Labor board rules in favor of workers at Catholic universities

Duquesne UniversityDuquesne University

Employees at two Catholic universities are a step closer to having their unions recognized, as recent rulings from the National Labor Relations Board rejected arguments from the schools that their religious affiliation freed them from federal labor oversight.

A group of adjunct faculty at Pittsburgh’s Duquesne University voted in 2012 to join the Adjuncts Faculty Association of the United Steelworkers. A regional director for the N.L.R.B. found that enough votes were cast in favor of joining the union, but the school resisted, arguing that its Catholic identity meant it was exempt from N.L.R.B. oversight.

In a 2-1 decision on April 10, the N.L.R.B. rejected that argument, saying the faculty taught secular material. It did, however, rule that theology professors are in a different category and are thus ineligible to join the union, writing that they perform “a specific role in maintaining the University’s religious educational environment.”

The N.L.R.B. ruling sends the issue back to its regional office to tabulate if there are still enough votes to unionize once the theology professors are excluded.

For its part, the school says it will continue to fight.

Ken Gormley, president of Duquesne, said in a statement to Law 360, a website tracking breaking legal news,that the ruling “directly conflicts” with previous court rulings about unions and religiously affiliated schools.

“The Supreme Court and multiple U.S. courts of appeal have recognized that the broad and deep powers of the N.L.R.B. pose serious First Amendment threats when asserted over faculty unions at religious-affiliated institutions,” he said. “For that reason, Duquesne University is evaluating all of its options pursuant to the board’s rules and regulations.”

He told the Pittsburgh Post-Gazette that the issue was not whether the university supports unions, but that the university “could not risk negotiating its Catholic mission…or the faculty’s role in it with a union, much less…[leave it] to the supervision of a government agency in Washington, D.C.”

A lawyer for the Steelworkers Union, meanwhile, said the school’s position put it in conflict with its Catholic values.

“We think it’s frankly hypocritical of them to hide behind the Catholic identity to avoid doing what the Catholic Church explicitly tells them to do—that is, to honor labor unions,” Dan Kovalik told the paper.

The N.L.R.B. also ruled against another Catholic university last week, saying that housekeepers at St. Xavier University in Chicago were eligible to unionize despite protests from the school.

As at Duquesne, officials at St. Xavier argued that its religious affiliation makes it exempt from having to recognize the staff’s vote to join the Service Employees International Union.

But in a 2-1 decision, the board found that the duties of the cleaning crew are “wholly secular” and that the staff “do not have any teaching role or perform any specific religious duties or functions.”

Housekeepers asked to join the S.E.I.U. in 2012 and held an election in 2013, but the ballots were kept secret, Law 360 reported. The board’s decision sends the case to a regional director.

In both the Duquesne and St. Xavier rulings, the acting chairman of the N.L.R.B. dissented, arguing that the board was wading into thorny constitutional questions.

In his dissent on the St. Xavier case, Philip A. Miscimarra wrote that although “this case might look like an easy one—most would view housekeeping as a secular activity—cases involving nonteaching employees may present facts that lead the Board into even deeper entanglements with an institution’s religious mission.”

St. Xavier and and Duquesne are hardly alone when it comes to universities arguing that their religious identity exempts them from government oversight. The rulings are the latest salvo in a years-long battle about the role of proposed unions, often for adjunct faculty, at Catholic institutions.

In an essay published last year, Dennis H. Holtschneider, C.M., the president of DePaul University, said the issue is not Catholic animus toward unions, but government interference in church affairs. He wrote that a N.L.R.B. ruling in 2014, which extended labor oversight to non-religious employees at religious-based entities, is allowing the government to define religious activity rather than believers themselves.

“Several Catholic universities now find themselves in the positions of deciding whether to oppose the attempt of the N.L.R.B. to assert jurisdiction on this new legal basis,” Father Holtschneider wrote. “The freedom to determine what is or what is not religious activity inside our church is at stake.”

Labor advocates note that the Catholic Church has a long history of supporting unions and say Catholic institutions opposed to organizing efforts are acting hypocritically.

“The glaring inconsistency between Catholic social teaching and the failure of Catholic institutions to protect the right to unionize may even lead Catholics to abandon the church,” ethicist Gerald J. Beyer and lawyer Donald C. Carroll wrote in the National Catholic Reporter last year. “Catholic institutions of higher learning cannot successfully pursue their mission without practicing what they teach.”