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 1^st 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.