On Friday the National Labor Relations Board (NLRB) continued its unconstitutional intervention in Catholic higher education by ordering Duquesne University to count ballots cast by adjunct faculty in a vote whether or not to unionize.
The votes had been impounded until the NLRB decided an appeal from Duquesne, which has claimed a religious exemption from the Board’s jurisdiction according to the U.S. Supreme Court’s ruling in NLRB v. Catholic Bishop of Chicago and subsequent rulings by the U.S. Court of Appeals for the District of Columbia.
Instead, the NLRB is persisting in its harassment of Duquesne even while avoiding a decision on Duquesne’s appeal. According to the NLRB:
The Special Appeal raises issues concerning statutory jurisdiction, which may not be necessary to decide. The election in this case has been conducted and the ballots impounded. If the Petitioner did not receive a majority of the votes cast, it may not be necessary to address the Employer’s contention that it is not subject to the Board’s jurisdiction. Conversely, if the Union did receive a majority of the votes cast, the Employer may renew its jurisdictional contention before the Board.
One of the three NLRB members, Brian Hayes, dissented and noted that the Board’s avoidance of the constitutional question only risks further violation of the First Amendment:
The Board’s jurisdiction has been challenged. We must settle that issue to determine whether we can do anything else. If we lack jurisdiction, then we have no power to order the Regional Director to do the things my colleagues order to be done.
As reported by The Cardinal Newman Society, the NLRB has a long history of violating the First Amendment in order to assert jurisdiction over faculty at Catholic colleges and universities. Duquesne and two other Catholic colleges are appealing NLRB rulings that they are insufficiently religious to qualify for exemption from the Board’s oversight. But an extensive study by The Cardinal Newman Society, titled “The NLRB’s Assault on Religious Liberty,” explains that the NLRB has repeatedly violated rulings by the U.S. Supreme Court and the U.S. Court of Appeals for the District of Columbia.
Last week at a Congressional hearing, the NLRB got a scolding from Congressman Phil Roe (Tenn.-1st), chairman of the House Subcommittee on Health, Employment, Labor and Pensions:
Perhaps most disturbing is the NLRB’s growing challenge to religious freedom. Over the last year, the NLRB applied an invasive test to determine whether three Catholic universities were “religious enough” to be exempt from federal labor law. It is simply unacceptable to allow the NLRB to judge whether a private academic institution has sufficient religious character. A court has outlined a clear standard to determine whether federal labor law applies to an institution that professes a religious faith, a standard that adheres to Supreme Court precedent and the First Amendment. It is time the NLRB applied the court’s standard and ended the uncertainty facing religious institutions.
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