Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Sunday, June 5, 2011

Catholic Identity and the NLRB


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.


RJA sj


Araujo, Robert | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Catholic Identity and the NLRB:


Feed You can follow this conversation by subscribing to the comment feed for this post.

But then, The Catholic Church has always proclaimed the self evident truth that one cannot be autonomous and in communion, simultaneously.

Posted by: Nancy D. | Jun 5, 2011 9:02:01 AM

In my view the "future of Catholic higher education" is not jeopardized by an institution being forced to recognize the union rights of college adjunct teachers in a case where religion plays no part either in the qualifications for hiring or firing of such teachers or in the content of what is taught by those teachers.

Re Fr. Araujo's third observation - I'm not so sure. The decision does not seem to me to break new ground for the NLRB. It seems to me completely consistent with its own prior precedent (and, I believe, with the Supreme Court's decision in Catholic Bishops).

Posted by: Susan Stabile | Jun 5, 2011 12:51:07 PM

It seems that the NLRB and the university are both recognizing the same basic truth: any true academic institution isn't going to be "Catholic" in the same sense that a church is, because to be intellectually legitimate it must be open to views that contradict the enforced dogma of the church.

The university could, of course, make itself more exclusionary in order to claim the exemption, but it would be sacrificing its institutional integrity at the same time.

Posted by: Andrew MacKie-Mason | Jun 5, 2011 1:44:24 PM

Good Information... thank you for the information.

Posted by: California Lemon Law | Jun 6, 2011 4:20:12 AM

I was under the impression that Catholic social teaching strongly supports the unionization of workers as the route to those rights that Catholic social teaching believes are essential to the human dignity of working persons. I would appreciate an explanation of how the apparent opposition to unions displayed by Catholic educational institutions is consistent with this. That is, of course, if my understanding of Catholic social teaching is correct, which it may not be.

Posted by: Ellen Wertheimer | Jun 6, 2011 8:22:07 AM

I am grateful for the comments to this point. I thank you in particular, Ellen, for your recent comment. My concern is not with the ability of the adjunct faculty to seek a bargaining representative. Rather it is with a civil authority making a determination as to whether an institution is religious or not. I realize that whether an institution is religious or secular has a bearing on what properly falls within the competence of the civil authority. If the institution is secular, the civil law and authority may well have a role to play if the law upon which the authority relies is just and proper. But again, that is not the question which I am addressing. The issue that I am tackling is that a civil authority has determined what is and what is not religious. This then reaises the matter of the Constitutional infringement. Thanks again. RJA sj

Posted by: Robert John Araujo, S.J. | Jun 6, 2011 8:36:50 AM

Father Araujo, isn't having the civil authority determining what is and what is not religious -- for civil law purposes -- unavoidable? The civil law decider has a rule that says if something is religious, then treat it in X manner, and if it is not religious, then treat it in Y manner. But first, the civil law decider has to determine if that thing is religious. Again, it seems an unavoidable inquiry/decision to me. The way the civil law decider determines what is religious is, in part, to look and see how the organization itself describes itself. From your description of the decision, it seems the civil authority carefully considered how the organization portrayed itself, and what it considers itself to be.

Posted by: A reader | Jun 6, 2011 9:48:19 AM

Re Fr. Araujo's last comment, there are three possibilities: (1) the NLRA covers all entities that employ other people, with no exclusion for religious employers; (2) the Act has an exclusion that covers religious employers, making no effort to define the term and allowing anyone who claims to be a religious employer to take advantage of the exclusion, no questions asked; or (3) the Act has an exclusion for religious employers, containing a definition of who falls into that category.

If one thinks, as I do, that the second of those is too broad (not to mention completely not viable politically), then my question for Fr. Araujo is: how is it possible to avoid having the civil authority making some determination here? It seems to me one thing to argue that a statute has set up a bad definition of religious employer for purposes of an exemption from some statute (as, for example, I have done in criticizing how NY and California define religious employer for purposes of exemption from their statutes requiring contraception coverage), but quite another to suggest the law cannot decide who is exempt from its coverage.

Posted by: Susan Stabile | Jun 6, 2011 9:54:47 AM

How different is this from the IRS determining what is a religious organization? One cannot but think that is a matter of chickens coming home to roost. The desire for state funds is the origin of the changes in the Catholic, or even the religious nature, of a college. Is it not like St. Louis University which sold its soul for a football stadium? You cannot be mostly Catholic, anymore than you can be mostly pregnant.

Posted by: Gabriel Austin | Jun 6, 2011 10:13:10 AM

I think Prof(?) Stabile has it right: if religious organizations want a special exemption from the law then they need to accept the state determining what is and is not a religious organization.

By the way, I happen to think that the religious exemption here is silly and pointless, so I'd agree that the state shouldn't be determining the religious nature of employers. It should be treating all employers alike.

Posted by: Andrew MacKie-Mason | Jun 6, 2011 12:05:29 PM

Thank you, Andrew. On the one hand you argue that the state has the competence to determine if an institution is relgious or not. I suppose you mean that this determination is in accordance with the state's standards of what is and what is not religion, so this will exclude how the religious entity defines what is constitutive of its beliefs. I recall that Justice Brennan in his concurrence in the Presiding Bishop case had a view different from yours. However, you then claim that the state should not be making these determinations because there should be no exemption. There is a conflict in what you say is your view, but I would be grateful for an elaboration of what is your position. Thanks.

RJA sj

Posted by: Robert John Araujo, S.J. | Jun 6, 2011 12:15:29 PM

There's no conflict in what I said. There are two simple propositions:

(1) If (p1) one wants exemptions from state laws for religious institutions, then (q2) one must accept that the state will develop a test for determining what institutions are religious.

(2) If (p2) one does not want an exemption from this law for religious institutions, then (q2) one need not accept the state determining the religious nature of institutions with regard to this law.

These two propositions are not contradictory: they simply begin from different premises. Additionally, neither speaks to an amorphous concept of state competency, but only to the necessity of certain actions to reach certain results.

I happen to fall under (2). Your apparent view contradicts (1). You seem to want there to be an exemption without any standards governing the exemption: in other words, you want there to be no law at all.

Posted by: Andrew MacKie-Mason | Jun 6, 2011 2:51:29 PM

Since it is true that there is a direct correlation between Catholic Identity and being in communion with The Catholic Church, a Catholic University that does not recognize the authority of the local Bishop acting in communion with The Magisterium of The Catholic Church, would not be authentically Catholic.

Posted by: Nancy D. | Jun 6, 2011 9:17:55 PM

Given that a significant portion of American Catholics disagree with the Church's teachings on matters that I believe are considered within the teaching authority of the Church, it's not - as a matter of definition - true that "Catholic" means whatever the Pope says it means.

Posted by: Andrew MacKie-Mason | Jun 7, 2011 12:32:39 AM

I would like to thank those who offered comments to this entry I posted on Sunday morning. I will be closing comments now because I will be undergoing some hospitalization later today. If all goes well, I will then go on a brief lecture tour and will not return until June 17. During this period, it will be difficult, if not impossible to monitor comments and respond to them in a conscientious fashion. I am grateful for the understanding of all regarding this situation in which I find myself.
In light of these remarks, I would like to present a few concluding comments on this posting regarding Catholic identity and the relation between the Church and state. In doing so, I do not intend to offer a final or definitive commentary as I am confident the Mirror of Justice community will return to the issues involved with this entry in the future.
First of all, I thank my good friend Professor Susan Stabile for her thoughtful remarks. Oh her first point, it is relevant to point out—which I did not in my initial posting—that the full-time faculty have the right to be represented by a bargaining agent. This is presented in Footnote 13 of the Regional Director’s decision. Surely any institution, including a Catholic university, does not betray or adversely affect its identity where this occurs, i.e., some unit or units of the institution is represented by a bargaining agent. As I mentioned to another friend (Professor Ellen Wertheimer) it is not the question of having a representative that is the concern for me, it is, rather, the issue of the civil authority determining whether the institution is religious or not and how that decision is made if a contest regarding the nature of the institution emerges. In this regard, since 1979 the Faculty Affairs Committee of Saint Xavier University was certified as the collective bargaining representative of the full time faculty. So again for me, it is not an issue of having bargaining representatives within a Catholic institution; rather, it is who makes the decision and what information is taken stock of in making the decision. As the Regional Director stated, the question of significant risk of constitutional infringement is a grave one.
Regarding Susan’s second point about my “third observation,” my intention was to point out that the Regional Director’s decision is another wake-up call for Catholic institutions to evaluate their identity and what is needed to demonstrate that claims about it are real and substantive. As I stated in my original posting, the Regional Director appears to have put the ball in Saint Xavier’s court because he outlined some suggestions that the University and anyone else concerned about Catholic identity should consider. This brings me to Susan’s second set of comments. While the matter of exemptions/exclusions can be complex—complex because the civil authority ultimately decides what the statutes and regulations say and don’t say regarding exceptions and exemptions—I previously suggested an answer to Susan’s question: “how is it possible to avoid having the civil authority making some determination here”? In my suggestion in the original posting, I made reference to Justice Brennan’s concurrence in Presiding Bishop v. Amos. Like the Justice, I think it is far better for the entity that claims to be religious to present reasonable and convincing arguments why it is a church institution. It is not simply a matter of meeting the criteria for exceptions or exemptions. Rather, it is a matter of Constitutional infringement. Of course, the institution that claims to be Catholic has to stand by the arguments it makes about identity and demonstrate, with reason and fact, why it is Catholic.
In the case of many Catholic institutions today, they claim the moniker but have a hard time showing why Catholicism is at the soul of the institution. Fidelity to the Church and all that she stands for is vital. In the case of Saint Xavier’s, the presence of Catholicism and Catholic identity throughout the faculty and student body is not as strong as it should be as the school’s bylaws show. In particular, the Catholic intellectual heritage is apparently not a prominent feature of hiring and retaining faculty or recruiting students. I am sure this is of a concern to the president, who is a friend of mine, and to the Sisters of Mercy for whom I have much respect and admiration. So for me, the matter is not so much one of defining exemptions or exclusions under the civil law as it is for the institution to present with conviction evidence of why it is Catholic and why Catholicism is vital to its identity and raison d’être.
I am grateful for Gabriel Austin raising the point about Saint Louis University. In an appellate case, Saint Louis University v. Masonic Temple Association, the university there had this to say about its identity: “Saint Louis University is not owned by or in any way controlled by the Catholic Church, the Jesuit order, or any religious institution. While it identifies itself as Catholic, and its governing documents contain general aspirations to religious ideals, this does not mean that Saint Louis University is under the control of a ‘religious creed’.” I find this statement lamentable. It is certainly not a strong statement of Catholic identity. And surely such an admission is not conducive to maintaining Catholic identity, but then the decision to make this statement was an exercise of the free will of responsible persons at one institution. They do not speak for others who do or wish to claim Catholic identity.
This brings me to Andrew Mackie Mason’s last comment about Catholic identity and who has the right and the authority to assert this identity. I believe that Andrew takes the position that many persons can make the claim, not just the Pope, as he, Andrew, says. I know that elsewhere Andrew has discussed who can use the moniker Catholic, and one of the places he did was in the context of “Catholics for Choice.” This may mean for him that any person or any institution can claim to be “Catholic.” I am confining my remarks to institutions and groups of people. As the Mirror of Justice is a web log dedicated to the development of Catholic legal theory, the role of law is vital. One aspect of the law is that it is an institution where someone or something has the clear authority to develop and enforce norms and principles that fall within its competence. Certainly the civil authorities have some competence in this regard, but so do Catholics entrusted with canonical authority when it comes to claiming and defining Catholic identity. In the case of Frances Kissling and “Catholics for (a Free) Choice,” the United States Conference of Catholic Bishops, relying on the further authority of the Second Vatican Council, declared that “Catholics for Choice” is not a Catholic institution in spite of how it self-identifies. In the context of educational institutions, I believe that most schools which claim to be Catholic institutions sincerely mean to be Catholic. And that is why I concluded my original post by stating that the future of Catholic higher education is—and always will be—in the hands of those who work in this part of the vineyard. For the claim to succeed, it is up to them—to us—to demonstrate that we are Catholic in word and deed. A good place to begin this demonstration is in what we expect of ourselves and those with whom we join in the enterprise of education that claims the name Catholic.
Again, thanks to you all for a good and respectful discussion on this important topic. As I said earlier, I don’t think it will be the last.

RJA sj

Posted by: Robert John Araujo, S.J. | Jun 7, 2011 11:53:17 AM