In an effort to minimize the costs of salary and benefits for full-time tenure-track faculty, many colleges and universities make heavy use of adjuncts. Although adjunct professors in law schools tend to be practicing lawyers or judges with other full-time employment, adjuncts in undergraduate institutions are typically individuals who would prefer full- time academic appointments, but instead are hired on an adjunct basis to teach five or six (or more) courses a year with little pay, no benefits and no job security. Not surprisingly, this has led to efforts by adjuncts at a number of institutions to unionize; unionization generally means higher pay, greater job security and protection from abusive employer behavior.
Federal labor law (the National Labor Relations Act) gives employees the right to unionize and to bargain collectively. It also gives employees and their representatives the ability to file unfair labor practices charges with the National Labor Relations Board (the NLRB or the Board) when an employer unlawfully tries to interfere with unionization efforts or refuses to bargain with employees and their representatives.
Should federal labor law cover religious colleges and universities, allowing the NLRB to exercise jurisdiction over such institutions? That is the issue I address in an article that will be forthcoming in the Pepperdine Law Review, some of the ideas in which I share here.
The NLRB’s Current Approach to the Question
The NLRB currently determines whether to exercise jurisdiction over efforts to organize at a religious college or university by examining whether the institution has a “substantial religious character,” in the absence of which it will exercise jurisdiction. As evidenced by two recent decisions by NLRB regional directors in cases involving efforts by adjunct faculty to form unions – one involving St. Xavier College1 and one involving Manhattan College2 – both of which are currently on appeal to the full Board, the substantial religious character test involves the Board in an improper inquiry into matters of religion and belief.
The Board’s inquiry, which involves consideration of factors such as the involvement of the religious administration in the daily operation of the school and the degree to which the school has a religious mission and curriculum, essentially boils down to the question of whether the school is sufficiently religious. The decisions in St. Xavier College and Manhattan College are illustrative. In both cases, the regional directors rejected the claim that the Board lacked jurisdiction and ordered that union elections be held. Both decisions contain extensive discussion and analysis of the schools’ Catholic identity and history, mission and purpose, hiring practices and governance. In Manhattan College, the NLRB regional director determined that the fact that Manhattan College did not impose a requirement that faculty or students be Catholic, or require a religious loyalty oath or attendance at religious services or courses in Catholic theology, meant it lacked a substantial religious character.
In St. Xavier, among the factors considered important by the regional director was the fact that faculty are not required to imbue or indoctrinate students and curriculum with Church doctrine or religion. This approach has “the NLRB trolling through the beliefs of the University, making determinations about its religious mission, and that mission’s centrality to the ‘primary purpose’ of the University.” Underlying the NLRB approach are assumptions – its own assumptions – about what it means to be a religious entity and what it means to provide a religious university education. The problem is that the NLRB’s belief that a university is not religious if propagation of a religious faith is not its primary purpose, if students and faculty are not required to engage in worship or if the school welcome people of other faiths, misperceives that nature of Catholic higher education, central to which are dialogue and engagement with the world. That Catholic colleges and universities hire and teach people of other faiths, does not make them not Catholic or not religious.
The intrusiveness of the substantial religious character test led the D.C. Circuit to establish an alternate test for deter- mining whether religious colleges and universities should be exempt from the requirements of the NLRA. The test, established in University of Great Falls v. NLRB,4 has the virtue of being simple and nonintrusive, asking only whether an institution holds itself out to the public as a religious institution, is nonprofit and is religiously affiliated. As a practical matter, the Great Falls test essentially says that religiously affiliated institutions of higher education are always exempt from the NLRA’s collective-bargaining requirements.
The dispute over the respective merits and faults of the current NLRB and the Great Falls approaches, which will be addressed by the Board when it decides the appeals in St. Xavier College and Manhattan College, fails to directly address the crucial question of whether the assertion of jurisdiction by the NLRB over religious colleges and universities, and the resulting duty on the part of such institutions to collectively bargain with their employees pursuant to federal law, would present a substantial risk of excessive government entanglement with religion.
Concerns About First Amendment Implications of NLRB Oversight Are Overstated
In NLRB v. Catholic Bishop of Chicago,5 the Supreme Court expressed concerns that NLRB oversight over collective bar- gaining in parochial schools could create conflicts between the clergy who administer the schools and the Board, and that resolution of charges of unfair labor practices could require the Board to inquire into religious matters.
Even as to parochial schools, there is no unanimity on the question whether subjecting religious educational institutions to laws regulating collective bargaining creates a risk of excessive entanglement; many courts addressing the application of state collective bargaining laws to religious educational institutions have concluded it does not. And religious colleges and universities, of course, are very different from parochial schools, whose mission it is to imbue and indoctrinate students into the tenets of a faith.
In evaluating the risks of NLRB oversight of the collective bargaining process in religious colleges and universities, it is noteworthy that such institutions already voluntarily subject themselves to secular oversight and regulation over matters relating to terms and conditions of employment by virtue of seeking accreditation. For example, virtually all Catholic colleges and universities seek and obtain accreditation by secular regional accreditors, rather than seeking accreditation by religious accreditors. Among the 231 institutions that seek accreditation only by a religious agency, only four are Catholic institutions, and those four are seminary schools accredited by the Association of Theological Schools.
Thus, virtually all Catholic institutions choose regional accreditation, either in addition to or in lieu of accreditation by religious agencies, voluntarily subjecting themselves to the oversight of regional accreditors. Such accreditors impose requirements as to faculty governance, academic freedom and other matters that relate to terms and conditions of employment.
The question is whether NLRB oversight over the collective-bargaining process would add any additional intrusion that religious colleges and universities don’t already voluntarily subject themselves to by virtue of accreditation requirements (a question not asked by the Board’s current focus on the religious character of the institution). There are several reasons to think subjecting religious colleges and universities to the jurisdiction of the NLRB would not involve additional intrusion of the type that would create a constitutional concern.
First, the imposition of NLRA collective-bargaining requirements is not likely to create entanglement with a school’s religious mission. Although the NLRB can order collective bargaining over all “mandatory subjects” of collective bargaining – which includes wages, hours and other terms and conditions of employment – even in the secular context, the Supreme Court has made clear that the Board cannot require employers to bargain over every decision that directly affects the employment relationship, and decisions involving the application of state labor laws to religious schools (generally high schools, where one would expect more likelihood of conflict than in a university) suggest courts have managed to exclude religious matters from the scope of mandatory subjects of bargaining.
More importantly, even with respect to mandatory subjects, federal law requires only that parties negotiate in good faith; the NLRB cannot compel either party to make any particular concession or agree to a particular term. The ultimate decision whether to make a concession or agree to a proposal remains in the hands of the religious college or university.
Second, the dispute over NLRB jurisdiction over religious colleges and universities generally involves adjunct faculty, with respect to whom there is less likely to be an entanglement issue. St. Xavier College is instructive. Neither the offer nor the contract of adjunct faculty, nor the student evaluations which formed the primary basis of evaluating the adjuncts, made any mention of religion at all. Nor did religion ever form any part of the evaluation of the adjuncts; adjuncts could not be dismissed for acting contrary to Church teachings and Church officials had no firing authority over them. Similarly, in Manhattan College, adjunct faculty were hired based on academic qualifications to fulfill academic obligations and no part of their job involved propagating religious faith. Given these facts, it is difficult to imagine how either the bargaining over the terms and conditions of adjunct employment – the traditional adjunct issues are better pay and benefits, and job security – or the resolution of any unfair labor charge advanced by such faculty could involve wading into impermissible waters.
Third, the Supreme Court’s concern in Catholic Bishops that the inquiry that would be required where the NLRB was investigating an unfair labor practice charge could lead to excessive entanglement is misplaced. Investigating unfair labor practices could require the Board to make a factual determination whether the complained-of practice, for example, discharge of a faculty member, was motivated by an illegal purpose, rather than a protected purpose. But courts and agencies engage in such factual determinations of motive all of the time and doing so does not require adju- dicating question of religious doctrine. It is true that the Board might have to evaluate the sincerity of an asserted religious belief, but that is an inquiry courts often have to make in free exercise cases.
Having said all of that, it is clear that there are some situations where entanglement is more likely than others. First, just as there is a difference between parochial elementary and high schools and religious colleges and universities, there is a difference between an ordinary religiously affiliated college or university and a seminary, the latter of which is designed to educate and prepare students for ordination to the priest- hood or other ministerial position. Faculty in a seminary are much closer to parochial elementary and secondary schools in terms of their role in inculcating students with religious doctrine and serving as religious models for their students, meaning a far greater potential for entanglement than in the case of other religious colleges and universities. In such cases, the Board should refrain from exercising jurisdiction.
Second, one can imagine greater possibility for entangle- ment in the case of full-time rather than adjunct faculty. Although the issue of full-time faculty unionization of religious colleges and universities does not arise frequently, because such faculty are often considered to be managerial and therefore excluded from the protection of the NLRA, there have been instances where the NLRB has found that university professors lack the degree of autonomy necessary to be considered managerial. In situations where full-time faculty are determined to be non-managerial employees, there is a greater likelihood of entanglement. I say “greater likelihood,” but even there, there is no guarantee of a con- stitutional problem. Despite St. Xavier’s opposition to its adjunct faculty organizing, “the University’s full time faculty were organized under an NLRB election 20 years ago, and the University has continued to recognize and bargain with that union without experiencing any ‘entanglement’ issues through to the current date.”6
Foreclosure of an Alternative Vision for Employer-Employee Relations
Even absent any danger of entanglement, one might still argue that religious colleges and universities should have the freedom to pursue an alternative vision for employer-employee relations. Kathleen Brady has argued that because the NLRA “presumes and perpetuates an adversarial relationship between workers and management, [whereas] Catholic teaching encourages relations that are more cooperative and collaborative,” requiring Catholic colleges to comply with the NLRA regime of collective bargaining would require Catholic institutions “to channel their employment relations into patterns of behavior that are deeply at odds with the Church’s basic vision for social life.”7
For Brady, the ability of the Church to advance an alternative vision for social life – a vision built on love and mutual concern rather than on self-interest – is crucial. Religious organizations, in her view, offer a prophetic voice that “can push the larger community to re-evaluate social and legal norms in light of new visions” that “can transform existing national values in progressive directions unimagined by prevailing orthodoxies.”8 In the area of labor relations, that means a more cooperative model of collective bargaining rather than the adversarial model of the NLRA.
The problem is that Catholic colleges and universities have not modeled the vision Brady offers. Those seeking unionization have done so because, not only have Catholic colleges and universities not offered a cooperative model of collective bargaining, but they appear to treat their employees no more lovingly than do secular institutions of higher learning. Six years after the Supreme Court’s deci- sion in Catholic Bishop, the United States Bishops issued their pastoral letter, Economic Justice for All, which recognized the rights of workers of church institutions to organize and bargain collectively. Twenty-eight years later, in their actual labor relations, Catholic universities look no different than do secular universities.
That it has not done so is troubling. How effective can Catholic Social Teaching be as a guide to the behavior of others if the Catholic entities themselves do not practice what the Church teaches about the rights of workers? At best, Brady has a good argument for the NLRB to refrain from stepping into a situation where a Catholic col- lege or university has already taken steps to set up an alter- native collective-bargaining regime. To forego the aims of the NLRA where an institution shows no signs of instating such an alternative and its treatment of its employees is such that employees seek the protection of federal labor laws seems to ask too much.
Religious colleges and universities should be free to carry out their religious missions without undue interference by the government. However, the mere fact that they are religious should not automatically shield them from NLRB oversight over attempts by adjuncts to unionize.
Author: Susan J. Stabile is the Robert and Marion Short Distinguished Chair in Law at the School of Law. She is a Fellow at the Holloran Center for Ethical Leadership, an Affiliate Senior Fellow at St. John’s University Vincentian Center for Church and Society, and a Research Fellow at New York University School of Law, Center for Labor and Employment Law.
NOTES
1 St. Xavier University, Regional Director’s Decision and Direction of Election (May 26, 2011), available at https://nlrb.gov/
case/13-RC-022025.
2 Manhattan College, Regional Director’s Decision and Direction of Election (Jan. 10, 2011), available at https://nlrb.gov/
case/02-RC-023543.
3 University of Great Falls, 278 F.3d 1335, 1342 (D.C. Cir. 2002)
4 278 F.3d 1335 (D.C. Cir. 2002).
5 440 U.S. 490 (1979).
6 St. Xavier, Petitioner’s Brief in Support of Regional Director’s
Decision, filed Sept. 14, 2011, at p.3.
7 Kathleen A. Brady, Religions Organizations and Mandatory Collective Bargaining Under Federal and State Labor Laws: Freedom From and Freedom For, 49 Vill. l. ReV. 77, 80 (2004).
8 Id. at 81.
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