Saint Xavier University is not shielded from NLRB jurisdiction by its religious origins, says the labor board. Adjuncts are allowed to organize:
UNITED STATES GOVERNMENT
BEFORE THE NATIONAL LABOR RELATIONS BOARD
REGION 13
SAINT XAVIER UNIVERSITY1
Employer
and Case 13-RC-22025
ST. XAVIER UNIVERSITY ADJUNCT FACULTY
ORGANIZATION, IEA-NEA
Petitioner
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National Labor Relations Act,
as amended, a hearing on this petition was held before a hearing officer of the National
Labor Relations Board to determine whether it is appropriate to conduct an election in
light of the issues raised by the parties.2
I. Issues and Parties’ Positions
The St. Xavier Adjunct Faculty Organization, IEA-NEA (herein “Petitioner” or
“Union”) seeks a unit of all part-time faculty at the University's Chicago Campus or
Orland Park Campus who teach at least 3 credit hours per semester; but excluding deans,
nonprofessional employees, guards and supervisors as defined in the Act.3
1 The names of the parties appear as amended at the hearing.
2 Upon the entire record in this proceeding, the undersigned finds:
a. The hearing officer’s rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
b. The Employer is engaged in commerce within the meaning of the Act and the only issue as
stated herein is whether the Supreme Court’s decision in NLRB v. Catholic Bishop of
Chicago, 440 U.S. 490 (1979) precludes the exercise of jurisdiction.
c. The labor organization involved claims to represent certain employees of the University.
d. A question affecting commerce exists concerning the representation of certain employees of
the Employer within the meaning of Section 9(c)(1) and Sections (2)(6) and (7) of the Act.
3 The Petitioner introduced evidence that Saint Xavier University has had a certified collective bargaining
representative for full-time and “portion of full-time” faculty since 1979, the Faculty Affairs Committee.
This evidence is of limited relevance to the jurisdictional argument being raised by the University because
jurisdiction can be raised at anytime by any party, including the NLRB or courts.
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Saint Xavier University (herein “Employer” or “University”) asserts that the
Board lacks jurisdiction4 because it is a religiously operated institution that is not subject
to the Act according to the principles of University of Great Falls, 331 NLRB 1663
(2000), enf. denied 278 F.3d 1335 (D.C. Cir. 2002) and Carroll College, 345 NLRB 254
(2005), enf. denied 558 F.3d 568 (D.C. Cir. 2009).5
II. Decision
Based on the entire record of this proceeding and for the reasons as set forth
below, I find that the University is not a church-operated institution within the meaning
of NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), and, therefore, conclude
that the Board may properly assert jurisdiction over the University in this case.
Accordingly, IT IS HEREBY ORDERED that an election be conducted under the
direction of the undersigned in the following appropriate unit, as stipulated by the parties:
All part-time faculty employed by the Employer at its campuses presently
located at 3700 West 103rd Street, Chicago, Illinois and 18230 Orland
Parkway, Orland Park, Illinois, who teach at least three credit hours per
semester; but, excluding all part-time faculty members in School of
Nursing, all music tutors, all student supervisors in the School of
Education, independent contractors, confidential employees and managers,
office clerical employees and guards, professional employees and
supervisors as defined in the Act.
III. Statement of Facts
A. University Governance
In 1846, at the request of William Quarter, the first Bishop of Chicago, Mother
Mary Francis Warde, RSM, founded Saint Xavier Academy for Women. The school was
chartered by the State of Illinois on February 27, 1847, making it the oldest chartered
Roman Catholic educational institution in Chicago and the oldest Mercy university in the
world. It opened Saint Xavier College for Women in 1915 and expanded its course
offerings to the graduate level in 1953. Following a campus move in 1953, the College
and Academy were separated, becoming an institution of higher education and high
school, respectively. By 1969, the College had become coeducational with the acceptance
of men as undergraduate students, and, in 1992, the title of Saint Xavier University was
adopted.
4 The Employer also raises a Religious Freedom Restoration Act issue in its post-hearing brief. However,
“the Board has no obligation to demonstrate the value of applying the Act to the Employer, unless and until
the Employer demonstrates that such application constitutes a substantial burden.” Carroll College, 345
NLRB 254, 258 fn. 18 (2005) and since “the Petitioner is not yet certified as the faculty's collectivebargaining
representative … no specific religion-based conflicts have emerged.” Id. at 259.
5 The Board uses the “substantial religious character” test it developed from the Supreme Court’s decision
in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), and has never adopted the tripartite test set
forth by the D.C. Circuit in Great Falls and Carroll College.
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The University is an institution of higher learning, offering undergraduate and
graduate degrees with a main campus in Chicago, Illinois and an auxiliary campus in
Orland Park, Illinois. It consists of four schools and one college: the College of Arts and
Sciences, the School of Education, the Graham School of Management, the School of
Nursing, and the School for Continuing and Professional Studies. It has a President,
Provost, two Assistant Provosts and five Deans, one for each of the schools. University
Provost Durante testified “the chief academic officer … [who] oversee[s] the entire
academic enterprise at the institution … all of the curriculum, all that accrues to our
students … [in] their academic lives [and t]he faculty is subsumed under all of that, all
instruction, all academic activity.”
During the last full academic year (2010-2011), the University had a total
enrollment of 4,852 students across its 43 undergraduate degree and 11 graduate degree
programs, and employed 187 full-time, 10 “portion of full-time”, and 237 adjunct faculty.
It is recognized as a Catholic institution located within the Archdiocese of Chicago
according to the Official Catholic Directory (2010), which lists it as having two priests
and five sisters.
The University is organized as a not-for-profit corporation for education purposes
and granted federal tax exemption pursuant to Section 501(c)(3) of the Internal Revenue
Code. As a not-for-profit corporation, its only corporate member is the corporate arm of
the Institute of the Sisters of Mercy of the Americas (herein, “Sisters of Mercy”) known
as the Council for Mercy Higher Education (herein, “CMHE”). Sister Susan Sanders
described CMHE as “the body that’s constituted both canonically, in canon law, and
civilly, that holds the responsibilities and the reserve powers for the governance of the
university … [it is] the corporate member who links the University to the Church and
makes it an officially recognized member of the Church.”
The current bylaws of Saint Xavier University, most recently amended May 13,
2009 and current articles of incorporation of Saint Xavier University provide that the
University shall be managed by an independent Board of Trustees numbering no less
than 25 and no more than 30, consisting of the President of the University and at least
four members of the Sisters of Mercy. Sister Susan Sanders, Vice President of the Office
for University Mission and Secretary of the corporation, testified that there are currently
24 voting trustees. Five trustees are Sisters of Mercy and at least 15 are Catholic. The
remainder were not identified with any particular religious affiliation.
According to the bylaws, CMHE has “the responsibility to ensure that [the
University] continues its educational and religious mission and purposes, especially its
Catholic-Mercy character …” and reserves the power6 to approve: amendments to the
articles, changes or restatements of the corporate mission or purpose, an individual’s first
election as trustee, appointment of the president of the University, sale, lease or exchange
of land in excess of $10 million, assumption of debt greater than $10 million, and merger,
6 See Article 3, Section 3.2 (a) through (i) of the bylaws for a list of the reserved powers needing CMHE
approval.
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consolidation or dissolution of the University. While CMHE’s approval is necessary and
required with regard to the above, it does not appear it can unilaterally accomplish any
without initiation by the Trustees. However, the ability to change certain portions7 of the
bylaws, including the first stated responsibility of the Trustees to “[s]afeguard and
advance the University’s educational and religious mission and purposes, especially its
Catholic-Mercy character,” a responsibility that also extends to individual trustees, is
within the power of CMHE.
The bylaws require that “[t]he University actively seeks trustees who represent
diverse races, cultures, and religious traditions. In each case, trustees must be committed
to the practical implications of the University’s Catholic identity and, to the extent
possible, the majority of the Board should be Catholics committed to the Church …
Except as herein expressly provided, there shall be no other disqualification either by
reason of belief, creed, race, gender or residence from eligibility to serve as trustee.”
Trustees other than the University’s President serve three-year terms and can serve no
more than three consecutive terms without a minimum break of one year. Trustees do not
sign any affirmation of their commitment to the University’s Catholic identity.
B. Catholic Identity and Mercy Heritage
The University provides various public programs that are related to or inspired by,
its Catholic identity and Mercy heritage. These include the Catholic colloquium series,
Squeaky Weal lecture series and God Matters radio show, all of which are advertised
throughout campus and the local community via colorful posters. While attendance at
either of the series can help fulfill students’ one credit Transitions requirement, it is not
mandatory and students may elect to complete the requirement by attending non-Catholic
events. Neither faculty nor adjuncts are required to attend any of these events.
The University also holds three annual celebrations of its Catholic identity and
Mercy heritage that are open to students, faculty, and the public: Mercy Day on
September 24th to celebrate the Feast of Our Lady of Mercy, Founders Day on December
3rd, which is the Peace of Saint Francis Xavier, and Mission Day in March, where a
faculty member and student are honored for their service to the University community.
All three contain speeches with Founders Day including a liturgy and speech by a Sister
of Mercy to “celebrate the identity of the University in terms of … three things: its
Mercy, Catholic, and liberal arts heritage.” Mission Day’s speeches are by the Provost
Durante, who speaks of the Catholic identity and Mercy heritage in terms of academics,
and Sister Sanders, who speaks to it in terms of ethos and culture. Attendance at these
events is not mandatory for students or faculty.
Other annual events are the Medallion Ceremony, where new student induction
takes place. As part of the Medallion Ceremony, students are given a medallion with the
University’s motto and a prayer book. The medallion features the University seal on one
side and the quote “We strive to witness to Mercy when we reverence the dignity of each
7 Specifically, Article XV of the bylaws reserve the powers of Article 3, Article 4 §2 ¶a & §3 ¶a, Article
4.3 (second sentence), Article 4.4, Article 6 §1.1 (first sentence) & §2.2, and Article 15 §1.
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person” from the Constitutions of the Sisters of Mercy on the reverse. While the prayer
book is primarily Catholic, it does feature several prayers based in other faiths such as
Buddhism, Islam, and Judaism. Neither students, nor faculty, are required to attend the
Medallion Ceremony. Graduation is the only mandatory faculty event, however, it is only
mandatory for full-time and “portion of full-time” faculty, not adjuncts. A Catholic mass
is held the day prior to graduation, but neither faculty nor students are required to attend.
Attendance at the commencement is required for faculty, but not adjuncts, and the
ceremony opens and closes with prayer.
Provost Durante testified that the University was guided (as opposed to
“governed”) by the Ex Corde Ecclesiae, the Apostolic Constitution of the Supreme
Pontiff John Paul II on Catholic Universities. She explained her view of how the Ex
Corde sets forth the expectations of the Roman Catholic Church with regard to Catholic
universities and how “the principles, the ideals of the Church inform the curriculum in
how it is built[,]” but also encourages diversity among the faiths represented by
University faculty to foster “dialogue … that continually examines that intersection of
faith and reason in terms of how we can consider human dignity and social concern.”
Provost Durante admitted she was unsure if she was mandated to use Ex Corde in her role
as Provost, but in her experience with Catholic institutions there was “an expectation that
this document be considered seriously, vibrantly used, [and] attended to.” Another
expectation under Ex Corde is for faculty teaching Catholic theology receive a mandatum
from the local ordinary of the Church. According to Sister Sanders the two Catholic
studies professors have requested and received mandatum.
The University recently submitted a report to CMHE that detailed how the
University expresses and realizes its Catholic identity. The report was the first time
CMHE had requested the information in this form, but the University provides CMHE
with some of the information annually in some form as “an accountability mechanism to
[CMHE].” There is also a Collegium, a colloquy on faith and intellectual life that
includes faculty from sectarian and secular schools. Attendance at Collegium is not
required of faculty or students.
C. Stated Purpose of the University
The current articles of incorporation of Saint Xavier University, most recently
amended on June 11, 1993, state the object of the University is a mission of higher
education. This object does not contain any reference to religion, God, Catholicism,
Sisters of Mercy, or CMHE; instead it speaks only to the purpose of education.
The University’s mission statement8, as listed on its public website and in its
student handbook and faculty resource manual, reads:
Saint Xavier University, a Catholic institution inspired by the heritage of the
Sisters of Mercy, educates men and women to search for truth, to think critically,
8 The current iteration was revised starting in 2002 with approval coming from the Trustees and CMHE in
2005.
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to communicate effectively, and to serve wisely and compassionately in support
of human dignity and the common good.
In addition, the University’s philosophy statement9 references its heritage with the
Sisters of Mercy and their Catholic faith, and:
The enduring fellowship of alumni, emeriti faculty, Sisters of Mercy sponsors,
trustees, and other friends and contributors in the community at large [that]
demonstrates their continuing faith in the central mission of Saint Xavier through
various acts of giving, prayer and support. Infusing this community of shared
concern are the distinctive qualities and values of Saint Xavier University,
including the belief that faith and reason can interact in mutually fruitful ways.
Therefore, the University membership encourages a full search for truth,
including religious truth, while respecting freedom of personal expression. It also
promotes a vigorous and compassionate dialogue among the various faith
traditions, and between them and the academic disciplines. At its foundation,
teaching and learning at Saint Xavier are premised upon and committed to the
fundamental dignity and unique worth of each human person.
D. Funding10
Approximately 93%-94% of the University’s revenue comes from tuition with
secondary sources of fundraising and donor contributions. The University currently has
approximately $51-$52 million in outstanding debt to financial institutions, and an
additional $5 million as a loan from the Sisters of Mercy. The Employer also operates a
saloon as part of its main Chicago campus.
E. Faculty and Student Requirements
The University does not investigate the religious beliefs of its students, faculty, or
trustees. In fact, the articles explicitly state:
No religious, racial, color or ethnic test or particular religious profession shall
ever be held as a requisite for admission to said colleges or university or to any
department belonging thereto … or for election to any professorship, or any place
of honor or emolument in … any of its departments or institutions of learning.
Moreover, the University has no requirement for faculty, including adjuncts, to espouse
or emphasize Catholicism in their teachings or imbue students with the tenets of the
Catholic faith. As noted above, discussion of various faiths and viewpoints is encouraged
as part of Ex Corde, including those faculty who may be atheist. Neither the University,
9 Accepted by Faculty Senate and approved by the Trustees and CMHE in 2006.
10 The Petitioner, after the close of the hearing, submitted a written request to reopen the record to admit
certain tax records. The document records in question were available during the hearing, but were not
admitted into evidence by the Petitioner. Accordingly, I do not find the documents meet the requirements
of being newly discovered or previously unavailable to justify reopening the record.
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nor the Church, reviews or approves the texts chosen and used by faculty in the
classroom.
As part of the University’s core requirements, students must take two courses in
religious studies, which is on par with the credit requirements in other disciplines (e.g.,
science, history, and arts and humanities), and may fulfill this requirement by taking
courses of any religion. It is not mandatory for students to take a course in Catholicism.
F. Adjunct Faculty11
Two current adjunct professors, Robert Tapia and James Kollros, and one recently
retired adjunct professor, James Andreou, testified to the hiring practices of the
University. Tapia and Andreou were recruited via emails disseminated through their thencurrent
universities, DePaul University and University of Illinois at Chicago,
respectively, whereas Kollros responded to a newspaper advertisement. Each submitted
their curriculum vitae, or in the case of Andreou, a copy of his academic transcript, and
then interviewed with either multiple full-time professors within the department the
applicant was seeking employment, or the chair of the hiring department and the dean of
the associated school. Following the interview, an adjunct applicant may receive an oral
or written offer of employment, followed by a written contract and sometimes a formal
application. Neither the offer, nor the contract, mention the Sisters of Mercy,
Catholicism, God or religion.12 Andreou stated that he raised his observance of Greek
Orthodoxy (or Orthodox Catholicism, as opposed to Roman Catholicism) as a possible
concern during his application interview, but the department chairperson said that it did
not matter.
Unlike full-time and “portion of full-time” faculty13 who receive a thorough third
year review and are regularly evaluated by their department chair and dean, the
performance of an adjunct is based primarily on their students’ evaluations, which
contain no reference to the Sisters of Mercy, Catholicism, or religion. Provost Durante
testified that department chairs will also occasionally evaluate adjuncts every couple of
years, but the chairperson or program director will often delegate this to another faculty
member. The adjunct witnesses stated that they were never instructed to disseminate the
Catholic faith, nor was any aspect of religion addressed in their evaluations. Adjunct
faculty cannot be dismissed for conduct contrary to the Church, nor can they be
dismissed by the Sisters of Mercy or Church officials.
11 On December 24, 2009, in Case 13-RC-21897, the University and Petitioner signed a stipulated election
agreement for its part-time faculty in a unit similar to the instant petitioned-for unit. An election was held
via mail ballot and this Region certified the results on March 3, 2010 that a majority of valid votes had not
been cast for the Petitioner.
12 Adjunct positions in the Department of Religious Studies may contain such references; however, no
evidence was put on the record with regard to religious studies.
13 Pursuant to a petition and Board election, the Faculty Affairs Committee was certified as the collective
bargaining representative of all full-time and portion of full-time faculty in 1979, and has negotiated
multiple collective bargaining agreements with the University over the past three decades.
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