Union Rights at Religious College

Scores of adjunct instructors walked out of class last week at Seattle University during National Adjunct Walkout Day, asking for -- among other things -- the right to count the ballots in their recent election whether to unionize. And they got that right Tuesday, following a ruling from their regional National Labor Relations Board director, who rejected the university’s claim that the union would not be valid based on Seattle University’s Jesuit Roman Catholic identity and some of the adjuncts’ alleged managerial statuses.

The ruling is the first in a handful of similar cases involving adjunct union bids at religiously affiliated colleges or universities -- all of which were remanded to their local boards by the N.L.R.B. this winter. The remands followed a precedent-setting ruling in December by the N.L.R.B. that adjuncts at Pacific Lutheran University could form a union affiliated with Service Employees International Union, based on the board’s opinion that the adjuncts in question did not have specific managerial or religious duties that could prevent them from collective bargaining. The decision challenged legal precedent against faculty unions at religious institutions dating back to the 1979 U.S. Supreme Court case N.L.R.B. v. Catholic Bishop of Chicago, as well as a precedent against tenure-line faculty unions at private institutions stemming from N.L.R.B. v. Yeshiva University in 1980.

In the Pacific Lutheran case, the N.L.R.B. rejected the university’s claim that full-time, non-tenure-track faculty members are managerial employees and therefore not entitled to collective bargaining. The ruling also suggested a series of tools for determining whether faculty members are managerial employees, such as whether they control academic programs, enrollment management policies or finances.

The N.L.R.B. in the Pacific Lutheran case also established guidance for determining whether faculty members at religious institutions may fall under N.L.R.B. jurisdiction. The N.L.R.B. said that a religious college would need to show that "it holds out the petitioned-for faculty members as performing a religious function. This requires a showing by the college or university that it holds out those faculty as performing a specific role in creating or maintaining the university’s religious educational environment."

Soon after that ruling, adjuncts at Pacific Lutheran withdrew their petition for a union, but the N.L.R.B. guidance stands and has so far gone unchallenged. The N.L.R.B. has been remanding challenged adjunct faculty union bids -- all of which resemble the Pacific Lutheran case -- back to regional N.L.R.B. directors for reconsideration in the light of the new standards. The cases are similar in that while the colleges are religious, they all educate students of a range of faiths, with a religiously diverse faculty and adjuncts who primarily teach secular subjects. The Seattle case was the first of that lot to be reviewed and decided.

In his ruling, Ronald K. Hooks, regional director, found there was insufficient cause to reopen the record on Seattle case based on the N.L.R.B.’s new standards, since the regional office had used similar standards to evaluate the adjuncts’ bid the first time, in 2014. For example, Catholic or religious doctrine plays no role in faculty evaluations, and there’s no mention of it in the faculty handbook section on faculty duties, according to the director’s decision. And according to witness testimony, non-tenure-track faculty members at Seattle aren’t widely allowed to attend department meetings.

In its initial decision, the N.L.R.B. authorized a union election, but the ballots were impounded after the university challenged the bid. Tuesday’s decision orders that those ballots be counted.

Louisa Edgerly, an adjunct instructor of communication and journalism at Seattle who has been active in union organizing, said via e-mail that she and other adjuncts are “thrilled with the N.L.R.B. regional director's decision today.... We hope that Seattle University administrators will put aside any remaining legal roadblocks to a vote count so that we can work together in the Jesuit and Catholic tradition to build a better [university].”

Votes had not yet been counted Tuesday evening. The proposed unit also is affiliated with SEIU.

Via e-mail, a university spokesman said that the university is reviewing the decision and hasn’t yet planned any “next steps.”

The recent decision says the university may appeal by March 17.

William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College of the City University of New York, said that the university would have to wait until after the election results are announced and the N.L.R.B. certified any new bargaining unit to appeal. And the appeal could only be lodged in the context of responding to an unfair labor practice claim filed by the union, such as for failing to engage in negotiations in good faith, he said.

Herbert said it’s impossible to know how Seattle will respond if and when a union is established, but that it will be interesting to see how regional N.L.R.B. directors from around the country rule in various remanded cases, such as those involving Manhattan College, Saint Xavier and Duquesne University, all of which are Catholic.

Any challenge could end up in federal district court, Herbert predicted.

Paula Moore, spokeswoman for the Association of Catholic Colleges and Universities, said via e-mail that the organization continues to “voice its concern that faith-based institutions should remain free from inappropriate government interference. Specifically, we are concerned that a government body may seek to define a ‘religious’ institution on its terms. It is important to note that ACCU maintains no position with regard to unionization on Catholic campuses.”