Are Perelman Teachers Against Religious Freedom?

church_and_state_montage2[1]The American Federation of Teachers is taking its battle with the Perelman Jewish Day School board to the National Labor Relations Board (NLRB) in Washington, D.C.

Last summer, the school board announced that it would no longer deal with the long-standing teachers union. No specific reasons were given for the action. The board required the teachers to sign up under individual contracts, or lose their jobs.

The case is surprising in several ways:

First, the act of a Jewish institution deals with terminating union representation of its employees unilaterally. Others have written about what Jewish law requires of every employer, including a Jewish educational institution: to treat its employees with fairness and respect, and to bargain with their agent. The Perelman Board action came without any specifics as to why dealing with the union had become burdensome or impractical.

The second surprise is that the NLRB local region has dismissed the case. The action of the NLRB region reflects a centuries-old legal doctrine, the “ministerial exception.”

Under the First Amendment to the Constitution, in order to protect freedom of religion and the independence of religious institutions, courts have decided to abstain from ruling on certain matters involving bodies such as churches and synagogues. The earliest cases 200 years ago involved disputes over church ownership of property.

The U.S. Supreme Court’s first enunciation of the rule was in a case in 1872 called Watson v. Jones, in which a synod of the Presbyterian Church fought a dissident group over ownership of church property. The Supreme Court decided that the church itself would determine the facts and apply church law. The civil courts would not interfere but will accept (and if necessary enforce) that determination.

The third surprise is the breadth that the ministerial exception has achieved through judicial decisions over the years. The original rule developed to include control over the hiring, firing and conduct of ministers. Then it gradually expanded to include all church and synagogue employees who have a religious function (even if they are not technically ministers). Workers sometimes looked to unionization for protection.

However, in a case in 1979, NLRB v. Catholic Bishop of Chicago, the Supreme Court extended the ministerial exception to teachers employed by the Church in Catholic schools, whether or not their primary role was to teach religion. The Court ruled that NLRB protections are not available to them.

The expansion of the ministerial exception does not work equally well in every circumstance, though. The Presbyterian Church, the Catholic Church and most other large religious sects have internal procedures to address disputes between clergy, laity and the church itself. These internal procedures usually include a fact-finding body and an appeal to a higher authority to review a case.

The decision may be made on the basis of church law, which can be quite different from civil law. Yet the rights of the individual or schismatic group are addressed by formal process.

The Perelman Jewish Day School is not that kind of religious body. It is an educational institution, not a church or synagogue. It is not part of an hierarchical system of oversight. The case of the Perelman board has no process parallel to religious adjudication.

In different parts of the world at different times, the Jewish shtetl had formal structures to resolve disputes, authorized by civil authority. But today, although Jews have the Bet Din, its jurisdiction extends only to those who voluntarily submit to it. The ministerial exception leaves the teachers unprotected.

Furthermore, would an obligation to negotiate with a union actually threaten the freedom to practice and teach the Jewish religion?

The decision in Catholic Bishops of Chicago chose not to consider the possibility of a limited duty to negotiate in good faith, side-by-side with the ministerial exception as to religious matters.

Surely the Perelman board should not have to negotiate tenets of Conservative Judaism such as whether non-kosher food will be consumed on the premises, how the school will teach and practice Shabbat, or what religious holidays will be observed. But negotiating pay and working hours, for example, should not violate any known religious principle, considering that Perelman negotiated with the union for decades.

An NLRB determination on complaint as to whether the Perelman board or the union negotiated in good faith would seem quite achievable, without invading either party’s freedom of religion. The Federation of Teachers may find other legal theories than a frontal attack on the ministerial exception. Or they may argue that some rights of workers can be protected without threatening the integrity of religious employers.

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