Will Michigan Have its First Unionized Parochial High School?

The Michigan Education Association (MEA) wants to make Catholic-run Brother Rice High School in Birmingham the first parochial school in Michigan — of any denomination — whose teachers are represented by the union. If it succeeds, the bid by teachers at Brother Rice could potentially expose all Michigan’s private religiously affiliated schools to union organizing and collective bargaining.

But before this happens, a substantial hurdle must be overcome. A 1979 U.S. Supreme Court ruling in NLRB v. Catholic Bishop of Chicago places off limits to union organizing schools operated by a church that teach both religious and secular subjects. The question now is whether the MEA can convince the Michigan Employment Relations Commission (MERC) to disregard or find a loophole in this Supreme Court prohibition and allow the union effort to go forward.

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Why target the Catholic schools for organizing? The MEA, like all other labor unions, needs new members for the (usually forced) dues they bring. Both it and the Michigan Federation of Teachers already represent most of the teachers in our state’s public school system. The next labor marketplace frontier — if the union can open it — would be private, parochial schools. Adding just the Detroit Archdiocese’s 2,700 Catholic teachers would be like Christmas in July to the MEA. And success in this venture would surely make other church-schools run by the Baptists or Lutherans, for example, vulnerable to organizing attempts.

The MEA’s $10 million budget deficit is one reason the union just raised teachers’ annual dues the maximum allowable amount – about $111 this year. New mandatory dues payers at parochial schools would yield more money for the union and serve as a hedge against those teachers who exercise their Beck rights and pay only enough to support collective bargaining related activities.

Ordinarily, a bid to have the MEA represent teachers at a given school would be filed under federal law with the National Labor Relations Board (NLRB), which has regulatory control over the labor relations of most private employers. The problem with this approach is that the above-mentioned 1979 Supreme Court ruling prevents the NLRB from protecting union organizing in a "church-operated" school.

So the MEA may be attempting an end-run around the federal law by hoping to persuade the state agency, MERC, to sanction its organizing attempt.

The problem is a legal one. If union organization of Brother Rice High School is prohibited under federal law as the Supreme Court has said, then MERC might be legally prevented from entertaining any questions relevant to the MEA’s organizing drive, even if the NLRB doesn’t become involved. The question is whether NLRB vs. Catholic Bishop of Chicago "preempts" MERC from proceeding on the matter.

If it does not, it’s still not a "slam-dunk" for the MEA. The state labor board still will have to heed the admonition of the U.S. Supreme Court on the merits of union organizing. The Court was clear in saying there would be a significant risk of infringement of the Religious Clauses of the First Amendment if the NLRA (or presumably any other union organizing statute like the Michigan statute) conferred jurisdiction over church-operated schools. Thus, MERC could find that while it is empowered to process the MEA representation attempt, as a matter of discretionary policy it should refuse to do so to avoid religious/state conflicts.

These legal questions won’t be answered anytime soon. MERC has pledged an initial decision by the end of the year, but in the event that it goes against unionization, any disappointed party (either the school administration or the MEA) can proceed to Michigan’s civil courts for a new review of the constitutional and public policy issues.

The risk for the MEA is that a prolonged legal hassle is likely to sour teachers on the need for union representation, or that changing circumstances will make unionism unnecessary. Even if all the legal questions are resolved favorably for the MEA, to win this battle it still will have to win a majority vote of the teachers in a secret ballot election at some point in the future.

The risk for parochial and other religious schools in Michigan is that their mission could be undermined by having to cater to union demands.

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Robert P. Hunter, J.D., is director of labor policy for the Mackinac Center for Public Policy and a former member of the National Labor Relations Board. At the Mackinac Center he studies labor issues and advises teachers and other employees of their workplace rights. He recently wrote about teacher layoffs.