Academic journal article Boston University Law Review

Religious Employers and Labor Law: Bargaining in Good Faith?

Academic journal article Boston University Law Review

Religious Employers and Labor Law: Bargaining in Good Faith?

Article excerpt


In the wake of the Supreme Court's high-profile decision in Burwell v. Hobby Lobby Stores, Inc.,1 courts and federal administrative agencies will face new types of religious exemption claims from non-profit and closely held for-profit employers. It is a virtual certainty that some of these employers will claim exemption from their obligations under the National Labor Relations Act ("NLRA" or "the Act")-generally, to respect workers' rights to engage in concerted activity for mutual aid and protection, and to bargain collectively with elected unions2-because of conflicts between these obligations and their religious beliefs.3

But the National Labor Relations Board ("NLRB" or "the Board") and the lower federal courts will not be drawing on a blank canvas when they address the scope of employer religious exemptions from labor law; they have previously considered a range of arguments that certain employers should be exempt from labor law for religious reasons, with varying results.4 Many of these cases attempt to apply a thirty-five-year-old Supreme Court decision, NLRB v. Catholic Bishop of Chicago,5 in which the Court construed the NLRA to exempt parochial high school teachers as a matter of constitutional avoidance.6 That relatively short decision created considerable disagreement among the Board and the lower federal courts that persists to this day; more than three decades after Catholic Bishop was announced, it is still disputed whether and to what extent it applies outside the context of religious elementary and secondary school teachers.7 In fact, the Board's most recent attempt to faithfully apply Catholic Bishop resulted in a sharply divided December 2014 decision in the Pacific Lutheran University case involving adjuncts at that religiously affiliated university.8

Arguably, then, religious non-profits have two possible statutory sources of exemption from the NLRA: the Act itself (as construed by the Court in Catholic Bishop) and the Religious Freedom Restoration Act ("RFRA").9 But this Article argues that this two-track approach is contrary to congressional intent and that there is instead only one statutory source of labor law exemptions for religious employers.10 Specifically, it argues that the Board and the courts should treat Catholic Bishop-in which the Court applied an especially aggressive form of constitutional avoidance to the NLRA-as having been legislatively overruled by RFRA.

Aggressive constitutional avoidance decisions-those in which courts adopt improbable or even contraindicated statutory interpretations-are sometimes justified by normative preferences to protect constitutional values. However, those normative preferences only go so far-court decisions that effectively rewrite federal statutes to avoid constitutional questions should not then become practically impervious to congressional override. Instead, Congress should be able to overcome these decisions relatively easily by simply indicating its preferred approach for dealing with the problem. Following this rule, Catholic Bishop was overruled by RFRA, with which Congress amended the NLRA (like all other federal statutes) to indicate how employers' requests for religious exemptions should be treated. Accordingly, RFRA, along with the First Amendment itself, should determine when employers (both for- and non-profit) are entitled to religious accommodation of their obligations under the NLRA; Catholic Bishop should no longer play a role in this determination.

This Article then discusses key remaining questions about religious employers and labor law under RFRA. In short, RFRA entitles persons (including closely held corporations) to accommodations when federal law substantially burdens exercise of their sincere religious beliefs, unless the federal law is the least restrictive way of furthering a compelling government interest. Thus, several questions will arise when employers assert religious exemptions from their obligations under the NLRA, which the Article addresses in turn. …

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