May 5, 2017
By Neil Cosgrove

The National Labor Relations Board (NLRB) has, once again, ruled against the Duquesne University administration, telling it to cease nearly five years of stonewalling and begin collective bargaining with its adjunct faculty. Predictably, Duquesne’s President Ken Gormley has rejected the NLRB’s ruling and plans to challenge it in court.

Perhaps confident that their adjunct faculty would reject unionization, Duquesne’s administration did not seek to prevent a NLRB sanctioned organizing vote in 2012, but when those faculty did overwhelmingly choose to form a union, the university administration (then under President Charles Dougherty) quickly changed course and began the “legal maneuvering,” as United Steel Workers (USW) President Leo Gerard puts it, that has lasted to this day.

Duquesne’s administration has offered up specific arguments for their position, none of which are very convincing when held up to close scrutiny.

President Gormley insists that Duquesne, as a “faith-based” university, is exempt via judicial precedent from NLRB jurisdiction. However, the USW, with which the adjunct faculty union is affiliated, points out that the school’s original position was that the NLRB was the best sanctioning body for the unionizing vote. And the NLRB itself observes that, according to the Pittsburgh Post-Gazette,“it first asserted jurisdiction over Duquesne in 1982 and that the school did not challenge the agency with regard to other unions on campus.”

In addition, the union has frequently offered to bargain outside the NLRB framework.  Duquesne’s administration has consistently rejected such offers. Robin Sowards, a USW organizer and researcher, says the administration most recently told the faculty “they would not engage in any kind of bargaining whatsoever with the part-time faculty until the jurisdictional question is resolved in their favor.”

The judicial precedent to which Gormley refers, most specifically, is a narrow 1979 Supreme Court ruling that exempted teachers in “parochial schools” from coverage by the 1935 National Labor Relations Act. But the Catholic periodical America has challenged the conclusion that Catholic universities are “parochial” because their mission is to “permit a level of free inquiry not suitable to elementary or secondary education.” Moreover, there are many instances in which American parish and diocesan schools have chosen to bargain with faculty unions outside NLRB jurisdiction, including the Pittsburgh Diocese, currently operating under a five-year contract with lay teachers in eight high schools.

More broadly, President Gormley, and President Dougherty before him, have claimed Duquesne’s “Catholic mission in the Spiritan tradition” would be threatened by collective bargaining with its part-time and temporary faculty. These arguments are very similar to those made by administrations for two Jesuit institutions, Seattle University and St. Xavier University in Chicago, when they also challenged NLRB rulings.

And the NLRB has dealt with these challenges in similar ways. In August, 2016 the Board ruled the Seattle and St. Xavier administrations must accept the organizing votes of their adjunct faculty, while theology, religious studies and ministry faculty “should be excluded from union eligibility.” In April 2017 the NLRB told Duquesne’s administrators they could exclude theology instructors from the adjunct faculty with whom they must bargain.

As for Duquesne’s supposedly threatened spiritual beliefs, American bishops pointed emphatically to the church’s social teaching in their 1986 pastoral letter entitled “Economic Justice for All.” “All church institutions,” wrote the bishops, “must fully recognize the rights of employees to organize and bargain collectively with the institution through whatever association or organization they freely choose.” Sowards wonders why Duquesne’s administration cannot agree with those administrations of Catholic universities that “have voluntarily recognized their part-time faculty’s union, including Georgetown, Dominican, and Trinity Washington universities, St. Mary’s, St. Francis, and St. Michael’s colleges, and the University of San Francisco.”

Last October Seattle President Stephen Sundborg refused, like Gormley, to bargain with the adjuncts’ union, saying it was a matter of religious freedom and that the case could go to the Supreme Court. Will Gormley join forces with Sundborg in their appeals to the court? According to Dahlia Lithwick in Slate, the Supreme Court appeared to say in the Hobby Lobby case that “what believers assert about their faith must not be questioned or even assessed. Religious dissenters who seek to be exempted from neutral and generally applicable laws are given the benefit of the doubt, even when others are harmed.”

The question confronting judges in the Seattle University and Duquesne University cases vs. the NLRB will involve which faith assertions should be most privileged, those of a couple of union-resistant university administrations or that of the American Catholic bishops speaking in concert, of numerous other Catholic universities, and of Catholic bishops and school administrators who have freely bargained with unionized teachers.

One wonders what can turn around the Duquesne administration on this issue. Will it be alumni who decide to stop writing the university checks? Or students who choose to attend other, more enlightened institutions? Or other unions, along with social justice organizations, that demonstrate ongoing and vociferous solidarity with the adjunct faculty members at Duquesne?

Neil Cosgrove is a member of the NewPeople editorial collective and is a member of the TMC board.