NLRB v. CATHOLIC BISHOP OF CHICAGO

Transcript: 

Argument of Wade H. McCree

Chief Justice Warren E. Burger: We'll arguments next in 752 National Labor Relations Board against the Catholic Bishop of Chicago.

Mr. Solicitor General I think you may proceed whenever you're ready.

Mr. Wade H. McCree: Mr. Chief Justice and may it please the Court.

This case presents a question whether application of the National Labor Relations Act to Roman Catholic operated secondary schools were both secular and religious subjects are taught violates the Establishment Clause or the Free Exercise Clause of the First Amendment.

Respondents suggest the additional question, whether the National Labor Relations Act applies to private religious schools at all.

Our reply brief incorrectly and inadvertently stated on page 1 or footnote 1 of page 2 that the employers did not present this issue before the Court of Appeals.

We were partly in error, respondent, the Catholic Bishop of Chicago did not present this argument, but the respondent Diocese of Fort Wayne-South Bend, Inc. has statement in its brief that properly presented this issue to the court below.

And we apologize and raise the record to show that that issue is still before the court.

However, as we show in our reply brief.

Justice Potter Stewart: Was it dealt with by the court?

Mr. Wade H. McCree: It was not, Your Honor.

Justice Potter Stewart: No, was it.

Mr. Wade H. McCree: That is our understanding sir.

Justice Potter Stewart: So if we decided in your favor on the constitutional issue it might be appropriate to remand that to the Court of Appeals for decision in the first instance.

Mr. Wade H. McCree: We believe that that issue is not a substantial issue and as we have endeavored to show in our reply brief, the Congress in amending the Act in 1974 to eliminate the exemption in Section 2 (2) for nonprofit hospitals, expressly approved the Board's policy of asserting jurisdiction over private, nonprofit organizations.

And we believe the consistent legislative history shows no congressional intention to exempt nonprofit or religiously affiliated employers from the scope of the Act.

In this respect, the Court of Appeals correctly concluded that the Act, and I quote, “clear on its face could not be understood to preclude jurisdiction.”

The facts maybe briefly stated.

Respondent, the Catholic Bishop of Chicago, a corporation sole, operates two secondary schools for boys, Quigley North and Quigley South, which we refer to as the Quigleys.

These schools offer a secular curriculum in all respects, indistinguishable from the high school curriculum afforded by the public schools.

But in addition, it also offers special religious training, along with its secular curriculum.

The admission requirements to the Quigleys are different from those of the public schools however.

The Quigleys initially admitted catholic boys who were recommended by their pastors as having expressed their desire to pursue their priesthood.

Subsequently, other catholic boys, also recommended by their pastors were allowed to matriculate, if their pastor believed that they had a potential for their priesthood, even though it had not been recognized or expressed.

The full-time teachers at the Quigleys have contracts with the respondent, and the operating budgets of the Quigleys come within the monetary jurisdictional standards that the Board has established.

A million dollars in revenue in a given year and more than $65,000.00 worth of goods in a given year brought directly from out of state.

The Quigleys operate primarily, as the Board found, as college preparatory schools.

They are fully accredited by the state and by the North Central Accrediting Association.

They send however, a majority of their students to secular colleges.

As a matter of fact, their 1974 graduation class, only 16% went on to diocesan seminary college, Niles College.

The other respondent, the Diocese of Fort Wayne-South Bend, Inc. operates five high schools in 14 counties in North East Indiana.

These schools, like the Quigleys offer full program of college preparatory high schools subjects, and also include religious subjects.

They differ from the Quigleys in this respect, the South Bend-Fort Wayne schools admit catholic boys who have not express the desire to pursue the priesthood or have the potential for their priesthood, and they also admit some non-Catholic students.

The South Bend-Forth Wayne schools also satisfy the Board's self-imposed monetary jurisdictional standard.

The faculties of these schools are interesting.

The Quigleys employ a total of 76 full-time faculty persons of whom 46 are lay teachers, and so a clear majority of the Quigleys' faculty is a lay faculty.

The Fort Wayne-South Bend Diocese in 1974 employed a total faculty of 207 teacher, 182 of which were lay teachers, and of course only 25 affiliated with religious orders.

In September and October 1975, pursuant to separate representation petitions filed by the Quigley Education Association and the Community Alliance for Teachers of Catholic High School that has a felicitous acronym CATCH, elections were conducted in two units, both Quigleys combine four-unit, and the Fort Wayne-South Bend schools, five schools as a unit.

The unit was composed of all lay faculty and the unions won and were duly certified.

The employers refuse to bargain and the regional director issued complaints charging violations of 8 (a) (1) and (5).

And the employers admitted their refusal to bargain, because first that their schools were completely religious instead of religiously-affiliated which is a dichotomy that the Board has establish to determine whether it will exercise its jurisdiction over private religious schools.

Justice Harry A. Blackmun: Mr. Solicitor I take it, the Board adheres to that dichotomy still?

Mr. Wade H. McCree: The Board adheres to that dichotomy, Mr. Justice Blackmun.

Justice Potter Stewart: As a matter of its discretion rather than it's a matter of -- its understanding of constitutional compulsion.

Mr. Wade H. McCree: As a matter of its discretion Mr. Justice Stewart, it believes that it has jurisdiction to consider all that come within that affect commerce.

But it is preferred to follow this distinction.

Justice William J. Brennan: And do you support it?

Mr. Wade H. McCree: Do I support it Mr. Justice Brennan?

Justice William J. Brennan: Yes, that was my next question, because I gathered a lukewarmness in your brief.

Mr. Wade H. McCree: Well, the Board is not required, as I understand it, to exercise its full jurisdiction.

For a number of years, the Board refrained from exercising jurisdiction at all over private schools, not just religious schools.

Justice William J. Brennan: But does this not involve the Board in the determination what is completely religious versus what is merely religiously associated?

Mr. Wade H. McCree: It might --

Justice William J. Brennan: And if it does, doesn't that get beyond the limit constitutionally over?

Mr. Wade H. McCree: Mr. Justice Brennan it might from the phraseology employed, but that is not the way it has applied this test.

It is applied --

Justice William J. Brennan: There is or not, whether is or not it has applied it, it may involve the Board in examining in the religious principles that --

Mr. Wade H. McCree: It might accept the Board looks solely to secular aspects of the schools in making this dichotomy.

For example, if the school is the functional equivalent of a public school, if it offers a full secular course, and then has religious courses.

Justice William J. Brennan: But that would not qualify the -- if it did, that would not qualify the school, would it for eight parochial schools, constitutionally?

Mr. Wade H. McCree: No, that certainly would not.

Justice William J. Brennan: Well then why, and yet you say if that distinction would be enough to bring it within the Board's jurisdiction, not withstanding the examination of --

Mr. Wade H. McCree: No, I suggest that the Board has statutory jurisdiction into consider --

Justice William J. Brennan: I don't understand why at least the Solicitor General doesn't take the position that even a completely religious schools would be subject to the Board's jurisdiction.

Mr. Wade H. McCree: Well, we do.

It is our position that the Board has jurisdiction over completely religious schools.

Justice William J. Brennan: Well, then why defend this dichotomy?

Justice Potter Stewart: This dichotomy is not an issue here.

Mr. Wade H. McCree: I don't feel that I have to defend the dichotomy.

Justice Potter Stewart: It's not an issue in this case --

Mr. Wade H. McCree: Except to suggest that I think that the Board has the discretion to decide whether it will exercise this jurisdiction, but we contend that it has jurisdiction over both --

Chief Justice Warren E. Burger: But do you not agree that this dichotomy shed some light upon the problem of whether there is an interference or an impact on religion?

Mr. Wade H. McCree: But that is not the reason the Board has adopted it, because --

Chief Justice Warren E. Burger: It's not, perhaps not, but do you -- my question is would you agree that it shed some light on the problem?

Mr. Wade H. McCree: Well, I think probably not, the Board apparently is looking to see whether what is its impact on commerce, and it is determined that the completely religious schools which have been schools in its experience --

Chief Justice Warren E. Burger: By that you mean --

Mr. Wade H. McCree: -- that afforded after school religious instruction and were not the functional equivalent of the public schools, didn't have the requisite impact.

Chief Justice Warren E. Burger: Or rather completely religious, do you mean the seminary that trains priests among other things?

Mr. Wade H. McCree: They have not applied it in that fashion.

They have applied it if the seminary that trains priest is the functional equivalent of the regular high school.

Chief Justice Warren E. Burger: Or a grade school?

Mr. Wade H. McCree: Or grade school, they have applied it.

They have refrain from doing so, only with the after school, strictly religious program.

Chief Justice Warren E. Burger: Well, has it not been a tenet of the catholic faith and of some others faiths that operates schools, that if the children are inculcated with the principles of the faith and of religion and morals in the first dozen years of their lives, then they are adherence to that faith.

Mr. Wade H. McCree: I've heard that expressed.

Chief Justice Warren E. Burger: doesn't that permeate the literature on the subject?

Mr. Wade H. McCree: I believe it does Mr. Chief Justice.

Chief Justice Warren E. Burger: But the contrary of that is -- some of the antireligious countries, communist for example, who make it a felony to teach religion to a child under 12 or under 15, there's some relationship there, is there not?

Mr. Wade H. McCree: There is, but fortunately we do not think that's involved here in this case.

We think that what we have here is a question whether the exercise of its statutory authority of these schools that are in fact, the functional equivalent of high schools, but also teach religious subjects is forbidden because of conflict either with the Establishment Clause or the Equal Protection Clause.

Justice William H. Rehnquist: General McCree, you apparently feel that the statutory issue is clear, simply because of the general language and yet, an exception was found in McCulloch versus Sociedad, where the general language was equally clear.

Mr. Wade H. McCree: Well the -- Mr. Justice Rehnquist, we concede that the general language was equally clear, but the McCulloch case, if memory serves, is a case involving seaman on foreign vessels.

Justice William H. Rehnquist: Right.

Mr. Wade H. McCree: Whether they would be within the ambit of -- whether they would be within the jurisdiction of the Labor Board.

And there it was felt, because of the international aspects or because of the possible international repercussions of asserting jurisdiction over foreign seaman, over foreign flag vessels would require an expressed statement of Congress' intention to bring them under this rule.

Justice William H. Rehnquist: But isn't it just as permissible in inference in the light of the reasoning in McCulloch to say that assertion of congressional jurisdiction over a parochial school and the Bishop of Chicago, where they require an expressed statement because of a possible First Amendment implication?

Mr. Wade H. McCree: We submit that it is not, because of other regulatory measures have been held applicable to religiously affiliated schools, fire regulations, attendance laws, health and safety provisions.

Chief Justice Warren E. Burger: But none of those affect the kind of teaching, do they?

That goes on --

Mr. Wade H. McCree: Nor does the --

Chief Justice Warren E. Burger: -- their own neutral, are they?

Mr. Wade H. McCree: Nor does the ordering question here affect the kind of teaching.

It should be borne in mind that the only order here is an order to bargain about rates of pay, wages, conditions of employment, and if an agreement is reached to embody it in an order.

They're not told what to teach, but merely to bargain on the items that I've just referred to you.

Chief Justice Warren E. Burger: Then I -- from that I take it that it's your position that the bargaining process, the total bargaining process would have new impact whatever upon methods of teaching or --

Mr. Wade H. McCree: Now, we submit that it would have no impact at all on methods of teaching or content of teaching if limited to these aspects that I've mentioned, wages, hours, conditions at that point.

Chief Justice Warren E. Burger: Would you suggest that that's true with the public schools that the process has not had any impact on how teaching has been conducted, even though there it is limited to wages, hours, and working conditions?

Mr. Wade H. McCree: I don't believe -- I'm not aware, I am not aware that any curriculum content or pedagogical techniques have been made mandatory subjects of bargaining in the public school area.

Chief Justice Warren E. Burger: Neither directly nor indirectly?

Mr. Wade H. McCree: Well, there may be some indirect impact, but that's not before us today.

In 1963, this Court considered the case of the Associated Press versus the National Labor Relations Board and there, it was suggested that there might come a time, when the First Amendment guarantee a freedom of speech, it might be implicated, if the labor Board took cognizance of -- or extended its jurisdiction over employees of newspapers or in this case, the Associated Press, which is a coalition of them.

And this Court stated then that it would not decide hypothetical situations that might not ever be presented to it for its decision.

And it's interesting that in the 42 years, since Associated Press was decided, this Court has never had to decide whether affording recognition to the rights of newspaper of journalist to collectively bargain has never implicated a First Amendment violation.

And we suggest that this is what we have here, and we suggest that the Court of Appeals was in error when it decided based upon these hypothetical problems that this would be somehow a violation of both the Establishment Clause and the Equal Protection Clause.

And we think the Court of Appeals was in error in blurring the distinction between these two clauses, and we think that this case presents primarily a question under the Free Exercise Clause, and that it does not constitute an establishment of religion.

But if anything at all, as I would suggest, a violation of the Free Exercise Clause.

Justice William J. Brennan: In the sense of a burden on Free Exercise?

Mr. Wade H. McCree: If the Court please, yes.

And there of course --

Justice William J. Brennan: But, what kind of burden Mr. Solicitor?

Mr. Wade H. McCree: Well, the Court of Appeals below suggested that somehow it would inhibit the exercise a freedom of religion, and we suggest in this respect that the Free Exercise Clause is absolute insofar as it applies to belief.

And that it is clear that the Congress cannot legislate to control a person's belief.

But it is not absolute insofar as it impinges upon conduct; believe to be mandated by or consistent with belief.

And this is the distinction that this Court has made.

And so we suggest that the threshold question, when one approaches a claim of violation with the Free Exercise Clause is first, whether the conduct complained of is indeed mandated or directed by religious belief.

Justice Potter Stewart: Now, that leaves me to ask you Mr. Solicitor General about the hypothetical case and according to one of the amicus briefs here, it's not a hypothetical case, it might be a real case of a religious group, who's religious tenets taught that organization of labor unions were wrong, I'm talking about the Seventh Day Adventist brief.

Mr. Wade H. McCree: Yes, and --

Justice Potter Stewart: And that's what it says as I understand it.

Mr. Wade H. McCree: I understand it to say that too, but I suggest here that to bargain collectively with labor unions is not inconsistent with the religious beliefs of these respondents, and they don't say so either.

Justice Potter Stewart: Well, what if it were?

What if these were a Seventh Day Adventist school?

Mr. Wade H. McCree: Well, I think we might have a different problem then.

We'd have problem such as this Court confronted in Yoder, where the Amish children were --

Justice Potter Stewart: Just didn't believe in education to be (Voice Overlap).

Mr. Wade H. McCree: Didn't believe in pursing education beyond the ninth grade or the eighth grade.

And that was clearly a religious belief of theirs and this Court determined that it was possible to allow this Free Exercise, because there was no showing of an overriding governmental interests.

But it did engage in the balancing test, but here we suggest that this isn't the Seventh Day Adventist appeal or case, this is a case involving the Catholic Parochial schools and we suggest that the Catholic position, as far as labor unions are concerned, is one of support.

We would refer the Court to an encyclical of Pope Leo XIII, Rerum Novarum which recognized the right of employees to organize and bargain collectively.

And more recently, Mater et Magistra which is an encyclical of Pope John XXIII, I believe in 1961, which also took the same position.

Justice Potter Stewart: General, in any event, despite those encyclicals that you or I might read to say that and perhaps they do, we know that in this case that these respondents say that to be ordered a bargain with the other ends would violate their rights under the First Amendment whatever those encyclicals might say.

Mr. Wade H. McCree: We understand them not to say that to have to bargain does that, they are supposing consequences subsequent to --

Justice Potter Stewart: Which they say would inevitably follow from their duty if they were -- there was imposed upon them a duty to bargain with these labor unions.

Mr. Wade H. McCree: But this is the same approach, the same argument that was made in Associated Press.

It was decided in 1936 and this Court said, we will decide that when it becomes necessary and it's interesting, as I indicated, it has not become necessary in this other First Amendment area.

Chief Justice Warren E. Burger: Would you concede that there is perhaps some difference between free press, free expression on the one hand and the two religion clauses on the other?

Mr. Wade H. McCree: I certainly would and I find, as this Court has found a difficult at times to reconcile the Establishment Clause with a Free Exercise Clause.

Chief Justice Warren E. Burger: We've said in some opinions, there's a tension between the two.

Mr. Wade H. McCree: In Walz, I believe this Court said that there has to be some giving in the joints, where they come together, and as a matter of fact, the Free Exercise Clause philosophically has some -- creates some problems under the Establishment Clause, because it allows a person who professes religion as motivating his behavior to raise -- I present arguments that a person who does not profess religion to present.

And in that respect, it impinges somewhat upon the Establishment Clause, and that's what makes these cases extraordinarily difficult.

Now, we believe what this case demonstrates is that with these respondents, the order which is merely an order to bargain with a duly elected representatives does not contravene any religious belief that is asserted.

And therefore, under the Free Exercise Clause we don't have to pursue it any further.

Justice William J. Brennan: General McCree, may I ask a factual question that perhaps you know.

Is the bargaining unit, let's say in the Quigleys, where there are 30 religious members of faculty and 46 lay members, aren't there any religious persons, members of the bargaining unit?

Mr. Wade H. McCree: They are not.

The definition of the unit that was made was consisted just of the lay teachers, none of the members of a religious order.

Justice William J. Brennan: Would it be an unfair labor practice for the Bishop to prefer in hiring and discharge and the like clerics, overlay persons?

Mr. Wade H. McCree: That's a difficult question to answer, I would think probably not, unless it had anti-union animus.

I would think it would be appropriately within his power to prefer to have a member of a religious order added to the faculty for a specific purpose, in preference to a lay person, who might not even be a member of his faith.

But if it was done for an anti-labor reason, with anti-labor animus, then it might be an unfair labor.

Chief Justice Warren E. Burger: Would your answer be the same, if the hiring authority preferred members of the faith over members of other faiths or persons who have none?

Mr. Wade H. McCree: My answer would be the same Mr. Chief Justice, because there you would focus whether there was an anti-union animus.

If I may just answer just a little further, there is a case that we cite that has a reason in which it was asserted that the principal of the school read a particular scripture passage that contained a threat against union activity.

And the Board heard that and decided in favor of the Bishop, who is the employer in this case, finding that it did not -- which didn't require to, do anything except determine whether this attitude was threatening, and which again is a secular reference, Mr. Justice Blackmun.

Justice Harry A. Blackmun: I was going to follow through, what do we do with this situation where an individual is discharge for two reasons, one heresy and the other, in the eyes of the employer over aggressive unionism?

Mr. Wade H. McCree: I think in that case the Board would have a problem that's not dissimilar from problems that it entertains everyday, when an employee is discharge from being a poor worker, but for being a union activist.

And there the Board makes a determination what was the real reason.

And if it satisfied that the real reason was one prohibited by the Act then it will hold for the employer, otherwise it will uphold -- I mean the employee otherwise it will uphold the employer.

Justice William H. Rehnquist: Would the Board be bound by the Bishop's determination as to the issue of heresy in Mr. Justice Blackmun's question?

Mr. Wade H. McCree: Oh!

I would think so.

I would think the Board could not look into whether the alleged conduct was in fact heretical.

I think this Court has made it very clear that we're not to look into the validity of religious doctrine.

Chief Justice Warren E. Burger: What if a teacher, a lay teacher, of some either a member of the same faith or not assigned the reading of books which were condemned by the hiring authority, so these books are not on the reading list.

The teachers said, “Yes, they are.”

Who's going to ultimately decide content in that course?

Mr. Wade H. McCree: Well, I suppose a reference of reading list would be a secular reference and this is was -- if there was in fact a (Voice Overlap).

Chief Justice Warren E. Burger: Well I'm assuming that it was declared by the authority of the church, that it impinged on the faith.

Mr. Wade H. McCree: Well, I would think if a teacher went beyond, even a lay teacher, went beyond a prescribed reading list, this would give a ground for disciplinary action that wouldn't at all constitute an unfair labor practice.

A teacher hasn't a right to use his or her own judgment about what should be taught.

Chief Justice Warren E. Burger: Do you suggest that bargaining agents have never both suggested and supported the power of a teacher in a public school to do just that?

Mr. Wade H. McCree: Oh!

I'm certain they have and they will, but --

Chief Justice Warren E. Burger: And maintained it was strikes and threats of strikes, have they not?

Mr. Wade H. McCree: Well, I wouldn't be surprise if they hadn't do, but I will suggest to you what should the law be on the subject.

Justice Thurgood Marshall: Mr. Solicitor General this case only involves layman, and only problems involved are working conditions, this case?

Mr. Wade H. McCree: This is what we've endeavored to say Mr. Justice Marshall, if I might just conclude by suggesting that when a religiously affiliated organization chooses to enter into an enterprise that affects commerce, it must accept the same obligations to respect laws enacted for the protection for societal interest that is imposed on similar enterprises, not having a religious organization.

Chief Justice Warren E. Burger: Would that not also be true if the operations of a church itself, does not every church purchase something that is moving in interstate commerce and the pastors are moved from one place to another in some faiths.Isn't that possible, if that would -- the church itself (Voice Overlap).

Mr. Wade H. McCree: In some church act, if the church functions as an employer, it would present a very difficult question.

I suppose if a church ran a business, an industrial business, I'm not at all aware that that business would be exempt from the thrust of the National Labor Relations Act, just because of its religious nature.

It couldn't deny its employees the benefits at the Congress that's decided upheld.

Chief Justice Warren E. Burger: A book publishing company might be an example of that.

Mr. Wade H. McCree: It might very well be.

And I have no difficulty with that.

Justice William H. Rehnquist: General McCree, doesn't every church function as an employer in a sense when they hire a pastor?

Mr. Wade H. McCree: A church might and --

Justice William H. Rehnquist: But they have a hard time getting one with one, wouldn't they?

Mr. Wade H. McCree: Well, I don't know, I'm advised if the Court please that there are religions that have no clergy whatsoever and that any person is eligible.

Justice William H. Rehnquist: They're all clergy.

Mr. Wade H. McCree: All clergy, we used to encounter that during the war if you recall.

Argument of Don H. Rueben

Chief Justice Warren E. Burger: Very well.

Mr. Rueben.

Mr. Don H. Rueben: Mr. Chief Justice and may it please the Court.

We rely not only upon a violation of the Free Exercise Clause but believe that this case is also governed by the entanglement principles that renunciated in the Lemon and Meek.

The schools that are before this Court are the same schools that have a numerous times been described by opinions of this Court, as schools that are created to perpetuate the faith and to propagate the faith.

These are the typical parochial schools, where the mission is to bring religion to the children.

If there's a difference here at the Quigley Seminary, is designed and created to bring people, young men into the priesthood which we described at our brief as the lifeblood of the church without priests, the Catholic Church cannot prevail or continue.

Now, because of the religious missions involved, and the Court has noted this in many of its cases.

The Bishop has complete and absolute authority over what is taught to the schools, that's -- the Bishop is the arbiter of what is taught in the schools, subject only to the usual state regulations in order to allow (Voice Overlap).

Justice Thurgood Marshall: (Voice Overlap) to the state regulations.

Mr. Don H. Rueben: Only the neutral state regulations of compulsory attendance and minimum subjects that are necessary to obtain accreditation, but if the Bishop wants for example, in a mathematics class to have religion taught as examples have been given in the Court's opinion, he may do so.

He is the supreme authority of what --

Justice Thurgood Marshall: And the state can also take away their accreditation?

Mr. Don H. Rueben: Yes, the state can --

Justice Thurgood Marshall: And the school cannot operate.

Mr. Don H. Rueben: Or the school may operate --

Justice Thurgood Marshall: Without accreditation?

Mr. Don H. Rueben: That's correct.

Justice Thurgood Marshall: Do you have a compulsory attendance law in Illinois?

Mr. Don H. Rueben: We do, but as a (Voice Overlap).

Justice Thurgood Marshall: (Voice Overlap) to be subject to that law?

Mr. Don H. Rueben: They would indeed, except that Your Honor, in Yoder, Your Honors decided that after eighth grade the state's interest didn't compulsory attendance was not as great as the religious principles involved.

And so, I think that if you look at all the parochial cases that have been decided up here, in each instance, what has been noted is that the lay teacher is subject to the authority and to the jurisdiction, and to the command of the Bishop.

Now, the NLRB Act I submit to the Court, is the antithesis of what is the religious belief that the religious school should be composed of, because the stated purpose of the NLRB Act is to have a greater parity between the employer and the employee, that's the initial statement in the purposes of the Act, it's because of the inequality of bargaining power between employees and their employers that the Act was created.

And on its face, the NLRB incursion into the religious schools is just an absolute collision of the First Amendment.

For example, the Board has the power to conduct elections and then to require bargaining and bargaining in good faith, which means give and take.

It has the right to order reinstatement, especially if it determines that the motive is mixed that is there is an anti-union motif and another motive.

It has the right to take action against the employer who acts in a way that frustrates unionism or affects it, even though there is not an anti-union intention.

And the Board, when it finds a violation, receives reports or may order receiving reports from the employer as to compliance and what have you.

And we do not believe that this type of power can square with the deep-rooted religious conviction that the Bishop is the final and absolute authority over his schools.

Justice William H. Rehnquist: How about state safety regulations, fire regulations, and that sort of thing, I take it that you concede the state may apply those.

Mr. Don H. Rueben: Absolutely.

Justice William H. Rehnquist: Well, to that extent, the Bishop isn't the absolute authority over the school?

Mr. Don H. Rueben: That Mr. Justice Rehnquist does not involve teaching, and my remarks really addressed to the millieu of the teaching within the school, and there's no question that the state can subject the school to zoning regulations and health regulations and what have you.

I'm talking about bargaining over teaching.

Justice John Paul Stevens: What about minimum wage regulations, Fair Labor Standards Act?

Mr. Don H. Rueben: Well, Your Honors held -- the Court is held the usury case that the states have that power reserve.

I do not believe that the minimum wage problem is the same problem, because you do not have as you do in the typical bargaining history of collective bargaining with teachers the dialogue that starts with wages and ends up with curriculum textbooks and what have you.

Justice John Paul Stevens: Yes, but don't you have the problem that some of the Catholic schools, they pay a lesser wage scale, I suppose for lay teachers, who are perhaps dedicated persons willing to donate their services or something like that.

And perhaps raising the wage level might deny them the opportunity to get the faculty they need.

Mr. Don H. Rueben: That's correct, that's correct, if pushed to it, I would say that the minimum wage law should not apply to the lay school teacher in the religious school.

Chief Justice Warren E. Burger: How about the janitors and the people who run the building?

Mr. Don H. Rueben: I have no problem and think the janitors have every right to have the NLRB intrude.

That does not involve bargaining over teaching.

And --

Justice Thurgood Marshall: You mean the Bishop doesn't have anything to do with the labor?

Mr. Don H. Rueben: I didn't hear you, Your Honor.

Justice Thurgood Marshall: You mean the Bishop doesn't have any jurisdiction over the labor?

Mr. Don H. Rueben: Yes.

Justice Thurgood Marshall: The whole point was that the Bishop was the boss.

Mr. Don H. Rueben: The Bishop and the labor --

Justice Thurgood Marshall: Isn't that your whole point?

Mr. Don H. Rueben: No sir, I'm saying the Bishop is the supreme arbiter when it comes to the teaching function.

The Bishop is the boss of the janitor, Your Honor, but the janitor does not involve himself in the teaching function.

Justice Thurgood Marshall: I know that, but why is he subject to the NLRB and the teacher is not?

Mr. Don H. Rueben: Because in connection with the janitor, you do not have an encouragement to religious beliefs, you will not have as I perceive it an unfair labor practice, where there is challenging the Bishop as to whether or not his discharged with cause for religious grounds or because of an anti-union animus.

With the janitor, you will not have an unfair labor of practice over the composition of the faculty.

For example, when the labor --

Justice Thurgood Marshall: If you could, and I know you can, name me one non-Catholic janitor in Chicago Public Catholic School.

Mr. Don H. Rueben: Oh!

I think if I --

Justice Thurgood Marshall: I don't think we need to get the janitors (Voice Overlap).

Justice John Paul Stevens: They hire non-Catholic attorneys, I think. [Laughter]

Mr. Don H. Rueben: I think that that's a perfect answer to the question and I'll stop when I may had.

Justice Thurgood Marshall: If you want to put it to any, it is all right with me, but don't count me in.

Mr. Don H. Rueben: Many have Your Honor.

There can be an unfair labor practice proceeding over the composition of the faculty.

When the Labor Relations Act began, 88% of the faculty was clergy, now it's far less.

If the Bishop elected to increase as it had the opportunity to do so, his faculty, an increase, that's something though have to be bargained.

The admission's policy, because that has -- goes to the workload.

The textbooks, the method of teaching, all manor of things and look at what happens.

It is very clear that the necessary consequence of this is first that the Bishop is chilled.

He will try to avoid the zone of regulation if he can.

Second, I suggest to you the kind of inquiries that will be made in this context, are far greater in terms of entanglement than the kind of activity that was condemned in Meek, the public employee going into the Catholic schools to remedial reading or the Wolman case, where the court found that field trips were an unnecessary entanglement.

And the Labor Board will never be neutral, when it comes to a controversy of this kind.

And we don't have to have a parade of horribles in this case.

We have fine examples of what will happen.

The Solicitor General referred to one, where the Bishop of Gary was cited for an unfair labor practice, because of a prayer that he gave, citing from the scriptures.

He ultimately was sustained by the NLRB, but it took 531 pages of proceedings to do so.

The Bishop in Fort Wayne was cited for an unfair labor practice, because he disapproved of a teacher teaching Johnson and Masters in the courtroom.

He also was cited for an unfair labor practice, because he wanted to terminate an employee who had married a divorced Catholic.

He also was cited for an unfair labor practice because of an argument between a lay teacher and the Bishop over religious instruction and how it will be given.

If Your Honors look at what happened in Brooklyn, where since 1974 there's just been enormous litigation that the church school was forced to employ somebody that regarded as a person teaching heresy.

The Board is just not equipped to avoid entangling itself in this area.

It is an industrial millieu that it deals in and it started out on a very strange path, which everybody tries to avoid between completely religious and the religious associated.

A path or a test of unconstitutional, a test that the AF of L in filing its amicus brief here, flatly admits it's an unconstitutional test.

The way it handled this profound problem that is now here in very summary fashion.

The questions that were asked if you read the proceedings that occurred in these very cases, the Bishop doing a good job of what is a liturgy and what have you.

It is an entanglement that pails into insignificance, the entanglement of the Court has found unconstitutional in past cases.

It is impermissible entanglement.

And what is the interest that's being served to bring on this Pandora's box, this parade of horribles.

97% of the teachers in the United States by-law ought not allowed to have the NLRB or collective bargaining, they're public school teachers.

The commerce involved in connection with parochial schools and seminaries is very limited.

And indeed, it's intertwined with subsidies and I wonder when someday we won't see bargaining between the Bishop and the faculty of the school if the government's position sustained here as to the amount of subsidies that the Bishop should put forth.

Both of these schools have to be subsidized; Quigley I think it's $600,000.00 a year and its $750,000.00 in Fort Wayne.

The schools before Your Honors, do have a grievance procedure, in both instances so that the teachers are not left helpless or just to whim of the Bishop.

Furthermore, there's a very, very important governing factor here in all of these schools, this called the marketplace.

When these schools come and compete for lay teachers, they're competing with the public school, and that's why I answered Mr. Justice Stevens questions concerning minimum wage.

And now, they're competing, there are 3% employer competing with a 97% employer and if they do not do right and proper by their teachers, they will not employ them and they will not have teachers to staff their school.

Justice John Paul Stevens: Well I suppose that can be said too of the private secular school, can it?

Mr. Don H. Rueben: That's correct, the difference is that in the private sector, you do not have the First Amendment consideration, so it's simply and it's an entirely different question.

You do not have the entanglement.

Justice John Paul Stevens: You are not talking about competition, and I'm merely saying that the private school has the competition angled who to buck.

Mr. Don H. Rueben: I concede that.

In the parochial cases the court has made a point of the political strife that can occur, the dialogue that will occur in the legislature every time an annual appropriation is requested.

It is perfectly obvious from what's occurred here since 1974, when the Board took jurisdiction that there will be constant litigation over the Bishop's authority because now he must share it with the NLRB and the union.

And I can foresee efforts in the Congress to undo what the NLRB might do.

And I'm sure that if one went into the precincts of Brooklyn they would discover that raw motion and great religious dialogue and bitterness has occurred because of what happened in the Brooklyn schools.

Justice William H. Rehnquist: Why is there constant litigation over the NLRB's assumption of jurisdiction here when there is an over, say zoning of churches or is there a constant litigation over zoning of churches?

Mr. Don H. Rueben: Because Mr. Justice Rehnquist as I guess said Walz it's a matter of degree.

The zoning cases decided once in court, the interaction between the school teacher and the Bishop is a day-by-day occurrence, conditions changed constantly.

We're dealing with the dynamics of education.

We're dealing with something that is not a constant.

Once the building is built we're done with the zoning.

Once you comply with the fire code, we're done.

That's not true in terms of what happens in the classroom or the kind of things that can be collectively bargained about by teachers.

And in our brief we discussed the fact that those who have studied the history of collective bargaining in educational institutions have discovered that what's starts out to be as the Solicitor General suggested wages and hours, as I think a very simplistic notion of what happens, because it isn't very long before the whole warp and woof of the school and the way it's run is a matter of collective bargaining.

Justice John Paul Stevens: Mr. Rueben, what about certification of schools in the state law, how about getting them certificated as kinds of places that will be acceptable for public education?

Mr. Don H. Rueben: I think there again, it's a matter of degree.

That like the tax exemption is something that has occurred for years.

It's a fairly almost mechanical test.

There's no religious inquiry, there's no preclusion or encouragement to the beliefs of anybody or the faith of anybody, it's just are the subjects taught and taught in a manner that's acceptable, and there all secular subjects.

Justice John Paul Stevens: That's almost a contradiction in these terms, isn't it what you just said?

You said one thing, then another.

You say it's almost mechanical.

It's mechanical, as long as they don't fill the mathematics room with religion.

Mr. Don H. Rueben: No, I think the Court has set.

Justice John Paul Stevens: No, let's assume Mathematics class teaches nothing but religion.

Mr. Don H. Rueben: Well, I think the Court --

Justice John Paul Stevens: They're not going to get certificate, is it?

Mr. Don H. Rueben: It depends whether after the mathematics class --

Justice John Paul Stevens: Well, just accept what I said, it doesn't teach anything, but religion in the mathematics class.

Mr. Don H. Rueben: Then it's really not a mathematics class.

Justice John Paul Stevens: Well, exactly.

Chief Justice Warren E. Burger: Then they have not met the qualifications required (Voice Overlap)?

Justice John Paul Stevens: So, how about half, half the class, half everyday in mathematics?

Mr. Don H. Rueben: Well, I take it that in the subject like mathematics, and I think it was Justice Douglas gave the example that in a mathematics class you can inject religion and have 40,000 nuns and does it equal 40,000 priests and what have you, I take it that the test, when one is through is whether they take --

Justice John Paul Stevens: Whether they come into ground.

Mr. Don H. Rueben: More than that whether the student by an objective test can divide, understands his fractions, knows the multiplication tables, there's no inquiry as to as religious beliefs.

And certification is I think -- and I'm not suggesting this is a field of absolute.God knows the Court's opinion suggest otherwise, it's a matter of degree, and I think --

Justice John Paul Stevens: What about teacher qualifications, in that process of certification?

Mr. Don H. Rueben: Well, the certification, as I understand it, the state certifies teachers regardless of race, religion or what have you, and there isn't really an incursion into the ability --

Justice John Paul Stevens: Yes, I'm just curious, I don't know what the answer is, in Illinois, must the Catholic schools employ certified teachers as they want to be a certified school?

Mr. Don H. Rueben: I don't know the answer, but I do know --

Justice John Paul Stevens: But what if they did?

Mr. Don H. Rueben: Well, I think that I would have no trouble with that, because that would be in effect the licensing before the person began to teach.

However, if you go back into the history of parochial schools, when the parochial schools were 88% staffed by nuns and priest and brothers, I suspect there was no certification.

And so long as the end-product resulted in an acceptable primary or secondary education, the result was acceptable and the certification authority was satisfied.

Justice Thurgood Marshall: Mr. Rueben isn't it true as the fact that most law in cities that they don't write or heard on the parochial school, they've been running a year, they just let them go?

I don't think it matters in this case at all, but is that true?

Mr. Don H. Rueben: I wish it were so.

Justice Thurgood Marshall: Well, they do supervise?

Mr. Don H. Rueben: I wish it were so, the parochial school must comply with all of the fire regulations, all of the certification regulations.

And there is a great pleasing authority (Voice Overlap).

Justice Thurgood Marshall: I know they do, but I mean did the Fire Commission walk in there?

Mr. Don H. Rueben: Oh!

There are fire inspections and there's an even greater policing authority its called parents.

And they will react very quickly if their children are not being educated properly.

Justice Thurgood Marshall: That's what I want, now where does the parent go, they go to the Bishop?

Mr. Don H. Rueben: That is correct.

Now, in the last analysis, I'd like to conclude by suggesting to Your Honors, that the Court in the Seventh Circuit properly described the situation of these parties here as in a no lose situation -- no win situation.

In this case, we are religious associated and the Government would have the NLRB being able to come into the school and cause bargaining that would necessarily raise the cost.

The cost of parochial school education as the Court knows has gone up over the years, so that the states have strived very, very hard to find ways to get money to the parochial schools.

And the Court has found that this in most instances impermissible entanglement.

And now, to have the same schools to be treated as secular and not eligible for money, but eligible for regulation, not only to me strikes at the core of the First Amendment but offends at least my notions of fundamental fairness.

Thank you.

Chief Justice Warren E. Burger: One more question before you sit down.

I suppose when the state withdraws, if it did withdraw, the certification of an Amish school or a Lutheran school or a Catholic school, because they're spending the arithmetic time on religion, it isn't because they're teaching religion, but because they're not teaching mathematics?

Mr. Don H. Rueben: That's correct and the state -- the states only concern is secular, the state does not entangle itself by that kind of inquiry.

Chief Justice Warren E. Burger: We'll resume at 1 o'clock.

Thank you gentlemen.