Labor Board Rejects Religious Exemption for Saint Xavier U. and Says Adjuncts Can Unionize

June 01, 2011

A regional official of the National Labor Relations Board has ruled that Saint Xavier University, a Roman Catholic institution in Illinois, is not sufficiently religious to fall outside that agency's jurisdiction, and has cleared the way for the institution's roughly 240 adjunct faculty members to hold a unionization vote.

In a ruling issued last week, Joseph A. Barker, the director of the NLRB's regional office for the Chicago area, held that Saint Xavier "is not a church-operated institution" under the terms of a key 1979 U.S. Supreme Court decision that defined what characteristics make an institution religious enough that any federal oversight of its labor relations would violate the First Amendment's clauses separating church and state.

He ordered the university to provide the leaders of the proposed union, the St. Xavier University Adjunct Faculty Organization, the names of all faculty members eligible to vote on forming a collective-bargaining unit connected with the National Education Association and its Illinois affiliate.

Mr. Barker's decision marks the second time this year that a regional director of the National Labor Relations Board has declared a Roman Catholic college to be too secular to fall outside the board's purview. In a January decision, now under appeal before the NLRB's main office in Washington, D.C., the board's regional director for New York made the same determination in connection with Manhattan College, an institution in Riverdale, N.Y., established by the De La Salle Christian Brothers. That decision cleared the way for adjuncts there to hold an election, but the ballots have been impounded until the dispute over the election's legality is resolved.

In both the Manhattan College ruling and last week's decision involving Saint Xavier University, which operates a main campus in Chicago and a satellite campus in Orland Park, Ill., the regional directors based their determinations mainly on the Supreme Court's 1979 ruling in National Labor Relations Board v. Catholic Bishop of Chicago. In that decision, the Supreme Court held that the NLRB cannot exercise jurisdiction over parochial schools that are focused on the propagation of religious faith because doing so would cause it to run afoul of the First Amendment's clauses barring the government from establishing religion or prohibiting its free exercise. That decision, which the NLRB applies to colleges on a case-by-case basis, opened the door for the NLRB to develop a test for determining whether educational institutions are of a "substantial religious character."

The regional directors handling the Manhattan College and Saint Xavier University cases both rejected the colleges' assertions that the NLRB should be bound by more recent decisions by the U.S. Court of Appeals for the District of Columbia Circuit establishing a higher threshold for the board's involvement in a religious college's affairs. The full National Labor Relations Board in Washington used similar logic last August in a case involving employees of a Catholic social service agency in southern Illinois.

A spokesman for Saint Xavier University, Robert C. Tenczar, declined Wednesday to say whether his institution planned to appeal the Chicago regional director's decision. The university had not attempted to block a similar unionization vote by its adjuncts in January 2010, but the organizers of that effort failed to muster a majority.

In a written statement explaining why Saint Xavier has fought its adjuncts' most recent effort to unionize, Christine M. Wiseman, the university's president, said, "Our rationale for pursuing this issue is that no institution cedes jurisdiction over important matters to a third party without raising legitimate constitutional concerns that have been recognized by the federal courts in a series of decisions on this same question."

Laurie M. Burgess, a Chicago lawyer who represented the Illinois Education Association before the NLRB's regional office, said in an interview Wednesday that she welcomed Mr. Barker's decision. She speculated that the spate of recent NLRB decisions asserting jurisdiction over Roman Catholic organizations are not the product of any shift in the board's stance, but a reflection of unions' greater confidence in taking disputes to board members appointed by the Obama administration. "With a receptive board, unions are taking up issues that they might not want to take up under other boards," she said.

Among the institutional attributes that Mr. Barker cited in holding Saint Xavier University to be secular enough to fall under the board's purview were the lack of any reference to religion in Xavier's articles of incorporation; the presence of only five members of its founding religious order, the Sisters of Mercy, among the 24 voting members on its Board of Trustees; its reliance on the Catholic Church for only a small portion of its funds; and its lack of any requirements that students take courses in Roman Catholicism.

"There is no evidence that the university would discipline or fire faculty if they did not hold to Catholic values," he wrote. "A faculty member's religious values, or lack thereof, play no role in their hiring or retention at the university and are not a subject of their evaluations" or judgments of their suitability for promotion. The university's mission, he said, is "to educate men and women irrespective of their religious beliefs."