President Ken Gormley's Statement in Response to NLRB's Decision - April 10, 2017
Today, Duquesne University of the Holy Spirit learned that a panel of the National Labor Relations Board in Washington, D.C. ruled 2 – 1 to assert jurisdiction over Duquesne University in its jurisdictional dispute arising from a union vote involving certain adjunct faculty members. Duquesne is disappointed that the Board chose to rule on this issue with less than its full contingent of five members appointed by the President of the United States, and that the Board has sought to assert jurisdiction when not even a majority of the full five-member Board voted for that outcome.
The Board’s brief one-page decision agrees that Duquesne’s adjunct Theology faculty are exempted from jurisdiction, but goes on to conclude that other adjunct faculty members fall within its jurisdictional sweep. This decision directly conflicts with over 30 years of United States Supreme Court and Federal Appeals Court rulings establishing an exemption from NLRB jurisdiction for faith-based universities. The NLRB once again has chosen to ignore those legal standards established by the Courts, effectively saying that it does not judge Duquesne University to be sufficiently religious, and therefore Duquesne falls under its control.
As someone who has studied and taught constitutional law for decades, it is clear to me that the NLRB’s inquiries into whether institutions are “religious enough” to be exempt from Board jurisdiction entangles the government in religious matters, and intrudes on the religious freedom guaranteed to universities like Duquesne under the First Amendment of the U.S. Constitution. This significant entanglement is precisely what the United States Supreme Court in NLRB v. Catholic Bishop (1979) sought to avoid in its ruling striking down NLRB jurisdiction. Indeed, the Board’s Acting Chairman, Philip A. Miscimarra, wrote a lengthy and compelling dissent in this case explaining why the Board lacks jurisdiction over this entire matter.
Duquesne University’s Catholic and Spiritan mission is what makes it the special place that it is. That is why nearly five years ago, before I assumed the presidency of Duquesne, the University took a principled stand that it could not risk negotiating its Catholic Mission in the Spiritan tradition or the faculty’s role in it with a union, much less entrust its mission or that relationship to the supervision of a government agency in Washington, D.C.
The Supreme Court and multiple United States Courts of Appeal have recognized that the broad and deep powers of the NLRB pose serious First Amendment threats when asserted over faculty unions at religious-affiliated institutions. For that reason, Duquesne University is evaluating all of its options pursuant to the Board’s rules and regulations.
If the Board ultimately persists in asserting jurisdiction, the University must continue on the path it started down nearly five years ago and will take the necessary steps to seek court review to protect its Catholic and Spiritan mission. It is important for all to understand that under NLRB procedures, in order for the University to seek court review of the NLRB’s assertion of jurisdiction over Duquesne University, we must first refuse to bargain with the union, and we must notify them of our refusal. This will then trigger their filing of unfair labor practices against the University, which must first be resolved by the Board before we can seek court review. It is unfortunate that the NLRB has prolonged this jurisdictional dispute; if the NLRB had followed straightforward judicial precedent, the matter could have been resolved by now.
The issue is not about the University’s support for unions. There are four existing unions representing non-faculty members of our community on campus. Our decision to challenge NLRB jurisdiction will not affect any of them. They have been on campus for decades and the University has a good working relationship with each of them.
Nor will our decision impact the University’s commitment to our adjuncts. They are valued and important members of our University community, and I respect their contributions in educating the minds, hearts and spirits of our students. The University will be free to collaborate and identify alternative cooperative frameworks to work with adjuncts once the jurisdictional question is settled and the NLRB’s intrusion into our religious mission is no longer present. This engagement could take many forms, but it would be premature to identify one here. The University looks forward to working with our adjuncts, and indeed with all of our faculty and staff, to identify the right solutions for our special community of scholars, teachers, and learners in the context of our unique mission. Our Catholic and Spiritan mission requires nothing less.
As I emphasized in my remarks at my inauguration, “Our faculty is the engine of this institution. . . . Everyone in this University is working hard, collaboratively, to better serve our students every day.” I remain committed to continuing to work together. I hope by sharing my views with you, everyone can better appreciate the reasons for our actions. Even though there are differing views on this NLRB jurisdictional issue, I am confident that we can all agree that we are committed to providing the best possible educational experience for our students.
As I stated in my message to faculty on my first day in office, “With your support and shared vision for our future, we can continue to strengthen our teaching, learning and scholarly environment in order to accomplish great things that allow Duquesne to shine and make a positive difference in the lives of our students, our region and our global community.” In my 22 years here at Duquesne, I’ve witnessed many great successes arising from collaboration. Under my leadership, I promise that collaboration will continue to serve as a driving force for our future success as we strive to become one of the leading Catholic universities in the United States and around the globe.
Ken Gormley, President
Duquesne University of the Holy Spirit
Founded in 1878, Duquesne is consistently ranked among the nation's top Catholic universities for its award-winning faculty and tradition of academic excellence. Duquesne, a campus of nearly 10,000 graduate and undergraduate students, has been nationally recognized for its academic programs, community service and commitment to sustainability. Follow Duquesne University on Facebook, Twitter and Instagram.