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NLRB, Faith-based Universities and the First Amendment


Support for Adjunct Faculty

Nationally, universities have relied on adjunct faculty more and more in recent decades. Adjuncts are the lowest paid faculty and typically receive few benefits. A union might change their status for the better. Why are you preventing that from happening?

The university has implemented a number of significant initiatives over the past several years to support our full-time, non-tenure track and part-time faculty. The initiatives are aimed at making sure they are compensated justly and equitably, have access to expanded benefits and are fully part of our shared governance structures. We will continue to build upon those efforts. The initiatives can be viewed here.

How can the university take a position against unionization and its own adjunct faculty’s vote in favor of forming a union? That seems unfair and seems to go against many decades of Catholic Church positions on collective bargaining.

This is not about our support for unions. As a Jesuit Catholic university, Seattle University supports the right to organize. We have seven unions on campus representing 63 non-faculty members. We have good relations with each union.

Rather, this is a jurisdictional issue involving a higher principle that is constitutionally protected—the right of Seattle U, as a faith-based university, to carry out our core Jesuit Catholic educational mission free from government intrusion by the NLRB. Our faculty is central to carrying out our educational mission. Our Jesuit education is based on educating the whole person—mind, body and spirit—and it is intended to permeate everything we teach our students.

The Constitutional and Jurisdictional Concern

Some have criticized the university’s position on NLRB jurisdiction as disingenuous. They say it is a way to avoid having to pay adjuncts more. How do you respond?

The issue for the university is a constitutional and jurisdictional one, not a financial one. The courts and faith-based institutions, including many Catholic colleges and universities, recognize the gravity of the issue and the serious consequences involved. They include Loyola of Chicago, Saint Xavier, Manhattan College, Duquesne and DePaul, the nation’s largest Catholic university, all of which are challenging the NLRB’s jurisdiction over their faculty. We are all strongly supported by the Association of Catholic Colleges and Universities (ACCU) and the Association of Jesuit Colleges and Universities (AJCU) and their members. ACCU represents 195 Catholic institutions in the U.S. and ACJU represents all 28 Jesuit institutions in the U.S.

The Supreme Court and D.C. Circuit Court of Appeals, often referred to as the nation’s second highest court, have repeatedly rejected the NLRB’s attempts to extend its authority to faith-based schools and its assertion of jurisdiction over their teachers or faculty. The Supreme Court’s landmark ruling in NLRB v Catholic Bishop in 1979 remains the binding precedent.

Even the NLRB recognizes that it must avoid infringing on the religious mission. Its latest attempt to extend jurisdiction over religious institutions still excludes from the union those faculty members the NLRB determines teach “religious aspects.” But the NLRB’s latest test is once again flawed and unconstitutionally narrow.

The Reverend Dennis H. Holtschneider, president of DePaul University and past chair of ACCU, eloquently articulated the constitutional concerns in a recent essay that can be found here. In particular, he noted the “integrated, unified religious mission” of Catholic schools and the deeply problematic nature of a government entity seeking to determine which faculty would be under its jurisdiction.

“The faculty cannot be divided into ‘religious’ and ‘secular’ faculty by government fiat without impugning the Catholic mission itself,” wrote Fr. Holtschneider. “Almost any topic can be taught in a pervasively religious way, if the instructor designs the course with religious objectives and values in mind.”

On the issue of pay and benefits, the university has been increasing compensation and expanding benefits to full-time, non-tenure track and part-time faculty over the past several years. We are committed to continuing to build on this support for our non-tenure track and part-time faculty, as explained on our webpage describing our ongoing initiatives

Can you provide examples of specific concerns around NLRB oversight?

When the NLRB involves itself in managing relations and employment decisions between an institution and its faculty, the courts have pointed to the high likelihood of NLRB infringement upon the school’s religious identity. The religious identity of Catholic colleges and universities permeates hiring, teaching, curriculum and other mission-related matters. The door would be open to negotiating the school’s religious dimensions with the NLRB. The NLRB, rather than the institution, could define our religious mission and the faculty’s role in furthering that mission. We believe, as do the courts, that it not only undermines our religious liberty and mission but also is inherently unconstitutional.

For example, in his controlling opinion while a Judge on the First Circuit Court of Appeals, now Justice Stephen Breyer provided the simple example of faculty on a University Senate committee objecting to teaching “so many theology and philosophy courses” as potentially giving rise to an unfair labor practice charge and setting up the NLRB as arbiter of an institution’s good-faith pursuit of its religious mission.  Justice Breyer also explained that in the “context of Labor Board jurisdiction” the “constitutional concern” is “of state interference through regulation”—given the breadth of the NLRB’s authority, it is doubtful one could “‘fence off’ subjects of mandatory bargaining with a religious content,” even at so-called “‘merely religiously associated’” institutions.

Catholic Social Teaching

Isn’t refusing to bargain with the union contrary to Catholic social teaching and support for workers’ rights to organize? Aren’t you taking a hypocritical stance?

No, this is not about our support for unions. This is about the National Labor Relations Board’s unconstitutional assertion of jurisdiction over our faith-based educational mission.

We have good relations with the seven unions representing 63 non-faculty members of our campus community and—consistent with Catholic social teaching—we continue to support workers’ right to organize.

The U.S. Conference of Bishops has said, “Workers, owners, employers and unions should work together to create decent jobs, build a more just economy and advance the common good.” They also said, “No one may deny the right to organize without attacking human dignity itself.” Aren’t you flying in the face of that?

We are completely aware of and support the U.S. Conference of Bishops position as it regards the right to organize. We, too, believe in creating decent jobs, building a more just economy and advancing the common good. We work hard every day to accomplish that with our faculty and students.

We have seven unions on campus today. This is not about our support for the right to organize. It is about freedom of religion and the separation of church and state as guaranteed by the First Amendment of the Constitution. Our faculty plays a distinct role. They are central to our core mission of educating the whole person–-mind, body and spirit. In an earlier case, the Supreme Court rejected the NLRB’s assertion of jurisdiction over “lay teachers” at church-operated schools, so we believe this important jurisdictional question should be decided in the courts, not by the NLRB.

Engaging with Faculty Outside of NLRB

If this is just a jurisdictional issue, why not simply agree with the SEIU that the NLRB has no jurisdiction and proceed to bargain?

Unfortunately, neither side can simply waive the NLRB’s jurisdiction. The NLRB will continue to unconstitutionally assert jurisdiction regardless of what the university and union agree to.

To be clear, we support the right of workers to organize. And because we do, we work cooperatively with members of our community who are unions and their representatives consistent with Catholic social teaching.

So you would be willing to bargain with the SEIU or another union of non-tenure-track and part-time faculty? What would that look like if outside the jurisdiction of the NLRB?

We would absolutely engage with the non-tenure-track and part-time faculty under an alternative, cooperative framework, if that is the faculty’s preference. And we look forward to doing so after this jurisdictional dispute is resolved.

As to what such a framework would look like, we anticipate a cooperative relationship consistent with Catholic social teaching.

Upholding SU's Jesuit Catholic Character

What if the union agreed that it wouldn’t question your religious motivation for an employment practice and thus not challenge it? Wouldn’t that keep the NLRB from interfering with your religious mission?

No, neither the union nor we can waive the NLRB’s unconstitutional assertion of jurisdiction. Any member of the union could assert an unfair labor practice against us—even if based on our religious mission—and the NLRB would hear it.

Do you anticipate reprimanding union members for religious reasons? If not, what’s the harm in having the NLRB oversee your non-religious employment disputes and practices?

We hope we never have to discipline a faculty member for undermining our religious identity. But if we ever do, it’s unconstitutional for the NLRB to decide whether we are “religious enough” to take such employment actions.

The NLRB has already harmed us by doing so. The board unilaterally decided that our religious mission applies only to certain colleges and departments, when in fact our faculty—all our faculty—is central to carrying out our core Jesuit Catholic mission.

Isn’t it hypocritical to accept financial aid from the federal government, comply with federal laws such as Title IX and yet assert a religious objection when it comes to NLRB jurisdiction?

Of course we comply with a number of federal laws and regulations, including Title IX and many others. But when a federal law conflicts with the Constitution—as it does in this instance—we rely on the Constitution’s protection of our religious mission.