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.
