The National Labor Relations Board (NLRB) argued in a ruling last week that Loyola University Chicago (LUC) does not hold out many of its faculty as being important to its religious mission and asserted authority over employee relations at the University, continuing a series of rulings questioning the Catholic identity of Catholic colleges and universities.
According to the ruling from NLRB regional director Peter Sung Ohr, LUC failed to meet any of the requirements that would exempt the University from its jurisdiction. “I find that the Board has jurisdiction in this matter because the evidence does not demonstrate that the University holds out the petitioned-for faculty members as performing a specific role in creating or maintaining the University’s religious educational environment,” he wrote.
Ohr noted that LUC did not clearly state in job interviews, contracts, job descriptions, handbooks or on its website that faculty would be asked to further the Catholic mission of the University or perform any type of religious function. He instructed faculty to follow through with a secret ballot that will determine union representation.
The Newman Society reached out to LUC officials regarding the ways in which it expects faculty members to maintain a religious function or support the University’s Catholic mission. University officials declined to comment and redirected the Newman Society to its faculty union information page.
Many of the University’s arguments disputing the NLRB’s jurisdiction note that a religious institution should be free from government intrusion.
“[W]hat is at stake here, is Loyola’s guaranteed First Amendment rights of religious freedom and autonomy — essentially our right to define our own mission and to govern our institution in accordance with our values and beliefs, free from government entanglement,” stated Loyola’s Senior Vice President for Administrative Services Thomas Kelly in an announcement to University faculty in December.
On November 23, 2015, the NLRB notified the University that Service Employees International Union Local 73 (SEIU) filed a petition for an election to decide whether certain part-time and full-time non-tenure track faculty wanted Union representation.
From December 2 to 7, LUC and SEIU representatives attended hearings at the NLRB’s Chicago office. According to the University, the reason for the hearings revolved around two issues: “First, whether the NLRB has jurisdiction over Loyola; and second, if the NLRB does have jurisdiction over Loyola, what is the appropriate voting (or bargaining) unit for an election.”
University officials reiterated their arguments against government intrusion while adding that Church teaching has regularly supported the dignity of working men and women, fair wages and safe working conditions.
“Our position before the NLRB is not driven by anti-worker sentiment or hostility to organized labor. By raising the jurisdictional issue at the hearing, we are simply seeking to maintain our right to religious freedom, to protect the heart and soul of our institution and its mission,” Kelly explained in a communication to LUC faculty.
While the Newman Society has generally supported Catholic colleges citing their Catholic identity in an effort to preserve their religious freedom, it has noted that many colleges have not done this consistently over the years and are now just resorting to such an argument. It has argued further that all professors at a Catholic college should have a specifically religious function with the expectation that they will uphold Catholic values and doctrine and advance the college’s Catholic mission.
Among other instances reported by the Newman Society, annual drag shows, a pagan student club, support for gender-neutral restrooms and controversial campus speakers have called into question the importance that LUC has placed on its Catholic identity in the past.
In December 2014, religious colleges won a significant concession from the NLRB when it abandoned its previous assessment test. Key to the decision was the U.S. Supreme Court’s 1979 ruling in NLRB v. Catholic Bishop of Chicago, which forbids the Board to assert jurisdiction over employee relations in religious education and to attempt to decide whether institutions are sufficiently religious for exemption.
However, the NLRB soon adopted a new test. Instead of questioning whether an institution is religious, it now seeks to determine whether individual faculty members have a religious function.
In an NLRB case similar to LUC’s involving Saint Xavier University, also located in Chicago, the NLRB determined that even the theology professors at Xavier were not exempt from federal oversight because the University itself failed to identity them as having a religious function.
Although the new test continues to violate the Supreme Court’s ruling, The Cardinal Newman Society acknowledged that is a big improvement, as it recognizes the authority of colleges to determine by their own policies whether certain professors have a religious function. The new test is also unlikely to be upheld by federal courts.
In the Newman Society’s amicus brief opposing the NLRB harassment, attorneys for Alliance Defending Freedom stated:
Religious organizations have the right of autonomy over their internal governance, the right to be treated the same as all other religious groups and denominations by the government, and the right to be free from government meddling and intrusion in their operations and beliefs.
In addition to LUC, colleges opposing NLRB rulings now include Carroll College, Duquesne University, Manhattan College, Saint Xavier University and Seattle University.
The secret ballot for LUC is set to be counted by the NLRB at its regional office on January 27, and a final count is expected to be issued soon after.
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