Many Be Called, But Few Chosen: Duquesne University Adjuncts’ Fight to Organize, Part Two
October 5, 2012 11:04 am
By: Moshe Z. Marvit
This is part two of a three-part series. Read part one here.
The adjuncts spent months discussing organizing with each adjunct faculty member in the college of liberal arts, and by May of 2012 they had collected enough cards selecting the Steelworkers as their exclusive bargaining agent. [Duquesne adjunct instructor and organizer Josh] Zelesnick described how adjuncts rarely get to know their colleagues. But the organizing effort provided him and others an opportunity to talk at length with each adjunct faculty member – about their research, their thoughts on teaching, and their personal lives and interests. The adjuncts requested an appointment with the university president, Charles Dougherty. He sent one of the vice presidents and the provost, and the adjuncts handed a letter to Vice President, Stephen Schillo, which opened with a long quote from Pope Benedict XVI’s 2009 encyclical Caritas in Veritate, which recognized the Church’s long tradition of promoting unionism. The letter proposed that the cards be counted and verified by Father Jack O’Malley, a local priest in the long tradition of Pittsburgh’s “labor priests.” This was an apparent attempt to move forward on terms that would be amenable to the University.
Duquesne’s response has followed a strange course. In a letter dated June 22, 2012 to the university community, President Dougherty claimed to be surprise at the unionizing effort, stating, “The University was not aware of any general discontent among part-time faculty until an intention to unionize with the United Steelworkers was made public in the media. We literally found out about it in the newspapers. No group of adjuncts had approached the University to ask for dialogue.”
[Duquesne adjunct English instructor Robin] Sowards expressed confusion at this sentiment, calling it “a little bit absurd.” Sowards explained that, “essentially what Dougherty’s letter suggested we should have done is all gotten together and come to him to address our working conditions and improve them. But that means that you have a bunch of people getting together to renegotiate your working conditions. That is a union. You don’t have to run to a union to do that. That’s essentially demanding that we have a union, but without having a union, or before having a union. I mean it’s just self-contradictory. It makes no sense at all.”
Clint Benjamin pointed out that, as precarious workers, the adjunct faculty would risk too much approaching the administration as individuals. He told the story of a group of adjuncts that got together about ten years ago, before Benjamin started at Duquesne, and wrote a letter asking for a modest pay increase after a several year pay freeze. This story – possibly apocryphal, but certainly believed by all – was repeated by a number of the adjunct faculty. According to the adjuncts, the university responded by saying that they were “being ungrateful and should be delighted to have a job.” The university further responded by enforcing the previously unenforced four-course per year adjunct maximum.
Stephen Schillo, the Vice President for Management and Business at Duquesne University, met with the union and rejected the adjuncts’ call for voluntary recognition of the union. He insisted on NLRB involvement and an NLRB-supervised election. According to one of the briefs filed by the Steelworkers, Schillo “chastised” the union and adjuncts for insisting that the university live up to its social teachings and support the workers’ rights to organize, telling them that the university had a bargaining relationship with four other unions on campus. Bridget Fare, the university spokesperson, told Inside Higher Ed that Duquesne would treat the adjuncts’ attempt to organize in the same manner that they do all the other employees on campus, saying, “We’ll be letting the NLRB process take its course and proceed accordingly.”
However, after engaging in negotiations with the Steelworkers about the election, and signing a stipulation of election, Duquesne fired its local outside counsel, Robert McTiernan, and changed its approach to the organizing effort. Duquesne hired the Memphis-based lawyer Arnold Perl, who describes himself in the first sentence of his online profile as having more than 40 years of experience “assisting” and “counseling” organizations “on remaining union free.” On June 15, one week before the mail-in ballot election was set to commence, Duquesne filed with the NLRB a motion to withdraw from the stipulated election agreement and a request that the matter be expedited. In this motion, Duquesne argued that as a Catholic university, it is beyond the NLRB’s jurisdiction.
Every faculty member I spoke to expressed suspicion at Duquesne “waking up and realizing that it is a Catholic institution,” and was certain that the school was facing outside pressures. Each clarified that they did not believe that some sort of conspiracy was afoot, but simply believed that Duquesne would prefer to bargain. They had a sense that this was a new approach for Catholic universities to oppose unionization, and Duquesne was told to adopt the strategy.
Religious Studies professor at Manhattan College and founder of Catholic Scholars for Worker Justice, Dr. Joseph Fahey, was not shy in declaring that he was certain there was a conspiracy, explaining, “I don’t use that term lightly. Conspiracy comes from the Latin for ‘breathing together,’ and in this instance that’s exactly what’s going on. There is a national conspiracy against unions in Catholic colleges and universities. Because they know that if adjuncts win, then full-time faculty are not far behind.” Fahey was quick to add that using the adjuncts in this manner to ward off further organization was even more disturbing because this strategy was in direct contradiction to Catholic teachings. “In Catholic tradition, there is a preferential option for the poor, the worst off. You are not judged by how you treat the first among us, but how you treat the last.”
Manhattan College in New York, where Fahey teaches, and St. Xavier University in Illinois, have both similarly faced organizing efforts by their adjunct faculty in the past two years, and they have both argued that as religious institutions they are free from NLRB intrusion. Manhattan College President, Brennan O’Donnell, drafted several letters to the university community that were similar in tone and content to President Dougherty’s. While polite in tone and expressly not opposed to the principle of organization, the first letter expressed shock that the adjunct faculty did not bring their concerns directly to the college. In a letter one day later, the president cautioned, “[w]e must, as a community, discuss and explore the situation raised by the union’s desire to insert itself into this College.” The president insisted that he was not asserting that “‘Catholic’ and ‘union’ are necessarily at odds,” but simply raising a First Amendment, free exercise of religion issue. In a subsequent letter, the President described the essential issue as one of identity of the College and “exactly how and by whom that identity is going to be defined.”
The issue of who will define the workplace is a common issue in almost every organizing drive, with the employer insisting on a managerial prerogative to run their business as it sees fit and the employees insisting that they have a right to have a voice in the enterprise. Professor Fahey sees no distinction between these colleges and other employers, stating emphatically, “the simple fact is that under the Catholic tradition and American civil law the employer does not get a veto over employees’ rights to organize.” In this instance, the issue is made more complicated because of an apparent conflict between each party’s First Amendment or free speech rights. The colleges are invoking the religious clauses of the First Amendment, while the faculty are invoking their free speech and free association rights of the First Amendment to organize. Furthermore, many of the faculty have raised the issue of academic freedom, explaining that it becomes too fragile and weak if the faculty are precarious.
The arguments made by the president of Manhattan College are common in all three college cases. They vacillate between discussing the dangers of government intrusion to the dangers of union intrusion, all while saying they are not opposed to employee organization.
Though officials at Duquesne declined to be interviewed, Bridget Fare, the assistant vice president for public affairs, sent me an email repeating O’Donnell’s sentiments, stating, “The issue at hand is the constitutionality of the NLRB having jurisdiction over us as a religious institution. Under NLRB jurisdiction, Duquesne’s requirement to observe the principals of our mission would become subject to collective bargaining…and adherence to our mission cannot be a point of negotiation.” Dan Kovalik, the senior associate general counsel at the Steelworkers, responded to this characterization by saying that Ms. Fare had a poor understanding of the law, Duquesne’s longtime position with respect to labor law, and Catholic teachings.
Kovalik describes himself as the “product of the Catholic parochial school system,” having gone to grade school at St. Elizabeth Ann Seton, middle school at St. Andrew’s, high school at Archbishop Moeller High School, and college at the University of Dayton, which is affiliated with the Catholic Church. Kovalik noted that Fare’s position is inconsistent with Duquesne’s history in that it has long consented to NLRB jurisdiction over the four other bargaining units on campus. Furthermore, Duquesne originally consented to NLRB jurisdiction for the adjuncts, thereby recognizing that the Board’s jurisdiction does not threaten Duquesne’s mission. Kovalik explained that “the adjuncts wish to bargain over wages, benefits and job security — that is, over purely economic matters which have nothing to do with Duquesne’s claimed Catholic mission. In the end, it is clear that Duquesne is in fact more concerned with maintaining its paltry remuneration of its adjuncts than in protecting any religious values.”
Duquesne’s mission, which it has chosen to place in the center of the controversy, declares that it is “sustained through a partnership of laity and religious.” Its mission is described in terms of Catholic values as applied to education. “Duquesne serves God by serving students — through commitment to excellence in liberal and professional education, through profound concern for moral and spiritual values, through the maintenance of an ecumenical atmosphere open to diversity, and through service to the Church, the community, the nation, and the world.” All of the adjuncts I spoke to were unable to think of an example of how the faculty would use the union to act contrary to Duquesne’s mission.
In a recent article in Labor Notes, Zelesnick said the issue was one of “control … not Catholicism.” Kovalik similarly stated this in the opening lines of the Steelworkers brief to the NLRB, stating that Duquesne’s request was “not about God or religion, but about Mammon.” Zelesnick did not understand the distinction that the school was making between the faculty and staff with regards to the mission. He explained that the mission was geared towards the students — and the maintenance, food workers, and campus police also had important roles in upholding the school’s mission. One adjunct reiterated this problematic distinction, explaining that it was offensive to say that those workers who “protected the students, fed the students, cleaned up after the students,” had no role in implementing the school’s mission.
Each side invokes a series of court cases that bolster their respective positions. Duquesne, and every other Catholic college that has fought the organizing efforts of contingent faculty, holds up the 1979 Supreme Court decision of NLRB v. The Catholic Bishop of Chicago. In Catholic Bishop, the Supreme Court ruled that the NLRB did not have jurisdiction over lay teachers at Catholic high schools because such jurisdiction would implicate the religion clauses of the First Amendment. To be clear, the Court did not hold that NLRB jurisdiction violated the First Amendment; but that there was no “affirmative intention of the Congress clearly expressed” that teachers in “church-operated schools” should be under the Board’s jurisdiction. Applying a long-standing Supreme Court rule that tries to avoid addressing “difficult and sensitive questions arising” from the Constitution, the Supreme Court simply held that since there was no clear indication that Congress intended to cover these workers, they remained uncovered. The Catholic Bishop case left open the question of what to do with colleges and universities — especially those that are affiliated, rather than run, by a religious organization.
To address this issue, Duquesne argues that it passes the “substantial religious character” test developed by the NLRB, which looks at all aspects of a school’s organization and function, but focuses on the religious group’s involvement in day-to-day affairs, the religious mission of the school, and whether religious criteria play a role in faculty appointment and evaluation. Most of the adjunct faculty I spoke with were neither Catholic nor observant of any religion. Sowards pointed out that the university does not inquire into the religion of the faculty, and that a significant percentage of the faculty and students are not Catholic. Most said that aside from the occasional crucifix, Duquesne feels like any other college. Sowards remarked, “Working with the United Steelworkers, I’ve encountered many many more Catholics than I have at Duquesne.”
The Steelworkers argue that if Duquesne is entitled to a hearing on its religious arguments, the controlling case is one where the NLRB held that Livingstone College, a four-year liberal arts college in North Carolina that is under the auspices of the African Methodist Episcopal Zion Church (AME), was not exempt from the Board’s jurisdiction. The NLRB noted that though the church was the sponsoring body of the college and donates significant funds annually, the college also received significant funds from the federal government. Furthermore, only half of the board of trustees are appointed on religious grounds, and the church is not involved in the day-to-day administration of the college. With regard to the college’s mission, the NLRB found that it did not have a religious mission like church schools, but rather is primarily geared towards higher education “in an atmosphere supportive of Christian values.” The students at Livingstone are required to take one course on religion, but need not be members of the church. Under these facts, which largely match Duquesne’s situation, the NLRB held that the purpose of the college was largely secular, and there was no First Amendment risk in the NLRB exercising jurisdiction.
Professor Fahey noted that Duquesne and other colleges advancing this argument were being “hypocritical.” He explained that these schools are not engaged in proselytizing, and they receive state and federal funding as universities. “They cannot now claim to be religious institutions when it suits them.” A review of Duquesne’s most recent tax filings indicates that the school receives millions of dollars each year in federal benefits. Furthermore, a review of Duquesne’s status in Guidestar, the primary database of U.S. nonprofits, indicates that the school self-identifies as an “Educational Institution” rather than “Religion, Spiritual Development” as do seminaries and the like.
Moshe Z. Marvit, an employment discrimination and labor attorney, is the author (with Richard Kahlenberg) of Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice.
Image from here