New Move in Union-Busting?

Universities don’t often welcome faculty unions to their campuses with open arms; drives are challenged and appeals ensue, sometimes taking years to settle. But the fight at Duquesne University has been particularly acrimonious. The battle’s lasted three years so far, with public back-and-forth, including the union’s claim that the university turned its back on a long-serving elderly adjunct as she was terminally ill. But now union members are saying the university has hit an unprecedented low in the fight, threatening in a legal brief to fire adjuncts who participated in the unionization process. While experts say the university’s legal move is highly unusual, Duquesne says it’s within its rights to state it may fire those who detract from its religious mission. 

“I’ve never seen this before, and I’ve been a labor lawyer now for 22 years,” said Daniel Kovalik, counsel for the United Steelworkers in Pittsburgh, with which the Duquesne adjunct union is affiliated. “This is tantamount to an unfair labor practice written into a [National Labor Relations Board] filing, which is quite amazing and unique.” 

Three-Year-Fight 

Adjuncts at Duquesne have been trying to gain recognition for their union since 2012. But the university has fought it at every turn, saying that its Roman Catholic identity puts it outside the jurisdiction of the NLRB, which oversees union elections. Like other religious colleges opposed to adjunct unions, it’s relied largely on a 1972 U.S. Supreme Court decision, NLRB v. Catholic Bishops of Chicago, to support its position. But recent NLRB decisions, namely one regarding an adjunct faculty union bid at Pacific Lutheran University, have challenged the relevance of that precedent to the work of adjuncts.

The Pacific Lutheran decision established a framework for determining if colleges were sufficiently religious to be exempt from board oversight. And the decision suggested that there are circumstances where a religious affiliation by itself is not enough to limit collective bargaining rights. As a result of that decision, the NLRB sent a series of pending cases involving adjunct unions at other religious colleges and universities back to their regional offices for reevaluation. 

In June, the local NLRB office said that Duquesne adjuncts could, in fact, form a union based on the new framework. 

In response, Duquesne filed a request for review with the NLRB in Washington, arguing that the local office had erred. While the tenor and content of the overall document was unsurprising, a footnote in the middle of the 50-some-page brief shocked adjuncts and organizers. It contained what they perceived to be serious threat to fire adjuncts who’d taken part in union activities — virtually unheard of, even in the toughest labor fights. 

The footnote names two adjuncts who’d previously testified before the NLRB that they were not hired or retained for any religious purpose: Clint Benjamin, a composition instructor, and Adam Davis, who teaches the history of science. Duquesne contends elsewhere in the brief that their testimony merely indicates that two professors were hired under specific circumstances several years back. In the footnote in question, Duquesne also asserts that both professors could connect their courses to the Catholic intellectual tradition and Duquesne’s religious mission. 

The Right Not to Rehire?

Then comes the alleged threat: “Regardless, today Duquesne reserves the right not to rehire both professors and replace them with professors willing and/or better able to incorporate Duquesne’s Catholic, Spiritan mission into their courses.” 

The note goes on to say that if Davis, for example, “improperly denigrated the sacrament of the Eucharist” because his textbook mentions transubstantiation (which it does), “Duquesne would have the right to take adverse action.” 

Duquesne then discusses how difficult proving the motivation for any such adverse action would be, for either party involved in any dispute. 

“NLRB supervision of the relationship between Duquesne and its adjunct faculty would entail tremendous potential for entanglement,” the brief reads. “As just one example, if the Steelworkers claimed that Duquesne refused to rehire an adjunct professor who denigrated Duquesne’s mission, and the Steelworkers argued that the refusal was actually driven by anti-union animus, the university’s good faith would be put squarely at issue.” 

Even though the university gives a specific example of how a professor might “denigrate” the university’s mission, Robin Sowards, a former adjunct instructor of linguistics at Duquesne and a full-time organizer for the Steelworkers, said it was essentially an open-ended threat — not just to Davis, but to all adjunct faculty. 

“The purpose is the bust the union through fear,” Sowards said, calling the footnote at once a unique and familiar tactic for employers seeking to block a union. In other words, having a typical “captive audience” meeting to intimidate workers into opposing a union wouldn’t work with a group of adjuncts who come and go from campus on different schedules, he said. But writing an intimidating threat into a public document could be an effective way to get their attention. 

“This is a standard union-busting technique,” Sowards added. “Supervisors bully them in various ways not to form a union.” 

Davis said he agreed that the footnote was an “open-ended threat,” but he said he wasn’t going to teach his course in any different way or back down from organizing. The statement only underscores the importance of the union bid, he said. 

“I’ve been operating under fear of arbitrary dismissal [as an adjunct since 2008],” even before the union drive,” he said. “We want the right to not have to worry we’re going to be arbitrarily dismissed for speaking honestly in public.”

The union initially alleged an unfair labor practice charge against Duquesne for the statement, but later withdrew it. Sowards said that’s because the union didn’t want to put to an even bigger “target on the backs” of the two adjuncts who’d testified. But with increased publicity, he said, the union might refile the claim. (In These Times, a pro-union publication, was the first to report on the footnote.)

Duquesne, meanwhile, says that the fact that the NLRB accepted that withdrawal “speaks for itself.”

“[T]here is nothing in the brief that in any way constitutes an unlawful threat,” Bridget Fare-Obersteiner, a Duquesne spokeswoman, said via email. “Duquesne’s hiring practices are not influenced by an employee’s union activities.”

Fare-Obersteiner referred additional questions to previous comments from President Charles J. Dougherty about the union drive. 

In an April statement, Dougherty said “it is important to recognize that this case is not about the rights of working men and women to organize. Duquesne is committed to the church's concern that the dignity of working men and women be respected, and that they have fair pay and safe working conditions.”

Rather, he said, “This case is about Duquesne's protection under the First Amendment from an unconstitutional intrusion of government control over us as a religious institution. The fact that the Steelworkers say that Duquesne's effort to protect that right 'is not about God or religion’ fully demonstrates their complete lack of understanding and denial of this university's religious mission and identity.”

In response, Sowards and others pushing for the union at Duquesne point to other Catholic colleges and universities, such as St. Francis College and Georgetown University, that have not opposed adjunct union drives.

Other Ways 

Georgetown’s Kalmanovitz Initiative for Labor and the Working Poor recently released a report detailing how the university was able to recognize its Service Employees International Union-affiliated adjunct union with relative ease several years ago. 

Nick Wertsch, a program coordinator at Kalmanovitz who helped write the report, said adjuncts and administrators attributed the painless process to the university’s Jesuit Just Employment Policy. The policy, established in 2005, prior to the union drive, said that the university would offer a living wage and not oppose workers’ right to organize, regardless of their full-time or contract status. The policy was born of student protests over janitorial staff working conditions, Wertsch said, and by the time the adjunct question arose, it was something of a “done deal.” 

“Georgetown had already decided how it was going to handle this issue on campus,” he said. “The Just Employment Policy was really fundamental in creating an atmosphere in which discussions don't get out of hand — where it’s not scary for adjuncts and administrators don’t get worried or think, ‘Are people plotting against us?’”

‘Unnecessary and Gratuitous’

William Herbert, executive director for the National Center for the Study of Collective Bargaining and the Professions at Hunter College of the City University of New York, also said he’d never seen language like the Duquesne footnote, and called it “unnecessary and gratuitous.”

“It is very unusual for an employer to signal such intentions in writing, never mind in a brief submitted to the NLRB, during the pendency of a representation case,” he said. 

At the same time, Herbert added, the comment is “logically consistent with Duquesne’s position that it is constitutionally immune" from the labor relations act prohibiting union-busting by employers.

Herbert said he didn’t know why the university would have included such language in its request for review. But he noted that if Duquesne’s legal argument against NLRB jurisdiction is eventually successful, “any future decision not to rehire Benjamin and Davis would not be challengeable under the federal prohibition against discrimination for engaging in protected concerted activity.”

More globally, Herbert later added via email, the “full footnote reflects the centrality of the interrelationship between efforts by adjunct faculty to unionize and questions of job security and academic freedom.”