THE BOSTON UNIVERSITY

PUBLIC LAW INTEREST LAW JOURNAL

VOLUME 8 SPRING 1999 NUMBER 3
 

THE FIRST AMENDMENT AND THE LABOR RELATIONS OF RELIGIOUSLY AFFILIATED EMPLOYERS

David L. Gregory 

Charles J. Russo
 

"You have the right to form a union, but I won't recognize it. I would never cede authority to a union; I would see this place close down first." Bishop Michael A. Saltarelli, D.D., Roman Catholic Diocese of Wilmington, Delaware (during meeting with faculty and staff of St. Mark's High School).'

I. INTRODUCTION

In 1979, in NLRB v. Catholic Bishop, the United States Supreme Court apparently feared that judicial inquiry into, and scrutiny of, the labor and employment relations in religiously-affiliated institutions posed too great a risk of the government's unconstitutional excessive entanglement into the internal theological matters of the particular religiously-affiliated schools. The Court's First Amendment jurisprudence invoked the First Amendment rights of the religiously-affiliated schools/employers, essentially giving carte blanche to religiously-affliated employers to conduct their labor and employment relations and personnel practices, effectively exempt from their employees' legal challenges.

The following year, in NLRB v. Yeshiva University, the Court found that college faculty generally are supervisors or managers, and not "employees," within the meaning of the National Labor Relations Act. Thus, college faculty are not able to bargain collectively with their university employers regarding their hours, wages, and terms and conditions of employment.

The ramifications of these decisions continue to be pernicious and profound, often having a dramatic debilitating influence on the labor and employment fights of faculty members, especially those teaching in religiously-affiliated schools, colleges, and universities. We have examined manifestations of these problems in various cases and have proposed methods for workers in these institutions to more effectively assert labor fights. Such methods prescribe, in some contexts, the workers to invoke the moral teaching of the particular religion with which their employer professes affiliation. At the same time, we recognize the compelling and fundamentally important nature of religiously-affiliated institutions, not merely as part of the social and economic infrastructure in this country, but, most critically, as manifestations of authentic religious ministries which fully deserve legitimate First Amendment protection.

Upon the twentieth anniversary of the problematic Catholic Bishop decision, we assess these core tensions between the important prerogatives of the religiously-affiliated institutional employers and the human, civil, and labor rights of their employees. Initially, we review the background leading up to the recent decisions of the highest courts of New York and New Jersey. These decisions suggest that it is possible to reconcile these tensions and to protect the fundamental rights of both employers and workers. We then situate these recent state court decisions within the larger architecture of Catholic Bishop. This suggests how these recent cases may positively reconfigure the labor and employment relations dynamics of religiously-affiliated institutions, while simultaneously respecting their authentic religious mission, and ministry, as well as their necessary managerial prerogatives. While our analysis is primarily, but not exclusively, from our perspective as Roman Catholic professors teaching at Catholic universities, it effectively applies to most major religiously-affiliated institutional employers and their employees.

II. A BRIEF HISTORY OF LABOR RELATIONS IN ROMAN CATHOLIC SCHOOLS

The evolution of collective bargaining via teachers' unions, a relatively recent phenomenon in the history of Catholic education in the United States, began shortly after the rapid spread of collective bargaining in the public schools. In 1962, President Kennedy's Executive Order 10988, which established a federal policy recognizing governmental employees' unions, provided a major impetus behind teachers' unions and collective bargaining. This Order gave national expression to a mood that had emerged a few years earlier. In 1958, New York City permitted public employees to participate in collective bargaining for the first time, and Wisconsin, in 1959, became the first state to mandate collective bargaining for municipalities. Since the early 1960s, the trend toward collective bargaining in the public sector, including education, has grown rapidly; today, at least thirty-five states expressly have adopted labor relations statutes for teachers.

Collective bargaining initiatives by teachers' unions in Roman Catholic schools, the largest and most organized segment of church-operated schools in the United States, began concurrently in high schools in large urban centers in the northeast and midwest, most notably in Brooklyn, Philadelphia, and Chicago. Although the move to unionization in the Brooklyn Diocese progressed smoothly, with the first bargaining sessions taking place between the Lay Faculty Association and the Diocese in the Spring of 1967, the same could not be said for the Archdioceses in Philadelphia and Chicago. In fact, on April 17, 1967, the first "strike" in American Catholic education history lasted for twenty minutes in Philadelphia before the Association of Catholic Teachers and the employing Archdiocese reached an agreement. Four days later, teachers in three Catholic schools in Chicago went on apparently unrelated strikes, lasting from one day to several weeks, and which led to the firing of twenty-three striking teachers in one of the schools in May 1967. Although teachers in Chicago formed the Catholic Archdiocesan Teachers Federation (CATF) in January 1968, the Archdiocese has refused to organize the CATF as a bargaining agent for the teachers. 

In light of the many social justice initiatives flowing from the Second Vatican Council, the National Catholic Education Association (NCEA) conducted a self-study of emerging trends in Catholic education. In response to a question asking whether "90% of all dioceses will have teacher associations that will bargain with the [school] board or diocese," 8% of respondents answered that collective bargaining was likely to occur within five years, 70% that it was likely by 1980, and 12% by 1985; only 1% were of the opinion that this was never likely to take place. Moreover, almost 60% of respondents considered the growth of collective bargaining desirable, while less than 30% considered its expansion undesirable.

Teachers' unions in Catholic secondary schools meanwhile grew at a steady, if unspectacular, pace. By 1973, 25 of 145 responding dioceses reported the existence of recognized teachers' associations or unions However, a study conducted in the summer of 1979, shortly after Catholic Bishop, revealed that the growth of unions had slowed to the extent that only 27 of 162 Roman Catholic school systems reported having teachers' organizations

NLRB V. Catholic Bishop

The status of unions in Catholic schools received substantial support when, in 1975, the NLRB asserted jurisdiction over union-organizing activities in companion cases in Catholic secondary schools in Chicago and Ft. Wayne-South Bend. The schools, however, refused to comply with the Board order directing them to recognize and bargain with the unions. The schools appealed to the Seventh Circuit, which ruled that the Board improperly exercised its discretion in light of the religious nature of the schools, and that related First Amendment considerations precluded the NLRB from asserting its jurisdiction. The NLRB, in turn, appealed to the Supreme Court which granted certiorari in February 1978.

In the interim, the teachers' movement took another step forward in December 1977, when delegates of lay teachers from seven Catholic Church dioceses, representing 3,300 teachers, met in Philadelphia to form the National Association of Catholic School Teachers (NACST) The NACST expressed hopes of becoming an organization with a membership of 25,000 to 30,000 teachers.

On March 24, 1979, the Supreme Court handed down its 5-4 decision in NLRB v. Catholic Bishop, which was destined to become a landmark in the history of teachers' labor organizations and labor-management relations in Roman Catholic schools. In Catholic Bishop, a closely divided Court affirmed that the NLRB lacked jurisdiction to mandate bargaining between teachers and their Roman Catholic secondary school employers.

Writing for the Court, Chief Justice Burger framed two issues for consideration: first, whether Congress intended to grant the NLRB jurisdiction over teachers in church-operated schools; and, second, if it did, whether such an action violated the constitutionally sensitive questions arising from the First Amendment religion clauses? However, Burger then sidestepped the First Amendment issue by applying the longstanding principle which the Court first enunciated in Murray v. Schooner Charming Betsy, which directs the courts not to construe legislation as violating the Constitution if the courts can dispose of cases on other grounds. Consequently, Burger reviewed the legislative history of the National Labor Relations Act and its amendments and concluded that there was no affirmative congressional intent to extend the NLRB's jurisdiction to church-operated schools. In reaching his decision, Burger was clearly influenced by the Court's desire to avoid having "to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.''

In a brief dissent, Justice Brennan maintained that because the Court erroneously interpreted the NLRA, the Court should have extended NLRB jurisdiction and the NLRA to protect lay teacher employees of church-operated schools. Brennan, however, did not further pursue any constitutional law-based rationale because the majority chose not to do so.

Catholic Bishop adversely affected the potential for more viable labor relations in Catholic schools in several ways. First, absent positive, tangible mechanisms in state law, it created a void by leaving teachers without legal recourse to a neutral third-party to settle labor disputes. Second, it challenged the leadership of the American Catholic Church to take the initiative to establish structures and procedures to fill this void. Unfortunately, despite the promise of Economic Justice For All, the Church has yet to provide an adequate response to its labor relations lacunae created by Catholic Bishop. If anything, in light of the post-Economic Justice for All environment of the past decade, Catholic Church leaders working as Catholic school employers often appear oblivious to the Church's own eloquent teachings on workers' rights, including teachers employed in Catholic schools, to join labor unions and to engage in collective bargaining.

Catholic Bishop has had a profound chilling effect on labor rights, especially in Catholic schools. While available data on collective bargaining in these schools are somewhat inconclusive, the NACST, the single largest Catholic School teachers' organization (representing some 5,000 teachers in 21 affiliated unions, mostly in the Northeast), originally hoped to marshal 25,000 to 30,000 teachers.

The available statistical data do not fully assess or reflect the legal status of bargaining, and often the lack thereof, in Roman Catholic schools. Although collective bargaining has certainly declined since Catholic Bishop, legal and theological issues, conflicts, and possibilities for progress remain in such a state where bargaining may continue, For example, in Catholic High Sch. Ass'n v. Culvert, the Second Circuit held that the First Amendment did not prohibit the New York State Labor Relations Board (NYSLRB) from asserting jurisdiction in a conflict between lay teachers and the Catholic schools in which they were employed. The Second Circuit distinguished Catholic High School Association from Catholic Bishop on the ground that, unlike the NLRA, which evidenced no intent to bring Church-operated schools within the jurisdiction of the NLRB, the New York State Labor Relations Act was amended explicitly in 1968 to bring employees of educational or religious associations within its purview. Accordingly, the federal court of appeals dismissed the schools' First Amendment challenges and permitted the NYSLRB to retain jurisdiction over such disputes.

Following Catholic High School Association, at least two additional labor disputes involving Roman Catholic secondary schools were brought successfully before the NYSLRB. In re St. John's Preparatory Sch. and Lay Faculty Ass'n, the NYSLRB found that the school unlawfully refused to bargain in good faith with the teachers' labor association, that the school's unfair labor practices precipitated the ensuing strike, and that the school acted improperly in dismissing seventy-six striking teachers in September 19847

A second case, involving a 1981 strike at 'Christ the King High School in Middle Village, New York City, in which ninety-six teachers were dismissed under circumstances similar to those at St. John's Preparatory School, was also recently resolved in favor of the teachers.
 

IV. CHANGING THE CONSTITUTIONAL AND THE LABOR RELATIONS ARCHITECTURE: SOME POSITIVE DEVELOPMENTS FROM NEW YORK AND NEW JERSEY COURTS

Christ the King Regional High School v. Culvert
In March 1987, the New York Court of Appeals unanimously affirmed that the NYSLRB could enforce its orders regarding a Catholic secondary school employer, requiring it to bargain in good faith with the union and reinstate certain teachers whom the school, as employer, had dismissed from employment. According to the court, compliance with the mandates of secular labor law did not violate the Catholic school's First Amendment rights. The court held that the NYSLRB could compel the Catholic school's good faith bargaining because First Amendment protection from excessive government involvement into the Catholic Church's internal theological matters does not summarily preclude government regulation of the secular aspects of the school's labor relations.

Christ the King Regional High School, a Roman Catholic secondary school located in Queens, New York City, employs lay and religiously-affiliated faculty and teaches secular and religious subjects. Historically, the Roman Catholic Diocese of Brooklyn operated the school, but in 1976, responsibility and title were conveyed to the school per se, contingent upon its continuing to operate as a Roman Catholic-identified institution. In 1976, a union began representing the lay faculty, but it failed repeatedly to negotiate with the school's administrative management regarding the collective bargaining agreement terms. These repeated failures to achieve a labor contract precipitated a strike in 1981; the school fired all striking workers and summarily ended labor negotiations.

The NYSLRB pursued alleged employer violations of the New York labor law, including failure to bargain in good faith and improper discharge without reinstating striking employees. In federal court, the school challenged the state Board's jurisdiction as preempted by the NLRA and as unconstitutionally intrusive on the school's First Amendment rights. The district court rejected this complaint, and the Second Circuit affirmed it on the preemption issue only. An administrative law judge (ALJ) confirmed the NYSLRB's complaint, and the Board brought suit to have the ALJ decision enforced under New York State Labor Law § 707. The school moved to dismiss the petition on constitutional law defense claims.

The New York Court of Appeals granted the Board's petition and denied the school's motion to dismiss, affirming the decision of the Appellate Division. New York has thus articulated an enlightened, necessary flexibility in First Amendment religion jurisprudence, for the purposes of the intersection of the secular labor law regime with the labor relations of the Catholic school: "The First Amendment's metaphorical wall of separation between church and state does not per se prohibit appropriate governmental regulation of secular aspects of a religious school's labor relations operations.

The Court of Appeals held that the NYSLRB's inquiry did not impinge on the school's First Amendment right to the free exercise of religion.(a The court explained that the New York State Labor Relations Act is neutral in theory and in fact, with no implication of adverse or unconstitutional restriction on religious beliefs or activities. Relying on the Supreme Court's decision in Department of Human Resources v. Smith, the court concluded that since the intent of the state labor law was not directed toward religion, and the effect of the state labor board's compelling good faith negotiation only incidentally affected religion, there was no violation of the First Amendment per se. The court noted, however, that there could be violations in other cases, depending on the particular facts.

The court also held that the labor law did not violate the Establishment Clause of the First Amendment. Distinguishing the case at hand from N.L.R.B. v. Catholic Bishop in that statutory interpretation was not at issue, the court explained that labor law simply imposes secular regulations on such contract terms as wages and working conditions. It reasoned that the mere possibility of such regulations interfering with religion was not sufficient to prevent the labor law's useful application.

The New York Court of Appeals mentioned briefly that the Labor Board could compel the reinstatement of a teacher who was expelled for "unchristian behavior," in light of the school's failure to present any evidence of an inherent religious motive for firing the particular faculty member. Thus, mere invocation of the institutional employer's religious affiliation will no longer be sufficient to avoid summarily further scrutiny into its labor relations by the secular state's administrative or judicial instruments.

South Jersey Catholic School Teachers Organization v. St. Teresa of the Infant Jesus Church Elementary School
Within six weeks of the New York Court of Appeals decision in Christ the King, the Supreme Court of New Jersey likewise ruled that lay teachers in religious schools can pursue their right to unionize, mandated by the State Constitution, and can engage in collective bargaining with respect to secular aspects of their employment without any violation of the Religion Clauses of the Constitution. In South Jersey Cath. Sch. Teachers Org. v. St. Teresa of the Infant Jesus Elementary Sch. the court unanimously held that the lay teachers had the enforceable right to unionize and negotiate, provided that the scope of the labor negotiations only incidentally effect the institutional employer's First Amendment free exercise of religion

St. Teresa is one of a number of elementary schools operated by the Catholic Diocese of Camden, New Jersey, all of which employ a number of lay teachers. The South Jersey Catholic School Teachers Organization is an organization of non-clerical lay teachers which a majority of the lay faculty elected as the bargaining representative. Subsequently, the union sought recognition from the Diocese as the bargaining representative. However, a Board of Pastors, acting as agents for the Diocese, informed the union that its recognition was contingent upon the signing of a document entitled, "Minimum Standards for Organizations Wishing to Represent Lay Teachers in a Parish or Regional Catholic Elementary School in the Diocese of Camden ("Minimum Standards"). The "Minimum Standards" vested complete and final authority to dictate the outcome of disputes in the Board of Pastors and prohibited the union from assessing dues or collecting agency fees from non-union members. The union refused to accept the standards. When the Diocese failed to recognize the teachers' union, the union brought suit based on Article 1, Section 19 of the New Jersey State Constitution, which expressly grants public and private workers the constitutional fight to organize. The union claimed that its union acceptance of the proposed standards would have amounted to prematurely bargaining away a number of lay teachers' rights. The schools, however, argued that compelling them to bargain with the union would have violated the Free Exercise and Establishment Clauses of the First Amendment.

The Supreme Court of New Jersey modified and affirmed the judgment of the Appellate Division, remanding the case for further proceedings.The court held that the lay elementary school teachers had an enforceable state constitutional fight to unionize and bargain collectively, but limited the scope of this constitutional fight to the secular terms and conditions of employment.

The court commenced its reasoning with a comparison to NLRB v. Catholic Bishop. The court recognized that this decision supported only federal NLRB jurisdiction, and distinguished the New Jersey Constitution section from that decision because of its express language. It further explained that because the court implements New Jersey's constitutional provisions, and not a state labor board, a less comprehensive supervision of religion is involved and there is more assurance that First Amendment protection of religion will be recognized and honored. The court concluded that since the NLRB did not preempt the State Constitution, its enforcement was constitutional, and would not interfere with First Amendment constitutional rights.

The court considered the enforcement of the state provision under the Establishment Clause, applying the excessive entanglement test of Lemon v. Kurtzman. Both parties agreed that the provision served the secular purpose of advancing economic welfare through the right to organize and bargain; thus, the first Lemon prong was quickly satisfied. The court further noted that the provision was not primarily directed at inhibiting religion, but rather at requiring private employers to bargain. This allowed the provision to pass the second Lemon test prong, bolstered by the observation that the Diocese has a history of voluntarily engaging in bargaining if it was truly threatening. The court also found that the constitutional provision did not violate the excessive entanglement prong, because it only required negotiation over wages and benefits. The State would not decide or impose upon the employers the specifics of the final labor agreement and neutral criteria would be used to insure that religion was neither advanced nor inhibited, Thus, the court asserted that since the Lemon requirements were satisfied, the Establishment Clause was not violated.

The court also determined that the provision did not infringe upon the free exercise of rights of the Catholic school as employer. Applying the test set forth in Smith, the court maintained that since the constitutional provision was a generally applicable regulatory law, intended to encourage the rights of employees to bargain but not to regulate religion, and since it only incidentally burdened the free exercise of religion, it was not an unconstitutional encroachment on the free exercise rights of the Catholic school as employer. The court further concluded that even if the school's claim met the hybrid exception to Smith, New Jersey has a compelling interest in labor relations peace that justifies imposing collective bargaining obligations upon the Catholic Church-affiliated schools.

Of course, other recent decisions continue to conform reflexively to the one-dimensionality of Catholic Bishop. Nevertheless, these two important 1997 decisions of the high courts of New York and New Jersey demonstrate the more enlightened possibilities of avoiding the one dimensional jurisprudential reflexivity of Catholic Bishop. Christ the King and St. Teresa point the way to an enlightened integration of workers' labor rights with authentic autonomous theological prerogatives of religiously-affiliated institutional employers seeking to require teachers to comply with the fundamental moral norms and teachings of the particular religion.

DISCUSSION

The so-called non-negotiable "Minimum Standards" clauses at issue in St. Teresa have very interesting theological, jurisprudential, labor relations, and educational implications. Broadly analogous to the ministerial exemptions recognized under Title VII it is fully understandable that management in religiously-affiliated schools would expect personnel to accept and adhere to core Catholic beliefs and to be dedicated to transmitting the Catholic faith's values and traditions to its students. At the very least, such administrators should have the freedom to hire teachers and staff members who respect the religion's teachings, even if the employees' personal beliefs differ. For example, it is reasonable to expect that female teachers in Catholic schools will not indiscriminately and consensually become unwed mothers, or that teachers will not openly proselytize for Darwinistic materialism, capital punishment, or abortion. Clearly, Church leaders neither want to, nor should they have to, relinquish either their essential beliefs or their fundamental managerial rights through collective bargaining, since such negotiations or responsibilities would vitiate the core values at the heart of a religiously-affiliated institution. Nevertheless, in light of the particularly non-negotiable "Minimum Standards," which the Diocese summarily demanded, this was not the path that the union sought to pursue in St. Teresa.

The inflexible attitude of Church leadership in St. Teresa and Christ the King, let alone Catholic Bishop, was theologically scandalous. If leaders in the Roman Catholic schools expect their staff, students, and parents to follow the moral precepts of Church teachings, expressed through authentic pronouncements of the Papal encyclicals, the Magisterium, and the national conferences of Bishops, they first must themselves practice what they preach. How is it that despite more than a century of unequivocal social teaching recognizing the dignity of all workers, including those in Church-affiliated institutions to organize and bargain collectively, some persons in Church leadership positions seek recourse to secular civil law to trump Church teaching. If the Church, as a major employer in the United States, is going to give effective witness to the social and moral teachings that it eloquently professes, then it must do more than provide pro-forma lip-service to the fights of its employees who wish to organize and bargain collectively.

If anything, the "Minimum Standards" provision under consideration in St. Teresa effectively vitiated some of the employees' basic employment fights, while simultaneously repudiating Church teachings. Rather than summarily opposing women and men who staff their schools and imposing economic hardship on them, Church leaders have a serious moral obligation to work towards implementing the dictates of teachings such as Economic Justice For All, especially as it relates to the fight to collective bargaining. "Minimum Standards" good moral conduct provisions should not be allowed to trump automatically, and thus preclude summarily, collective bargaining under the one-dimensional approach of Catholic Bishop.

The Church leaders' argument in St. Teresa that bargaining would threaten Church autonomy and would infringe upon the Church's relationship with ministerial employees was wholly specious. To the extent that ecclesiastical leaders cooperated with their employees by effectively implementing Church teachings on workers' labor fights, they would give very powerful witness to the ways in which the Church's social teaching can effectively triumph over the narrow positivism of the civil law. In fact, in St. Teresa, the Supreme Court of New Jersey pointed out that the contract that the diocese had with its high schools contained carefully crafted language limiting the scope of bargaining to the terms and conditions of employment, while allowing the school to preserve managerial prerogatives.

In an era of school reform where teacher empowerment is designed to give faculties greater voice in the daily exercise of their professional duties, a positive response from Church leaders can further serve as a powerful example of the effectiveness of shared decision making. By entering into labor contract negotiations with teachers' unions over terms and conditions of their employment, dedicated lay teachers who staff the schools can be made full partners in the enterprise of educating children.

Church leaders' reliance on the Supreme Court's narrow construction to preclude the jurisdiction of the NLRB over teachers in religiously affiliated institutions ignores the First Amendment rights of these educators. Maintaining the shattered edifice of Catholic Bishop heightens the pernicious irony of the reliance on federal law by some officials within the Church to deny teachers the fight of association that state courts, at least in New York and New Jersey, have recently, and wisely, safeguarded.