Labor Redoubles Assault on Catholic Colleges; Religious-Freedom Attack Precedes Unionization Push

Article excerpt


When federal agents ruled for a second time this year that a Catholic college cannot claim First Amendment protection from federal labor laws, they brazenly ignored instructions from the U.S. Court of Appeals for the D.C. Circuit and set up a potential Supreme Court confrontation.

On May 26, the Chicago regional director for the National Labor Relations Board (NLRB) declared that St. Xavier University, a Catholic institution established by the Sisters of Mercy, was not sufficiently religious to be exempt from federal jurisdiction. The ruling came just four months after a similar ruling against the Christian Brothers' Manhattan College, which has appealed to the national board for a reversal.

It's doubtful Manhattan can get a favorable ruling from the union-friendly NLRB, but if the college then appeals to the District's federal court, it is likely to prevail.

That's because the U.S. Court of Appeals for the District has twice already ordered the NLRB to cease harassing religious colleges and universities. In 2002 and 2008 rulings, the court reversed the NLRB and exempted religious institutions from requirements of the National Labor Relations Act.

Citing the 1979 U.S. Supreme Court ruling in NLRB v. Catholic Bishop of Chicago, et al., which exempted Catholic parochial schools from NLRB oversight, the court found that the NLRB's extensive evaluations of whether colleges are substantially religious are precisely the sort of intrusive inquiry that Catholic Bishop sought to avoid. The Supreme Court had found that NLRB jurisdiction over Catholic schools will necessarily involve inquiry into the good faith of the position asserted by the clergy administrators and its relationship to the schools' 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

Nevertheless, the NLRB has never dropped its unconstitutional substantial religious character test, instead forcing multiple Catholic and other religious colleges to comply with federal labor law and regulations. Ultimately, it may require another Supreme Court ruling to set the NLRB straight.

Such a showdown could very well favor religious colleges, thanks to the support of Supreme Court Justice Stephen G. Breyer. In rejecting the NLRB's intrusive religious character test, the D.C. appeals court prescribed in 2002 a simple three-part test for exemption from federal labor law - a test first recommended by former Court of Appeals Judge Breyer in a 1986 opinion. …