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Beyond ‘Yeshiva’: NLRB Tackles Both Church and State

You don’t know the name Elbert F. Tellem, but you will. Just last week, as the acting director of National Labor Relations Board (NLRB) District 2, Tellem issued a potentially historic decision green-lighting contingent-faculty unionization at Catholic-affiliated Manhattan College. In the process, he threaded his way through some of the most dishonest law in the country, throwing the NLRB’s support behind the human rights of faculty serving contingently at many religiously affiliated institutions.

This is the front lines of academic labor struggle, pitting the moral force of the NLRB against a conservative, reactionary federal court that refuses to enforce its rulings and the arrogant hypocrisy of wealthy, influential religiously affiliated administrations.

Legal Fictions: Great Falls

The terrain of this struggle is far beyond the Yeshiva decision, which applies only to the minority of tenurable faculty (on the basis of the specious claim that they are managerial employees). Since three-quarters of today’s faculty are graduate students or lecturers on casual appointment, they can hardly be described as managerial, and can’t be denied bargaining rights by way of Yeshiva.

Instead, today, private institutions with a religious affiliation rely on  the claim that employees at “religious institutions” should be sweepingly excluded from National Labor Relations Act (NLRA) protections. (As if being forced to bargain collectively with groundskeepers, secretaries, and writing instructors might interfere with their “religious liberty,” an argument that could be made with the same merit about obeying traffic laws.)

While the NLRB has consistently distinguished between institutions with a substantial religious character and those with a religious affiliation, a 2002 D.C. Circuit Court opinion involving the University of Great Falls, a small Montana institution, radically undermined the Board’s authority, substituting a very loose religious-exemption test for the NLRB’s stricter standard.

Under Great Falls, courts may compel the NLRB to accept at face value the claims to a religious exemption of any institution that “presents itself to the public” as a religious institution.

Denying NLRB the power to distinguish between real and false claims to the exemption is a transparent assault on long-established employee rights and protections. Under the Great Falls ruling, essentially, any employer that claims the exemption may have it.

And unlike Yeshiva, the ruling applies comprehensively—to part-time faculty, students, and non-teaching staff.

This sweeping and radical new barrier to organizing came into being in much the same way that Yeshiva did, with the determination of a conservative activist Circuit Court judge. Backed by Jesse Helms and appointed by Ronald Reagan to fill the seat vacated by Antonin Scalia’s elevation to the Supreme Court, and at this writing the chief justice of the D.C. Circuit, David Sentelle has been described by The New York Times as “one of the federal judiciary’s most extreme conservatives.”*

Sentelle’s vote was instrumental in overturning the convictions of Oliver North and John Poindexter. He replaced the moderate Robert Fiske with the right-wing ideologue Kenneth Starr as independent counsel in the Whitewater investigation. A long-term Republican party operative, Sentelle, even four years after his appointment to the federal bench, was still publishing right-wing screeds against “leftist heretics” who he claimed sought to establish “a collectivist, egalitarian, materialistic, race-conscious, hyper-secular, and socially permissive state.”

Sentelle’s transparently activist opinion in Great Falls gutted the NLRB’s authority so far beyond reason that several attempts have been mounted as a test of the ruling.

The best of these before Manhattan College came forward in March 2009, during the first year of the Obama administration. Fully supported by the NLRB’s ruling that the school’s ties to the Presbyterian Church were too insubstantial to justify a religious exemption, the UAW-affiliated faculty of Carroll College, like the faculty of Yeshiva, simply came to Federal court seeking enforcement of the Board’s ruling in its case.

But who did the NLRB and the faculty union find waiting for them? A fellow named Thomas Griffith, who arrived at the D.C. Circuit Court directly from a five-year stint as general counsel and assistant to the president of Brigham Young University.

Unsurprisingly for the recent former general counsel of a religiously affiliated university, Griffith’s 2009 opinion in the Carroll case bluntly applies the 2002 ruling advanced by his sitting chief: “Under Great Falls, Carroll is exempt from the NLRB’s jurisdiction. We thus need not address Carroll’s argument that its faculty members are managerial employees who fall outside the protection of the NLRA. We grant Carroll’s petition for review, vacate the decision and order of the NLRB, and deny the Board’s cross-petition for enforcement.”

*New York Times, August 17, 1994.  Qtd in Joe Conason and Gene Lyons. The Hunting of the President. Macmillan, 2000, p131 (cited p 387).

Tellem’s Stand: Against the DC Circuit Court

With his decision in the Manhattan College case, Tellem is clear about the nature of the struggle: “The D.C. Circuit has refused to enforce Board cases asserting jurisdiction based on the Board’s test. Instead, the D.C. Circuit has set forth” its own test, which the NLRB “has not adopted.”

By highlighting the Circuit Court’s activist intervention and NLRB’s resistance—in a decision that will likely be contested in that same Circuit Court, with David Sentelle still sitting as its chief—Tellem is placing the court on notice that the NLRB will continue to affirm its constitutional right to jurisdiction.

Waiting for Tellem?

It’s not clear how the Manhattan College struggle will turn out.

What is clear is that decisions made by Tellem and the NLRB don’t make faculty self-organization possible.

It’s the other way around: Faculty self-organization makes it possible for Tellem to make decisions like this one. The Manhattan College faculty serving contingently have been fighting this battle for well over a decade and will keep fighting it.

When we face shabby rulings like Great Falls, does it make sense for us to assume that the decision proceeded from ultimately reasonable arguments advanced by truth-seekers? Are they arguments put forward in an adversarial system but refereed with a reasonable degree of impartiality and with the prospect of eventual accountability in higher courts?

Of course not. We need to see clearly that these are specious, intellectually dishonest arguments by activist reactionaries abusing the power of the bench to deny fundamental human rights.

We need to see clearly that these rulings are the product of a flawed, inherently political process that is likely to disadvantage both truth and justice for decades to come. Few observers would say, for instance, that the current Supreme Court is the place to test David Sentelle’s opinion in Great Falls.

But if the Supreme Court can’t help us, what should we do? If the United Auto Workers and American Federation of Teachers aren’t willing to spend any more of their resources fighting a reactionary judiciary, what should we do?

Ultimately what Yeshiva (1980), Great Falls (2002) and Carroll (2009) teach us is simple: What matters more than the law is the movement. The individuals who used (or abused) their power in these decisions were part of a social reaction to liberation movements of the 1960s and 1970s, including workplace democracy, feminism, and civil rights.

They aren’t lone wolves; they’re conservative activists bound in a net of common culture, values, and mutual support. They didn’t have law, precedent, or reason on their side; they simply imposed their reactionary will and made new law out of the power represented by their movement.

It would be tremendously foolish if we permitted any of these rulings to constrain us.

We can build a movement with the students, nurses, young lawyers, schoolteachers, and countless others affected by exploitative and super-exploitative patterns of employment.

We can overcome this dense lattice of hostile law. We can and must imitate the 1960s movement of public employees whose self-organization was illegal and yet also an unstoppable force for writing new law reflecting truth, justice, fairness, and democracy.

From the perspective of our individual campuses: Is Yeshiva relevant? Are Great Falls and Carroll?

Not to a movement, no—no more so than any of the thousands of municipal statutes once theoretically constraining the movement of schoolteachers and sanitation workers. The tightest straps on those schoolteachers and sanitation workers were never the law; they were emotional and intellectual and habitual—habits of deference to, and trust in, authority.

They burst free. We can too.

Partly adapted from a recent contribution to Expositions
xposted: howtheuniversityworks.com

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