Faculty Unions in Catholic Educational Institutions:
A Disconnect between Church Teachings and Practice
Charles J. Russo
Speaking in the Vatican to a gathering of the Italian General Confederation of Labor on December 19, 2022, Pope Francis eloquently proclaimed “there are no free workers without unions.” Francis affirmed the long-standing labor teachings of the Roman Catholic Church, which began in 1891 with Pope Leo XIII’s encyclical, Rerum Novarum, New Things. Rerum Novarum recognized the rights of all workers to organize and bargain collectively with their employers, a theme reiterated in later papal pronouncements and other Church documents. Yet leaders in Catholic schools, colleges, and universities, in conjunction with the hierarchy in the Roman Catholic Church in the United States, are, to put it mildly, inconsistent at best, and hypocritical at worst when dealing with the rights of faculty members who seek to form unions. These leaders preach one set of values but operate with a different set of rules in most of their schools, colleges, and universities.
In light of the glaring disconnect between authentic Church teachings and praxis, the first part of this essay highlights key excerpts in Roman Catholic documents on the rights of workers to unionize. The essay next briefly examines the history of teacher unions in Roman Catholic schools before reviewing litigation. I focus on the Supreme Court’s 1979 decision in National Labor Relations Board v. Catholic Bishop of Chicago, in which church leaders espoused Christian teachings while relying on civil positive law to deny educators in their schools the right to unionize. This section also summarizes disputes from Catholic institutions of higher education, many of which ended with officials successfully preventing faculty members from forming unions. The last part of the essay reflects on the current state of affairs, and urges Catholic leaders to comply with their own teachings by supporting the rights of employees in their educational institutions to organize and bargain collectively.
Pope Leo XIII’s Rerum Novarum declared that
[t]he most important of all [of their rights] are workingmen’s unions, for these virtually include all the rest. History attests what excellent results were brought about by the artificers’ guilds of olden times. They were the means of affording not only many advantages to the workmen, but in no small degree of promoting the advancement of art, as numerous monuments remain to bear witness.
Forty years later, in 1931, Pope Pius XI commemorated Rerum Novarum in Quadragesimo Anno, On Reconstruction of the Social Order. He wrote that
the massed ranks of revolutionarists [sic] have prevented Catholics from founding purely Catholic labor unions. Under these conditions, Catholics seem almost forced to join secular labor unions. These unions, however, should always profess justice and equity and give Catholic members full freedom to care for their own conscience and obey the laws of the Church. It is clearly the office of bishops, when they know that these associations are on account of circumstances necessary and are not dangerous to religion, to approve of Catholic workers joining them…
Gaudium et Spes, Vatican’s II’s seminal Pastoral Constitution On the Church in the Modern World promulgated in 1965, decreed that “Among the basic rights of the human person is to be numbered the right of freely founding unions for working people…Included is the right of freely taking part in the activity of these unions without risk of reprisal.”
As might have been expected, Saint Pope John Paul II, a supporter of Solidarity and labor unions in Poland, proclaimed in his 1981 Laborem Exercens, On Human Labor, that
All these rights, together with the need for the workers themselves to secure them, give rise to yet another right: the right of association, that is to form associations for the purpose of defending the vital interests of those employed in the various professions. These associations are called labor or trade unions. The vital interests of the workers are to a certain extent common for all of them…”
Saint Pope John Paul II added that
in a sense, unions go back to the medieval guilds of artisans, insofar as those organizations brought together people belonging to the same craft and thus on the basis of their work. However, unions differ from the guilds on this essential point: the modern unions grew up from the struggle of the workers-workers in general but especially the industrial workers — to protect their just rights vis-à-vis the entrepreneurs and the owners of the means of production. Their task is to defend the existential interests of workers in all sectors in which their rights are concerned. The experience of history teaches that organizations of this type are an indispensable element of social life…
Six years later, in Sollicitudo Rei Socialis, On Social Concern, Saint Pope John Paul II commented that
we should add here that in today’s world there are many other forms of poverty. For are there not certain privations or deprivations which deserve this name? The denial or the limitation of human rights — as for example the right to religious freedom, the right to share in the building of society, the freedom to organize and to form unions, or to take initiatives in economic matters — do these not impoverish the human person as much as, if not more than, the deprivation of material goods?
The values enunciated in the American Catholic Bishops’ 1986 pastoral letter Economic Justice For All stand in stark contrast to their opposition to unions in their schools:
The Church fully supports the right of workers to form unions or other associations to secure their rights to fair wages and working conditions. This is a specific application of the more general right to associate. In the words of Pope John Paul II, ‘The experience of history teaches that organizations of this type are an indispensable element of social life, especially in modern industrial societies…Unions may also legitimately resort to strikes where this is the only available means to the justice owed to workers. No one may deny the right to organize without attacking human dignity itself. Therefore, we firmly oppose organized efforts, such as those regrettably now seen in this country, to break existing unions and prevent workers from organizing.’
2007’s Forming Consciences for Faithful Citizenship US Conference of Catholic Bishops, unequivocally explained that “Catholic social teaching supports the right of workers to choose whether to organize, join a union, and bargain collectively, and to exercise these rights without reprisal.”
The future of organizing unions in Catholic education, which seemed bright following a wave of teacher activism in the 1960s, received an unexpected boost in 1975, when the NLRB asserted jurisdiction over organizing activities in two cases in Catholic secondary schools in Chicago and Ft. Wayne-South Bend. Despite an order from the NLRB directing school officials to recognize and bargain with the unions of their teachers, they refused. On appeal, the Seventh Circuit reversed in favor of school officials, ruling that the NLRB improperly exercised its discretion in light of the religious nature of the schools and that related first amendment considerations precluded it from asserting its jurisdiction. The NLRB appealed to the Supreme Court which agreed to intervene.
In the interim, the teachers’ movement took a large step forward in December 1977, when lay teachers from seven dioceses met in Philadelphia to form the National Association of Catholic School Teachers. Through personal communication with the NACST’s long-serving President Rita Schwartz, I learned that the union consists of fifteen locals in eleven Archdioceses and Dioceses mostly located in the east, northeast, and midwest, with a combined total of about 1,500 members nationwide. While the NACST remains the largest national union of Catholic school teachers and its number of local affiliates has grown, union membership continues to shrink due to the decreasing numbers of teachers. In the 1979’s National Labor Relations Board v. Catholic Bishop of Chicago the Supreme Court affirmed in a 5-4 ruling that the NLRB lacked jurisdiction to mandate bargaining between teachers and their secondary schools. The Court noted two issues raised by the case: first, whether Congress intended to grant the NLRB jurisdiction under the National Labor Relations Act (NLRA) over teachers in church-operated schools and, second, if it did, whether doing so violated the constitutionally sensitive questions arising out of the First Amendment religion clauses. The Court concluded that absent a clear and affirmative intent by Congress to extend the NLRB’s jurisdiction to church-operated schools, it was unnecessary to resolve the First Amendment issues. Later courts relied on the tripartite Lemon v. Kurtzman purpose, effect, and entanglement test as they sought to avoid entanglement with doctrinal matters or issues of control in upholding institutional refusals to deny faculty efforts to unionize.
Catholic teacher unions had greater success at the state level. For example, in Catholic High School Association of the Archdiocese of New York v. Culvert the Second Circuit held that the First Amendment did not prohibit the New York State Labor Relations Board (NYSLRB) from asserting its jurisdiction in a conflict between lay teachers and their schools. The court distinguished Culvert from Catholic Bishop on the ground that unlike the NLRA, which showed no intent to allow the NLRB to exercise its jurisdiction over Church-operated schools, the New York State Labor Relations Act was amended in 1968 to cover employees of educational or religious associations.
Following Culvert, two other labor disputes in Roman Catholic secondary schools in New York emerged. In The Matter of St. John’s Preparatory School and Lay Faculty Association, the NYSLRB reasoned that because educational officials refused to bargain in good faith with the association, the ensuing strike was precipitated by unfair labor practices on the school’s part, and that administrators acted improperly in dismissing seventy-six striking teachers. The union continues to operate in Catholic schools in the New York City area.
The second case involved a strike at Christ the King High School in which ninety-six teachers were dismissed under circumstances similar to those at St. John’s. After the NYSLRB determined that school officials failed to bargain in good faith and committed unfair labor practices in firing the educators who went on strike, the Second Circuit affirmed that the NLRA did not preclude a federal trial court from exercising jurisdiction over this dispute.
In Hill-Murray Federation v. Hill-Murray High School the Supreme Court of Minnesota affirmed that lay employees of religiously-affiliated schools were subject to the state’s Labor Relations Act. The court observed that applying the statute to teachers in this Catholic school violated neither the Federal Religious Clauses nor the Freedom of Conscience Clause in the State Constitution
In South Jersey Catholic School Teachers Organization v. St. Teresa of the Infant Jesus Church Elementary School the Supreme Court of New Jersey reached a comparable outcome. The court unanimously ruled that because elementary school teachers had labor rights guaranteed by article 1, paragraph 19, of the state constitution, they were entitled to conduct a representational election in identified diocesan elementary schools.
Faculty members in Roman Catholic institutions of higher education have been equally unsuccessful in gaining traction when attempting to unionize as campus officials oppose their efforts. For example, in Universidad Cent. de Bayamon v. NLRB, the First Circuit relied on Catholic Bishop, holding that the Board lacked jurisdiction when faculty members in Puerto Rico sought to form a union because the school was operated by the Dominican order.
The Board adopted a different approach in a dispute from Montana, University of Great Falls v. NLRB (Great Falls), expressing its intent to assert its jurisdiction over faith-based educational institutions lacking a “substantial religious character.” On appeal, the D.C. Circuit found that the NLRB lacked jurisdiction because the faith-based university is operated by Catholic nuns. However, in Carroll College v. NLRB, a dispute involving a Catholic college in Wisconsin, and Pacific Lutheran and Service Employees International Union, a case from Washington, the NLRB refused to follow Great Falls and allowed faculty members to unionize.
In 2020 a divided Circuit Court for the District of Columbia abrogated Pacific Lutheran in Duquesne University of the Holy Spirit v. NLRB, reversing an earlier order in favor of the proposed union. The court decided both that the NLRB lacked jurisdiction and that in evaluating whether the university in Pennsylvania was a religious institution exempt from the Board’s jurisdiction, it was impermissible to ask whether faculty members’ roles are sufficiently religious. The panel noted that Catholic Bishop did not distinguish between schools’ religious missions and secular instruction because even if they intertwined, any teaching could implicate the former, thereby precluding the NLRB’s jurisdiction.
Absent state action of the kind taken in New York, Minnesota, and New Jersey, courts are unlikely to afford educators in Catholic institutions the rights, protections, and salary benefits their colleagues in public education won through bargaining. The judiciary’s unwillingness to avoid excessive entanglement with religion under Lemon v. Kurtzman may have been made irrelevant by the Supreme Court’s repudiation of Lemon in 2022’s Kennedy v. Bremerton School District, which upheld the rights of a football coach to engage in silent prayer on the field after games. Consequently, this is an issue that bears watching.
Clear Church teachings supporting the rights of all workers to organize and bargain collectively notwithstanding, Catholic Bishop continues to have a chilling effect on the growth of unions in Roman Catholic educational institutions at all levels as leaders ignore the authentic teachings of their Church. It is perplexing why leaders continue to perpetuate such inconsistencies while supporting the rights of workers in other circumstances.
Of course, officials at Catholic educational institutions should be free to hire individuals to teach that they deem appropriate while requiring them to comply with the religious teachings of their Church. However, once employed, officials should respect the professed teachings of their Church by allowing educators to unionize if they wish to exercise their rights to do so.
In this regard it should be evident that allowing instructional personnel who teach secular subjects, in particular, to form unions to bargain for better salary and benefits (items which do not directly impact matters of faith), does not infringe on institutional rights to religious freedom. Accordingly, educational leaders should remedy past injustices by adopting labor policies for instructional personnel congruent with the espoused teachings of the Roman Catholic Church.
It is thus incumbent on leaders in Catholic educational institutions at all levels to comply with more than a century of unequivocal Church teachings as recently reiterated by Pope Francis. Leaders in Catholic institutions should practice what they preach by protecting the rights of faculty members to bargain over the terms and conditions of their employment; by doing so, they will give witness to the authentic labor teachings of their Catholic faith.♦
Charles J. Russo M.Div., J.D., Ed.D., Joseph Panzer Chair of Education in the School of Education and Health Sciences (SEHS), Director of SEHS’s Ph.D. Program in Educational Leadership, and Research Professor of Law in the School of Law at the University of Dayton, OH, is also an Adjunct Professor at Notre Dame University of Australia School of Law, Sydney Campus.
Russo, Charles J. “Faculty Unions in Catholic Educational Institutions: A Disconnect between Church Teachings and Practice.” Canopy Forum, February 6, 2023. https://canopyforum.org/2023/02/06/faculty-unions-in-catholic-educational-institutions-a-disconnect-between-church-teachings-and-practice/