Sunday, June 5, 2011
Last week, the Chicago Regional Director of the NLRB issued a decision in a case between Saint Xavier University of Chicago and some of its contract adjunct faculty who wish to elect a representative and organize a bargaining unit. The University relied on the precedents of University of Great Falls and Carroll College (earlier NLRB decisions) and the 1979 Supreme Court decision in NLRB v. Catholic Bishop of Chicago in arguing its exemption from the NLRB’s jurisdiction. The University has further argued that it is a religiously operated institution and thereby exempt from the National Labor Relations Act (the Act). The Regional Director’s May 26, 2011 decision is [HERE].
The Regional Director held that the University is not a church-operated institution and is therefore subject to the Act, so its contract employees may proceed with their election rights in accordance with the Act. In his findings, the Regional Director acknowledged the University’s long-time association with the Sisters of Mercy and the Archdiocese of Chicago. Moreover, he mentioned in his decision that the University is recognized as a Catholic institution by the Archdiocese. He also recognized that it is corporately linked with the Council for Mercy Higher Education (the CMHE) which holds responsibilities and reserved powers to govern the University; in addition, he found that the CMHE links the University to the Church. The bylaws of the University, which has several Mercy sisters as members of the Board of Trustees, acknowledge that the CMHE retains several significant powers including the authority to preserve the religious mission of the school. However, the Regional Director also identified some of the substantive powers of the entire Board of Trustees that could extend beyond those of the religious women on the board. The Regional Director also pointed out that the juridical documents of the University state that to the “extent possible”, a majority of the Board “should be Catholics committed to the Church.” But he noted that there was no other qualification or disqualification taking stock of belief, creed, race, gender, or residence to be a trustee.
While the Regional Director acknowledged various programs that enhance the Catholic identity and Mercy character of the school, he found that the University was “guided by” but not “governed by” Pope John Paul II’s Apostolic Constitution Ex Corde Ecclesiae. Still, the Regional Director acknowledged other substantive areas where the University has solidified its Catholic heritage.
It appears that the University’s requirements addressing faculty and student composition were important to the Regional Director in reaching his decision about the University’s legal identity. He found that the University does not examine or consider the religious beliefs of its students, faculty, or trustees. He fortified this finding with the passage from the University’s articles which state: “No religious, racial, color or ethnic test or particular religious profession shall ever be held as a requisite for admission to said colleges or university or to any department belonging thereto … or for election to any professorship, or any place of honor or emolument in … any of its departments or institutions of learning.” Furthermore, he found that there is no requirement imposed by the University for its faculty—including adjuncts—to “espouse or emphasize Catholicism in their teachings or imbue students with the tenets of the Catholic faith.” Although the University requires that all students must take two courses in religious studies, the courses can be about any religion—not just Catholicism.
The Regional Director also placed some emphasis on the testimony of two adjunct faculty members who stated that nothing in their offers of employment or contracts mention anything about the Mercy Sisters, Catholicism, God, or religion. One of these adjunct faculty stated that he did mention his own religious practice (Greek Orthodox) to his hiring department but was told by the department chair that his religion, religious beliefs, or religious orientation “did not matter.” The department head apparently stated to this adjunct professor that continued employment by adjunct faculty is concerned with student evaluations but not with religion.
A crucial question for the Regional Director was whether the application of the Act would constitute “a significant risk of constitutional infringement.” In assessing and deciding upon this issue, the fact that there may be some nexus with a religious body is not crucial in assessing whether there is or is not an infringement. What is crucial is whether the University’s mission is religious—are faculty required to conform to and teach Church teachings where relevant; are faculty and students required to engage in worship, especially of the faith with which the institution claims affiliation. The Regional Director further stated that he was applying the “substantial religious character” test based upon applicable legal precedents.
In doing so, he noted that the CMHE’s role in the operation of the University is not of the sort that would generate “a significant risk of constitutional infringement.” Moreover, he cited several factors to substantiate his conclusion. The first is that the University’s faculty are free to function without any religious requirements or restraints. Second, while the University may be “guided by” Ex Corde Ecclesiae, the academic freedom of the faculty is such that they are “unfettered with regard to imbuing or inculcating students and curriculum with Church doctrine or religion.” Third, it appears that the University would not discipline or fire any faculty member if he or she did not “hold to Catholic values.” In this context, it appears that religion and religious values play no role in faculty hiring, retention, or promotion. Finally, although the University’s mission statement refers to the Church and the Mercy heritage, it is evident that the core mission and objective of the University is “to educate men and women irrespective of their religious beliefs.”
Let me offer some preliminary conclusions about the Regional Director’s decision. First of all, he appears to place the impact of his decision back into the court of the CMHE by noting their ability to change the articles of incorporation, the bylaws, and the mission statement. In making such changes, they could amend the vital hiring and firing procedures in the future and presently alter the mission statement. Second, it will be important to monitor any further review of the Regional Director’s decision which the University may pursue. Third, I am certain that many institutions of higher learning which claim the moniker “Catholic” will assiduously study this decision and weigh its impact on their own institutions.
The future of Catholic higher education is in our hands. But then, it always was.