In
1978, the
United States Supreme Court held that the
National Labor Relations Board could not exercise jurisdiction over lay teachers at schools operated by the
Roman Catholic Church, because doing so would violate the NLRB's authority under the
National Labor Relations Act and possibly infringe the
freedom of religion.
Background
Once upon a time in Chicago, there were two Catholic schools called Quigley North and Quigley South. They were minor seminaries, schools for young people interested in joining the clergy: although a student was not bound to become clergy by attending, they had to have the recommendation of a priest in order to be admitted. The schools' lay faculty members decided to join a labor union so they could collectively bargain with the Bishop of Chicago. (Strange but true: although the Bishop of Chicago is obviously a person, he is also a corporation, and carries on his duties as a corporate entity under the law.)
On October 17, 1975, the teachers voted to unionize under the Illinois Education Association. When the IEA went to the Bishop to start bargaining, the Bishop refused to bargain. The IEA filed a complaint against the Bishop on December 5, and the National Labor Relations Board took up the case.
The idea of the NLRB exercising jurisdiction over schools was relatively new. Its mandate extended to commercial institutions: in 1951, the Board refused to interfere with labor relations at Columbia University because the university was not "commercial" enough. In 1970, however, the NLRB stepped in at Cornell, and by 1978 it had taken jurisdiction over all private educational institutions with revenues above a certain limit.
The NLRB's inquiry against the Bishop was broad and deep, looking at anything that might have motivated the Bishop's decision. The following transcript, involving a hearing officer and the rector of Quigley North, was quoted by higher courts:
Officer: Now, we have had quite a bit of testimony already as to liturgies, and I don't want to beat a dead horse; but let me ask you one question: If you know, how many liturgies are required at Catholic parochial high schools; do you know?
Rector: I think our first problem with that would be defining liturgies. That word would have many definitions. Do you want to go into that?
O: I believe you defined it before, is that correct, when you first testified?
R: I am not sure. Let me try briefly to do it again, okay?
O: Yes.
R: A liturgy can range anywhere from the strictest sense of the word, which is the sacrifice of the Mass in the Roman Catholic terminology. It can go from that all the way down to a very informal group in what we call shared prayer. Two or three individuals praying together and reflecting their own reactions to a scriptural reading. All of these - and there is a big spectrum in between those two extremes - all of these are popularly referred to as liturgies.
O: I see.
R: Now, possibly in repeating your question, you could give me an idea of that spectrum, I could respond more accurately.
O: Well, let us stick with the formal Masses. If you know, how many Masses are required at Catholic parochial high schools?
The Bishop tried to obtain
summary judgment on the grounds that the First Amendment barred this sort of inquiry. However, this didn't fly. On
June 18,
1976, the NLRB ordered the Bishop "to cease and desist from refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Illinois Education Association as the exclusive bargaining representative of its employees." Furthermore, the NLRB ordered the Bishop to post the following notice in both schools:
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Illinois Education Association as the exclusive representative of the employees in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the above-named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is:
All full-time and regular part-time lay teachers, including physical education teachers employed by the Respondent at the Quigley North and Quigley South Schools, Chicago, Illinois; excluding rectors, procurators, dean of studies, business manager, director of student activities, director of formation, director of counseling services, office clerical employees, maintenance employees, cafeteria workers, watchmen, librarians, nurses, all religious faculty, and all guards and supervisors as defined in the Act.
THE CATHOLIC BISHOP OF CHICAGO, A CORPORATION SOLE
Around the same time, another group of teachers at five Catholic schools in northern
Indiana were trying to unionize, and the
Diocese of
Fort Wayne and
South Bend refused to deal with their union: the NLRB similarly cut down the Indiana diocese and ordered them to start negotiating. Both the Bishop of Chicago and the Diocese of Fort Wayne and South Bend petitioned the
United States Court of Appeals for the Seventh Circuit, the federal appellate court in Chicago, to review the respective decisions of the NLRB.
The Seventh Circuit threw out the NLRB's rulings. In doing so, it looked to a test established by the Supreme Court in Lemon v. Kurtzman (1971) to determine whether a statute complied with the First Amendment: "first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." Examining the NLRB's action against the Catholic schools, the court concluded that:
All of these essentially patricentric schools are completely subject to the authority of the respective bishops who have the general right of vigilance as to faith and morals and direct authority as regards religious instruction. The bishops operate the schools through functionaries who are completely subservient to the bishops' authority. The purpose of the schools is to carry out the teaching mission of the Catholic Church. The teachers share in the ecclesiastical authority of the Bishop, and all teachers are expected to assist the students to become good Christians. The fact that these institutions provide a secular as well as a religious education does not detract from the fact that the religious mission is the only reason for the schools' existence.
... (Lemon) indicated that some relationship between government and religious organizations was inevitable such as fire inspections, building and zoning regulations, and state requirements under compulsory school-attendance laws. These were listed as examples of necessary and permissible contacts. To the extent that it is argued that the present Board action is similar to these necessarily permissible contacts, we do not agree. Laws on matters such as fire inspections and compulsory attendance do not have the clear inhibiting potential upon the relationship between teachers and employers with which the present Board order is directly concerned.
... Even though "establishment" may at one time have been construed to mean establishing a state religion, it is no longer so but as is pointed out in Lemon, a key word in the First Amendment is "respecting" and that a law may be one "respecting" a forbidden objective while falling short of its total realization. There are substantial aspects in the present cases, in our opinion, not only of sovereign involvement in the religious activity under the establishment clause but there is undoubtedly, in our view, also curtailment of the free exercise of religion under the second prong of the Religion Clauses. Under these circumstances we have felt it sufficient to leave the matter of disposition jointly on the Religion Clauses, each of which has the identical purpose of maintaining a separation between Church and State.
The federal government petitioned the Supreme Court for a
writ of certiorari, and got it. The case was taken to Washington in
1978.
The final decision
The Supreme Court was sharply divided on the issue. Chief Justice Warren Burger wrote the opinion, which was joined by Justices Rehnquist, Stevens, Stewart, and Powell. Justices Brennan, Marshall, Blackmun, and White dissented.
The Board argues that it can avoid excessive entanglement since it will resolve only factual issues such as whether an anti-union animus motivated an employer's action. But at this stage of our consideration we are not compelled to determine whether the entanglement is excessive as we would were we considering the constitutional issue. Rather, we make a narrow inquiry whether the exercise of the Board's jurisdiction presents a significant risk that the First Amendment will be infringed.
Moreover, it is already clear that the Board's actions will go beyond resolving factual issues... The resolution of such charges by the Board, in many instances, will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission. It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.
Here, the opinion cited the rector's testimony.
However, Burger shifted the argument away from the constitution, based on the Supreme Court doctrine that a ruling should not be found unconstitutional if it can be disposed of on other grounds. The "other grounds" here were that there was no apparent intention of Congress to extend the NLRB's jurisdiction over parochial schools. To make this argument, Burger turned to the Congressional Record from 1935, when the NLRB was established by the National Labor Relations Act. At that time, congressional attention focused on employment in private industry and on industrial recovery, and the Senate Committee on Education and Labor chose a college professor's dispute with the college as an example of employer-employee relations not covered by the Act. Then, in the Taft-Harley Act, Congress amended the definition of "employer" to exclude nonprofit hospitals, and came to a consensus that nonprofit institutions in general did not fall within the Board's jurisdiction because they did not affect commerce. Although an amendment in 1974 allowed nonprofit hospitals to fall within NLRB jurisdiction, there was no apparent intention to extend the jurisdiction any further.
The opinion concluded: "In the absence of a clear expression of Congress' intent to bring teachers in church-operated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses."
Justice Brennan's dissent took issue with this congressional intent inquiry. "Explicit expressions of congressional intent in such broadly inclusive statutes are not commonplace," he argued. "Thus, by strictly or loosely applying its requirement, the Court can virtually remake congressional enactments." Looking at the record, Brennan found that an amendment granting religious and educational institutions an exemption to the NLRA was defeated in the Senate committee debating the Taft-Hartley Act. Individual members of Congress had characterized the amendment as too broad and too unfair.
Brennan said that "as long as an employer is within the reach of Congress' power under the Commerce Clause -- and no one doubts that respondents are -- the Court has held him to be covered by the Act regardless of the nature of his activity." The Supreme Court had previously held the Associated Press to fall within NLRB jurisdiction despite the First Amendment "freedom of the press." Brennan questioned how the AP ruling was distinguishable from the present case. "While the resolution of the constitutional question is not without difficulty," he concluded, "it is irresponsible to avoid it by a cavalier exercise in statutory interpretation which succeeds only in defying congressional intent."
Legacy
The Supreme Court's ruling in Catholic Bishop shut down religious school teachers' ability to unionize in many places. Burger's method of analysis, however, left the constitutional question technically unanswered, and opened the possibility for Congress and state legislatures to pass labor laws that specifically included religious institutions. New York and New Jersey have passed such laws, and both laws have been upheld in the courts.
However, the NLRB still exercises jurisdiction over non-educational religious institutions, such as hospitals and children's homes, where the First Amendment issue appears less likely to arise. The Supreme Court has not spoken to the constitutionality of this practice, but several federal courts of appeals have approved NLRB jurisdiction in such cases.
Sources
- NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)
- Catholic Bishop of Chicago v. NLRB, 559 F.2d 1112 (7th Cir. 1977)
- Catholic Bishop of Chicago, a Corp. Sole, 224 N.L.R.B. 1221 (1976)
- Diocese of Fort Wayne-South Bend, Inc., 224 N.L.R.B. 1226 (1976)
- Effect of First Amendment on Jurisdiction of National Labor Relations Board Over Labor Disputes Involving Employer Operated By Religious Entity, 63 A.L.R. Fed. 831
- Brothers, Church-Affiliated Universities And Labor Board Jurisdiction: An Unholy Union Between Church And State? 56 Geo. Wash. L. Rev. 558 (1988)
- Gregory and Russo, The First Amendment And The Labor Relations Of Religiously-Affiliated Employers, 8 B.U. Pub. Int. L.J. 449 (1999)