Collective bargaining in Catholic schools: what does goverance have to do with it?
James, John T.
This article outlines the significant legal decisions regarding
collective bargaining in Catholic schools, identifies the governance
structures employed in Catholic schools and the methods of translating
these governance structures into documents required by civil law, and
concludes with the citation of two recent court decisions that
demonstrate the method of incorporation and the day-to-day governance
practices utilized in Catholic schools that are of great importance to
educational leaders.
INTRODUCTION
The Catholic Church has a long history in defending the right of
workers to organize. The articulation of this right was formally
pronounced in the 1891 papal encyclical, Rerum Novarum (Leo XIII, 1942),
which placed the right of workers to organize within the broader
construct of natural law and the social gospel. While the teaching was
proclaimed in the 19th century, its implementation in Catholic schools
did not emerge until the late 1950s and the early 1960s, following its
rise in popularity among public schools (Russo & Gregory, 1999).
Since that time, unionization grew at a fairly stable pace up through
the early 1970s. In 1973, 25 of 145 responding dioceses reported the
existence of unions (Russo & Gregory, 1999). In some cases the
diocesan and school governance structures refused to recognize the
unions or to bargain collectively with the unions. This reluctance set
the stage for two significant showdowns in federal court and several
decisions in state courts regarding collective bargaining in Catholic
schools. The initial federal decisions yielded two conflicting opinions
by the Seventh Circuit Court (Catholic Bishop v. National Labor
Relations Board [NLRB], 1977), affirmed on appeal to the United States
Supreme Court (NLRB v. Catholic Bishop, 1979), and the Second Circuit
Court (Catholic High School Association v. Culvert, 1985). The ensuing
state court cases have coalesced around the opinion articulated by the
Second Circuit that carved out a limited role for government that is not
without some First Amendment concerns.
In much of the litigation, the courts have approached the Catholic
Church and the Catholic schools involved in the litigation as a single
entity without much concern for their nebulous, complex, and variegated governance structures. While casual observers might construe Catholic
schools to be a single autonomous unit, they are often more
appropriately understood as a loose group of autonomous institutions
where principals exert significant authority (Gregory & Russo,
1999). The variance of governance, not only between dioceses, but also
within the same diocese, creates confusion when the courts attempt to
apply legal principles to these schools that are governed in accordance
with the dictates of both canon and civil law. In many cases it is not
immediately obvious who is the employer (e.g., pastor, school board,
bishop, or diocese) and what group or groups constitute a
"collective bargaining unit," defined as "all the
employees of a single employer unless the employees of a particular
department or division have voted otherwise" (Black's Law
Dictionary, 1991, p. 181).
This article begins with a review of the United States Supreme
Court decision, Lemon v. Kurtzman (1971), which provides the framework
within which the issue of collective bargaining is adjudicated. It
continues with a review of the most significant litigation over the last
25 years concerning collective bargaining in Catholic schools and
addresses some of the First Amendment concerns that remain. Next the
article outlines the dictates of canon law, civil law, and the general
administrative practices present in Catholic schools. Finally, the
article examines how the courts have applied the applicable legal
principles, such as "collective bargaining unit" and
"community of interest" to the various governance structures
found in Catholic schools. In the final analysis, it becomes clear that
diocesan legislation and diocesan policy is necessary to clarify the
relationships between and among the functionaries within the diocese. It
also becomes clear that the documents required by civil law, such as the
articles of incorporation, need to reflect the best
"translation" of both the dictates of canon law and the
day-to-day practice of the particular Catholic school, knowing full well
that a translation never adequately captures the totality of meaning.
FEDERAL COURT DECISIONS
LEMON V. KURTZMAN (1971)
While not dealing directly with collective bargaining, Lemon v.
Kurtzman (1971) provides the framework within which the issue of
collective bargaining has been adjudicated. It is also frequently cited
in most of the state and federal court decisions involving collective
bargaining in Catholic schools.
The case involved legislation passed in the states of Rhode Island and Pennsylvania that provided money for teachers in non-public schools.
The state of Rhode Island had passed legislation that enabled teachers
who taught secular subjects in non-public schools to receive
supplemental income up to 15% of their annual salary from the state. The
law also required, among other things, that the teacher receiving the
supplement not teach a course in religion and required the school to
open its financial records for the state to audit. Similarly, the state
of Pennsylvania had enacted legislation that provided state
reimbursement to non-public schools for the cost of teachers'
salaries, textbooks, and instructional materials in specified secular
subjects. The Pennsylvania law, like the Rhode Island law, included some
accountability provisions such as prohibiting reimbursement for any
course that contained any religious teaching, prescribing certain
accounting practices, and subjecting the school to a state audit. Both
laws were challenged in court as a violation of the religion clauses of
the First Amendment.
The United States District Court for the District of Rhode Island found the Rhode Island statute violated the Establishment Clause of the
First Amendment, while the United States District Court for the Eastern
District of Pennsylvania dismissed the complaint for failure to state a
claim for relief, holding that the law did not violate the First
Amendment.
On appeal the United States Supreme Court affirmed the Rhode Island
District Court decision and reversed the Eastern District of
Pennsylvania Court decision. The United States Supreme Court held that
the cumulative effect of the laws was to foster excessive entanglement
between government and religion, and was therefore unconstitutional. In
its analysis of First Amendment jurisprudence, the court articulated
three tests for determining if a law survives the Establishment Clause
prohibition of the Constitution: "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" (Lemon v. Kurtzman, 1971, pp. 612-613).
The Court found that the law failed the excessive entanglement
prong of the tri-partite test. The Court stated, "It is well known
that everything taught in most parochial schools is taught with the
ultimate goal of religious education in mind" (Lemon v. Kurtzman,
1971, p. 635). The Court noted that the accountability portions of the
law would necessitate "vast government suppression, surveillance,
or meddling in church affairs....This problem looms large where the
church controls the hiring and firing of teachers" (Lemon v.
Kurtzman, 1971, pp. 634-635).
CATHOLIC BISHOP V. NLRB (1977)
In the summer of 1974, a group of faculty members at two Catholic
high schools in the Archdiocese of Chicago, Quigley Seminary North and
Quigley Seminary South, filed a representation petition with the
National Labor Relations Board (NLRB) seeking recognition of their
union, the Quigley Education Association, an affiliate of the Illinois
Education Association. Similarly, the Community Alliance filed a
petition with the NLRB seeking to represent lay faculty at five diocesan
high schools located in the Fort Wayne/South Bend diocese. At the
representation hearings, the employers contended that the NLRB should
decline jurisdiction based on its own rules, and failing that, based on
First Amendment prohibitions against governmental entanglement.
The NLRB, acting under the authority granted to it by the National
Labor Relations Act of 1935 (Wagner Act), certified as collective
bargaining units the unions in Illinois and Indiana representing lay
teachers employed in Catholic schools. The NLRB rejected the
jurisdictional arguments, citing its own rulings of Roman Catholic
Archdiocese of Baltimore, Archdiocesan High Schools (1975) and Cardinal
Timothy Manning, Roman Catholic Archdiocese of Los Angeles (1976). In
Roman Catholic Archdiocese of Baltimore, Archdiocesan High Schools
(1975) the NLRB accepted jurisdiction over schools where the instruction
was not limited to religious subjects, and in Cardinal Timothy Manning,
Roman Catholic Archdiocese of Los Angeles (1976) the NLRB refined its
understanding of its own jurisdiction in articulating:
It has heretofore been the Board's policy to decline jurisdiction
over institutions only when they are completely religious, not just
religiously associated.... The schools perform in part the secular
function of educating children, and in part concern themselves with
religious instruction. Therefore, we will not decline to assert
jurisdiction over these schools on such a basis. (p. 1218)
The Seventh Circuit Court of Appeals ruled in favor of the Catholic
Bishop of Chicago, arguing, "the dichotomous 'completely
religious-merely religiously associated' standard provides no
workable guide to the exercise of discretion" (Catholic Bishop v.
NLRB, 1977, p. 1118). The Seventh Circuit found that the standard as
articulated by the NLRB meant that as soon as a Catholic school offers a
class other than religion it becomes a "merely-religiously
associated" school incurring the oversight of the NLRB. The court
seized upon the inimical double standard at work in light of the Lemon
v. Kurtzman (1971) decision:
The total inability of the employers to overcome what appears to be
an irrebuttable presumption in practical operation makes more
understandable the complaint of the employers that the Board is
cruelly whip-sawing their schools by holding that institutions too
religious to receive governmental assistance are not religious
enough to be excluded from its regulation. (Catholic Bishop v. NLRB,
1977, p. 1119)
The court parenthetically mentioned that while the NLRB
"purported to avoid an excursion into religiosity by the use of its
simplistic test" (Catholic Bishop v. NLRB, 1977, p. 1120), the NLRB
investigation in one case nevertheless digressed into an inquiry
regarding the definition of liturgy.
The Seventh Circuit then turned from its discussion of the merely
religiously associated rule, to the larger First Amendment issues. The
court observed, "the very threshold act of certification of the
union necessarily alters and impinges upon the religious character of
all parochial schools" (Catholic Bishop v. NLRB, 1977, p. 1123).
The court went on to note that, "the real difficulty is found in
the chilling aspect that the requirement of bargaining will impose on
the exercise of the bishop's control of the religious mission of
the schools" (Catholic Bishop v. NLRB, 1977, p. 1124). It noted the
difficulty the NLRB would face in investigating an unfair labor practice charge which "would necessarily have to concern itself with whether
the real cause for discharge was that stated or whether this was merely
a pretextual reason given to cover a discharge actually directed at
union activity" (Catholic Bishop v. NLRB, 1977, p. 1125). The court
concluded that the Board would need to assess the validity of the
religious belief as part of the investigation, drawing the Board into
discussions of church doctrine.
NLRB V. CATHOLIC BISHOP (1979)
The United States Supreme Court reviewed the case on appeal and
utilized the precedent of Murray v. The Charming Betsy (1804) that Acts
of Congress "ought not be construed to violate the Constitution if
any other possible construction remains available" (NLRB v.
Catholic Bishop, 1979, p. 500) to sidestep the First Amendment issues of
the case. The Court then argued that since there was "no clear
expression of affirmative intention of Congress that teachers in
church-operated schools should be covered by the act" (NLRB v.
Catholic Bishop, 1979, p. 504), the NLRB had no authority over religious
schools.
The Court parenthetically addressed the First Amendment issues by
focusing on whether or not the Board's jurisdiction presents a
significant risk of infringement on the First Amendment. The Court cited
its Lemon v. Kurtzman (1971) decision, noting the unique role of the
teacher in a parochial school where "religious authority
necessarily pervades the school system" (NLRB v. Catholic Bishop,
1979, p. 501). The Court reasoned that the Board would be called upon to
decide what are the terms and conditions of employment within a
religious school where nearly everything that goes on in a school
affects teachers, and could arguably be considered a condition of
employment. The Court cited the Pennsylvania Supreme Court holding in
Pennsylvania Labor Relations Board v. State College Area School District (1975), which held that the "introduction of a concept of mandatory
collective bargaining, regardless of how narrowly the scope of
negotiation is defined, necessarily represents an encroachment upon the
former autonomous position of management" (NLRB v. Catholic Bishop,
1979, p. 503). The Court also concluded that "it is already clear
that the Board's actions will go beyond resolving factual
issues" (NLRB v. Catholic Bishop, 1979, p. 502) and that the very
process of inquiry as well as the conclusions that the Board draws from
such inquiries may impinge rights guaranteed by the First Amendment.
Like the Seventh Circuit Court, the Supreme Court cited the dialogue
between an NLRB hearing official and a priest regarding the definition
of liturgy.
The NLRB v. Catholic Bishop (1979) decision ended federal
involvement in the oversight of labor relations within Catholic schools
by the NLRB, while at the same time sidestepped the thorny First
Amendment issues at stake. The Court nevertheless raised three relevant
concerns as they pertain to the First Amendment for religiously-run
schools: (a) The Court recognized that mandatory collective bargaining
for church-run schools necessarily represents an encroachment into
management practices; (b) since virtually everything that goes on in a
school impacts teachers, everything could be considered a condition of
employment; (c) the effect of this encroachment in the process of
investigating claims made by collective bargaining units within
religious schools would necessarily draw the Board into questions of a
religious nature and ultimately to decisions regarding sincerely held
religious beliefs.
CATHOLIC HIGH SCHOOL ASSOCIATION V. CULVERT (1985)
The next significant judicial foray into Catholic school labor
relations occurred between the Catholic High School Association of the
Archdiocese of New York (Association) and Edward Culvert in his capacity
as Chairman of the New York State Labor Relations Board (NYSLRB). The
State of New York enacted legislation in 1937 analogous to the Wagner
Act and amended the legislation in 1968 to include charitable,
educational, and religious organizations. The next year the Lay Faculty
Association (Union) petitioned the State Board for certification as the
exclusive bargaining agent for the teachers in the 11 archdiocesan high
schools. Their petition was certified, and from 1969 until 1980 the
Union and the archdiocesan schools (Association) engaged in collective
bargaining agreements governing the "secular terms and conditions
of lay teachers' employment" (Catholic High School Association
v. Culvert, 1985, p. 1163). A rider to the agreement noted the existence
of "certain areas of Canon Law, ecclesiastical decrees and
religious obligations that cannot be the subject of negotiations"
(Catholic High School Association v. Culvert, 1985, p. 1163) and
provided an example that "if a teacher were to teach that there was
no God," the teacher could be discharged and "the discharge
would not be subject to the grievance procedures" (p. 1163).
In 1980, the Union claimed unfair labor practices when the
Association suspended 226 teachers who had protested the schools'
unilateral decision to implement a policy that would require teachers to
cover the classes of absent teachers. The Union also alleged that the
Association sent letters to individual teachers urging them to pressure
the Union into accepting the Association's offers and announced
other decisions that the Association would make unilaterally. The NYSLRB
investigated the case and issued a formal complaint against the
Association. The Association, in turn, filed a motion for summary
judgment against the State Board in District Court. The District Court
was forced to address the First Amendment issues because unlike the
federal legislation, the state legislation contained a clear expression
of affirmative intent to cover parochial schools. The district court
followed the parenthetical First Amendment commentary in Catholic Bishop
and argued, "There does not have to be an actual trial run to
determine that entanglement has occurred, but that the likelihood of
entanglement exists" (Catholic High School Association v. Culvert,
1985, p. 1165). It further reasoned that in the event of a discharge,
the Board might have to weigh in on whether a purported religious reason
was part of Church doctrine.
The United States Second Circuit Court of Appeals reversed and
remanded the District Court ruling. The Appellate court ruled that the
State Board's surveillance of collective bargaining activity is
neither comprehensive nor continuous and survives the three-prong Lemon
test in that: (a) the State Board can only be called upon when a dispute
occurs between parties, which recent history indicates does not happen
too often; (b) the unfair labor practices identified in State law serve
a secular purpose; (c) the labor relations manager and the
administrative law judge are limited in the scope of their inquiry to
those unfair labor practices as stipulated in law; (d) an order by the
State Board is not self-enforcing and can therefore be appealed on First
Amendment grounds.
The Second Circuit Court of Appeals offered a scathing rebuttal to
the Seventh Circuit's First Amendment analysis in the Catholic
Bishop decision, declining to "follow the Seventh Circuit down this
slippery slope" (Catholic High School Association v. Culvert, 1985,
p. 1167) argument that government involvement in collective bargaining
will lead to the transmutation of school policy into conditions of
employment and hence governmental interference. It countered: "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" (Catholic High School Association v. Culvert,
1985, p. 1167).
Curiously, while the court ostensibly agreed with the Seventh
Circuit Court of Appeals initial ruling in Catholic Bishop that
"the First Amendment prohibits the State Board from inquiring into
an asserted religious motive to determine whether it is pretextual"
which would "inevitably...lead to the degradation of religion"
(Catholic High School Association v. Culvert, 1985, p. 1168); in the
next paragraph it adopts a "dual motive analysis" to determine
"whether the religious motive was in fact the cause of
discharge" (Catholic High School Association v. Culvert, 1985, p.
1168). The court empowers the State Board to employ a balancing test,
weighing the legitimacy of the Church's motives to determine
whether the teacher "would not have been discharged 'but
for' the unlawful motivation" (Catholic High School
Association v. Culvert, 1985, p. 1168) of the employer (e.g., the
asserted reason was not a motivating cause because others had engaged in
the same misconduct and had not been disciplined). Furthermore, the
court rejected the "likelihood of entanglement" standard, in
favor of one where the Church must show "the coercive effect of the
enactment as it operates" (Catholic High School Association v.
Culvert, 1985, p. 1168) in the practice of religion.
INTERIM CONCLUSIONS
Since the Catholic Bishop decision by the United States Supreme
Court was rendered based on the limited scope of the NLRB legislation
and not on First Amendment principles, the Second Circuit was free to
explore the First Amendment issues at stake and to articulate a rebuttal
to the analysis put forth by the Seventh Circuit.
The Second Circuit articulated its belief that the governmental
role in collective bargaining is unobtrusive, limited, and therefore
capable of steering clear of First Amendment entanglement issues. As a
consequence, it rejected the "slippery slope" argument put
forth by the Seventh Circuit Court that foresaw the "likelihood of
entanglement" and instead adopted a "coercive effect"
standard. While Catholic Bishop saw collective bargaining as an
intrusion into management practice, Culvert saw this intrusion as
negligible in comparison to the states' interest in protecting the
rights of workers. Culvert, unlike Kurtzman and Catholic Bishop, took a
rather favorable view of the government's ability to steer clear of
entanglement issues. The Second Circuit notes that the government merely
brings parties together and then leaves them alone.
The Culvert decision also articulated a position that the secular
aspects of the collective bargaining agreement can be separated from the
religious elements. Culvert discerned a clear demarcation between the
secular conditions of employment and religious doctrine. This stands in
stark contrast to the assertion by the United States Supreme Court in
the Catholic Bishop decision that since religion pervades the Catholic
school, everything that transpires within the school could arguably be
considered a condition of employment.
Culvert also broke with the Catholic Bishop decision in arguing
that state involvement in collective bargaining and the inevitable
investigation of claims will not necessitate inquiries into Church
doctrine or policy. The Culvert decision rejected the underlying
assumption of the Seventh Circuit Court that once the state plays a role
in the collective bargaining process of religious schools it will be
impossible to extricate itself from religious issues endemic to such an
enterprise. Culvert, like Catholic Bishop, recognizes that the State
should not engage in inquiries into asserted religious beliefs that
would inevitably lead to the degradation of religion. Nevertheless,
Culvert empowers the State Board to utilize a "dual-motive
analysis" in order to determine if the religious belief was in fact
the reason for termination.
The immediate impact of the Culvert decision was that it cleared
away the perceived impenetrable First Amendment impediment to the
extension of state regulatory board jurisdiction into religious schools.
After Culvert, the scope and reach of the state regulatory board
jurisdiction became a question for the individual states based on their
own legislation and within the framework of existing First Amendment
protections. In the decade following Culvert, three states found either
a constitutional right for teachers in religious schools to bargain
collectively or a statute granting the state labor relations board
jurisdiction over religious schools.
STATE COURT DECISIONS
MINNESOTA
In 1989, the Hill-Murray Federation of Teachers petitioned the
Minnesota Bureau of Mediation Services for determination of an
appropriate bargaining unit and for certification as the exclusive
representative of certain lay employees at Hill-Murray High School, a
co-educational Catholic high school. The school moved to dismiss the
petition, asserting that the Bureau's jurisdiction would infringe
upon the school's rights under the state and federal constitutions.
The Bureau denied the petition, determined a bargaining unit exclusive
of the theology teachers, and ordered an election. The teachers voted in
favor of union representation and the Bureau certified the Federation of
Teachers as the exclusive bargaining unit. The Court of Appeals reversed
the Bureau's decision, and the Minnesota Supreme Court heard the
case on appeal.
The Minnesota Supreme Court in Hill-Murray Federation of Teachers
v. Hill-Murray High School (1992), relying on the standard articulated
by the U.S. Supreme Court in Department of Human Resources of Oregon v.
Smith (1990), held that the "free exercise of religion does not
include the right to be free from neutral regulatory laws which regulate
only secular activities within a church affiliated institution"
(Hill-Murray Federation of Teachers v. Hill-Murray High School, 1992, p.
863). The Minnesota Supreme Court turned aside entanglement arguments by
arguing that the state intervention was minimal and that "the First
Amendment wall of separation between church and state does not prohibit
limited governmental regulation of purely secular aspects of a church
school's operation" (Hill- Murray Federation of Teachers v.
Hill-Murray High School, 1992, p. 864). The court also dismissed claims
that the application of the Minnesota Labor Relations Act would
interfere with the school's religious autonomy and lead to
negotiations about religion. It noted that the scope of the act excludes
matters of inherent management policy and that Hill-Murray "retains
the power to hire employees who meet their religious expectations, to
require compliance with religious doctrine, and to remove any person who
fails to follow the religious standards set forth" (Hill-Murray
Federation of Teachers v. Hill-Murray High School, 1992, p. 866). It
also dismissed the contention by Hill-Murray that the existing voluntary
grievance procedure articulated in the faculty and staff handbook was a
least restrictive alternative to mandatory good faith negotiations. The
court seized upon the term "voluntary" and argued that the
nature of collective bargaining is unique so that alternatives to it
pale in comparison.
NEW YORK
Following the Culvert decision, the New York State Employment
Relations Board (NYSERB) asked the court to enforce an order against
Christ the King Regional High School compelling them to bargain in good
faith with the Lay Faculty Association (Union) and to reinstate certain
employees. The Supreme Court of New York granted the Board's
petition and denied the school's motion to dismiss. The appellate
division of the Supreme Court of New York affirmed this decision. The
school appealed the appellate division's decision on First
Amendment grounds to the Court of Appeals of New York.
The Court of Appeals of New York, in NYSERB v. Christ the King
Regional High School (1997), found that the State Board did in fact have
jurisdiction over religiously-run schools. Similar to the Minnesota
Hill- Murray decision, the court applied the Smith standard and found
that the state's labor-relations act did not violate the free
exercise of religion clause of the First Amendment. Similarly, the Court
of Appeals drew from the Second Circuit Court of Appeals' rationale
in the Culvert decision in dealing with the Establishment Clause
concerns. It argued that the Board's supervision over collective
bargaining involved secular terms and conditions of employment that are
neither comprehensive nor continuing. Furthermore, it adopted the
Culvert standard that enabled the Board to protect teachers from
unlawful discharge by limiting the Board's finding of a violation
of the collective bargaining agreement to those cases in which the
teacher would not have been discharged but for the unlawful motivation
of the employer.
NEW JERSEY
The South Jersey Catholic School Teachers Organization (Union)
sought to be recognized as the collective bargaining agent for the
various Catholic grade schools operating within the Diocese of Camden,
New Jersey. A Board of Pastors, representing the affected parish
schools, informed the Union that it would be recognized only if it
signed a document entitled "minimum standards," that among
other things, vests the Board of Pastors with complete and final
authority to dictate the outcome of any dispute; it also prohibited the
Union from assessing dues or collecting agency fees from non-union
members. The Union refused to accept the "minimum standards,"
claiming that to do so would have amounted to bargaining away a number
of lay teacher rights. Since New Jersey does not have a state
labor-relations board, the Union sought relief from the courts based on
Article I, Paragraph 19 of the New Jersey Constitution. It states that
persons in private employment have the right to organize, to bargain
collectively, and to make known to the state their grievances through
representatives of their choosing. The Trial Court dismissed the claim
based on both the Free Exercise and Establishment Clauses of the First
Amendment. The Appellate Court found only a Free Exercise claim rather
than an Establishment Clause claim or both. It argued that the state had
a compelling state interest in the preservation of industrial peace and
a sound economic order and found no constitutionally-significant
distinction between the religious indoctrination that occurs at the high
school level and that at the grade school level. The decision was
appealed to the New Jersey Supreme Court.
The New Jersey Supreme Court in South Jersey Catholic School
Teachers Organization v. St. Teresa of the Infant Jesus Church Elementary School et al. (1997) examined both the free exercise and
establishment claims. The court cited both Hill-Murray and Culvert in
determining that the primary effect of the constitutional provision was
not to inhibit the free exercise of religion. It noted that the diocese
had long engaged in collective bargaining over the secular conditions of
the contract with lay high school teachers. The court noted that the lay
high school bargaining process has not infringed upon religious exercise
nor has it resulted in litigation since the first agreement was executed
in 1984. The court reasoned that there are some secular terms such as
wages and benefits plans that the diocese can negotiate while preserving
its complete and final authority over religious matters and that
differences between high schools and grade schools are not
constitutionally significant. The Court likewise held that since the
constitutional provision requires only that the diocese recognize the
union and negotiates the secular terms of the contract, the state's
role is limited and survives the entanglement prong of the Lemon
establishment standard. It noted further that the concerns of state
entanglement were minimal in "the absence of a leviathan-like
governmental regulatory board" (South Jersey Catholic School
Teachers Organization v. St. Teresa of the Infant Jesus Church
Elementary School et al., 1997, p. 723). The New Jersey Supreme Court
therefore held that the diocese must recognize the lay teacher's
right to bargain collectively over wages, benefits, and any other terms
and conditions required by the agreement with the lay high-school
teachers.
INTERIM CONCLUSIONS
In Minnesota, New York, and New Jersey the courts found that the
state has a compelling interest with regard to collective bargaining in
religious schools either through the state labor relations act or the
state constitution. The consensus that has emerged from the litigation
in these three states is that Catholic schools can be compelled to
engage in collective bargaining with lay teacher unions regarding the
secular conditions of the contract such as salary, benefits, and quite
possibly a narrow definition of work conditions that do not encroach
upon the religious freedom of the school.
While Culvert and the ensuing cases found it incredulous that state
involvement in the collective bargaining process when limited to the
secular components of the contract would threaten the free exercise of
religion; the rulings have, at the very least, opened up the door for
just such an eventuality. No clear legal doctrine has enunciated
unequivocally the demarcation between the secular components of the
contract and issues of religious doctrine or policy. The United States
Supreme Court has held that the government must take a neutral posture
in the case of the former (Lemon v. Kurtzman, 1971), but must take a
positively hands-off posture in the case of the latter (Serbian Eastern
Orthodox Diocese for the United States of America and Canada v.
Milivojevich, 1976).
Furthermore, there does not exist a clear rendering of what
constitutes legal lines of questioning by a state actor when an
investigation approaches the secular components of the
contract/religious doctrine and polity nexus. While NLRB v. Catholic
Bishop (1979) noted that the very process of inquiry leading to findings
and conclusions may impinge on rights guaranteed by the First Amendment,
the United States Supreme Court in Ohio Civil Rights Commission v.
Dayton Christian Schools (1986) found that merely investigating the
circumstances of the teacher's discharge did not violate the First
Amendment.
A final concern is in the area of the freedom of association. The
New Jersey Supreme Court made no mention of this concern in its South
Jersey Catholic School Teachers Organization v. St. Teresa of the Infant
Jesus Church Elementary School et al. (1997) decision, even though it
was a central motivating issue behind the minimum standards document.
The pastors wanted to maintain their rightful canonical authority and
did not want to have to negotiate with an organization whose espoused
political agenda might be contrary to that of the Church (e.g., the NEA
on abortion); nor did they want their employees to be obligated to
contribute funds to such an organization.
Tenenbaum (2000) argues that it is possible to reconcile the labor
relations statutes and discrimination statutes with the case law
regarding legal lines of inquiry. The inquiry should focus on the
behavior of the employer in three areas taken from DeMarco v. Holy Cross
High School (1993): (a) whether or not the behavior of the employer is
consistent with its own policies and rules; (b) whether or not the
reason for the action has been uniformly applied; and (c) whether or not
the religious reason for the action surfaced after the plaintiff's
claim of illegal behavior. Tenenbaum (2000) argues that such a
behavioral approach does not necessitate an examination or inquiry into
religious beliefs. While this is probably the most reasonable attempt at
reconciling the law with the First Amendment issues related to
permissible lines of inquiry, it is not without its perils for both the
investigator and for the Catholic school administrator. Furthermore,
this reconciliation does not resolve what constitutes a secular
component of the contract nor does it resolve the freedom of association
issues raised above.
An elaboration of a scenario envisioned by the Seventh Circuit
Court and cited in its Catholic Bishop v. NLRB (1977) decision will
serve to illustrate the difficulty. Planned Parenthood has as one of its
stated legislative agendas to initiate legislation in all 50 states that
would require insurance carriers to cover birth control pills among its
basic drug coverage. At least 20 states have enacted this legislation,
and the legislation is pending in an additional 13 states (Planned
Parenthood, 2003a, 2003b). In 9 of the 20 states, the legislation does
not contain a religious exemption for churches and schools (Planned
Parenthood, 2003b). The New York state law, which does not contain a
religious exemption and took effect January 1, 2003, is being appealed
before the State Supreme Court (Thibault, 2003). This present situation
questions whether birth control pills represent a secular benefit that
is recognized as a negotiable component of the collective bargaining
process or whether it constitutes a religious issue that the employer
might rightfully refuse to negotiate. What happens when a Catholic
school teacher is fired who has vociferously challenged the
school's position regarding birth control coverage as part of the
collective bargaining process? The State Board would be empowered to
engage in an investigation, because according to Culvert, the Board
decision is not self-enforcing and can therefore be appealed on First
Amendment grounds. Consistent with the Culvert decision, the State Board
would need to employ a balancing test and a dual motive analysis in
order to determine whether the religious motive was in fact the cause of
the discharge. However, the Culvert decision concurred with Catholic
Bishop that "the First Amendment prohibits the State Board from
inquiring into an asserted religious motive" which would
"inevitably ... lead to the degradation of religion" (Catholic
High School Association v. Culvert, 1985, p. 1168). In this case the
State Board is caught on the horns of a dilemma: it is supposed to
investigate the claim to see if the purported religious reason is a
pretext for termination on the one hand, while at the same time it is
barred from inquiring into an asserted religious motive. Is it possible
to formulate a dual-motive determination without including a
determination regarding the validity and force of the purported
religious belief?
The behavioral approach dictates that the State Board must accept
the veracity of the Church's position on birth-control and pose
questions regarding the factual circumstances of the termination as to
whether the school has behaved in a manner consistent with its professed
beliefs including the uniform application of its rules. When the
complainant cites a case of potentially differential treatment, the
State Board is obligated to investigate. While Culvert is correct in
asserting that the State Board's decision is not self-enforcing and
any decision could be appealed on First Amendment grounds, the question
remains as to how a State Board can safely navigate the deep waters of
First Amendment issues without putting the belief on trial leading to a
degradation of religion. The questioning of the administrator by the
investigator might proceed as follows:
Are you aware of other employees that currently use
birth control pills?
What course of action (e.g., questioning, investigation)
did you take when you overheard this other teacher say
"we're quitting at two kids"?
Why was the present teacher fired for her conduct and
this other teacher's declaration did not even warrant
an investigation?
I'm sorry to revisit this point, but could you define
for me what constitutes permissible birth control measures
and what constitutes impermissible birth
control measures?
Could you explain to me how purpose and intentionality
enters into the determination as to whether the use of
birth control pills are permissible or impermissible?
Such a line of questioning is both a necessary line of inquiry into
factual matters and an inquiry into the theological nuances of the
Church's position that borders on degradation. Furthermore, close
scrutiny of this hypothetical line of questioning is indistinguishable
from the impermissible line of questioning specifically cited by the
United States Supreme Court in the Catholic Bishop decision. Even if it
is determined that such a line of questioning is legal under the
behavioral approach and does not serve to degrade a religious belief, it
certainly raises questions from an entanglement perspective if state
officials must engage in such a protracted inquiry or if such inquiries
become a regular occurrence.
GOVERNANCE ISSUES
One of the assumptions of the Culvert decision and the ensuing
state court decisions was that religious organizations have structures
that are readily identifiable into the categories of labor, management,
and collective bargaining units. In the cases cited above, the courts
were not forced to examine the intricacies of the Catholic school
governance structures operative in Catholic schools. The governance
structures that exist in Catholic grade schools, inter-parochial
schools, religious-order schools, and diocesan high schools are far from
uniform and, in most cases, are not connected to one another as a
meaningful unit. The question arises as to what constitutes an
appropriate collective bargaining unit. What constitutes a community of
interest, a much more fluid term that includes an analysis of "such
factors as bargaining history, operational integration, geographic
proximity, common supervision, similarity in job function and degree of
employee interchange" (Black's Law Dictionary, 1991, p. 192)?
Is it a geographical area such as a diocese, a collection of parishes,
or an individual parish? Do the parish and the parish-school represent
an integrated enterprise of a single employer or do their employees
represent different communities of interest and therefore different
collective bargaining units? Do diocesan high schools in the same
diocese represent different bargaining units? There is no simple and
straightforward answer to these questions due to the complex and
variegated governance structures operative in Catholic schools. However
an examination of canon law, the "translation" of canon law
and governance practice into civil documents such as the articles of
incorporation, and the limited rulings by state and federal courts
provide some provisional answers.
CANON LAW
Canon law provides the framework for understanding jurisdiction as
it is applied to educational governance in Catholic schools. Just as our
civil law recognizes corporations as having the legal status of
personhood, canon law recognizes certain entities as having the
particular legal status of juridic persons. Dioceses, parishes, and
religious congregations are all juridic persons. Canon law requires
juridic persons to have administrators who are responsible for the care
of all goods under their jurisdiction (Canon Law Society of America,
1983, #1281-1288). Accordingly, "where the school is part of an
existing juridic person the responsibility of the canonical
administrator must be respected as the ultimate authority"
(O'Brien, 1987, p. 14). In light of canon law, it follows that all
Catholic school boards, councils and committees are either consultative
to the appropriate canonical administrator (bishop, bishop's
delegate, pastor, religious congregation, vicar, superintendent), or are
of limited jurisdiction as outlined in their constitution and by-laws
that have been approved by the bishop or religious congregation.
While the bishop retains some jurisdiction over all Catholic
schools within his diocese, the jurisdiction of school officials (e.g.,
superintendents, presidents, and principals) and school entities (e.g.,
boards or councils) is dependent upon to whom the bishop has delegated
certain authority within his diocese; upon whether the Catholic school
is parochial, interparochial, diocesan, or private; and upon the
governance model utilized within the particular school type. According
to canon law, no school can claim the title Catholic without supervision
or written recognition by an ecclesiastical authority (Canon Law Society
of America, 1983, #803). Furthermore, it is the responsibility of the
bishop to regulate and to be vigilant over the Catholic education within
his diocese (#804). This vigilance includes approving those who are
entrusted with teaching religion, and if necessary, to call for their
removal for religious or moral reasons (#805). The bishop's
responsibility of vigilance extends even to private schools run by
religious orders operating within his diocese (#806). Since the
bishop's legislative authority cannot be delegated (#466), the
jurisdiction of all school officials and school entities are
consultative in at least the areas cited above. Unlike the bishop's
legislative power, his executive and judicial power can, and is,
delegated among a number of functionaries including pastors, the
superintendent of schools for the diocese, and other administrators
within the diocese. Much of the day-to-day administration of the schools
and parishes is left to the competent administrators and pastors, but
the bishop still retains certain prerogatives that may not be delegated.
Parishes represent separate juridic persons over which pastors
exercise authority as the proper shepherd (#515) and must be respected
as the ultimate authority for church goods within the parish
(#1281-1288). However, the authority of the pastor with regard to church
goods is not absolute. Canon law further stipulates that the ownership
of goods belongs to the juridic person that has acquired them (#1256).
It also stipulates that offerings given to administrators of juridic
persons are presumed to be given to that juridic person (#1267) and that
these offerings should be applied only for that purpose (#1267). The
bishop can intervene in the case of negligence (#1279) and can prohibit
juridic persons from raising money (#1265) or from initiating lawsuits
on behalf of the church (#1288). The bishop has the authority to tax the
parish (#1263), must approve all actions that go beyond the limits of
ordinary administration (#1281), and may transfer the pastor to a
different parish (#1740). Furthermore, the pastor is obligated to govern
with the cooperation of others including laypeople (#519) and to
"observe meticulously the civil laws pertaining to labor and social
policy according to Church principles in the employment of workers"
(#1286).
CIVIL LAW
States require 501(c)(3) non-profit corporations such as churches
and schools to have on file with the state their articles of
incorporation. Typically the articles of incorporation or by-laws
contain the objectives of the organization, the membership of the
organization, and the role and authority of the officers. In the case of
Catholic schools, a "translation" of canon law into civil law
is necessary in the preparation of the articles of incorporation,
constitution, and by-laws. Most, if not all, Catholic school by-laws
contain the caveat that all activities of the organization must conform
to the dictates of canon and civil law. The articles of incorporation
and by-laws are the best attempt by the school to translate the reality
of the organization into a legal document, but as a translation, the
document is not perfect and never adequately captures the total reality.
Something as fundamental as the relationship between the pastor and the
principal is not always entirely clear in either canon law or the
specific documents required by civil law. The exhortation by Mallet on
this point is particularly instructive: "I strongly suggest that
diocesan legislation is necessary to clarify the relationship between
the pastor and the parish school principals" (O'Brien, 1987,
p. 12). This could also be said of many other relationships operative
within the Catholic school governance structure.
PRACTICE
The bishop of a diocese typically delegates to the superintendent
of schools the responsibility for the administration of all diocesan
schools and the coordination of all parochial and inter-parochial
schools. Pastors serve as the canonical administrator of parochial
schools. In the case of interparochial schools, the bishop typically
names a pastor from one of the sponsoring parishes as the canonical
administrator. Diocesan, parochial, and inter-parochial schools also
have principals (and in some larger high schools, presidents) that serve
as site-based administrators of the school. Catholic schools sponsored
by a religious community do not fall under the direct authority of the
bishop except in those areas specifically identified in canon law. The
religious congregations are juridic persons separate and distinct from
the juridic person of the diocese and therefore the governance of their
schools is aligned with the dictates of the religious orders'
constitution and governance structure. Religious congregations typically
have a member of their order serving as the canonical administrator for
a school or schools.
The three most common ways in which a Catholic school is
incorporated are the bishop-as-trustee model, the
bishop-as-corporation-sole model, and the corporation-aggregate model
(O'Brien, 1987). In the bishop- as-trustee model, the bishop holds
title to the church property for the benefit of the school or parish. In
this model, the bishop retains the right of supervision and the right to
govern in accord with canon law, but can delegate the control of the
property to an administrator or a pastor. In the bishop-
as-corporation-sole model, the bishop holds absolute title to the
property, and "can do anything he wishes with the property as long
as it is in compliance with church law" (O'Brien, 1987, p.
15), that is until he dies or is replaced by another bishop who becomes
the corporation sole. O'Brien (1987) identifies two ways in which
property may be owned in the corporate aggregate method: In the first,
legal title is vested in incorporated trustees with equitable title
vested in other interested parties such as the non-incorporated parish.
Equitable title differs from legal title in that equitable title
connotes, and is rooted in, the concepts of justice and equity, while
the legal title is based upon the strictly formulated rules of common
law. In the second method, "legal title is vested directly in the
corporate officers of the parish who are elected and act as a board of
directors or trustees" (O'Brien, 1987, p. 15). This second
method is the typical form of incorporating private Catholic schools and
is growing in its use among diocesan high schools (Sheehan, 1997). In a
very limited number of dioceses, some schools are established as
separate juridic persons apart from the diocese or a religious order and
are incorporated as such (Sheehan, 1990). It is also possible that in
some dioceses the schools are not incorporated at all and are merely
real property owned by the bishop or the local pastor. Each of these
models represents a "translation" of canon law into civil law,
and as such, has its benefits and pitfalls. Since the articles of
incorporation define and specify the role and authority of the agents of
the corporation, this "translation" and articulation should
not be taken lightly.
INTERIM CONCLUSIONS
Canon law and the typical governance practice utilized in parish
schools make a compelling argument that each parish school represents a
single community of interest and collective bargaining unit. Canon law
identifies parishes as separate juridic persons in their own right
governed by the pastor who serves as the proper steward of the parish
except in those rare cases requiring the intervention of the bishop.
Canon law further stipulates that the ownership of goods belongs to the
juridic person that has acquired them (Canon Law Society of America,
1983, #1256), that offerings given to administrators of juridic persons
are presumed to be given to that juridic person (#1267), and that these
offerings should be applied only for that purpose (#1267). Each parish
school typically has its own salary scale, working conditions, advisory
boards, and local policies and regulations. Furthermore, the bulk of the
income for the parish school comes from local tuition and local parish
support.
The dictates of canon law are a little more nebulous when one
encounters inter-parochial schools that represent a collective effort on
the part of several parishes. In many cases the bishop appoints one of
the pastors as the canonical administrator and parochial vicar of the
school (#545-552). The situation may be further complicated if the
bishop does not specify the role and authority of the parochial vicar
with respect to his fellow pastors, the school administration, the
school board, and the school teachers. Depending on the role of the
bishop and the diocesan office in the governance of these schools, the
inter-parochial schools may or may not be considered separate
communities of interest and therefore separate collective bargaining
units.
The issue is even more convoluted in those diocesan schools that
are not governed directly from the diocesan office. In many cases they
employ a hybrid governance structure that represents an amalgamation of
direct diocesan office governance, inter-parochial governance, and a
governance structure similar to those found in religious order schools
representing a separate juridic person. Depending on the role of the
bishop and the diocesan office in the governance of these schools, they
may or may not be considered separate communities of interest and
therefore separate collective bargaining units.
While the bishop-as-corporation-sole remains a common method of
incorporating property (O'Brien, 1987), it clearly is the least
consonant with the dictates of canon law and the everyday practice of
school governance. The Holy See criticized this method of incorporation
early in the 20th century based on the principles underlying canon law
article 1256 (Laugesen, 2003). Laugesen also cites criticism of this
method found in the New Commentary on the Code of Canon Law (Beal,
Coriden, & Green, 2000). Nevertheless, this model and unincorporated ownership of property in the name of the bishop persists even to this
day. The recent sexual abuse crisis and the resultant multi-million
dollar judgments have heightened the importance placed on these
governance issues. In the Diocese of Baker, Oregon, the bishop was
prevented from moving the diocese from the bishop- as-sole-corporate
structure to a separate incorporation of the various parishes within the
diocese. The plaintiff's attorney in a $68.4 million lawsuit
convinced the Deschutes County Circuit Judge Michael Adler to issue a
temporary restraining order against the diocese pending a full
investigation regarding the decision to incorporate the 50 parishes and
missions (Lerten, 2003a). While the plaintiff's attorney alleged
the move was an unprecedented shell game, the judge eventually removed
the restraining order and allowed the diocese to proceed with its plans
(Lerten, 2003b).
The more appropriate models for incorporating Catholic schools and
Church property include the bishop-as-trustee and the
corporation-aggregate method. These models, when crafted properly, more
closely approximate both canon law and the reality of the governance
practices in Catholic schools.
THE COURTS AND GOVERNANCE ISSUES
Two recent decisions provide some insight into how the judiciary
has addressed the relevant governance issues cited above. In one case
the court found that individual diocesan high schools could present
themselves as separate communities of interest and therefore separate
collective bargaining units, and in another case the court declined to
identify the parish church and parish school as an integrated enterprise
of a single employer. In both cases the governance practices operative
within the separate entities and the 501(c)(3) articles of incorporation
played a significant role in the eventual decision.
SOUTH JERSEY CATHOLIC TEACHERS ORGANIZATION ET AL. V. DIOCESE OF
CAMDEN (2000)
South Jersey Catholic Teachers Organization et al. v. Diocese of
Camden et al. (2000) represents a dispute between rival unions within
the Diocese of Camden. The South Jersey Catholic Teachers Organization
(SJCTO) claimed that two rival unions were illegally created and then
wrongfully recognized by the parishes and the Diocese of Camden. The
SJCTO had acted as the exclusive bargaining representative for all of
the lay teachers in the eight Catholic high schools that operate within
the diocese. The diocese sets tuition, establishes wage limits and has
the authority to hear appeals from teacher grievances, and selects the
principal and vice-principal of each school. Although the diocese has
approval power for all teaching applicants, the hiring and firing of
faculty generally occurs at the local level. The court noted that while
the diocese is actively involved in the foregoing activities, the
individual school is responsible for its own funding and administers its
own budget. Also each of the eight schools is a separate corporate
entity either owned by the local parish or the diocese. Additionally,
each of the eight schools is physically separate from one another. A
1981 tentative document, subject to the approval of the faculties at
each of the eight schools, has been the source of SJCTO's claim as
the exclusive bargaining unit. The document made no mention of duration,
nor was any document submitted demonstrating certification as the
exclusive bargaining unit.
Prior to 1997, many lay teachers in one of the schools were
dissatisfied with the manner in which they were being represented by the
SJCTO. SJCTO refused to recognize the site representative that they had
chosen and at the SJCTO's reaction to the failure to reach a new
contract at the expiration of the 1994-97 contract. Contrary to the
wishes of the majority of the teachers at Glouster Catholic and St.
Joseph's, the SJCTO decided to strike. Furthermore, many of the
faculty at the two schools were opposed to the tactics employed by the
SJCTO that included referring to the bishop as a "scum bag"
and invoking the teamsters to use truck horns and bull horns to disrupt
the classes being conducted by the teachers that had chosen to cross the
picket lines. As a result of these actions, several of the lay faculty
at the two schools circulated petitions of their intent to hold
elections on the formation of a new union. Those supporting SJCTO chose
to boycott the election. The elections revealed that a majority of the
teachers at the two schools supported the formation of a new union;
Glouster Catholic Lay Teacher Organization at Glouster Catholic and
South Jersey Lay Teachers Association for St. Joseph's. SJCTO also
contended that the election process was flawed because it included
quasi-administrators (a guidance counselor in one case and the
activities director in the other), and that school leaders exercised
undue influence in the election by providing organizers with the use of
the school's public announcement system and allowing the counting
of ballots to take place in the principal's office.
The court held that bargaining history is only one consideration in
determining the legitimacy of new bargaining units, asserting that it is
incorrect to suggest that the common interest of the eight schools
necessitates that there be one collective bargaining unit. The court
also examined the concept of "community of interest" and the
factors that comprise its definition, concluding that while the majority
of the factors favored the SJCTO's contention, the "community
of interest" concept does not lend itself to a mechanical
application. The court found that the very essence of collective
bargaining is the freedom to choose one's bargaining agent. It
asserted that it is improper to constitutionally-guarantee schools the
right to choose their own representative, but then to invalidate their
choice on the basis of certain common interests. The court also found
that just because the schools share a community of interest, this
interest does not bind every teacher in the diocese to the SJCTO, nor
did it commit those same teachers to its exclusive representation for
all time. The court found that the two individual high schools did
represent separate communities of interest and appropriate bargaining
units in virtue of the fact that they were geographically separate from
the other schools in the diocese, the schools were smaller than the
others in the diocese, and they were owned by their parishes (not the
diocese).
The court then applied a balancing of equities test to the two
competing claims finding that the position of the individual schools was
further enhanced. The court held that SJCTO's loss of some of its
strength does not outweigh the loss resulting in the disbanding of the
individual schools' unions. Furthermore, the court found that the
two schools were owned by different entities that for the most part do
not interact, unlike the case law cited by the SJCTO that had to do with
a multi-plant operation. It also correctly noted that the diocese was
not the sole employer of these teachers. Both the diocese and the
parishes employed the teachers in a dual employment arrangement.
Finally, the court held that unless the alleged taint was clear or the
potential for taint was high, the election should not be overturned.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION V. SAINT FRANCIS XAVIER PAROCHIAL SCHOOL AND SAINT FRANCIS XAVIER CHURCH (1996).
Equal Employment Opportunity Commission (EEOC) v. Saint Francis
Xavier Parochial School and Saint Francis Xavier Church (1996) involved
a complaint by a disabled applicant that she was unlawfully excluded
from an interview for a part-time music position because she has
multiple sclerosis and uses a wheelchair. The EEOC filed suit against
the parish, the school, and the parish day care asking the court to
consider the three as an integrated enterprise employing more than 25
employees and therefore falling within the scope of ADA regulations. The
court noted that under the single employer doctrine, superficially
distinct entities that represent a single, integrated enterprise may be
exposed to liability as a single employer. The EEOC contended that the
Church operates the school and daycare; therefore the three entities
should be considered one. The court employed a four-part test formulated
by the NLRB and approved by the United States Supreme Court in Radio
Union v. Broadcast Service (1965). The test assesses the degree of
interrelation of operations (e.g., combined accounting records, bank
accounts, payroll preparation, telephone numbers, and offices), common
management, centralized control of labor relations, and common ownership
and financial control. The court noted "although the absence or
presence of any single factor is not conclusive, control over the
elements of labor relations is a central concern" (EEOC v. Saint
Francis Xavier Parochial School and Saint Francis Xavier Church, 1996,
p. 33).
In regard to the level of inter-relatedness, the court found that
the school had a separate budget, had independent hours of operation,
had different staffs with its own administrators, had different
buildings, and had different employment contracts and practices. The
court also noted that since the school must negotiate directly with the
archdiocese, "The Archdiocese, rather than the pastor, has ultimate
control over the School's budget. Approval by the pastor of a
school budget negotiated directly with the archdiocese does not make
defendants a single employer" (EEOC v. Saint Francis Xavier
Parochial School and Saint Francis Xavier Church, 1996, p. 34).
The court likewise dismissed the EEOC's contention regarding
the common management prong by noting that there were indeed separate
management structures for the church, day care, and school. The court
asserted that it is a well-established point of law that control of
labor relations means active control of day-to-day labor practices, not
potential control. The court found that the three institutions had
different administrators, employed different labor practices, and
utilized distinct labor pools. The court in examining the common
ownership and financial control prong of the four-prong integrated
enterprise test, noted that both parties agree that there is some common
ownership. The court observed that while the pastor must sign the
school's budget and that the parish holds some intermediary
supervisory power over the school, the parish is part of the Archdiocese
of Washington, DC, which is the corporate entity that owns the property
and buildings. While the Archdiocese of Washington, DC was not party to
the suit, the court opined that even if it were, common ownership alone
is not sufficient to establish that separate employers are an integrated
enterprise. Consequently, the court declined to apply the integrated
enterprise doctrine to consolidate the church and school as a single
employer.
CONCLUSIONS
Collective bargaining is a concept with a long history of support
within the teachings of the Catholic Church, but its manifestation
within Catholic schools has been a particularly difficult process
fraught with First Amendment issues. While federal oversight by the NLRB
has been precluded by the NLRB v. Catholic Bishop (1979) decision, the
emerging consensus among state courts is that state labor relations
boards do have jurisdiction over labor disputes in Catholic schools
regarding salary, benefits, and quite possibly a narrow definition of
work conditions that do not encroach upon the religious freedom of the
school. This formulation unfortunately does not clearly define the
limits of the state regarding encroachment of First Amendment
protections. Only time will tell whether this formulation will indeed
protect the rights of employees and the religious freedom of schools.
Consequently, it is important for dioceses to give significant
thought to how canon law is translated into civil law and actual
practice. It is also critical that diocesan legislation make clear the
relationship between religious authorities, school administrators, and
school boards. The legislation must clearly address how church property
is to be incorporated, and the circumstances under which certain
entities may interdict. The most common methods of incorporation are the
bishop-as-trustee, the bishop-as-corporation- sole, and
corporation-aggregate (O'Brien, 1987). It is also possible that in
some dioceses the schools are not incorporated at all and are merely
real property owned by the bishop or the local parish. Each of these
models represents a translation of canon law into civil law, and as
such, has its benefits and pitfalls. Since the articles of incorporation
help to define and specify the role and authority of the agents of the
corporation, this translation and articulation should not be taken
lightly.
Furthermore, it is on the basis of this translation that courts
will make significant decisions about who is the employer, what
constitutes a community of interest and an appropriate collective
bargaining unit. While the court held in South Jersey Catholic School
Teachers Organization v. St. Teresa of the Infant Jesus Church
Elementary School (1996) that all the teachers were "employed by
the Diocese of Camden" (p 581), in South Jersey Catholic Teachers
Organization et al. v. Diocese of Camden et al. (2000), the court seized
upon the ownership argument when it found that
both of the schools are owned and operated by their parishes, not
the Diocese. This factor is particularly significant given the
strong interest that these teachers have in maintaining a harmonious
working relationship with the community in which they work. (p. 315)
In EEOC v. Saint Francis Xavier Parochial School and Saint Francis
Xavier Church the court declined to apply the integrated enterprise
doctrine to consolidate the Church and school as a single employer based
on its findings that while the archdiocese had ultimate control over the
school's budget and held ownership to the buildings, each entity
had its own budget, management, hours of operation, labor pools, and
labor practices.
In all cases it is important for each diocese to resolve the
nebulous governance issues through appropriate diocesan legislation and
policy to ensure that the ownership of property, the articles of
incorporation, and the relationships among the functionaries within the
diocese represent a clear and conscientious attempt at translating the
dictates of canon law and the actual practice of school governance into
documents required by civil law with the full understanding that a
translation never adequately captures the totality of meaning nor
anticipates every eventuality.
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JOHN T. JAMES
Saint Louis University
John T. James is an assistant professor in the department of
educational leadership and higher education at Saint Louis University.
Correspondence concerning this article should be addressed to Dr. John
James, Leadership and Higher Education Department, Saint Louis
University, 3750 Lindell Blvd., McGannon Hall 116, St. Louis, MO 63108
