Tuesday, June 19, 2012

Duquesne, St. Xavier, Manhattan College—Anybody Else?—and the NLRB

The recent success of adjunct organizers at Duquesne University was a welcome sign, not only because it showed that there is new energy in the movement to improve working conditions for the nation’s majority higher education faculty, but also because, initially, Duquesne indicated that it would not object to this on religious grounds.

(photo from this very thoughtful site)

According to Inside Higher Education, spokeswoman Bridget Fare noted that Duquesne works with other unions, “intends do the same” with the proposed adjunct union, and that “we’ll be letting the NLRB process take its course and proceed accordingly.”

Had Dusquesne stuck to this original intention, it would have been, if not a blow, at least no comfort, to legal teams working on behalf of St. Xavier College and Manhattan College, two Catholic colleges which have also recently been approved by NLRB for adjunct collective bargaining.

Instead, and very quickly, Duquesne made a formal objection to the National Labor Relations Board, which Ms. Fare then explained as something that the university, “founded and owned by the Congregation of the Holy Spirit, has concluded … was necessary."

Now, of course, NLRB has rejected Duquesne’s request—that the election be halted—and this means (assuming that the adjuncts do vote for a new union, which seems assured) that Duquesne will soon, like Manhattan and St. Xavier, be appealing the NLRB decision.

They will be strongly supported by the Association of Catholic Colleges and Universities, the Lasallian Association of College and University Presidents, and the Association of Jesuit Colleges and Universities.

Clearly, adjunct and contingent faculty will be watching carefully as this unfolds, and I am sure that in coming months we will all of us become familiar, if we aren’t already, with such cases as NLRB v. Catholic Bishop of Chicago (1979), which concerned K-12 parochial schools, but which gets harkened back to regularly, and also Universidad Central de Bayamon v. NLRB (1986).

It was during the course of this latter that a “three part test” of the religious character of a school, which will allow it to avoid NLRB jurisdiction, was formulated by now-Justice Steven Breyer, then of the 1st Circuit Court of Appeals.

How do you know the place is “religious” in a substantial way?

First, it “holds itself out to students, faculty and community’ as providing a
religious educational environment.”

Second, it “is organized as a nonprofit.”

Third, it 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.”

Now, Duquesne is organized as a non-profit, and the rest of it—judge for yourself—seems tightly fitted to their probable arguments, at least judging by their mission statement:

Duquesne University of the Holy Spirit is a Catholic University, founded by members of the Congregation of the Holy Spirit, the Spiritans, and sustained through a partnership of laity and religious. Duquesne serves God by serving students - through commitment to excellence in liberal and professional education, through profound concern for moral and spiritual values, through the maintenance of an ecumenical atmosphere open to diversity, and through service to the Church, the community, the nation, and the world.

Ok, so that’s that, except for a couple of things. One, obviously, is that the 3-part test seems ripe for a serious challenge. Isn’t it a bit broad?

Of course, the argument for Duquesne, and Manhattan, and St. Xavier, is likely to be that it is a crucial defense against what the founder and president of The Cardinal Newman Society, Patrick J. Reilly, calls The NLRB’s Assault on Religious Liberty.”

Oh dear.

Really, can anything that the institution itself claims as religiously based be used to avoid NLRB? Are people who are associated with “recognized” religious institutions or “entities” always, no matter what in the world they are doing, acting in their protected religious capacity?

Those sorts of questions seem promising to me.

Also, at least in Duquesne’s case, the secular and the religious seem like part of a rather flexible wardrobe, with the one being slipped off and the other on whenever it seems like a good idea.

Indeed, in 1982, when Duquesne fought against a union for full-time faculty, the university discarded any type of religious argument and relied, successfully, on the 1980 NLRB v. Yeshiva University finding. That argument, we all know, involved a place with religious connections, for heaven’s sake, but didn’t rely on these for its entirely secular conclusion that full-timers were “managerial” and should be barred from collective bargaining.

It'd be fun if they did a similar switch now, wouldn't it? And argue that the adjuncts are managerial"? Well, they're not running the place, of course, but they are keeping it running—maybe "semi-managerial"?

Oh, it’s just the beginning, isn’t it? I hope in fact, that movements from within the church itself will begin to push things in a new direction, and it’s certainly easy to locate some support there, in Catholic social teaching generally, in Catholic doctrine connected to labor specifically, and in the ethical language that is so prominently featured in the chartering documents and mission statements of Catholic Colleges and Universities.

That’s something I will post on shortly. 


  1. American nuns under scrutiny and censure for social and political outreach might be just a bit less than hopeful. Catholic doctrine is worker friendly but the Church's upper levels run to the more conservative.

    More significantly, it's not just about Catholics. How will higher education labor issues and outcomes relate to other institutions of higher education owned and run by other religious groups?

    Or are Catholic institutions in a separate category?

  2. I question the author's credibility.

    I will give him the benefit of the doubt that he is inappropriately ill-informed and not maliciously deceitful about the facts presented here.

    Namely, alluding to the NLRB v Catholic Bishop of Chicago (1979) SCOTUS case, the ruling was not limited, what-so-ever, to primary or secondary educational institutions.

    The NLRB knew this, ignored this and then went on to Universidad Central de Bayamon.

    Stephen Bryer of the DC Circuit Court at the time pointed out that the Bishop of Chicago Case was clearly for ALL schools, not simply elementary schools. That decision led the NLRB to do an about face, and state this:

    "After careful consideration, we are now of the opinion that the Supreme Court's holding in Catholic Bishop is not limited to parochial elementary and secondary schools, but rather applies to all schools regardless of the level of education provided. There is no language in Catholic Bishop limiting the Court's holding to parochial elementary and secondary schools... we find that we can more properly accommodate first amendment concerns by considering the application of Catholic Bishop to all educational institutions on a case-by-base basis."

    As a practicing Catholic, a public policy graduate student and alumnus of Saint Xavier University I take great issue with how you present this serious matter.

    There are approximately 240 Catholic institutions of higher learning in the United State; approximately 240 more non-Catholic, religious institutions of higher learning. Saint Xavier has had a full time faculty union since 1979 and it seems would be more willing to have an inclusive* independent adjunct union, rather than a national organization interfering with its religious governance and directives.

    *Inclusive: In 2009 adjuncts tried to unionize, and the university did not stop them - they just did not get the requisite votes. So they tried again a year later, but brought in a national group and excluded roughly 1/3 of adjunct professors (including music and nursing professors, at a school that primarily graduates nurses) for no apparent reason other than to exclude their votes to gain a majority at the expense of their colleagues labor rights.

    1. SXU is a Catholic University; it is clear the NLRB does not have jurisdiction.
    2. SXU, like all Catholic Universities was set up through the charism of their founders (hard for the NLRB to evaluate that) through the mission of Jesus Christ as teacher, to educate students - not to guarantee employment for adjuncts
    3. If the adjunct union is willing to intentionally exclude roughly one third of their fellow adjuncts just to get a union, this shows a preponderance for union rights not labor or worker rights.

    And while I don't expect you to know this facet, but as SXU is a tuition driven institution (93% or more of their revenue comes from student tuition) and an institution that has far and away exceeded state and national averages for Hispanic, first-generation, and impoverished student populations, is there not a concern that this religious, nonprofit school that was set up to serve the poorest of the poor (as the Sister's of Mercy Foundress Catherine McAuley instituted) will price these very students out of the education intended from them due to cost shifting to fund more (partial) union labor?

    1. Hi anonymous, thanks for your comments. I am not convinced. I think that most of what your regard as obvious--like a decision being not "limited, whatsoever" -- is in fact exactly the legal territory that is going to be explored and disputed. Also, since you write, in part, as a practicing Catholic and someone knowledgeable about public policy, I'd like to point out that there are plenty of practicing Catholics and policy "experts" who are not following your general line here, and who think that, indeed, there are times when the "Catholic" identity of an institution is used in a false or misleading way, sometimes in the service of goals that conflict with Catholic teaching. See, for instance, www.catholicscholarsforworkerjustice.org.

    2. This comment has been removed by a blog administrator.


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