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South Jersey Catholic School Teachers Ass'n v. St. Teresa of the Infant Jesus Church Elementary School

May 16, 1996


On appeal from the Superior Court of New Jersey, Chancery Division, Camden County.

Approved for Publication May 16, 1996.

Before Judges King, Kleiner and Humphreys. The opinion of the court was delivered by King, P.j.a.d.

The opinion of the court was delivered by: King

The opinion of the court was delivered by KING, P.J.A.D.


This case involves the right of parochial elementary school lay teachers to organize and bargain collectively with the six parish schools where they work. The schools are operated by theseparishes under the auspices of the Diocese of Camden. These Catholic elementary school teachers claim the right to organize and bargain collectively secured to persons in private employment under Art. I, par. 19 of the New Jersey Constitution of 1947: "Persons in private employment shall have the right to organize and bargain collectively." The Diocese contends that it has the absolute right to refuse to recognize and to bargain collectively with any union because of the Religion Clauses of the First Amendment to the United States Constitution.

The Chancery Division Judge agreed with the schools and the Diocese and dismissed the suit by the plaintiff, South Jersey Catholic School Teachers Association (SCTO), on federal constitutional grounds. We disagree and reverse.

We conclude that the compelling state governmental interest expressed in the grant of the fundamental right to organize and bargain collectively by the New Jersey State constitution prevails over the claim of an unconstitutional burden on the parish schools' and Diocese's free exercise of religion. We remand and direct the Chancery Division to order an official representational election and require defendants to bargain collectively with the chosen representative of the lay teachers.


On August 24, 1994 the plaintiff filed this complaint seeking a mandatory injunction compelling the Diocese's six elementary schools named as defendants to recognize it as the representative of the lay teachers and to bargain over terms and conditions of employment. In the alternative, the plaintiff sought an order requiring a secret-ballot election among the lay teachers to determine if plaintiff was indeed the majority representative. If so, plaintiff sought an order to compel collective bargaining.

On September 30, 1994 defendants filed a motion to dismiss the complaint for lack of subject-matter jurisdiction. On November 10, 1994 the defendant cross-moved for summary judgment. On December 16, 1994, after argument, the Chancery Division Judge rendered an oral opinion in defendants' favor. The Judge expressed concern that defendants' First Amendment free exercise of religion rights would be impaired by a requirement that the schools recognize a teachers' union and bargain with it over terms and conditions of employment. He was also concerned that church-state entanglement would occur if plaintiff obtained relief. He granted summary judgment to the defendants.


The Diocese of Camden was established by Pope Pius XI in 1938. The counties of Atlantic, Camden, Cape May, Cumberland, Gloucester and Salem comprise the Diocese. Saint Joseph Camden's Pro-Cathedral, Saint Bartholomew's Church in Camden, The Church of Saint Teresa of the Infant Jesus in Runnemede, Saint Jude's Church in Gloucester Township, Sacred Heart Church in Vineland and Saint Joseph's Church in Hammonton, the six named defendants, all own, operate and maintain Catholic elementary schools. According to the certification of Reverend Monsignor Leonard Scott, Judicial Vicar of the Diocese of Camden, these schools are called "Catholic" because

they are supervised by an ecclesiastical juridic person, that is, the parish. It is their supervision by the parish that makes them "Catholic." The respective pastors of these six parishes are responsible for the operation and maintenance of these schools and they are charged with the supervision and administration of these institutions. These pastors are answerable to the Bishop of the Diocese of Camden who . . . is to maintain "vigilance" over the schools which are operated by the parishes and who is authorized "to issue prescriptions dealing with the general regulation of Catholic schools[.]" The Bishop of the Diocese is, in turn, answerable to the Pope.

The heads of the six parish schools submitted nearly identical certifications which demonstrate that either an overwhelming majority or all the teachers in each of the six schools are laypersons. The certifications stressed the importance of these lay teachers:

The example of these adult lay teachers is perhaps even more crucial than the example that could be offered by priests or nuns. These lay teachers are expected, by their very word and action, by their lifestyle and by everything that they do or say, to uphold and live by the teachings of the Roman Catholic Church, to inculcate these teachings wherever and whenever possible and to serve as living witnesses of a faith-filled life. As the Pastor I would dismiss any teacher who expressed positions in the classroom contrary to the teachings of the Catholic Church.

[The elementary school], unlike Catholic high schools and colleges, works with children at an extremely impressionable and formative age when the inculcation of the Faith is especially important. The School works with the Catholic students to prepare them for the sacraments of First Penance, First Holy Communion and Confirmation which means that the School is especially important in preparing the young for the sacramental element of their lives that will be the bedrock of their religious faith in the years to come.

Plaintiff is a member of the National Association of Catholic School Teachers. Members of the Association represent lay elementary and lay high school teachers for purposes of collective bargaining in other parts of the nation, including high school teachers in the dioceses in Trenton and Camden, New Jersey.

Since 1984 the Camden Diocese has recognized plaintiff SCTO as the collective bargaining representative of the approximately 223 lay high school teachers in the high schools it sponsors. Plaintiff and the Diocese have negotiated a series of collective bargaining agreements covering these secondary-school lay teachers.

On August 9, 1993 union activists held a meeting at the home of William Blumenstein, plaintiff's president and a teacher at one of the Diocese's high schools. Four members of the union's executive board and five lay teachers from two of the elementary schools in the Diocese met to discuss plaintiff undertaking organizing efforts on behalf of the lay elementary teachers. In September 1993 plaintiff's executive board approved organizing efforts and expenditures for printing and copying an informational distribution to the elementary school teachers. The SCTO Chronicle, the union's newsletter, was distributed to teachers outside regional in-service locations in October and November 1993. The newsletter contained an authorization form on which the teachers could designate plaintiff as their representative in collective bargaining with the Diocese. Throughout this time, plaintiff's members met with teachers at the various schools who were interested in representation.

According to certifications by Blumenstein and Christopher Ehrmann, plaintiff's regional representative, plaintiff was designated as the representative of a majority of the lay elementary teachers at the six elementary schools. According to Blumenstein, plaintiff's majority status can be confirmed by conducting an in camera review of the authorization cards signed by the teachers and a comparison of the signatures with the teachers' signatures on their W-4 forms. The authorization cards are not contained in the record. However, defendants do not dispute the claim that plaintiff SCTO has received majority support as the elementary school teachers' representative.

Beginning in November 1993, plaintiff opened a dialogue with the Diocese regarding its desire to represent the lay elementary teachers. In March 1994, Blumenstein met with Bishop James McHugh who presented him with a document entitled Minimum Standards for Organizations Wishing to Represent Lay Teachers in a Parish or Regional Catholic Elementary School in the Diocese of Camden (minimum standards). Bishop McHugh told Blumenstein that plaintiff's agreement to the minimum standards was a precondition both for recognizing the union and for permitting the teachers to vote on the question of union representation. Blumenstein was also told that the minimum standards were not negotiable.

The preamble of the minimum standards first acknowledges the Roman Catholic Church's recognition of the dignity of labor, stating:

The Catholic Church, beginning with the Encyclical Letter of Pope Leo XIII in 1891, The Condition of Labor (Rerum Novarum), and continuing over 100 years until the recent Encyclical Letter of Pope John Paul II in 1991, Centesimus Annus, has developed an admirable body of teaching on social, economic, political and cultural matters. This rich heritage of the social teaching of the Church has evolved in response to very differing economic and political contexts. While it is thus marked by significant shifts in both attitude and methodology, it represents the Catholic Church's evolving response to the Evangelical challenge to live a responsible Christian life amidst the complexities of rapidly-changing modern society.

During the past Century Catholic social teaching has supported, in the strongest possible terms, the right of workers to organize into bona fide unions. Such unions are intended to counter working conditions which are unfair or unjust, so that the working man or woman may not be exploited by employers who denigrate the dignity of the human person in favor of profit and power. We fully affirm and endorse this teaching of the Church.

The preamble of the minimum standards then relates the role of Catholic elementary schools:

At the same time we must recognize that the Catholic elementary schools, operated and administered by the various parishes as part of their teaching mission, have a special nature and purpose that must be respected and preserved. They are an essential part of the religious mission of the Church on the parish level, and it is impossible to separate their educational function from their primary religious purpose, which, of course, is the reason for their existence. The Catholic elementary school teacher, too, as a professional who, through the local pastors, shares in the teaching and sanctifying missions of the Church and the bishop, exercises a special and privileged role in the Church in transmitting and conveying the Faith to those of such an impressionable age. Bound by charity to one another and to their students, and penetrated by an apostolic spirit, Catholic school teachers in the parish and regionalized elementary schools, are called to give a special witness to Christ, the unique Teacher, by their lives as well as by their teachings. Theirs is a calling which requires extraordinary qualities, to challenge the minds and hearts of youth, to bring them knowledge and truth, and to be role models of what every Christian is called to be by Christ and by his Church. However, it is a distinct calling since it is in these especially formative years that their young students are most susceptible to both explicit teaching and personal example and during which the pastors are charged by the Church to prepare them -- with the help of others -- for life's sacramental journey through the reception of First Penance, First Communion and Confirmation.

With respect to labor relations, the minimum standards provide that because of the unique nature of the Catholic elementary school, "neither the courts nor any governmental labor relations board or similar entity shall be involved in any way whatsoever in the enforcement, interpretation or application of these minimum standards or any other agreement between the parties." The minimum standards further provide that the right to hire, suspend, discharge or otherwise discipline a teacher shall be reserved to the parishes; disputes shall be resolved by the pastor; any dispute relating to disciplinary action against a lay teacher resulting in suspension or termination shall be appealable to a Pastors' Appeal Board; any teacher who by public action or statement contradicts or subverts the teachings of the Catholic Church or the policies of the Diocese shall be subject to immediate dismissal; the judgment of the Bishop on these questions shall be final; and the matters addressed in the minimum standards are not subject to negotiation by the organization chosen by the lay teachers to represent them. *fn1

Blumenstein certified that the minimum standards were unacceptable to plaintiff as the basis for conducting an election among the elementary teachers because these standards required the plaintiff to agree, in advance, to certain matters that are properly the subject of collective bargaining. In late June 1994, plaintiff wrote to each of the defendant schools requesting recognition as the collective bargaining representative of the lay elementary teachers. Shortly after this, each school responded with an identical letter refusing to recognize plaintiff or to hold an election without prior agreement to the minimum standards. In early July 1994 plaintiff informed defendants that although it recognized that matters affecting the teachings of the Catholic Church, whether in faith and morals or the policies of the Diocese in that regard, are within the sole province of the Bishop, it could not sign the minimum standards and would seek relief through the courts.


We first address the issue of "lack of subject matter jurisdiction" because this was nominally the reason the Chancery Division Judge declined relief. Generally, there are three types of federal preemption in the field of labor relations: (1) Supremacy Clause preemption, where the validity of a state statute or regulation is attacked as violative of the federal Supremacy Clause; (2) claim or choice-of-law preemption, where federal law must be applied even though both the state and federal courts have concurrent jurisdiction; and (3) choice-of-forum preemption, which is jurisdictional, because it relates to whether the state court has any adjudicatory power. Maher v. New Jersey Transit Rail Operations, 239 N.J. Super. 213, 220-21, 570 A.2d 1289 (App. Div. 1990), modified, 125 N.J. 455 (1991). The third type of federal preemption is the issue in this case.

In the labor-management field, under the National Labor Relations Act (Act), Congress has not expressly provided for exclusive federal jurisdiction. Chamber of Commerce of U.S. v. State, 89 N.J. 131, 142-43, 445 A.2d 353 (1982). Nonetheless, states are preempted from acting on matters even arguably subject to the Act unless the NLRB has declined or would decline to assert jurisdiction. Lay Fac. Ass'n v. Newark Archdiocese, 122 N.J. Super. 260, 269 (App. Div. 1973). In Lay Fac. Ass'n an association alleged to represent the majority of the lay faculty members of the Archdiocese's secondary schools claimed that the Archdiocese had violated Article I, paragraph 19 of the New Jersey Constitution by failing to bargain collectively with theassociation and sought an order requiring collective bargaining. The Chancery Division Judge entered judgment requiring the Archdiocese to bargain collectively. We held that the NLRB should determine whether it would exercise jurisdiction over the controversy because there was no provision in the Act exempting the employment relationship in issue and we instructed the parties to seek an advisory opinion from the NLRB on that question, while retaining jurisdiction. We said that if the NLRB declined to exercise jurisdiction, we would order an affirmance of the judgment in the Chancery Division. Id. at 273. The matter returned to this court after the NLRB would not exercise jurisdiction. We summarily affirmed the judgment, ordering collective bargaining. Lay Faculty Ass'n v. Newark Archdiocese, 124 N.J. Super. 369, 372 (App. Div. 1973).

Six years later, in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S. Ct. 1313, 59 L. Ed. 2d 533 (1979), the Supreme Court addressed the question whether teachers in schools operated by a church which taught both religious and secular subjects were within the jurisdiction of the Act. The Court held that in the absence of a clear intention on the part of Congress that such teachers were covered by the Act, and in view of the serious First Amendment questions that would follow from the NLRB's exercise of jurisdiction over teachers in church-operated schools, the NLRB was prevented from exercising jurisdiction over these teachers. 440 U.S. at 504-07, 99 S. Ct. 1313, 59 L. Ed. 2d at 543-545. Catholic Bishop was decided strictly on statutory construction grounds and did not reach the constitutional issues.

In light of this Supreme Court decision, similar to the situation where the NLRB declines jurisdiction because of the subject matter's minimal impact on interstate commerce, "state tribunals are free to exercise jurisdiction over the subject matter." Cooper v. Nutley Sun Printing Co., 36 N.J. 189, 194, 175 A.2d 639 (1961) (holding that in light of the NLRB's refusal to take jurisdiction, the Chancery Division was not barred by federal preemption from assuming jurisdiction.) See also Christ the King Regional High Sch. v. Culvert, 815 F.2d 219, 222-23 (2d Cir.) (holding that under Catholic Bishop, the Act did not preempt New York State's Labor Relations Board from exercising jurisdiction over a labor dispute between a church-affiliated high school and a union of lay faculty teachers), cert. denied, 484 U.S. 830, 108 S. Ct. 102, 98 L. Ed. 2d 63 (1987). Finally, the absence of regulatory labor legislation in New Jersey with respect to private employment and the disinclination of the Legislature to provide bureaucratic machinery for the control of intrastate private-sector labor matters, permits a state court of general jurisdiction to address this action. Johnson v. Christ Hosp., 84 N.J. Super. 541, 545, 202 A.2d 874 (Ch. Div. 1964), aff'd per curiam, 45 N.J. 108 (1965).


The plaintiff maintains that the Judge incorrectly analyzed defendants' free exercise claim by relying on the Establishment Clause concept of "entanglement." Plaintiff contends that Article I, paragraph 19 of the New Jersey Constitution is neither an establishment of religion nor a substantial burden on defendants' free exercise of religion because it requires only that the parties bargain. No state regulatory agency or mechanism for enforcement or review of the collectively bargaining process is implicated. Plaintiff points out that defendants are required to comply with secular laws, i.e., educational standards and safety codes, among others. Plaintiff maintains that defendants' free exercise concerns can be accommodated by the judiciary's application of neutral principles of contract and labor law with respect to any dispute that might arise and by plaintiff's assurance that it intends to bargain only on secular issues, such as wages, hours, tenure, work assignments, vacation and personal time, illness and disability leave, and health and retirement benefits, not on matters touching faith, morals or religious polity.

Defendants, in contrast, contend that Article I, paragraph 19 violates the First Amendment religion clauses if applied in thiscase, transgressing the Establishment Clause, injecting government into religion, creating an entanglement of the two, and burdening free exercise rights.

The First Amendment states in pertinent part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]" These protections apply to the states. Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). The distinction between the two clauses is the presence of coercion, which need not be attendant for a violation of the Establishment Clause. Abington School District v. Schempp, 374 U.S. 203, 223, 83 S. Ct. 1560, 10 L. Ed. 2d 844, 858 (1963).

The United States Supreme Court uses, at least nominally, the now-familiar three-prong test for determining whether there has been a violation of the establishment clause: whether the challenged law or conduct has a secular purpose; whether its principal or primary effect is to advance or inhibit religion; and whether it creates an excessive entanglement of government with religion. Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S. Ct. 2105, 29 L. Ed. 2d 745, 755 (1971). See also Rosenberger v. University of Va., 515 U.S. , 115 S. Ct. 2510, 132 L. Ed. 2d 700, 63 USLW 4702 (1995); Capitol Sq. Rev. and Advisory Bd. v. Pinette, U.S. 115 S. Ct. 2440, 132 L. Ed. 2d 650, 63 USLW 4684 (1995). Faced with an issue similar to the issue raised by this appeal, one court concluded that "the church-labor relations issues presented here are most appropriately analyzed under the free exercise clause" and that "the establishment clause challenge . . . is actually a free exercise question." Hill-Murray Federation of Teachers v. Hill-Murray H.S., 487 N.W.2d 857, 863 (Minn. 1992). Another court has explicitly considered the two clauses jointly because of its belief that "there has been some blurring of sharply honed differentiations" between them. NLRB v. Catholic Bishop of Chicago, 559 F.2d 1112, 1131 (7th Cir. 1977), aff'd on other grounds, 440 U.S. 490, 99 S. Ct. 1313, 59 L. Ed. 2d 533 (1979). Or, as a third court presented with a similar scenario noted: "The claims under the Establishment Clause and the Free Exercise Clause involve the same considerations and are not easily divided and put into separate pigeon holes." Catholic High School Ass'n of Archdiocese of N.Y. v. Culvert, 753 F.2d 1161, 1166 (2d Cir. 1985). Thus, for various reasons, courts have tended to analyze church-labor relations issues under both the establishment and the free exercise clauses. See, e.g., Culvert, supra, 753 F.2d at 1166 ("Nonetheless, for organizational purposes, we will discuss the clauses independently of each other").

We fail to see defendants' contention as an Establishment Clause claim. This is clearly a free exercise claim. This case does not involve government support for religion but rather government's claimed encroachment on religious exercise and observance. We agree with the academic view expressed by Professor Laycock:

Government support for religion is an element of every establishment claim, just as a burden or restriction on religion is an element of every free exercise claim. Regulation that burdens religion, enacted because of the government's general interest in regulation, is simply not establishment. Magic words like "entanglement" cannot make it so. Such regulation is properly challenged under the free exercise clause; courts that have analyzed the church labor relations cases in establishment clause terms have invoked the wrong provision. [Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1394 (1981) (footnote omitted).]

Accord Robert J. Pushaw, Jr., Note, Labor Relations Board Regulation of Parochial Schools: A Practical Free Exercise Accommodation, 97 Yale L.J. 135, 147 (1987) (footnotes omitted) ("Courts have weakened their First Amendment analyses by applying establishment clause rules prohibiting 'entanglement' . . . to parochial school labor relations cases, which more properly turn on the free exercise issue of government 'burdens' on religion resulting from enforcement of impartial regulatory laws").

We have great difficulty viewing the uniform application of a state constitutional provision to parochial schools as an establishment of religion. Rather, as Professor Pushaw points out, the parochial schools here are really requesting the benefit of a special exemption from a neutral labor-relations law of constitutional dimension. Pushaw, (supra) ...

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