The vice dean of Villanova University’s law school testified today before Congress, warning that recent rulings by the National Labor Relations Board (NLRB) against Catholic colleges and universities are “a threat to religious freedom.” But what was surprising was the apparent support for religious institutions from the AFL-CIO.
Professor Michael Moreland’s testimony was largely consistent with concernsraised by The Cardinal Newman Society since January 2011, when the NLRB unconstitutionally investigated the religious identity of Manhattan College and asserted jurisdiction over its employee relations.
That ruling—and two other recent rulings against Duquesne University and St. Xavier University—violate the 1979 Supreme Court ruling NLRB v. Catholic Bishop of Chicago and subsequent federal court rulings, which have instructed the NLRB to stop interfering with religious schools and colleges. The problem is described in detail in The Cardinal Newman Society’s report, “The NLRB’s Assault on Religious Liberty.”
Professor Moreland testified:
First, the NLRB’s use of a “substantial religious character” test to determine the scope of the religious exemption from the NLRA [National Labor Relations Act] is at odds with over 30 years’ worth of Supreme Court and lower court precedents. Second, intrusion by the NLRB into the internal matters of religious institutions poses a threat to religious freedom. Finally, opposition to NLRB jurisdiction over religiously-affiliated colleges and universities is not inconsistent with support by churches of the rights of workers to unionize.
There was also interesting testimony from Christian Sweeney, deputy director of the Organizing Department of the AFL-CIO. Although he is clearly in support of faculty unions, Sweeney nevertheless did not defend the NLRB’s harassment of Catholic colleges and universities. Instead, he seemed to endorse a change in NLRB policy that would no longer violate the First Amendment:
[I]n NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the Supreme Court created an implied exemption from NLRA coverage for primary and secondary school teachers at religious schools in order to avoid a serious constitutional question under the First Amendment. The Court did so on the grounds that teaching at that level would inevitably involve some degree of religious instruction, no matter what formal subject matter was being taught. The Board has extended Catholic Bishop to exempt certain college teachers. The District of Columbia Circuit Court of Appeals has questioned whether the Board’s method of determining a college’s religious nature unduly intrudes upon the college’s right to freely exercise its religion. The Board has several cases pending in which it should be able to articulate an application of theCatholic Bishop consistent with the D.C. Circuit’s understanding of Catholic Bishop.
Thus far, the NLRB has been unwilling to restrain its oversight of Catholic colleges and universities. Sweeney’s implied support for the Church’s position is a hopeful development.
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