National Labor Relations Board v. Catholic Bishop of Chicago
National Labor Relations Board v. Catholic Bishop of Chicago
James E. Serritella 0
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As you know, prior to 1970 the National Labor Relations Board, very
rarely asserted its jurisdiction over nonprofit, charitable and educational
entities. Between 1970 and the present, the Board asserted jurisdiction
over a variety of such employers-private universities, private secondary
schools, private social service agencies, and church operated schools.'
Throughout this period the Board rarely discussed the religious character
of some of these entities, and never really discussed the religious issue in
depth.2 In fact, in 1975 when it asserted jurisdiction over the Quigleys,
the Board failed even to cite a single constitutional precedent.' It was
against this backdrop of utter insensitivity to the religious issue that
NLRB v. Catholic Bishop of Chicago4 was litigated. I believe that it was
to this insensitivity that the U.S. Supreme Court was responding in its
March 21 decision. I will briefly report on the case and its implications.
SUMMARY OF CASE
The case dealt with two classes of employers: 1) Quigley North and
Quigley South, the high school department of the Chicago minor
seminary system; 2) five Catholic high schools in the Diocese of Fort
WayneSouth Bend. The NLRB ignored the special religious character of these
institutions, asserted jurisdiction over them, and ordered them to conduct
representation elections. When the respective unions won the
representation elections, the NLRB ordered the Catholic Bishop of Chicago and the
NLRB v.Bishop of Chicago
Diocese of Fort Wayne-South Bend to collectively bargain with the
unions. The employers contested the legitimacy of these orders in the
courts5 and the U.S. Supreme Court ultimately set the orders aside. In
setting aside the orders, the Court reasoned that it would not construe
the National Labor Relations Act 6 (NLRA) to cover teachers at
churchrelated schools because such coverage would entail inescapable conflicts
and "serious First Amendment questions".' The clear implication is that,
were the Court to have considered the matter, it would have found the
NLRB's action unconstitutional.
DECIDED AND UNDECIDED ISSUES
The Court's narrow holding was that since the NLRB's assertion of
jurisdiction raises serious constitutional issues, the Court must find a
clear expression of affirmative intent by Congress to have teachers in
nonpublic schools covered by the NLRA. The Court held such affirmative
congressional intent was lacking and NLRA does not apply to teachers at
church-operated schools. The question that immediately presents itself is
whether the NLRA applies to nonteaching personnel at such institutions.
The answer to this question is somewhat ambiguous. But exclusions in
the NLRA are on the basis of employers, not employees,' and the Court's
ruling was based on its construction of the NLRA. Thus, it appears that
all personnel of church-related schools should be excluded.
Not surprisingly, the Court's opinion is entirely silent on the other
classes of religious employers, such as social service agencies and child
care institutions. They were not part of the case and their status under
the NLRA is not affected.
Needless'to say, since the Court's decision was based principally on
its construction of the NLRA rather than the Constitution, the decision is
not dispositive of the jurisdiction of state labor boards over
church-operated schools. About fifteen states 9 have labor laws that require collective
bargaining, at least to some extent.
Finally, while NLRB jurisdiction over church-operated schools has
been defeated, all other labor issues, including collective bargaining itself,
remain. Great legal skill will be necessary to carry out the directives of
church management on these issues.
' The U.S. Court of Appeals for the Seventh Circuit set aside the orders on Aug. 3, 1977.
See 559 F.2d 1112 (7th Cir. 1977).
- 29 U.S.C. §§ 151-168 (1976).
7 440 U.S. 490 (1979).
8 29 U.S.C. § 152(2) (1976).
1 States that have their own labor relations laws include: Colorado, Connecticut, Hawaii,
Kansas, Massachusetts, Michigan, Minnesota, North Dakota, New York, Oregon,
Pennsylvania, Puerto Rico, Utah, Vermont and Wisconsin. See 4 & 4A LAB. REL. REP.
NLRB v. Catholic Bishop of Chicago
AND OTHER GOVERNMENT REGULATION
Perhaps the most significant aspect of the Court's treatment of the
entanglement doctrine is that it did not really treat it at all. The doctrine
was readily available, and the Court could have used it in such a way as
to block any subsequent aid whatsoever to church schools. Indeed, the
Court could have so extended the doctrine as to prohibit virtually all
government contracting with church entities. The result could have
disposed of many troublesome questions once and for all; yet, the Court
chose virtually to ignore entanglement.
One of our strategies to avoid this kind of potentially adverse
opinion, was to try to force the Court to distinguish between permissible and
impermissible entanglement. In this connection we attempted to
formulate the entanglement doctrine as we saw it: The government may not
interfere with religious institutions in such a way as to direct or
influence religious matters. Under this formulation fire inspections and most
fiscal audits would be permissible, but adjudicating teacher labor disputes
would not, because it would necessarily involve directing or influencing
We added a corollary to this formulation: Some impermissible
entanglements are of such a quantity and quality as to warrant
prohibition of the proposed relationshipbetween church and state, while other
impermissible entanglements are not of such a quantity or quality and
could be dealt with or neutralizedon a case by case basis1.0 For example,
the quantity and quality of entanglements involved in court adjudication
of church property disputes could be dealt with and neutralized by
prophylactic rules and case by case adjudication rather than entirely
prohibiting courts from exercising jurisdiction.
The Court, of course, entirely bypassed all of this. Instead, it latched
upon a second device we built into our case to avoid an opinion which
could be subsequently utilized to reject aid to nonpublic schools-the
statutory construction argument. The argument is well presented in the
Court's opinion, and you can evaluate its strengths and weaknesses for
yourselves. In a sense, this is almost a sui generis argument and will be
difficult to extend to other cases. But, the Court's message to the
legislative and executive brancles seems clear: Do not ignore the special
character of religious institutions in attempting to regulate them. I think
this is the fundamental teaching of NLRB v. Catholic Bishop of Chicago.
Parenthetically, the message for diocesan lawyers might be that we ought
not be too anxious to jump to constitutional principles, but instead
care,o See Lemon v. Kurtzman, 403 U.S. 602, 616 (1971); Presbyterian Church v. Mary
Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1967).
NLRB v. Bishop of Chicago