Kirstein Subpoened to appear at NLRB Hearing Concerning St Xavier Adjunct Union Efforts

On Sunday evening May 1, 2011 I was served a subpoena via the internet to appear before a Hearing Officer of the National Labor Relations Board at 209 S. LaSalle Street in Chicago’s Loop. The hearing was scheduled the following day, Monday, May 2, 2011. This was during final exam week but not having a scheduled exam that Monday, I honoured the subpoena. The adjunct’s attorney asked me candidly if I would honour it prior to its issuance and I indicated I would. I did have a choice to refuse it and only a lack of candor would indicate otherwise. I believed as I subsequently told a university vice-president that testifying at this hearing was consistent with my ethical values and I believed with the mission of the university. Americans should have the right to organise without interference or coercion.

I appeared there at the request of the attorney representing the Illinois Education Association and the adjunct faculty at St. Xavier University. I was not prepped or informed about any specifics of this endeavor. I was only vaguely aware of the purpose of this hearing since I had not been involved in any manner in the adjunct effort to engage in collective bargaining. I had been contacted by Rachel Levinson, senior counsel of the American Association of University Professors, that the IEA/adjunct attorney wanted to contact various AAUP people on campus. I presumed this inquiry was to solicit support to counter the university’s effort to prevent NLRB jurisdiction over effectuating a second faculty union at St Xavier. In 1979 the full-time and portion of full-time faculty formed an independent non-affiliated union under the aegis of the Faculty Affairs Committee. This was a year before the illegitimate NLRB v Yeshiva case in which faculty were conjoined with “managers” and, therefore, denied the right to organise on private university campuses. How courts do invent the law and ignore basic constitutional rights for ideological purposes!

When I arrived at Room B on the 9th floor, I saw the president, Christine Wiseman, provost, Dr Angela Durante and vice-president for mission of the university, S. Sue Sanders, Ph.D. There were also two adjunct faculty that I admired for their courage. Shortly after I arrived there was a break. I then went into a side room with the attorney, adjuncts and IEA official. I was then shown a huge stack of documents and was asked if I had seen them before. I said, “Well no, they don’t look familiar.” I was not sure what this was about since I had arrived there minutes before but quickly assumed they were of a “religious” nature and that presumably the university had introduced this mountain of data to demonstrate a religious intensity and omnipresence of the Roman Catholic faith. I kept repeating as the attorney was flipping through the pile that I was unfamiliar with these brochures, programme descriptions and the like.

Then we returned to the NLRB hearing room and it was identical, as I told my students in other contexts on labour history, to a semi-judicial component of NLRB practices. I was sworn in. There was a court reporter taping and typing a transcript. I was seated in a witness box–rather uncomfortable and small–between the reporter and the NLRB Field Examiner Christopher Lee. Joseph Barker is Regional Director-Region 13 of the NLRB. I was cross examined by both the adjunct attorney and a university attorney. There were three attorneys representing the university and there was a single adjunct attorney and the IEA organiser, Tom Suhrbur. The university has hired two law firms to represent them in this anti-union activity: Franczek Radelete P.C. in Chicago and Whyte Hirschboeck & Dudek in Milwaukee. I ponder the efficacy of their decision to expend considerable financial resources for legal counsel.

I was initially crossed by the adjunct attorney and asked if I were required to teach according to a certain religious perspective. I said “no” but I mentioned it was suggested I introduce Roman Catholic social teaching when covering issues of peace. I was asked if I were ever required to teach or introduce anything of a Catholic nature. I again replied, “no.” I was asked if faculty were required to be Roman Catholic when they applied for a position. I said “no” and that I did not know the religion of candidates who were interviewed on a job search. I said, “No one on this campus even knows my religion because I have never told anyone and it is no one’s business.” I was asked if I had any dealings with the Religious Studies Department. I said “no.” I was then taken on a monotonous journey through that stack of documents in which I kept saying “no” to having seen any of them. As this was proceeding the university attorney objected. “We have been through this. The university does not contest the fact that these documents are not widely distributed,” or words to that effect. I do not have the transcript of the hearing but I have a very good and detailed memory. I was startled with the objection as I was rapidly becoming even more aware of the quasi-judicial nature of these proceeding. The hearing officer would overrule or sustain an objection but did not use those words. Mr Lee did not wear judicial garments but conducted the hearing as if it were a courtroom. He recognised attorneys. He either allowed their objections to stand or not. He would inform witnesses upon objection if they could answer a question. Mr Lee was impressive. He was rather subdued, modest and unpretentious in his responses to various attorney objections. He tried to be accommodative but was clearly “the judge.”

Then the adjunct attorney, Laurie Burgess, said no more questions and as I got up to leave I was told I had to wait for the university’s attorneys to cross examine me. I said, “wishful thinking” that I could leave and returned to my seat. I do not know the name of the SXU attorney since there were three attorneys: two female, one male. I wish attorneys or the NLRB hearing officer would introduce themselves to witnesses. Basic civilised behaviour would enable a witness to know who was their interlocutor. They knew my name. Why was I not told theirs? I was rather startled when I was asked (again I don’t have the transcript but this is very, very accurate) if I had ever told Sister Sue Sanders, vice president for mission and heritage that the Medallion Ceremony was too Catholic or religious. This ceremony is for incoming freshpersons in the fall and faculty are invited, not expected as the SXU appeal states, to attend. It is optional and not required by contract or presidential edict. Faculty dress in their stupid regalia with cap and gown that should have been discarded centuries ago. Why academicians wear these idiotic, uncomfortable, stuffy regalia is one of many irritants of academia. I said, “Well yes, I did mention that I had heard from some faculty that they felt it was too religious but we are not required to attend.”

The university attorney rudely snapped, “I did not ask you that!” I will say what I want; this is supposedly a free country and I wanted and did report that SXU does not require faculty to attend this religious-laden ceremony. Period!! I am not a robot who gives one word answers Ms Counsel. Then she asked, “Did you complain that it was too Catholic or religious.” I said “This was six to eight months ago. I don’t have a transcript. I do recall, however, saying several faculty had mentioned that it was too religious.” I did not use the word “Catholic” in my conversation with the vice president with regard to relayed criticisms of the event. Remember SXU’s attorneys want to demonstrate the substantial religious nature of the institution so NLRB jurisdiction would be denied. The Illinois Education Association (IEA), that is trying to organise the adjuncts, wants to demonstrate SXU has significant secular qualities that would place it within the orbit of NLRB jurisdiction.

The adjunct attorney then asked if I felt I had the academic freedom to raise this issue of excessive Medallion Ceremony religiosity with S. Sanders. I said “yes.” I was asked if there were any retaliation. I said “No. If there had been the university would have known in five minutes and the general public in a few hours.” (words to that effect). I had some gracious email exchanges the following day with the vice president who presumably told the attorneys during a break of this prior exchange. After all they want to show that this conversation represented a complaint of the alleged comprehensive religiosity of the university. The IEA attorney wanted to demonstrate that I could raise this openly and forthrightly without being sanctioned. This demonstrates the lack of an enveloping, punishing, creedal orthodoxy of Roman Catholicism.

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