N.L.R.B. No.
30, at 1 (2007). With respect to Carroll’s RFRA challenge, the
NLRB repeated its earlier analysis and concluded again that
the duty to bargain did not substantially burden the college’s
free exercise rights. Id. at 2–3. With respect to Carroll’s
argument that its faculty members are managerial employees,
the Board used the Regional Director’s earlier analysis and
likewise concluded that they are not. Id. at 1–2. Carroll now
petitions for review, and the NLRB cross-petitions for
enforcement of its order. The union has intervened in support
of the Board.1 We have jurisdiction under 29 U.S.C.
§ 160(e), (f).

                                  II.

    Before us, Carroll abandons the argument that the NLRB
cannot, consistent with RFRA, order it to bargain with the
union. Instead, Carroll asserts for the first time that the NLRB

1
  The American Council on Education, the National Association of
Independent Colleges and Universities, the Council of Independent
Colleges, and the Wisconsin Association of Independent Colleges
and Universities filed an amici brief in support of Carroll’s petition.
                              5
has no jurisdiction under Catholic Bishop. We begin with an
explanation of Catholic Bishop and its progeny.

     In Catholic Bishop, the Supreme Court read the NLRA in
light of the Religion Clauses of the First Amendment to hold
that the NLRB lacks jurisdiction over church-operated
schools. 440 U.S. at 507. Central to the Court’s reasoning was
a concern that despite the best of intentions, a Board
authorized to order collective bargaining at church-operated
schools would, in many cases, find itself inquiring “into the
good faith of the position asserted by the clergy-
administrators and its relationship to the school’s religious
mission.” Id. at 502. The First Amendment does not permit
such inquiry. “It is not only the conclusions that may be
reached by the Board which may impinge on rights
guaranteed by the Religion Clauses, but also the very process
of inquiry leading to findings and conclusions.” Id. (emphasis
added). The Court saw “no escape” from these “serious First
Amendment questions” if the Board was permitted to exercise
jurisdiction over church-operated schools. Id. at 504.

     But the Court offered no test for determining whether a
school is beyond Board jurisdiction. In a series of decisions
following Catholic Bishop, the NLRB created a framework
for analysis that looked to whether a school has a “substantial
religious character” to determine if it is exempt from
jurisdiction. See, e.g., Livingstone Coll., 286 N.L.R.B. 1308,
1309–10 (1987); Jewish Day Sch. of Greater Wash., Inc., 283
N.L.R.B. 757, 760–61 (1987); Trustee of St. Joseph’s Coll.,
282 N.L.R.B. 65, 68 & n.10 (1986). The Board weighed, inter
alia, the involvement of the affiliated religious group in the
school’s day-to-day affairs, the degree to which the school has
a religious mission, and whether religious criteria play a role
in faculty appointment and evaluation. See Livingstone Coll.,
286 N.L.R.B. at 1309–10. The “substantial religious
                                6
character” test allowed the Board to consider “all aspects of a
religious school’s organization and function that [it deemed]
relevant.” St. Joseph’s Coll., 282 N.L.R.B. at 68 n.10.

     In Great Falls, we held that the Board’s approach
involved just “the sort of intrusive inquiry that Catholic
Bishop sought to avoid,” with “the NLRB trolling through the
beliefs of [schools], making determinations about [their]
religious mission, and that mission’s centrality to the ‘primary
purpose’ of the [school].” 278 F.3d at 1341–42. Accordingly,
we read Catholic Bishop to require a much different and less
intrusive inquiry. Drawing in large part on then-Judge
Breyer’s opinion in Universidad Central de Bayamon v.
NLRB, 793 F.2d 383 (1st Cir. 1986) (en banc), we fashioned a
three-part inquiry. 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,” Great Falls, 278 F.3d at 1343 (quoting
Bayamon, 793 F.2d at 400); (2) “is organized as a
‘nonprofit,’” id.; 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,” id. We intended this test to create a “bright-line”
rule for determining jurisdiction “without delving into matters
of religious doctrine or motive.” Id. at 1345. It would ensure
that schools claiming a Catholic Bishop exemption “are bona
fide religious institutions,” id. at 1344, while avoiding Board
inquiry into the substance and contours of their religious
beliefs and missions, see id. at 1344–45.

     To determine whether the University of Great Falls held
itself out as “providing a religious educational environment,”
we looked to its course catalogue, mission statement, student
bulletin, and other public documents. Id. at 1345. There was
                                7
no inquiry into the content of the school’s religious beliefs nor
skepticism whether those beliefs were followed. Probing into
the school’s religious views would “needlessly engage in the
‘trolling’ that . . . Catholic Bishop itself sought to avoid.” Id.
The second and third questions were easily answered. The
school operated as a nonprofit and it was undisputed that it
was affiliated with a recognized religious institution. See id. at
1343–45. There was no need to dig deeper. Doing so would
only risk infringing upon the guarantees of the First
Amendment’s Religion Clauses.

                               III.

      Carroll easily satisfies the Great Falls test. The college’s
charter documents make clear that it holds itself out to
students, faculty, and the broader community as providing a
religious educational environment. Carroll’s Articles of
Incorporation describe its relationship with the Synod and
provide that the college was incorporated “for the purpose of
maintaining and conducting [itself] as a Christian liberal arts
college dedicated to God.” J.A. at 1102–03. Carroll’s mission
statement provides that the school will “demonstrate Christian
values by . . . example.” J.A. at 1093. The board of trustees
has adopted a “Statement of Christian Purpose,” which
declares it the college’s mission to provide “a learning
environment devoted to academic excellence and congenial to
Christian witness.” J.A. at 1091. And Carroll and the Synod
are parties to an agreement that commits the board of trustees
of the college to “recognize and affirm [Carroll’s] origin and
heritage in the concern of the Church for the intellectual and
spiritual growth of its students, faculty, administration, and
staff.” J.A. at 1129. These objective indicia easily satisfy the
first element of our test. See Great Falls, 278 F.3d at 1345.
                                8
     The Regional Director assumed the college could not
challenge the Board’s jurisdiction under RFRA unless it was
exempt from Board jurisdiction under Catholic Bishop. As the
NLRB had yet to adopt our Great Falls test, the Regional
Director applied the NLRB’s “substantial religious character”
approach to conclude that Carroll is not exempt from the
Board’s jurisdiction under Catholic Bishop, but added a
footnote explaining that he would reach the same conclusion
under the three-part Great Falls inquiry. See J.A. at 23–25 &
n.3. He found Carroll’s “aspirational statements of principle
and purpose” insufficient to establish that it holds itself out as
a college providing a religious educational environment
because there was little accompanying evidence of actual
religious influence or control over the college or the education
it provides. J.A. at 25 n.3. Not only does this heightened
standard require a showing of religious influence far beyond
what we found necessary in Great Falls, but it involves the
type of inquiry Catholic Bishop forbids. In determining
whether a school is exempt from the NLRA under Catholic
Bishop, the NLRB may not “ask[] how effective the
institution is at inculcating its beliefs.” Great Falls, 278 F.3d
at 1344. To do otherwise and require proof of “actual
religious influence or control” as the Regional Director did
here, J.A. at 25 n.3, is tantamount to questioning the sincerity
of the school’s public representations about the significance
of its religious affiliation. This neither the Board nor we may
do. See Great Falls, 278 F.3d at 1344 (stating that to avoid
“constitutional infirmities,” courts cannot “ask about the
centrality of beliefs or how important the religious mission is
to the institution”).

    As we determined in Great Falls, focusing solely on a
school’s public representations as to its religious educational
environment—as opposed to conducting a skeptical inquiry
into the actual influence exerted over the school by its
                                9
affiliated religious institution—is also a more useful way for
determining the school’s religious bona fides. See id. at 1344.
The Regional Director’s worry that Carroll’s public
statements of religious affiliation are “aspirational” and
without practical effect is addressed by the incentives Carroll
has to adhere to how it describes itself to the consuming
public. “[S]uch public representations serve as a market
check.” Id. Not all students and faculty are attracted to overtly
religious environments, so public representations of religious
ties come at a cost to the school claiming a Catholic Bishop
exemption. See id.

      There is no dispute that Carroll meets the second element
of Great Falls. It is a nonprofit institution. See J.A. at 1102
(Articles of Incorporation). The third element is also satisfied
because Carroll is “affiliated with . . . a recognized religious
organization,” Great Falls, 278 F.3d at 1343. The college’s
Articles of Incorporation provide that it is “related” to the
Synod of Lakes and Prairies of the United Presbyterian
Church, J.A. at 1103, and Carroll, pursuant to an agreement
with the Synod, is bound to “recognize and affirm its origin
and heritage in the concern of the Church,” J.A. at 1129. See
also J.A. at 1814 (Course Catalogue) (“The college is
affiliated with the Presbyterian Church.”). Both the Regional
Director and the NLRB acknowledged that Carroll and the
Synod are affiliated. See, e.g., Carroll Coll., 345 N.L.R.B. at
254 (“Soon after the College was established . . . it ‘affiliated’
with the Presbyterian Church” and “[t]oday, that affiliation is
recognized in the Articles of Incorporation.”); J.A. at 25 n.3.
The Regional Director determined, however, that because
“the Church does not sponsor the College, does not own its
campus, and does not have any right of ultimate control over
it,” the third element was not satisfied. J.A. at 25 n.3. Again,
after Great Falls, this type of analysis requires too much.
Although elements of religious ownership, operation, and
                                  10
control were present in the facts before us in Great Falls, our
test is met with affiliation alone. See 278 F.3d at 1343 (stating
a school is exempt if it is “affiliated with, or owned, operated,
or controlled . . . by a recognized religious organization”
(emphasis added)). As the Board found, Carroll is plainly
affiliated with a recognized religious organization.

     There remains a complication in this otherwise
straightforward application of Great Falls. Carroll did not
raise the Catholic Bishop argument before the Board. See
Pet’r Br. 26; see also 29 U.S.C. § 160(e) (“No objection that
has not been urged before the Board . . . shall be considered
by the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary
circumstances.”).2 Certain jurisdictional challenges, however,
need not be raised before the Board to be considered on
review. “A court can always invalidate Board action that is
patently beyond the Board’s jurisdiction, even if the
jurisdictional challenge was never presented to the Board.”
Local 900, Int’l Union of Elec., Radio & Mach. Workers,
AFL-CIO v. NLRB, 727 F.2d 1184, 1191 n.5 (D.C. Cir. 1984);
see also NLRB v. Cheney Cal. Lumber Co., 327 U.S. 385, 388
(1946); Noel Foods v. NLRB, 82 F.3d 1113, 1121 (D.C. Cir.

2
  In both the proceedings below and its brief to this court, the
NLRB stated that Carroll “explicitly conceded that the Board had
jurisdiction over it.” Resp’t Br. 35. Not so. It is true that Carroll’s
post-representation hearing brief made clear that it was not claiming
an exemption under Catholic Bishop. Resp’t Br. add. 2; see also id.
add. 8 (Request for Review) (arguing that the Board decided an
issue that Carroll “did not raise”—namely, that “[t]he Board has
‘jurisdiction’ (whatever that means) over Carroll”). But this merely
disclaimed reliance on Catholic Bishop, and there is a difference
between Carroll’s decision not to contest jurisdiction under
Catholic Bishop and an express concession that jurisdiction exists.
                                 11
1996). After our decision in Great Falls, Carroll is patently
beyond the NLRB’s jurisdiction.3 Great Falls created a
bright-line test of the Board’s jurisdiction according to which
we ask three questions easily answered with objective criteria.
From Carroll’s public representations, it is readily apparent
that the college holds itself out to all as providing a religious
educational environment. That it is a nonprofit affiliated with
a Presbyterian synod is beyond dispute. From the Board’s
own review of Carroll’s publicly available documents, see
Carroll Coll., 345 N.L.R.B. at 254–55, it should have known
immediately that the college was entitled to a Catholic Bishop
exemption from the NLRA’s collective bargaining
requirements. The Board thus had no jurisdiction to order the
school to bargain with the union, and we have authority to
invalidate the Board’s order even though the college did not
raise its jurisdictional challenge below.

                                 IV.

     Under Great Falls, Carroll is exempt from the NLRB’s
jurisdiction. We thus need not address Carroll’s argument that
its faculty members are managerial employees who fall
outside the protection of the NLRA. We grant Carroll’s
petition for review, vacate the decision and order of the
NLRB, and deny the Board’s cross-petition for enforcement.

                                                        So ordered.

3
  At oral argument, the Board pressed for a narrow reading of what
constitutes action that is “patently beyond” its jurisdiction, arguing
that so “long as [it] is purporting to decide a labor dispute, the
Board has not . . . patently traveled outside the orbit of its
authority.” See Oral Arg. Recording at 29:39–30:05. But that
cannot be right. For example, the NLRA does not reach labor
disputes involving railroads. See 29 U.S.C. § 152(2). As we explain,
Great Falls works a similar exemption from Board jurisdiction.