AAUP 1940 Statement of Principles on Academic Freedom and Tenure cited by AFL-CIO in amicus brief.
The American Federation of Labor-Congress of Industrial Organizations has come a long way from its racist, white only, skilled only, craft only approach to workers’ rights. A natural enemy of real unions such as the Knights of Labour and the Industrial Workers of the World, the AFL-CIO is finally shedding its 19th and early 20th centuryÂ reputation of capitalistic-unionism. The pursuit of wealth and power for its elite rulers as spokes in the wheel of capitalism took precedence over saving the martyrs of Pullman, Homestead, Lawrence and Ludlow much less the labour movement in general.
Now they are beginning to emerge as a force for progressive social change in their support of the right ofÂ adjunct faculty on Roman Catholic college campuses to organise. Section 7(a) of the National Industrial Recovery Act began the process of worker liberation during the New Deal, Hundred-days Congress of 1933. We can’t have diffident sell out unions afraid to bargain and fight for the rights of Americans as more permanently enshrined in the National Labor Relations Act of 1935. The AFL-CIO has jointly submitted an amicus brief with the Illinois Education Association (IEA) to express solidarity with St Xavier adjunct faculty in their bid for National Labor Relations Board jurisdiction.
The adjuncts and the IEA won the right to organise in Chicago with NLRB Region 13â€™s Decision and Direction of Election. Then the university claiming a religious exemption identity, has appealed the regionalÂ NLRB decision to its national Washington, DCÂ headquarters. The AFL-CIO has joined the opposition to the university’s action along with the American Federation of Teachers. Amicus curiae means friend of the court. Amici curiae is plural and means friends of the court. Since more than one party submitted this brief, it is amici. Know your Latin!
UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAINT XAVIER UNIVERSITY,
Employer, and 13-RC-22025
ST. XAVIER UNIVERSITY ADJUNCT FACULTY ORGANIZATION, IEA-NEA,
BRIEF OF THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AND THE AMERICAN FEDERATION OF TEACHERS, AFL-CIO, AS
The American Federation of Labor and Congress of Industrial Organizations and the American Federation of Teachers, AFL-CIO, file this brief in support of Region 13â€™s Decision and Direction of Election in this case. The Regionâ€™s Decision directs a representation election in a unit of all parttime faculty at the Chicago and Orland Park campuses of St. Xavier University.
DDE 1. The University challenges the Decision on the ground that â€œthe Board does not have jurisdiction over the Universityâ€ under â€œthe United States Supreme Courtâ€™s decision in,Catholic Bishop.â€ Request for Rev. 44-45 (emphasis added). See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (U.S. 1979). The Universityâ€™s principal argument is that â€œthe Board should adopt the three-part test developed by the D.C. Circuit as the proper test for determining whether it has jurisdiction over a
religious school or university â€ and, applying that test, â€œdecline jurisdiction over the university â€ Request for Rev. 37 & 44 (emphasis added). See id. at 36-37 citing Carroll College, Inc. v. NLRB, 558 F.3d 568, 572 (D.C. Cir. 2009), and University of Great Falls v. NLRB, 278 F.3d 1335, 1344-45 (D.C. Cir. 2002).1
The D.C. Circuitâ€™s three-part test rests on a fundamental misreading of Catholic Bishop. The court of appeals misreads Catholic Bishop as â€œhold[ing] that the NLRB lacks jurisdiction over church-operated schools.â€ Carroll College, Inc. v. NLRB , 558 F.3d 568, 571 (D.C. Cir. 2009) (emphasis added). Based on that misunderstanding, the D.C. Circuit concluded that it was necessary to derive a â€œtest for determining whether a school is beyond Board jurisdictionâ€ that would not require â€œtrolling through the beliefs of schools, making determinations about their religious mission, and that missionâ€™s centrality to the â€˜primary purposeâ€™ of the school.â€ Id. at 571-72 (brackets, quotation marks and citation omitted).
The D.C. Circuitâ€™s three-part test provides that â€œ[a] school is exempt from NLRB jurisdiction if it (1) holds itself out to students, faculty and the community as providing a religious educational environment; (2) is organized as a nonprofit; and (3) is affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.â€
Carroll College, 558 F.3d at 572 (quotation marks and citations omitted). Since virtually all private colleges are nonprofit and even the barest of religious â€œaffiliation aloneâ€ will serve to satisfy the third prong, id. at 574, in application the test boils down to whether a college â€œholds itself out . . . as providing a religious educational environment.â€
See Great Falls, 278 F.3d at 1344 (identifying this as the â€œfar more useful inquiryâ€ on the theory that â€œsuch public representations serve as a market check . . . on institutions falsely identify[ing] themselves as religious merely to obtain exemption from the NLRAâ€).
Rather than adopt the D.C. Circuitâ€™s test, we submit that the Board should clarify that, under Catholic Bishop, the determinative question is not whether a particular college is religious in nature but whether the faculty members in the petitioned-for unit perform a religious function. As we now demonstrate, focusing on the function performed by the faculty members faithfully carries out the Catholic Bishop decision while avoiding the entanglement problems perceived by the D.C. Circuit.
Catholic Bishop addressed â€œ[w]hether teachers in schools operated by a church to teach both religious and secular subjects are within the jurisdiction granted by the National Labor Relations Act.â€ 440 U.S. at 491 (emphasis added). Id. at 500 (â€œwhether Congress intended the Board to have jurisdiction over teachers in church-operated schoolsâ€).
Catholic Bishop involved teachers in â€œparochial schools,â€ and the Court considered it highly pertinent that â€œ[r]eligious authority necessarily pervades the school system.â€ Id. at 501. With the â€œteacher[s] under religious control and discipline,â€ the Court found that â€œthe separation of the religious from the purely secular aspects of pre-college educationâ€ would be impossible.
Â Ibid. (quotation marks and citations omitted). â€œ[R]ecogniz[ing] the critical and unique role of the teacher in fulfilling the mission of a church-operated school,â€ the Court concluded that there was â€œno escape from conflicts flowing from the Boardâ€™s exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow.â€ Id. 504.
In sum, Catholic Bishop held that â€œthe Board [does not] have jurisdiction over teachersâ€ in â€œparochial schoolsâ€ where â€œ[r]eligious authority necessarily pervades the school systemâ€ and the teachers are â€œunder [such] religious control and disciplineâ€ that â€œthe separation of the religious from the purely secular aspects of pre-college educationâ€ would be impossible. 440 U.S. at 500-01 & 504. There are thus two highly pertinent aspects of the Catholic Bishop decision.
First, Catholic Bishop holds that the Board does not have jurisdiction over teachers at parochial schools; the decision does not â€œexclude church-operated schools, as entire units, from the coverage of the NLRA.â€ NLRB v. Hanna Boys Center, 940 F.2d 1295, 1301 (9th Cir. 1991). â€œBoth the rationale and the language of the Catholic Bishop opinion accordingly support the limitation of its holding to the employment relationship between church-operated schools and its teachers.â€ Id. at 1302. Second, Catholic Bishop excludes from the Boardâ€™s jurisdiction only those teachers who are under an â€œobligation . . . to imbue and indoctrinate the student body with the tenets of a religious faith.â€ NLRB v. Bishop Ford Cent. Catholic High School , 623 F.2d 818, 822 (2d Cir. 1980). â€œIt is the commitment of the faculty to religious values no matter what subject in the curriculum is taught and the obligation to propagate those values which provides the risk of entanglement.â€ Ibid. Accord Denver Post of the Natâ€™l Soc. of the Volunteers of America v. NLRB, 732 F.2d 769, 772 (10th Cir. 1984).
Given these two aspects of the decision, the proper focus in determiningwhether a unit of employees is excluded from the Boardâ€™s jurisdiction under Catholic Bishop is not whether the employer â€œis a religious institutionâ€ but whether the â€œfunctionâ€ performed by the employees at issue is â€œone of religious education.â€ The Salvation Army , 345 NLRB 550, 550 (2005).
2. Before returning to the correct application of Catholic Bishop, it bears emphasis that, as a matter of plain statutory language, â€œfaculty members employed at institutions of higher learning have long been considered â€˜professional employeesâ€™ protected by the Act.â€ David Wolcott Kendall Mem. School of Design v. NLRB , 866 F.2d 157, 160 (6th Cir. 1989). See 29 U.S.C. Â§ 152(12)
(â€œprofessional employeesâ€ are those â€œengaged in work  predominantly intellectual and varied in character . . . involving the consistent exercise of discretion and judgment . . . [and] learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learningâ€). Thus, the question here is not whether the faculty members at issue come within the statutory definition of covered â€œemployeesâ€ but whether the First Amendment concerns identified in Catholic Bishop justify excluding these faculty membersfrom coverage of the Act.
The Board initially took the position that â€œ Catholic Bishop applies only to parochial elementary and secondary schoolsâ€ and does not apply at all to college faculty. Barber-Socita College, Inc., 245 NLRB 406, 406 (1979). In so holding, the Board relied upon the Supreme Courtâ€™s observation that â€œthere are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools.â€
Ibid. quoting Tilton v. Richardson , 403 U.S. 672, 685 (1971). In particular, the Board relied upon the Courtâ€™s statement that, â€œ[s]ince religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less likelihood than in primary and secondary schools that religion will permeate the area of secular education.â€ Ibid. quoting Tilton, 403 U.S. at 687.
In St. Josephâ€™s College, 282 NLRB 65, 68 (1986), the Board announced that it would henceforth apply Catholic Bishop to church-related colleges â€œon a case-bycase basis.â€ While recognizing â€œthat significant differences exist between colleges and universities on the one hand, and secondary and primary schools on the other,â€ the Board observed that some colleges â€œexhibit many characteristics of a school which is truly church-oriented within the meaning of Catholic Bishop.â€ Id. at 68 & n. 10. In concluding â€œthat the Boardâ€™s assertion of jurisdiction here â€˜presents a significant risk that the First Amendment will be infringed[,]â€™ Catholic Bishop, 440 U.S. at 502,â€ the St. Joseph College Board relied â€œparticularly [on] . . . the Collegeâ€™s requirement that faculty members conform to Catholic doctrine and agree on hire â€˜to promote the objectives and goals . . . of the Sisters of Mercy of Maineâ€™ not merely the objectives and goals of the College itself.â€ Id. at 68. â€œThe pervasiveness of the Orderâ€™s influence on the teaching of the College, even as to subjects commonly viewed as secularâ€ created a substantial risk that taking jurisdiction over the St. Joseph College faculty would â€œinvolve the Board in an â€˜inquiry into the good faith of a position asserted by the clergy-administratorsâ€™ in the resolution of common unfair labor practices involving discipline or discharge, a result clearly disapproved of by the Court in Catholic Bishop, 440 U.S. at 502.â€Ibid.
In the next case to apply Catholic Bishop in the higher education setting, the Board did assert jurisdiction over a unit of teaching faculty based on the finding that â€œthe absence of a requirement that the faculty propagate or conform to a particular religious faith significantly diminishes any risk of impermissible constitutional infringement posed by asserting jurisdiction.â€
Livingston College, 286 NLRB 1308, 1310 (1987). The Livingston College Board emphasized that â€œthe fact that faculty members are not required to conform to AME [church] doctrine or promote the ideals and objectives of the AME Churchâ€ was â€œ[o]f more significanceâ€ than whether the College itself â€œha[d] a religious mission.â€ Id. at 1309. In the two higher education decisions overruled by the D.C. Circuit, the Board used language suggesting that the question is whether â€œ an entity is . . .exempt from Board jurisdiction under Catholic Bishop,â€ Carroll College, Inc., 345 NLRB 254, 257 (2005)(emphasis added), and that the answer to that question turns on whether â€œthe schoolâ€™s purpose and function was the propagation of a religious faith,â€
University of Great Falls, 331 NLRB 1663, 1665 (2000) (emphasis added).2 These formulations caused the D.C. Circuit to conclude that the relevant question is â€œwhether a school is beyond Board jurisdictionâ€ and that to answer this question the Board â€œtroll[ed] through the beliefs of schools, making determinations about their religious mission, and that missionâ€™s centrality to the â€˜primary purposeâ€™ of the school.â€ Carroll College, 558 F.3d at 571-72 (brackets, quotation marks and citation omitted). It is imperative that the Board correct the D.C. Circuitâ€™s misunderstanding by clearly explaining, once again, that Catholic Bishop does not â€œexclude church-operated schools, as entire units, from the coverage of the NLRA,â€ Hanna Boys Center , 940 F.2d at 1301. See, e.g., The Salvation Army, 345 NLRB at 550; Hanna Boys Center, 284 NLRB 1080, 1083 (1987); Jewish Day School, 283 NLRB 757, 761 n. 48 (1987).
3. Under Catholic Bishop, the determinative question is whether the teachers at issue play a sufficiently â€œcritical and unique role . . . in fulfilling the mission of a church-operated schoolâ€ that there is a real â€œdanger that religious dotrine will
At the same time, the Board continued to treat as a â€œparticularly significantâ€ the fact that â€œthe collegeâ€™s faculty members were not required to conform to Church doctrine or promote the Churchâ€™s ideals.â€Ibid.
become intertwined with secular instruction.â€
Catholic Bishop, 440 U.S. at 501. If the faculty members are not â€œunder religious control and discipline,â€ there is not a â€œdanger that religious doctrine will become intertwined with secular instructionâ€ and the Board need not decline jurisdiction in order to â€œavoid entanglement with the religious mission of the school.â€ Id. at 501-02. There is no reason for the Board to go beyond â€œthe role played by the teachers,â€ id. at 501, because if the faculty members are not obligated â€œto imbue and indoctrinate the student body with the tenets of a religious faith,â€
Bishop Ford Cent. Catholic High School, 623 F.2d at 822, their â€œfunction . . . is not one of religious education,â€ and it is legally irrelevant whether the college â€œis a religious institution,â€ The Salvation Army, 345 NLRB at 550.
As a general matter, the â€œprocess of inquiry[ing]â€ into the role played by faculty at a religious college will not â€œimpinge on rights guaranteed by the Religious Clauses.â€ Catholic Bishop, 440 U.S. at 502. â€œMany church-related colleges and universities are characterized by a high degree of academic freedom . .. .â€ Tilton, 403 U.S. at 686. It is very much to the point that these colleges have an interest in publicly proclaiming their respect for academic freedom. â€œ[B]y their very nature, college and postgraduate courses tend to limit the opportunities for sectarian influence by virtue of their own internal disciplines.â€ Ibid. â€œWhile public religious identification [may] attract some students and faculty to the
institution,â€ Great Falls, 278 F.3d at 1344, most prospective students and faculty would be put off by any suggestion that â€œsectarian influenceâ€ could cause secular â€œcoursesâ€ to be taught in ways that contradict â€œtheir own internal disciplines,â€ Tilton, 403 U.S. at 686. Thus, even â€œan institution [that] holds itself out to the public as religious,â€ Great Falls, 278 F.3d at 1344, is likely to also hold itself out as being â€œcharacterized by a high degree of academic freedom,â€ Tilton, 403 U.S. at 686.
See American Association of University Professors, 1940 Statement of Principles on Academic Freedom and Tenure with 1970 Interpretive Comments, 1970 Interpretive Comments note 3 (â€œMost church-related institutions no longer need or desire the [religion-based] departure from the principle of academic freedom implied in the 1940 Statement, and we do not now endorse such a departure.â€).3 This case illustrates the point well.
St. Xavier University publicly proclaims that it maintains â€œan atmosphere of intellectual rigor made possible by academic freedomâ€ in which â€œUniversity faculty develop and teach courses in their areas of advanced study, extend research in their disciplines, produce scholarly and creative work and serve the University and community.â€ St. Xavier University Philosophy Statement.4Â The University does so,
Available at http://www.aaup.org/AAUP/pubsres/policydocs/contents/
1940statement.htm. Available at http://www.sxu.edu/Administrative/Mission/philosophy_statement.asp.
because to be accredited it must demonstrate that is â€œhas approved and disseminated statements supporting freedom of inquiry for the organizationâ€™s students, faculty, and staff, and honors those statements in its practices.â€ Higher Learning Commission, North Central Association of Colleges and Schools,
Criteria for Accreditation, Criterion Four, Core Component 4a.5
Consistent with its public proclamations, St. Xavier University imposes â€œno requirement for faculty, including adjuncts, to espouse or emphasize Catholicism in their teachings or imbue students with the tenets of the Catholic faith.â€ DDE 6. â€œ[F]aculty are left unfettered with regard to imbuing or inculcating students and curriculum with Church doctrine or religion.â€ DDE 9-10.
In short, determining that the St. Xavier faculty, including the part-timefaculty at issue here, are left free of religious influence does not require any intrusive inquiry into the religious nature of the college. The University itself proclaims this to be the case. All the Board needs to do is take the University at its word.
The part-time faculty in the petitioned for unit at St. Xavier University are under no â€œobligation . . . to imbue and indoctrinate the student body with the tenets of a religious faith.â€ Bishop Ford Cent. Catholic High School, 623 F.2d at 822.
Available at http://www.ncahlc.org/information-for-institutions/criteria-foraccreditation. html.
That being so, there are no First Amendment grounds for treating the part-time faculty as exempt from the NLRBâ€™s jurisdiction, and Region 13 Decision and Direction of Election should be sustained.
/s/ Lynn K. Rhinehart
Lynn K. Rhinehart
James B. Coppess
American Federation of Labor and Congress of Industrial Organizations
815 Sixteenth Street, NW
Washington, DC 20006
/s/ David J. Strom
David J. Strom
Samuel J. Lieberman
American Federation of Teachers, AFL-CIO
555 New Jersey Avenue, NW
Washington, DC 20001