Battling adjunct unions fails legal and moral tests

In his 2015 address to the Chicago Federation of Labor, Archbishop Blaise Cupich repeated St. John Paul II's claim that unions are "indispensable" for a just society. The archbishop eloquently underscored the role unions play in enabling workers to develop as human beings and fulfill their God-given duties to society. In Cupich's words, "Unions are important not simply for helping workers get more, but helping workers be more, to have a voice, a place to make a contribution to the good of the whole enterprise, to fellow workers and the whole of society."

Cupich also stated the church must practice what it preaches when it comes to workers' rights, which includes the right to unionize. However, he said, those rights must be balanced with the church's "appeals for respect for religious freedom" in ministering to the needy: the hungry, the homeless, the unborn, the sick, and immigrants.

In this regard, he mentioned that some employees of the archdiocese can and do join unions, but others in "ministerial positions" are "subject to a higher law" and may not be afforded that right. However, the archbishop also acknowledged, "Not every claim of religious freedom is valid and the law has to protect the basic rights of all."

Chicago presents important "test cases" for adjudicating which claims to religious freedom are valid. Three Catholic universities in Chicago contend the First Amendment entitles them to be exempt from National Labor Relations Board jurisdiction, thereby allowing them to disregard union elections by their adjunct faculty.

Several years ago, St. Xavier University contested a union election conducted by its adjuncts for this reason.

The administration at Loyola University Chicago recently maintained that NLRB jurisdiction over an adjunct union election violates the university's "right to define our own mission and to govern our institution in accordance with our values and beliefs, free from government entanglement."

DePaul University's president, Vincentian Fr. Dennis Holtschneider, also recently articulated the argument for freedom from NLRB jurisdiction based on a religious exemption in a lengthy article published Jan. 28 by the website Inside Higher Ed.

Other Catholic institutions, such as Manhattan College, Seattle University and Duquesne University, have also challenged the board's authority on religious grounds.

We do not know what lies in the hearts of decision-makers at these institutions. Perhaps they sincerely see NLRB oversight of a union election freely chosen by adjunct faculty as a threat to the religious freedom of their Catholic institutions. However, our understanding of the law, Catholic social teaching on workers' rights, and church doctrine on religious freedom convinces us this is not a valid exercise of religious liberty.

Regardless of their intentions, their actions resemble a fig leaf for the all-too-common practice of thwarting unionization among low-wage earners, even if they insist they have nothing against unions per se.

Working poor

In the United States, many adjunct faculty (an objectionable term for dedicated professors) rank among the working poor, given that the national median pay for a three-credit course is $2,700. According to the 2014 House Committee on Education and the Workforce report "The Just-in-Time Professor," many adjuncts earn $15,000-$20,000 annually. In other words, they live in or on the "edge of poverty," as the federal poverty line for a family of three is $19,530, or $23,550 for a family of four.

Other data reveals that 31 percent of part-time faculty live near or below the federal poverty line. One study reports that 25 percent of all part-time professors receive Medicaid and/or food stamps.

These earnings do not represent what Catholic social teaching considers a just wage, which must enable all workers to adequately attend to their own and their dependents' "material, social, cultural, and spiritual life" (Gaudium et Spes).

Furthermore, adjunct faculty generally do not have health and retirement benefits and essentially work as "temps" with no job security. Nationally, adjuncts now constitute 51 percent of professors at colleges and universities (with another 19 percent full-time contingent faculty).

The numbers at Catholic institutions appear to be similar. Thus, more than 150 Catholic scholars rightly declared in a March 2014 statement that adjunct professors "are the poor and vulnerable among us." These scholars, including eight previous presidents of the Catholic Theological Society of America, also called upon Catholic universities not to impede the right of adjunct faculty to unionize.

While some Catholic universities pay adjunct faculty more than the prevailing market rate, few can claim their compensation fully reflects Catholic social teaching. Not recognizing the right of adjunct faculty to unionize adds insult to injury. In addition, it is legally meritless, violates Catholic social teaching, and undermines the evangelizing mission of Catholic universities.

Legal dimensions

From the standpoint of the law, the universities' arguments fall flat for several reasons. For starters, almost all Catholic colleges and universities already subject themselves willingly to oversight via other governmental agencies. According to University of St. Thomas employment law professor Susan Stabile, "that they do so suggests that being subject to NLRB oversight would not impose a unique burden on their institutions. Accreditors already impose requirements on them as to faculty governance, academic freedom and other matters that relate to terms and conditions of employment."

Thus, pointing to NLRB involvement as an infringement on religious liberty appears to be a red herring.

In the case of union elections, the NLRB does not seek to impose labor practices that would force Catholic institutions to do something contrary to church teaching. Catholic teaching on the rights of workers often coheres with, and even goes beyond, the rights afforded workers in American labor law.

When a Catholic university abridges the right to unionize of its adjunct faculty, it violates its own tradition's teaching, not a heteronomous legal injunction imposed upon it by the government. The matter would be different if the NLRB wanted to stop Catholic universities from giving preference to Catholics in hiring, for example. But it does not.

The Second Vatican Council’s Declaration on Religious Freedom, Dignitatis Humanae, rightly claimed the freedom for the church to preach the Gospel. However, preaching the Gospel requires promoting justice and the human rights of all, as Pope Francis reiterated in 2013 in Evangelii Gaudium.

The right to unionize without "risk of reprisal" constitutes one of the "basic rights of the human person" according to the Pastoral Constitution on the Church in the Modern World, Gaudium et Spes. It is a logical fallacy (a non sequitur) to argue that the state compelling a Catholic institution to uphold its own teaching on the right to unionize violates its religious freedom.

The NLRB is not a rogue governmental agency "attempting to extend its authority over faith-based institutions, something Supreme Court and appellate court precedent has repeatedly rejected," as Holtschneider opined. The NLRB was established by the Wagner Act of 1935 to determine whether a majority of workers in an appropriate unit want to be represented or not by a union for purposes of collective bargaining. The NLRB does this by a secret ballot election.

In fulfilling its statutory mandate to assist workers, the NLRB has had to recognize the need to balance First Amendment interests against the rights of workers under the labor act. It has most recently done so with Pacific Lutheran University in 2014.

Holtschneider's reference to Supreme Court precedent pertains to NLRB v. Catholic Bishop of Chicago (1979). In that case, the Supreme Court held that Congress presumably did not intend the NLRB to assert jurisdiction over Catholic grade schools and high schools because there was too much potential for conflict with the church's First Amendment rights. This potential arose from the fact that the schools (which included a high school seminary) were "church-operated" and "religious authority necessarily pervades the school system."

To state what we think is obvious, the DePaul University of Holtschneider (and indeed most Catholic colleges) is not "church-operated" nor does "religious authority necessarily pervade" the institution. Thus, Catholic Bishop of Chicago, while instructive on the First Amendment, is not dispositive of a First Amendment challenge, as it may or may not apply to Catholic universities, which are generally separate nonprofit corporations no longer identical to the diocese or religious order that began them.

Two-step test

The NLRB's Pacific Lutheran University decision does not "require government functionaries to judge the manner in which we implement our faith in a university context," as Holtschneider contends. The NLRB adopted a two-step test that gives substantial deference to how a sectarian college defines itself.
 

• First, a university objecting to NLRB jurisdiction can show that it holds itself out "as providing a religious educational environment." A university may do this rather easily by its own documents, which the NLRB must accept at face value.
• Second, if this first test is met, then the university can show that "it holds out the petitioned-for faculty members themselves as creating or maintaining the college or university's religious educational environment, as demonstrated by its representations to current or potential students and faculty members and the community at large."

That's it. The NLRB is not free to take evidence on "the manner in which we implement our faith in a university context," as Holtschneider says.

Contrary to Holtschneider's additional claim that the test is not "working in practice," it is working in practice. At Carroll College, a college owned by the diocese of Helena, Mont., and whose documents permit dismissal of any faculty member for "continued serious disrespect or disregard for the Catholic character or mission of the College," a regional NLRB director applied the Pacific Lutheran University decision and refused to exercise jurisdiction over an election petition by faculty.

In the Loyola Chicago case, however, a regional director of the NLRB, on different facts under the same Pacific Lutheran University test, did take jurisdiction. The faculty then voted for a union. Loyola has expressed that it will negotiate with the union chosen by the faculty. However, it has also filed an objection to "the regional office's decision on our religious identity" with the national NLRB.

The NLRB has not "reasserted the 19th-century bias" against Catholicism that Holtschneider decries. The facts show simply that the NLRB is in the early stages of trying to balance the right of faculty under the Wagner Act to organize with the First Amendment's protection for religious freedom. To strive in this manner to balance such interests is neither anti-Catholic nor disrespectful of true freedom of religion. It is simply what the law requires.

The NLRB's Pacific Lutheran University decision should theoretically make it easier for many faculty members to unionize, as American Association of University Professors general counsel and Cornell professor of labor and employment law Risa Lieberwitz explains.

According to this new standard, exemptions from NLRB jurisdiction will not be granted on the basis of "generalized statements that faculty are expected to support the mission of the university." Rather, the faculty in question must be described in university communications to students, parents and faculty as doing specific things to contribute to the religious mission of the institution.

For example, they must "incorporate religion into their teaching or research" or agree to religious requirements in their contracts. If math, science, literature, psychology professors, etc., fulfill a role that does not essentially look different from the role they would play at a secular institution, they are legally entitled to form unions under the National Labor Relations Act.

In our judgment, the vast majority of professors at Catholic universities do not perform "ministerial functions," the criteria used by Cupich to designate those workers who do not come under the jurisdiction of U.S. labor law, but "higher law."

It is hard to argue that even Catholic theologians -- let alone math or literature professors -- are ministers in the eyes of the church. According to the U.S. Catholic Conference of Bishops’ Guidelines Concerning the Academic Mandatum, "Theologians who have received a mandatum are not catechists; they teach in their own name in virtue of their baptism and their academic and professional competence, not in the name of the Bishop or of the Church's magisterium." They do not receive an "appointment, authorization, delegation, or approbation of one's teaching by church authorities."

Tellingly, Georgetown University allowed for an NLRB-supervised union election of its adjuncts in 2013. Not only did the administration there fail to see the election as a threat to the university's religious freedom, it explicitly stated that the adjuncts had the right to unionize in accordance with Georgetown's just employment policy.

At St. Mary's College of California, President James Donahue (a Catholic ethicist by training) contended in a 2014 letter, “As a Catholic College in the Lasallian tradition of the Christian Brothers, we take seriously our commitment to principles of social justice and the dignity of all persons. For this reason, it is my firm belief that the decision to unionize or not rests entirely with our contingent faculty and is theirs alone to make as they consider what is best for themselves and their families."

St. Mary's did not oppose NLRB jurisdiction as a violation of its religious liberty. Le Moyne College, St. Francis College and St. Michael's College have also permitted NLRB-certified union elections.

Alternatives

Nonetheless, if some university administrators still harbor concerns about governmental involvement, they can simply allow a free and fair union election to take place among the workers without NLRB involvement. As David Gregory, Dorothy Day Professor of Labor Law at St. John's University, has discussed, unions prefer such "card check" elections precisely because employers can stall NLRB elections endlessly.

Furthermore, workers are often harassed and/or fired during a protracted process. In "card check" elections, the employer and the union designate a labor arbitrator or respected community leader to determine whether a majority of workers signed union authorization cards. If so, the employer recognizes the union and commences collective bargaining with it. In recent years, most union elections have proceeded in this fashion.

Yet another alternative might be employed if fear of government entanglement in the universities' mission persists. Catholic universities and colleges in this country, acting through bodies such as the Association of Catholic Colleges and Universities or the Association of Jesuit Colleges and Universities, could join with labor to create a voluntary, uniform and truly independent system for supervising elections and conducting collective bargaining within such institutions.

The result might be something like a Catholic Labor Board for Higher Education. Such an alternative would obviate the religious liberty concerns some Catholic colleges and universities have raised, while also affording faculty their rights under Catholic social teaching. Certainly, these institutions may encounter complexities, but until now, these Catholic colleges and universities have claimed they endorse such rights, while actively opposing their employees' right to an NLRB union election without offering any alternative.

There is a moral burden on these institutions to explore some alternative if their objection to NLRB jurisdiction on the basis of religious freedom is genuine.

The U.S. bishops' 1986 pastoral letter, "Economic Justice for All," called on labor and management to find new, fruitful methods of cooperation. Certainly, those who claim to be Catholic should be considering such an alternative if they want to be believed when they say they accept Catholic social teaching concerning the right of their faculty to organize and bargain. Indeed, such an alternative might be a model to this nation, where so many employers strive mightily to deprive workers of their rights under the labor act.

The legal argument that Catholic universities are using to assert their right to religious freedom may come back to haunt them. Holtschneider, for example, maintains, "Religion is on the table in Catholic colleges and universities. ... Almost any topic can be taught in a pervasively religious way, if the instructor designs the course with religious objectives and values in mind." (He does not say whether DePaul is such a place.)

Contrast Holtschneider's statement with what the Supreme Court said in Tilton v. Richardson (1971), when it found eligibility for federal funds under the Higher Education Facilities Act for certain sectarian universities, one of which was Fairfield: "In short, the evidence shows institutions with admittedly religious functions but whose predominant higher education mission is to provide their students with a secular education."

The decision was a close 5-4 victory for the universities. If Catholic universities want to remain eligible for substantial federal funding, which pays for student financial aid, among other things, they might want to eschew the argument that they meet federal standards to be deemed an exclusively religious institution in the eyes of the law.

In short, we believe most Catholic universities face steep legal obstacles to claiming a religious exemption from NLRB jurisdiction.

Nonetheless, Catholic universities can essentially defeat the adjuncts' unionization drives by using their disproportionate power and resources to tie the issue up through appeals and in the courts, as Duquesne and Manhattan College have done for years.

Rather than hiding behind legal stratagems, Catholic universities should take the moral high road. They should follow the protocol developed by the U.S. Conference of Catholic Bishops in "Respecting the Just Rights of Workers." These guidelines encourage both sides to find a mutually acceptable "fair and expeditious process" to avoid prolonged legal challenges and to determine if workers have chosen a union to represent them. The bishops clarify that management always must respect the workers' decision and their reasons for it.

Theology and ethics

According to Catholic teaching, if anyone's rights are being violated -- including the right to religious freedom -- it is that of adjunct faculty members. The church's teaching, summarized in the Compendium of the Social Doctrine of the Church, calls people to form unions in order to promote the rights and dignity of all workers. Forming unions -- an "indispensable element of social life" in the words of John Paul II in 1981's Laborem Exercens -- is seen as a vital contribution to the common good.

By deterring unionization efforts, universities violate adjuncts' ability to live out Catholic teaching regarding their rights and duties to the common good, which arise from natural law. As Catholic Scholars for Worker Justice has argued, "Employers may not invoke even a legally determined civil law in order to deny a right rooted in the natural law." Denying the right to unionize violates "natural law, which is rooted in divine law."

Thus, these universities are not only usurping their employees' right to unionize, but also infringing their right to religious freedom. Their actions conflict with the church's teaching in Dignitatis Humanae, which states that the exercise of religious freedom is "bound by the moral law to have respect both for the rights of others and for their own duties toward others and for the common welfare of all." The church teaches that "the Christian faithful, in common with all other men, possess the civil right not to be hindered in leading their lives in accordance with their consciences."

Pope Benedict XVI rightly stated that unions are more necessary than ever. The age of neoliberal globalization has created a "race to the bottom" in search of cheap labor. In 2009’s Caritas in Veritate, Benedict maintained that "grave danger to the rights of workers" exists in underdeveloped, emerging and advanced capitalist societies, in part due to efforts to hamper unions.

In this situation, these universities want to strip workers of what John Paul II deemed a "mouthpiece in the struggle for social justice" in his great labor encyclical Laborem Exercens. This treatment conflicts with the church's preferential option for the poor, which calls on all people to work with the poor toward the realization of their rights.

Even if the courts decide that the NLRB is wrong and Catholic universities have a First Amendment right to a religious exemption from our nation's labor laws, exercising this right in this case is deeply problematic from the standpoint of Catholic theology.

It may be troubling that the NLRB does not understand that faculty members, or at least some, contribute to the religious mission of a Catholic university. However, that misunderstanding alone does not in any way hinder the university from pursuing its mission.

Conversely, for a Catholic institution to exercise a legal right to religious liberty while simultaneously denying the rights of workers contradicts our tradition’s theology of the cross. If a Catholic institution hires an expensive law firm to defeat beleaguered part-time professors, this constitutes a raw exercise of power. Sadly, it eschews the understanding of power Christ revealed to us on the cross.

In the cross and Resurrection, Christ demonstrated that good will ultimately triumph over evil but in this life we must be willing to renounce worldly power for the sake of his kingdom. In Christ's renunciation of force and acceptance of his crucifixion, he showed us the way to real power: love and sacrifice.

As Catholic ethicist Lisa Sowle Cahill contends, in the light of the paschal mystery, we must be "willing to make sacrifices and even to suffer ourselves for others, especially the powerless."

Therefore, a Catholic university should be willing to renounce a legal right -- if one exists -- to exert power over adjunct faculty to stop their unionization. Long ago, St. Paul reminded wealthy Christians in Corinth not to wield their power over weaker members of the community by taking them to court:

I say this to shame you. Is it possible that there is nobody among you wise enough to judge a dispute between believers? But instead, one brother takes another to court -- and this in front of unbelievers! The very fact that you have lawsuits among you means you have been completely defeated already. Why not rather be wronged? Why not rather be cheated? Instead, you yourselves cheat and do wrong, and you do this to your brothers and sisters" [1 Corinthians 6:5-11].

To reiterate, the NLRB is not asking these institutions to renounce the right to religious liberty and cooperate in morally illicit evil according to the Catholic tradition. Rather, they should renounce a putative First Amendment right granted in order to respect the natural law right to unionize.

Moreover, as canon lawyer Fr. Sinclair Oubre contends, even if civil law exempts Catholic institutions from the NLRB jurisdiction, they have a moral obligation to uphold the right to form associations such as unions in accordance with the church's social teaching and Canon 215 of the Code of Canon Law. This is why the bishops stated in "Economic Justice for All" that all church institutions must "fully recognize the rights of employees to organize and bargain collectively within the institution through whatever organization they freely choose."

Catholic credibility

According to John Paul II's 1990 apostolic constitution Ex Corde Ecclesiae, Catholic universities are called to be "a living institutional witness to Christ and his message." They must do so by challenging secular norms that are antithetical to the Gospel. Being "animated by the spirit of Christ," Catholic universities must be also characterized by "mutual respect, sincere dialogue, and the protection of the rights of individuals."

Asserting the right to religious freedom without proposing an alternative way for adjuncts to unionize forsakes this responsibility and tarnishes the church's witness to the Gospel. As John Paul acknowledged in Centesimus Annus in 1991, "The Church is aware that her social message will gain credibility more immediately from the witness of actions than as a result of its internal logic and consistency."

What message do Catholic institutions convey to their students and broader society about the relevance of Catholic social teaching to real-world problems? Given Catholic doctrine on the right to unionize, using legal recourse that prevents adjunct unions may cause scandal among the faithful.

Leading Catholic moral theologians Fr. Thomas Kopfensteiner and Jesuit Fr. James F. Keenan maintain that scandal may arise when Catholic institutions cannot plausibly explain to believers how their actions conform to the teaching of the tradition. In our judgment, we are dealing with such a case.

The average Catholic will likely balk at the idea that John Paul II insisted on allowing Vatican lay employees to unionize in 1993 while administrators at U.S. Catholic universities do otherwise.

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. As Peter Steinfels points out in a 2010 article in Commonweal, disaffected Catholics often cite "hypocrisy" and "other moral and spiritual failures of church leaders and other Catholics" as reasons for abandoning the church.

As students begin to increasingly realize that grossly unjust wages of many adjuncts and the prevention of their unionization contradicts Catholic doctrine, they will inevitably recoil from the mission of our colleges and universities. As Jesuit Fr. Rick Malloy of Scranton University has contended, if we fail to model the values of the Gospel, "we will be subtly communicating to our students that it makes more sense to 'Look out for Number One,' 'Grab All the Gusto You Can' and forget the poor and oppressed of our world."

Catholic institutions of higher learning cannot successfully pursue their mission without practicing what they teach. As their mission statements and Ex Corde Ecclesiae declare, Catholic colleges and universities seek to shape the minds and hearts of students so they can contribute to creating a better world. If they are to have this kind of transformative effect, modeling the ideals of the Catholic social tradition is even more important than teaching them in the classroom.

In the words of the late Christian ethicist William Spohn, "We learn that a wise, compassionate, and committed life is possible from the living witnesses whom we know. The ideals that guide conscience do not reside in the starry heavens but in actual people we admire."

It should be possible to insist on a Catholic university as both a true university and as a place where the Catholic imagination is "perceptibly present and effectively operative," as the Land O’ Lakes Statement put it in 1967.

This goal should not require jeopardizing federal funds by exaggerating a claim to religious freedom that has a union-busting effect and potentially harms the faith and moral formation of our students.

[Gerald J. Beyer is associate professor of Christian ethics at Villanova University. This piece draws on his article "Labor Unions, Adjuncts, and the Mission and Identity of Catholic Universities," Horizons, Vol. 42, No. 1 (2015). Donald C. Carroll is president of the Law Offices of Carroll & Scully Inc. and adjunct professor of law at the University of San Francisco. He is also emeritus trustee of Notre Dame de Namur University.]