The NLRB's Theology of Labor

by Matt Bernico

On January 7th, the Augsburg Staff Union announced that staff workers overwhelmingly voted to unionize with Office and Professional Employees International Union Local 21. Their victory establishes a union for 134 employees, following months of organizing in a campaign that went public in October of 2020.

The formation of the Augsburg Staff Union follows another union push at the institution from 2016, when adjunct-instructors voted to unionize with the Service Employees International Union Local 284. Adjunct and staff unions are increasingly common, but Augsburg's union push is unique––organizers had to navigate the politics of religion at a private university.

Augsburg University is affiliated with the Evangelical Lutheran Church. Institutions’ religious affiliations offer difficult roadblocks—or even total shutdowns—for labor organizing. Administrators often use religious rhetoric and claims about religious liberty as tactics to bust unions. In the case of Augsburg, the religious background and stated institutional values helped the campaign.

While religious rhetoric is unlikely to be a decisive factor in a union drive, the question of religious liberty and identification can be. When it comes to unions organizing workers at religious institutions, the National Labor Relations Board (NLRB) often invokes religious and legal claims at the expense of workers’ rights. Comparing the following NLRB decisions shows us how religion is used by administrators to bust unions and quash worker power.

The NLRB Vs. Religion

The NLRB issued a number of contentious decisions when it comes to its jurisdiction at religious institutions. But, the main conflict comes down to one simple constitutional question: "Is it a violation of the First Amendment for the NLRB to certify a union at a religious institution?" However, before the NLRB can make any judgment about their jurisdiction concerning religion, they had to develop a criteria to judge whether an institution had "substantial religious character."

In the 2014 Pacific Lutheran University (PLU) case, the Obama-era NLRB ruled that collective bargaining does not necessarily infringe on the religious freedom of religious colleges as long as the faculty members unionizing don’t perform a religious function. The PLU precedent gave many, like those at Augsburg University, a pathway to unionization. Unfortunately, the NLRB changed its direction again under the Trump administration.

In June 2020 non-tenure-track instructors at Bethany College sought a union, but were ultimately blocked by a new set of criteria determined by the Trump era NLRB. The new criteria hinged on whether an institution “holds itself out to students, faculty, and community as providing a religious educational environment," and is "affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization…". This new criteria effectively bars instructors at religious institutions from unionizing.

Advocates of this ruling, like Shirley Hoogstra, the President of the Council for Christian Colleges and Universities, frame this as a win for religious liberty in the United States. But this is a win for “religious liberty” only if you ignore the faith and social justice commitments of the employees seeking union representation. A central theme expressed in these NLRB cases of "substantial religious character" and prioritizing the religious interpretations of institution bosses over workers play out explicitly in the rhetoric and actions of university administrators in labor disputes across the US.

Loyola University

At Loyola University, a Jesuit University in Chicago, graduate student workers began organizing a union in 2016. The Loyola graduate student workers won a union in 2016 and were recognized by the NLRB, but Loyola refused to recognize the union. According to Nathan Ellstrand, a Ph.D. candidate in History at Loyola University and part of the organizing committee for the Loyola Worker Coalition, the university objected to the grad students' union because they were "religious workers,".

"The NLRB made a compromise [with Loyola University]," Ellstrand said. "[The NLRB would] exclude all Jesuit graduate students, and they would also exclude any theology graduate students. Even though, under the surface, a lot of those folks aren't religious workers, they're just studying religion." Despite the NLRB compromise, Loyola University refuses to recognize the Loyola Graduate Student Union to this day.

In a statement made by Loyola University, "Consistent with Catholic Social Teaching, it is just and acceptable to recognize the important relationship Loyola has with our graduate assistants, address their needs, and give them a voice, but it need not be through a union." The University’s position on Catholic Social Teaching is strange, however, since the Catholic Church has recognized the right of all workers to have a union since 1891, when Pope Leo XII published the encyclical letter Rerum Novarum. Every pope since has upheld this right, and Pope Francis, a Jesuit, has given unions a prominent place in his speeches and writings.

Unsurprisingly, many Catholics have criticized Loyola University’s union-busting rhetoric. At a rally in support of members of the Loyola Worker Coalition, Arise Chicago, a faith-based labor organization, published a letter signed by Catholic priests, nuns, brothers, and deacons in support of the Loyola Graduate Workers Union. "Loyola University's stance that the graduate workers do not have a right to be represented by a union is very troubling and in complete contradiction with the mission of the University as a Jesuit institution."

The NLRB's promotion of a religious institution's agency in self-defining what it means to be religious and how to define "religious workers" clearly undergirds the struggle at schools like Loyola. This framework gives religious institutions the license to cynically deploy religious beliefs to ends that put them at odds with their members of their own religion. Is it really true that Loyola has the right to say its own Catholic identity exempts it from what the Catholic Church has taught consistently for over a century? Is it the court's place to decide whose religion is authentic and whose is cynical? And what about the religious freedom of workers seeking a union in order to follow their own Catholic faith? The NLRB has chosen to sidestep these questions, in service to preserving the power of employers.

Augsburg University

In 2016, Augsburg University's non-tenure-track faculty successfully unionized with only a few challenges from the university. Then, a few weeks ago, Augsburg staff workers won their union in a similar vote. While Augsburg shares the same religious tradition with PLU, the administration used very few of the religion-based anti-union tactics deployed by their colleagues and did not engage in a contentious process over religious worker classifications. What stands out at Augsburg are the ways religious messaging does not show up.

As Uriah Ward, a staff worker at Augsburg tells it, the staff union drive was bolstered by integrating the progressive history of the institution into its campaign. "[W]e are very much a values-driven institution that regularly commits to being on the right side of social justice issues," Ward said. "We made the case that economic justice is social justice, and unionizing was in line with Augsburg's stated progressive values. It didn't hurt that a former and celebrated university president had written in favor of labor unions over 100 years ago."

The former Augsburg president Ward references is Sven Oftedal, who was the then-president Augsburg Seminary from 1907-1911. In 1882, Oftedal wrote in the local Norwegian-American newspaper, Folkebladet, "…given our country's lack of legal protections for workers, they are obliged to create unions…to protect their interests." Nearly 100 years later, these words are emblazoned on the front page of the Augsburg Staff Union's website.

In addition to this historical pro-union connection, Ward also notes that the current University leadership took a progressive stance when it came to the summer's protests over the murder of George Floyd and Breonna Taylor. "Augsburg came out with a statement in favor of protests and collective action. That statement actually helped us recruit some new supporters!"

Not everyone at Augsburg is convinced that the leadership is as invested in their historical values or current progressive beliefs. Jessica Ennis, an instructor of physics and part of the non-tenure-track union drive, noted that, "as an employee, it shook me a lot at the time to understand that the school's mission was mostly for marketing material, not internal principles of action." In a move that she doesn't see as living up to the progressive values of the institution, Ennis explains that administrators, "brought in a very expensive lawyer, without concern for the inequity they were fighting to perpetuate."

Substantial Religious Character

Laying these stories out side-by-side demonstrates the real difficulty in understanding the religious character of an institution. In the case of Bethany College, the NLRB determined that if an institution "holds itself out" as a place that "provides a religious educational environment," then the NLRB's jurisdiction is in question. The peculiarity with this way of thinking is that it simply takes the word of the institution itself over the religious community it actually belongs to.

In the case of the recently successful organizing campaign at Augsburg, at least some of the success is attributable to the organizing committee's use of the institution's religious character and social values as an impetus for their union drive. Though, as Ennis said, so much of that identity appears to be window dressing.

After the NLRB's decision in 2020 at Bethany College, unionization efforts like the one at Augsburg are possibly the best option for staff at religious institutions. If nothing else, non-faculty may be able to build power on the campuses of religious institutions and can be important advocates for their fellow workers who do not have union rights. However, while the Augsburg staff union’s strategic use of the institution’s progressive religious values helped their campaign, their success ultimately relied on the university leadership not fighting back on those same grounds.

As it stands, the main structural impediment to unions at religious institutions is the criteria the NLRB uses to define what religious character really means. These criteria expose the NLRB's failure to understand the way faith communities work and allow employers to strip workers of their right to a union. As shown in the case of Loyola, the top-down self-definition of religious character has clearly put the leaders of religious institutions at odds with those in their respective faith community, and self-definition has led to clear divisions over what an authentic expression of religion means.

I won’t pretend to know how to legally tread the tricky ground of balancing religious liberty with the right to a union, but the NLRB's current tactics are not helping anyone except the administrators of religious schools. The NLRB must develop a more nuanced understanding of faith and religious communities; one that acknowledges the right to union representation. Without substantial changes in the way the NLRB thinks of its jurisdiction with regards to religion, religious freedom will always be used by employers to oppress and exploit their workers.

Matt Bernico is a digital organizer in the Fight for $15. He has a Ph.D. in Media Communication from the European Graduate School. His primary research interests are at the intersections of religion, politics, and technology. You can hear more from him on the podcast he co-hosts, The Magnificast.

AdminJanuary 27, 2021