The defendant New York State Labor Relations Board and the intervenor defendant Lay Faculty Association appeal from a judgment of the United States District Court for the Southern District of New York (Morris E. Lasker, J.) which granted summary judgment to plaintiff cross-appellant Catholic High School Association of the Archdiocese of New York. Plaintiff instituted a declaratory judgment action against the State Labor Relations Board seeking to enjoin it from exercising its jurisdiction over plaintiff. The case arose because the intervenor Lay Faculty Association had brought an unfair labor practice proceeding against the plaintiff before the State Labor Relations Board. Plaintiff successfully argued that the exercise of jurisdiction by the State threatened plaintiff's constitutional rights under the Religion Clauses of the First Amendment. Defendants appeal from that decision and plaintiff cross-appeals from the district court's refusal to find that the National Labor Relations Act preempts the matter. Affirmed as to the preemption issue raised by the cross-appeal. Reversed and remanded on the violation of the First Amendment Religion Clauses. Judge Pratt dissents in part.
Cardamone, Pratt and Friedman,*fn* Circuit Judges.
CARDAMONE, Circuit Judge:
This appeal presents delicate issues involving the relationship between church and state. Since the drafting of the Bill of Rights, government regulation has become increasingly expensive. The wall of the First Amendment delineates the permissible degree of this government intrusion into the sphere reserved for religion. This parchment barrier must be constantly manned, the Founding Fathers believed, lest there be a union between church and state that will first degrade and eventually destroy both. The issue in this case is whether the Religion Clauses of the First Amendment made applicable to the states by the Fourteenth Amendment prohibit the New York State Labor Relations Board from exercising jurisdiction over the labor relations between parochial schools and their lay teachers. This "difficult and sensitive" question, expressly left open by the Supreme Court in NLRB v. Catholic Bishop, 440 U.S. 490, 59 L. Ed. 2d 533, 99 S. Ct. 1313 (1979), aff'g on other grounds, 559 F.2d 1112 (7th Cir. 1978), is one of first impression in this Circuit. Our task is to determine whether there is a principled basis upon which to limit state intrusion to secular aims.
The New York State Labor Relations Board (State Board or Board) administers the New York State Labor Relations Act (SLRA or Act). As originally enacted in 1937 the Act's provisions did not apply to employees of charitable, educational or religious associations and corporations. In 1969 the Act was amended to bring these employees within its scope. The next year the Lay Faculty Association (Union), the defendant-intervenor in this case, petitioned the State Board for certification as the exclusive bargaining representative of the teachers in the eleven schools managed and operated by the plaintiff Catholic High School Association (Association). The Association voluntarily assisted the Union in holding an election in which the lay teachers voted to be represented by the Union, which was then certified by the Board.
The parties agree that the schools are "church-operated" within the meaning of Catholic Bishop. The faculty of the Association is composed of both lay and religious teachers, all of whom are directly involved in the transmission of religious values to the students. From 1969 to 1980 the Union and the Association entered into a series of collective bargaining agreements governing the secular terms and conditions of lay teachers' employment. The by-laws of the Union specifically exclude religious faculty, and each of the agreements was expressly limited to nonreligious issues.*fn1 The Association has never claimed that these agreements violate the religious mission of the schools, and until now it has never challenged the Board's jurisdiction.
In 1980, while the Union and the Association were negotiating a new contract, the Union filed unfair labor practice charges against the Association for the first time. The charges alleged that the Association had violated sections 704(5) and (10) of the State Labor Relations Act. The Union claimed that the Association had discouraged membership in the Union by suspending 226 teachers who had protested the Association's unilateral implementation of a substitution policy that required teachers to teach, in addition to their own, the classes of absent teachers. The Union also alleged that the Association wrote letters to individual teachers urging them to pressure the Union into accepting the Association's offers, discouraged support for the Union by referring to the futility of its efforts, and announced other changes in working conditions that the Association would make unilaterally. None of these charges raised a religious issue and the Association is not contending that it took these actions because of its religious beliefs.
After the Union filed these charges, the Board conducted an informal confidential investigation to determine whether the Union had a prima facie case. The investigation was limited to determining the content of the letters and to whom they were mailed, and to ascertaining whether the suspensions were intended to discourage union membership. As a result of its investigation the Board issued a formal complaint. The Association immediately brought an action seeking a declaratory judgment and injunctive relief against the State Board. It challenged the State Board's assertion of jurisdiction, alleging that it violates the Religion Clauses of the First Amendment and that jurisdiction by the Board over lay teachers in church-operated schools is preempted by the National Labor Relations Act. At a conference in the district court judge's chambers, the Association agreed to file a motion for summary judgment after it received the defendant State Board's answer to its complaint and stipulated that the Union would be permitted to intervene. The Union and the Board opposed the Association's motion for summary judgment and the Board cross-moved. The Association's motion was granted by United States District Judge Morris E. Lasker upon his conclusion that the State Board's assertion of jurisdiction violated the Establishment Clause. The district court enjoined the Board from continuing its proceedings against the Association.
The virtually identical issue was presented but left unresolved in Catholic Bishop. There a closely-divided Supreme Court held that the National Labor Relations Board (NLRB) lacked jurisdiction over lay teachers because Congress had not affirmatively indicated that it intended them to be covered by the National Labor Relations Act (NLRA). Since there is such a clear statement of legislative intent in this case, the district court concluded that it must decide the constitutional question.
At the outset the district court held that First Amendment claims raised in the Association's complaint were justiciable. 573 F. Supp. 1550, 1553-54 (S.D.N.Y. 1983). It based this holding on a finding that the "threat of injury" to the Association's religious freedom was "sufficiently real and imminent to constitute a justiciable case or controversy." Id. at 1554. Judge Lasker then reached the First Amendment issues and held that application of the Act to lay teachers violated the Establishment Clause because it "threatens to produce excessive entanglement between church and state." Id. at 1556. He found that the threat of entanglement arises because the Act's good faith bargaining requirement might "lead to negotiation over religious matters" and because the State Board has the power to investigate unfair labor practice charges in the course of which religious issues might arise. Id. at 1557. He specifically limited his holding to lay teachers, as opposed to other church employees, id. at 1558 n.49, and found it unnecessary to rule on the Association's free exercise claim. Id. at 1556 n.36.
The district court held that limitations in the collective bargaining agreement would not cure the conflict with the Establishment Clause. It found that an "SLRB examination into whether the Association has acted in good faith in its dealing with the [Union] may reach religious matters regardless of the terms of agreement between the parties." Id. at 1558. Finally, Judge Laskser held that the NLRA does not preempt the State Board from asserting jurisdiction over parochial schools. This holding was based on his finding that the NLRA does not apply to parochial school teachers. The Board and Union appeal from the district court's determination that the Board's assertion of jurisdiction is unconstitutional, and the Association cross-appeals the district court's holding that the Board's jurisdiction is not preempted by the NLRA.
We begin by considering the Union's and the State's contention that the Association's First Amendment claims fail to meet the threshold "case or controversy" requirement of Article III of the Constitution.*fn2 The Board and Union argue that during the fourteen years that the Act's provisions have applied to church-operated schools, the Board has handled many representation and unfair labor practice proceedings involving lay teachers at parochial schools and none of these cases have involved a religious question or have required it to inquire into or interfere with religious beliefs.*fn3 In contending that there must be a factual record developed before a court strikes down the assertion of a state agency's jurisdiction as unconstitutional, appellants rely on Associated Press v. National Labor Relations Board, 301 U.S. 103, 81 L. Ed. 953, 57 S. Ct. 650 (1937), which involved a freedom of the press challenge to NLRB jurisdiction over newspapers. The Supreme Court there explained that "courts deal with cases upon the basis of the facts disclosed, never with nonexistent and assumed circumstances." Id. at 132. The Association responds that permitting jurisdiction over its labor relations with its teachers would necessarily implicate the Religion Clauses. The Association asserts that the Seventh Circuit considered and properly dismissed the argument raised by the Union and the Board when it stated:
The whole tenor of the Religion Clauses cases involving state aid to schools is that there does not have to be an actual trial run to determine whether the aid can be segregated, received and retained as to secular activities but it is sufficient to strike the aid down that a reasonable likelihood or possibility of entanglement exists.
Catholic Bishop, 559 F.2d at 1126.
We agree with the Association. The Supreme Court, affirming the Seventh Circuit on other grounds, distinguished Associated Press and commented that "the record affords abundant evidence that the Board's exercise of jurisdiction over teachers in church-operated schools would implicate the guarantees of the Religion Clauses." Catholic Bishop, 440 U.S. at 507. Moreover, in Felton v. Secretary of Education, 739 F.2d 48 (2d Cir.), cert. granted, 469 U.S. 878, 105 S. Ct. 241, 83 L. Ed. 2d 180 (1984), we struck down a provision that gave parochial schools in disadvantaged areas the services of public school teachers. Under the facts of that case we could find no principled basis to ...