Religious Schools Required To Bargain

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A divided federal appeals court has found that the New York State Labor Relations Board did not violate the First Amendment when it charged the Catholic High School Association of the Archdiocese of New York with unfair labor practices.

In its decision this month, the U.S. Court of Appeals for the Second Circuit reversed the opinion of U.S. District Judge Morris E. Lasker, who had ruled that the application of the New York Labor Relations Act to the Catholic schools created "excessive" church-state entanglement.

The appellate judges ruled 2 to 1 in the case that Judge Lasker had ''misapprehended" the extent of the state labor-relations board's role in settling labor disputes.

The ruling may set up a U.S. Supreme Court test of the scope of labor laws in relation to religious institutions. According to Edward J. Burke, the lawyer representing the Catholic high-school association, the circuit-court decision will be appealed.

The circuit-court decision marks the first time the specific constitutional question raised in the case has been addressed at the appellate level, said Alan Berg, general counsel for the New York State Labor Relations Board. He added that to his knowledge, no state supreme court has ruled on the issue.

According to Mr. Berg, the ruling will affect collective bargaining between all lay employees and church-operated institutions in New York, such as hospitals, nursing homes, and schools. "It probably will have a pretty broad impact," he said.

Constitutional Question

In 1979, when the U.S. Supreme Court considered a similar case called National Labor Relations Board v. Catholic Bishops, the Justices purposely avoided what they termed "the difficult and sensitive" constitutional issue raised anew in the New York case. In Catholic Bishops, the Court ruled on statutory grounds that the National Labor Relations Board lacked jurisdiction over lay teachers because the U.S. Congress did not affirmatively indicate that it intended lay faculty to be covered by the National Labor Relations Act.

In the New York case, both the district court and the circuit court rejected the argument of the Catholic-schools association that the National Labor Relations Act pre-empted the New York State Labor Relations Act, which clearly covers lay teachers, and concluded that the constitutional question must be addressed.

Decision Pleases Union

Union officials representing the teachers involved in the dispute were "very pleased" with the circuit-court decision, according to Henry Kielkucki, president of the Lay Faculty Association of the Archdiocese of New York. "Bargaining with the diocese has been a real hard task and this decision means that negotiators will have it much easier in the future," he said.

Lay teachers constitute about 75 percent of the 146,913 elementary and secondary Catholic-school teachers, according a recent survey by the National Catholic Educational Association. There are about 5,300 lay teachers in Catholic schools that are under the jurisdiction of the Archdiocese of New York.

The New York case stems from a 1982 charge by the New York Labor Relations Board that the Catholic high-school association, which operates 11 of the 63 high schools under the jurisdiction of the Archdiocese of New York, violated state labor law in 1980 when it suspended 226 lay teachers for protesting the unilateral implementation of a policy that required teachers to teach the classes of absent teachers in addition to their own.

In response, the association filed suit against the labor-relations board and the lay-teachers' union that brought the complaint to the board, claiming that the application of the state labor-relations law to its employees violated the religion clauses of the First Amendment.

Three-Pronged Test

In ruling in favor of the Catholic-schools association, Judge Lasker had used the three-pronged test that the U.S. Supreme Court often applies in determining whether there has been a violation of the establishment clause. Under the test, the challenged law or conduct must have a secular purpose; must not have as a principal or primary effect either the advancement or the inhibition of religion; and must not create an excessive government entanglement with religion.

On the basis of the test, Judge Lasker said there was an "imminent possibility" that the association would be required to bargain with lay teachers on religious subjects and that, if a church-operated school were charged with an unlawful dismissal, the state board "might have to determine whether an asserted religious reason [for the dismissal] was a valid part of church doctrine."

Nature of Intrusion

But in reaching that decision, the circuit-court judges wrote in the majority opinion, Judge Lasker failed to interpret correctly the degree of involvement of the labor-relations board in settling disputes.

"With respect to the degree of entanglement that results from the duty to bargain over secular terms and conditions of employment, the district court misapprehended the degree of supervision that the duty to bargain entails and the nature of the state intrusion into the bargaining process," the judges wrote.

Writing for the majority, Judge Richard J. Cardamone said the jurisdiction of the labor-relations board over parochial schools did not create excessive entanglement because the board's supervision over the collective-bargaining process is "neither comprehensive nor continuing.''

"It is a fundamental tenet of the regulation of collective bargaining that government brings private parties to the bargaining table and then leaves them alone to work through their problems," Judge Cardamone wrote. He added that the government cannot "compel the parties to agree on specific terms--all it can do is order an employer who refuses to bargain in good faith to return and bargain on the mandatory bargaining subjects, all of which are secular."

'Compelling Public Interest'

Even if the state board's jurisdiction could have an "indirect and incidental" effect on employment decisions in parochial schools involving religious issues, the intrusion is justified, the majority ruled. "There is a compelling public interest in finding that all unions and employers have a duty to bargain collectively and in good faith," the ruling states.

The U.S. Supreme Court made it clear, Judge Cardamone wrote, when it ruled in 1971 on the Lemon v. Kurtzman case that "total separation [of church and state] is not possible in an absolute sense, [for s]ome relationship between government and religious organizations is inevitable. ... The line of separation, far from being a 'wall,' is a blurred, indistinct, and variable barrier depending upon all the circumstances of a particular relationship."

(In Lemon, the first case in which the Court enunciated its three-part test, the Justices ruled that public aid to parochial schools for certain secular aspects of classroom instruction resulted in "excessive administrative entanglement." The Court found that the restrictions imposed to ensure secular use of the funds would inevitably require "compre-hensive, discriminating, and continuing surveillance.")

Church Policy

Judge Cardamone also noted in the circuit court's opinion that encyclicals and other Papal messages have made it clear that the Catholic Church has for nearly a century been among the staunchest supporters of the rights of employees to organize and engage in collective bargaining.

"To find that an enactment violates the right to free exercise of religious beliefs, it is necessary ... for one to show the coercive effect of the enactment as it operates against him in the practice of his religion," the opinion states.

Dissenting Opinion

In a briefly worded dissent, Judge George C. Pratt said he agreed with the majority that the National Labor Relations Act did not pre-empt the New York labor law, but disagreed "on the constitutional issue for the reasons set forth in Judge Lasker's opinion."

The name of the case is Catholic High School Association of the Archdiocese of New York v. Edward R. Culvert, New York State Labor Relations Board, Department of Labor of the State of New York, and Lay Faculty Association. Mr. Culvert is chairman of the New York State Labor Relations Board.

Vol. 04, Issue 18

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