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<DIV class=timestamp>October 9, 2006</DIV>
<DIV class=kicker></DIV>
<H1><NYT_HEADLINE type=" " version="1.0">Where Faith Abides, Employees Have Few
Rights </NYT_HEADLINE></H1><NYT_BYLINE type=" " version="1.0"></NYT_BYLINE>
<DIV class=byline>By <A title="More Articles by Diana B. Henriques"
href="http://topics.nytimes.com/top/reference/timestopics/people/h/diana_b_henriques/index.html?inline=nyt-per">DIANA
B. HENRIQUES</A></DIV><NYT_TEXT></NYT_TEXT>
<DIV id=articleBody>
<P>J. Jeffrey Heck, a lawyer in Mansfield, Ohio, usually sits on management’s
side of the table. “The only employee cases I take are those that poke my
buttons,” he said. “And this one really did.”</P>
<P>His client was a middle-aged novice training to become a nun in a Roman
Catholic religious order in Toledo. She said she had been dismissed by the order
after she became seriously ill — including a diagnosis of breast cancer. </P>
<P>In her complaint, the novice, Mary Rosati, said she had visited her doctor
with her immediate supervisor and the mother superior. After the doctor
explained her treatment options for breast cancer, the complaint continued, the
mother superior announced: “We will have to let her go. I don’t think we can
take care of her.” </P>
<P>Some months later Ms. Rosati was told that the mother superior and the
order’s governing council had decided to dismiss her after concluding that “she
was not called to our way of life,” according to the complaint. Along with her
occupation and her home, she lost her health insurance, Mr. Heck said. Ms.
Rosati, who still lacks health insurance but whose cancer is in remission, said
she preferred not to discuss her experience because of her continuing love for
the church. </P>
<P>In court filings, lawyers for the diocese denied her account of these events.
If Ms. Rosati had worked for a business or almost any secular employer, she
might have prevailed under the protections of the Americans With Disabilities
Act. Instead, her complaint was dismissed in December 2002 by Judge James G.
Carr of the United States District Court for the Northern District of Ohio, who
decided that the order’s decision to dismiss her “was an ecclesiastical
decision” that was “beyond the reach of the court” because “the First Amendment
requires churches to be free from government interference in matters of church
governance and administration.” </P>
<P>Legislators and regulators are not the only people in government who have
drafted special rules for religious organizations. Judges, too, have carved out
or preserved safe havens that shield religious employers of all faiths from most
employee lawsuits, from laws protecting pensions and providing unemployment
benefits, and from laws that give employees the right to form unions to
negotiate with their employers. </P>
<P>Some of these exemptions are rooted in long traditions, while others have
grown from court decisions over the last 15 years. Together, they are expanding
the ability of religious organizations — especially religious schools — to
manage their affairs with less interference from the government and their own
employees.</P>
<P>The most sweeping of these judicial protections, and the one that confronted
the novice nun in Toledo, is called the ministerial exception. Judges have been
applying this exception, sometimes called the church autonomy doctrine, to
religious employment disputes for more than 100 years. </P>
<P>As a rule, state and federal judges will handle any lawsuit that is filed in
the right place in an appropriate, timely manner. But judges will almost never
agree to hear a controversy that would require them to delve into the doctrines,
governance, discipline or hiring preferences of any religious faith. Citing the
protections of the First Amendment, they have ruled with great consistency that
congregations cannot fully express their faith and exercise their religious
freedom unless they are free to select their own spiritual leaders without any
interference from government agencies or second-guessing by the courts. </P>
<P>To do otherwise would be an intolerable government intrusion into employment
relationships that courts have called “the lifeblood” of religious life and the
bedrock of religious liberty, explained Edward R. McNicholas, co-chairman of the
national religious institutions practice in the Washington, D.C., office of <A
title="Sidley Austin"
href="http://www.sidley.com/practice/group.asp?groupid=312">Sidley Austin</A>, a
law firm with some of the country’s largest religious organizations among its
clients.</P>
<P>Judges have routinely invoked the ministerial exception to dismiss lawsuits
against religious employers by rabbis, ministers, cantors, nuns and priests —
those “whose ministry is a core expression of religious belief for that
congregation,” as Mr. McNicholas put it.</P>
<P>But judges also have applied the exception to dismiss cases filed by the
press secretary at a Roman Catholic church, a writer for The Christian Science
Monitor, administrators at religious colleges, the disgruntled beneficiaries of
a Lutheran pension fund, the overseer of the kosher kitchen at a Jewish nursing
home and a co-founder of Focus on the Family, run by the conservative religious
leader James C. Dobson. Court files show that some of these people were
surprised to learn that their work had been considered a “core expression of
religious belief” by their employer.</P>
<P>Religious employers have long been shielded from all complaints of religious
discrimination by an exemption that was built into the Civil Rights Act of 1964
and expanded in 1972. That historic exemption allows them to give preference in
hiring to candidates who share their faith. In recent years, some judges have
also refused to interfere when religious groups have dismissed lesbians, unwed
mothers and adulterous couples, even if they profess the same faith, because
they have violated their employers’ religious codes.</P>
<P>A <A title="Exemption for religious broadcasters"
href="http://www.nytimes.com/packages/other/business/20061009synod.rtf">federal
court decision</A> has given religious broadcasters an exemption from some of
the fair-hiring requirements of the <A
title="More articles about the Federal Communications Commission."
href="http://topics.nytimes.com/top/reference/timestopics/organizations/f/federal_communications_commission/index.html?inline=nyt-org">Federal
Communications Commission</A>, even when they are hiring secretaries and
receptionists. Two other decisions, one in federal court <A
title="Decision affecting a Mormon church"
href="http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us483/327.html">affecting
a Mormon church</A> and the other in a state court of appeals case <A
title="Decision involving a Roman Catholic nursing home"
href="http://caselaw.lp.findlaw.com/data2/californiastatecases/c022895.pdf">involving
a Roman Catholic nursing home</A>, affirmed the right of religious employers to
dismiss employees whose faith changed after they were hired.</P>
<P>“These are very difficult cases because they pull at some very fundamental
heartstrings,” said Steven C. Sheinberg, a lawyer at Outten & Golden,
specializing in employment law. “There’s our belief that employees should be
free of discrimination in their work, versus our belief that religious
organizations should be free to hire people who best help them fulfill their
religious mission, without the intrusion of government.”</P>
<P>Employees at religious institutions face other risks as well, thanks to
pension law exemptions granted by Congress and upheld by the courts. Religious
employers are exempt from Erisa, the federal pension law that establishes
disclosure requirements and conflict-of-interest restrictions for employee
pension plans. That exemption has given rise to several cases in which workers
at religious hospitals found that their pensions had vanished because of
practices that would not have been allowed under Erisa’s rules.</P>
<P>A related exemption frees religious employers from participating in the
Pension Benefit <A title="Guaranty Corporation"
href="http://www.nytimes.com/redirect/marketwatch/redirect.ctx?MW=http://custom.marketwatch.com/custom/nyt-com/html-companyprofile.asp&symb=GRTYA">Guaranty
Corporation</A>, the government-run insurance program that provides a safety net
for corporate pension plans. And some significant court decisions in labor
disputes in the last several years have made it easier for religious schools and
colleges to resist collective bargaining efforts. </P>
<P>But for Mr. Heck, the question of whether these workplace exemptions are fair
to religious employees was crystallized by <A title="Ms. Rosati’s case"
href="http://www.nytimes.com/packages/other/business/20061009rosati.pdf">the
case of Ms. Rosati</A>, the novice nun in Toledo.</P>
<P>He said the doctor involved in her case had been prepared to testify under
oath on Ms. Rosati’s behalf. The doctor “had quite a vivid memory about these
events.” In fact, Mr. Heck said, the doctor had cautioned the nuns who
accompanied Ms. Rosati that it would be virtually impossible for the ailing
novice to get affordable insurance anywhere else if she were dropped from the
diocesan health.</P>
<P>Lawyers for the diocese disputed Ms. Rosati’s account of that visit and
denied that health reasons were the causes of her rejection by the order, the
Sisters of the Visitation of Holy Mary, which is covered by the diocesan health
plan. For the court “to even begin to inquire into that decision-making process,
we believe, crosses the line set by the First Amendment,” said Gregory T. Lodge,
a lawyer for both the Toledo diocese and the order, which operates under papal
authority.</P>
<P>“I understand and absolutely appreciate that in matters of religion, the
state has no business meddling,” Mr. Heck said. “It would be unthinkable for a
judge to be able to say, ‘Hey, I don’t like the way you’re interpreting the Book
of Luke.’ ”</P>
<P>But what religious principle is offended when an employee simply grows old or
becomes ill, he asked. If the answer is “none,” he continued, judges should be
more willing to “look behind the curtain.”</P>
<P><SPAN class=bold>Exemptions From Employee Suits</SPAN></P>
<P>For 28 days last May, Lynette M. Petruska, a former nun who now lives in St.
Louis, thought she had finally found judges willing to listen to her complaint
against Gannon University, a coeducational Catholic college in downtown Erie,
Pa. As it turned out, she was wrong.</P>
<P>Ms. Petruska was educated in Catholic schools from kindergarten to college
commencement, graduated at the top of her law school class and practiced law for
several years before deciding to become a nun. In 1999, as she was working
toward taking her final vows, she became the first woman to serve as Gannon’s
chaplain.</P>
<P>Three years later she was demoted and, according to her complaint,
effectively forced out. In her lawsuit, she said this action was in response to
her having notified the administration of a case of sexual misconduct by a
senior university official, resisted efforts to cover up that case and opposed
proposals to weaken campus policies on sexual harassment. In 2004, she sued,
accusing the university administration of forcing her out simply because she was
a woman and because she had opposed the sexual harassment others experienced on
campus.</P>
<P>Gender bias claims against religious employers have generally been dismissed
under the ministerial exception. But some judges across the country have been
less quick to dismiss cases where sexual harassment or abuse of an employee is
involved. And unlike many other plaintiffs, Ms. Petruska claimed that her
supervisor had actually acknowledged to her that she was being demoted solely
because of her sex, not because of any religious doctrine.</P>
<P>Judge Sean J. McLaughlin of the United States District Court for the Western
District of Pennsylvania nevertheless ruled that Gannon was protected by the
First Amendment and the ministerial exception from any court interference in its
choice of chaplain. Gannon itself argued that it had many women in leadership
positions and that Ms. Petruska had resigned simply because she was unhappy with
a staff reorganization. But its fundamental argument was that it would be
unconstitutional for the court to second-guess these disputed decisions.</P>
<P>“You may ask, ‘Why should these decisions go unquestioned?’ The reason is
plain and simple: The First Amendment protects a church’s right to freely
exercise its religion,” said Evan C. Rudert, a lawyer for the university. “And
that includes organizing itself as it chooses and selecting those who it
believes will serve best as its leaders — without interference from the
courts.”</P>
<P>Then, last May, in a decision that caused considerable comment in legal
circles around the country, a federal appeals court panel <A
title="Reversal of the Petruska ruling"
href="http://www.ca3.uscourts.gov/opinarch/051222p.pdf">reversed the trial
judge’s decision</A>.</P>
<P>For four weeks, the prevailing law in Pennsylvania, New Jersey, Delaware and
the Virgin Islands — the jurisdiction of the United States Court of Appeals for
the Third Circuit — was that “employment discrimination unconnected to religious
belief, religious doctrine, or the internal regulations of a church is simply
the exercise of intolerance, not the free exercise of religion.” </P>
<P>Appellate Judge Edward R. Becker wrote that opinion; his colleague on the
three-judge panel, Judge D. Brooks Smith, filed a stinging dissent. A few days
later, Judge Becker died. On June 20, in a rare move, the Third Circuit granted
Gannon’s routine request to have the case reconsidered and named Judge Smith to
the new three-judge panel that would do so.</P>
<P>On Sept. 6, the new panel <A title="Restoring the trial decision"
href="http://www.ca3.uscourts.gov/opinarch/051222pa.pdf">swept the earlier
decision away</A>, unequivocally restoring the protections for religious
employers that it had put in doubt. As Judge Smith put it, the ministerial
exception “applies to any claim, the resolution of which would limit a religious
institution’s right to choose who will perform particular spiritual
functions.”</P>
<P>Ms. Petruska, who has left her order and returned home to work at her old law
firm, describes herself as a feminist who is “committed to peace and freedom.”
She has a long history of putting her words into action — she has been arrested
at protest marches, most recently at an antiwar rally the day before the Iraq
war began, she said. She plans to appeal the ruling against her. </P>
<P>“I think this issue needs to be decided by the Supreme Court,” she said. And
she has hopes that the justices will agree with Judge Becker that, absent some
grounding in religious doctrine, sex discrimination by religious employers is
wrong.</P>
<P><SPAN class=bold>No Recourse On Age Bias</SPAN></P>
<P>Add age discrimination to that wish list, the Rev. John Paul Hankins
says.</P>
<P>At 73, Mr. Hankins can look back on 50 years in a loving marriage, 40 years
as a minister in the United Methodist Church — and 3 years as the plaintiff in
an uphill court fight over his denomination’s mandatory retirement policy.</P>
<P>Eight months after he turned 70, that policy forced Mr. Hankins to leave his
pulpit in the historic Stony Brook Community Church in Stony Brook, N.Y., where
he had served for 37 years. He loved his flock and the feeling was mutual: the
congregation withheld part of its annual contribution to the regional church
that year to express its dismay.</P>
<P>“He had served for many, many years and wanted to continue to serve, and his
congregation wanted that, too,” said David S. Warren, a professor of computer
science at <A
title="More articles about State University of New York at Stony Brook"
href="http://topics.nytimes.com/top/reference/timestopics/organizations/s/state_university_of_new_york_at_stony_brook/index.html?inline=nyt-org">Stony
Brook University</A> who had been a member of the congregation for more than 25
years but who left because of how Mr. Hankins was treated. </P>
<P>Mr. Hankins said he was suing because age discrimination is almost as hateful
and senseless to him as the racial segregation and bias against women that used
to be “mandatory policies” of his church.</P>
<P>“I feel, and have long felt, that discrimination in any form has no place in
the life of a faith community,” he said. </P>
<P>Under the federal age discrimination law, most employees of all but the
smallest businesses can sue if they are forced to retire for no other reason
than that they reached a certain birthday; increasingly, government and academic
employees have the same protection. But Mr. Hankins knows his complaint will
probably never come to trial simply because he is a clergy member trying to sue
his church. Indeed, court rulings around the country suggest that if he had been
forced out at any age and for almost any reason — for a deceptive reason, or
even for no reason at all — he would face the same judicial roadblock. </P>
<P>“I never, ever thought that the last years of my ministry would be involved
in a fight like this,” Mr. Hankins said. </P>
<P>Lawrence H. McGaughey, the lawyer for the regional Methodist governing body
and its bishop, acknowledged that there is a movement in the church to eliminate
the retirement rule opposed by Rev. Hankins. But if the rule is ultimately
changed, it should be the church’s decision, not a court’s, he said.</P>
<P>“Any private employer would feel the same way — they’d like to be able to
make these decisions without having to face the courts,” Mr. McGaughey said.
“But the difference is the First Amendment.”</P>
<P>He continued: “We’re talking about worship here. Are you going to go into
church and have someone standing there who was ordered to be there by the
courts? There are certain things a government just cannot do in this
country.”</P>
<P>In September 2003, a federal trial judge on Long Island ruled that Mr.
Hankins’s complaint was barred by the ministerial exception. Last February, a <A
title="Sending the case back to the trial court"
href="http://caselaw.lp.findlaw.com/data2/circs/2nd/040743p.pdf">federal appeals
court panel sent the case back</A>, directing the trial judge to decide the case
by applying a 1993 federal law, the Religious Freedom Restoration Act, rather
than the ministerial exception doctrine. But there was little in the
instructions to the trial court to encourage Mr. Hankins. </P>
<P>He nevertheless thinks his complaint will eventually help his church see that
its mandatory retirement rule is unfair. </P>
<P>“I don’t need to win the case,” Mr. Hankins said. “I feel the movement of
history at work here, I really do. Ideas find their feet, and start to
walk.”</P>
<P>State judges have been equally reluctant to interfere in disputes between
religious employers and their staff members — to the sad frustration of Rabbi
Isaac H. Celnik of Albuquerque.</P>
<P>Rabbi Celnik, one of the youngest men ever ordained in Conservative Judaism,
was just 30 when he was hired in 1971 as the spiritual leader of Congregation
B’nai Israel. Eight years later, he entered into a 30-year contract with the
synagogue, an arrangement his congregation endorsed by a margin of almost nine
to one, he said.</P>
<P>Then the medical problems began. In 1996, Rabbi Celnik was told he was in the
early stages of Parkinson’s disease; in April 2000, his wife, Peggy, was told
she had breast cancer. In October 2000, he said, the president of the
congregation’s governing board at the time suggested he retire on
disability.</P>
<P>But the rabbi did not consider himself disabled and did not want to retire,
he said. He had two young children and a wife whose treatment required
continuing health insurance. He “loved the work, and loved the congregation,” he
said. Indeed, when the synagogue’s cantor resigned a month after the retirement
discussion, Rabbi Celnik proposed, and the board agreed, that he would take on
the cantor’s duties as well, he said.</P>
<P>But the relationship deteriorated as he tried to negotiate retirement terms
that would provide him and his family with adequate financial security. In
January 2002, after those negotiations faltered, he was dismissed; in 2003, he
sued. But last February, the state’s <A title="Rabbi Celnik’s case is dismissed"
href="http://www.nytimes.com/packages/other/business/20061009celnik.doc">court
of appeals dismissed his case</A>, based on the ministerial exception, also
called the church autonomy doctrine.</P>
<P>“We are sympathetic to Rabbi Celnik’s struggles with Parkinson’s and the
manifestation of the disease after so many years of service,” the chief judge
wrote. But he ruled that the dispute “is precisely the type of religious debate
that the church autonomy doctrine is intended to protect from judicial
review.”</P>
<P>The congregation’s current president, Alan M. Chodorow, declined to discuss
the details of the dispute. “I do not want to talk about anything that might
impair our search for reconciliation and forgiveness” with Rabbi Celnik, he
said. “But I will say that we believe strongly in the separation of church and
state, and that the state should not have any part in choosing our spiritual
leaders.”</P>
<P>But Mr. Chodorow said that he was sympathetic to the situation that this
freedom for congregations created for employees and that he believed that
religious institutions have to provide other protections by contract. Although
clergy members in many faiths work without formal contracts, the model contract
in wide use within Conservative Judaism provides that rabbis and cantors can
terminate the agreement without cause and seek binding arbitration to resolve
disputes, he said.</P>
<P>The church autonomy doctrine “takes away certain rights and this is put in
specifically for the purpose of preserving rights,” Mr. Chodorow said.</P>
<P>Rabbi Celnik and his wife continue to struggle with the financial and
physical burdens of his deteriorating health and her second episode of cancer.
“They don’t teach this in rabbinical school,” the rabbi said in a recent
interview. Teach what? Mrs. Celnik answered before he could: “Don’t get old.
Don’t get sick.”</P>
<P>Mr. McNicholas, the Sidley Austin lawyer, acknowledged that some “unjust and
sinful” treatment has been protected from litigation by the ministerial
exception. But he argued that “the openness of the religious process” would
remedy those situations, making it possible for a clergy member dismissed by one
congregation to find a home in another.</P>
<P>But what if they are sick? “That’s harder — and very troubling,” Mr.
McNicholas said. “But if you have a judge deciding it, that’s just too much
intervention in the process of deciding the hiring issues” at religious
institutions. “There’s no easy answer.”</P>
<P><SPAN class=bold>Protections Against Unionization</SPAN></P>
<P>The <A title="University of Great Falls"
href="http://www.ugf.edu/">University of Great Falls</A>, in Montana, has a tidy
urban campus, a bold crucifix-topped chapel, a master’s program in criminal
justice and, according to one student’s Internet posting, a cafeteria that
serves pretty good spaghetti.</P>
<P>What the small Roman Catholic college doesn’t have is a faculty union.</P>
<P>It wasn’t for lack of trying. In 1995, the Montana Federation of Teachers,
which had unionized most of the public universities in Montana, asked the <A
title="More articles about National Labor Relations Board"
href="http://topics.nytimes.com/top/reference/timestopics/organizations/n/national_labor_relations_board/index.html?inline=nyt-org">National
Labor Relations Board</A> to recognize it as the collective bargaining agent for
the teaching staff at Great Falls.</P>
<P>“Some of the faculty members there traveled in circles that included
professors at the other schools,” recalled James McGarvey, who was president of
the Montana Federation of Teachers at the time. (It has since merged with the
Montana Education Association.) Teachers at those other campuses had better pay
and more favorable work rules, and some professors at Great Falls had expressed
interest in seeing whether the federation could help them as well, according to
Mr. McGarvey. “We felt we had a pretty strong showing,” he said.</P>
<P>J. C. Weingartner, a union lawyer who worked on the campaign, said that while
“pay did come into it, it wasn’t what got it started.” That spark was discontent
among some professors over the president’s appointing members to an important
advisory council who “did not reflect the views of the majority of the faculty”
in negotiations with the administration, he said. “So they felt their interests
would be better served with collective bargaining.”</P>
<P>The university, which has a new management team today, declined to comment on
the long legal battle.</P>
<P>But when the labor board held a hearing on the union’s request, the
university’s lawyers argued that the board had no jurisdiction because the
university was a religious institution, and to force it to negotiate with the
union would violate its religious liberty.</P>
<P>The university based its case largely on a 1979 decision in which the <A
title="More articles about the U.S. Supreme Court."
href="http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org">United
States Supreme Court</A> ruled that the labor board’s jurisdiction did not
extend to religious schools. After that decision, which resulted in what is
called the <A title="Creation of the Catholic Bishop doctrine"
href="http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/440/490.html">Catholic
Bishop doctrine</A>, the board began case-by-case examinations to determine
whether the schools that came before it were sufficiently religious — whatever
their faith — to be exempt from its jurisdiction.</P>
<P>The University of Great Falls did not qualify, the board concluded in
February 1996.</P>
<P>For the next seven years, the little Catholic college fought both the federal
labor board and the faculty union, keeping lots of lawyers busy and incurring
official <A title="Charges of unfair labor practices"
href="http://www.nlrb.gov/nlrb/shared_files/decisions/331/331-188.pdf">charges
of unfair labor practices</A> in the process. In 2002, it won.</P>
<P>The<A title="Reversing the National Labor Relations Board"
href="http://pacer.cadc.uscourts.gov/common/opinions/200202/00-1415a.txt">
federal appeals court panel in Washington</A> ruled that a three-prong test
should be the labor board’s only standard for determining which schools were
religious enough to be exempt from the nation’s collective bargaining laws under
the Catholic Bishop decision.</P>
<P>Any school that is nonprofit, has a religious affiliation and presents itself
to the public as a religious institution must be exempted from jurisdiction, the
court said. And that included the University of Great Falls.</P>
<P>And the court ruled that the labor board’s old case-by-case approach had to
stop immediately. For the board even to conduct such inquiries raised serious
issues of religious freedom, the judges said.</P>
<P>Of course, some casually faithful or broadly tolerant schools that might
previously have failed to win a labor board exemption would easily pass the
court’s new test.</P>
<P>The appellate judges anticipated that complaint, and dismissed it. “If the
university is ecumenical and open-minded, that does not make it any less
religious, nor N.L.R.B. interference any less a potential infringement of
religious liberty,” they said.</P>
<P>David Strom, general counsel of the <A
title="More articles about American Federation of Teachers"
href="http://topics.nytimes.com/top/reference/timestopics/organizations/a/american_federation_of_teachers/index.html?inline=nyt-org">American
Federation of Teachers</A> in Washington, doesn’t mince words about the impact
of the Great Falls decision. “It means that the difficulty of organizing a
religiously affiliated college has become enormous.”</P>
<P>Although federal statistics show that one of every seven colleges in the
country describes itself as a religious institution, it is not clear how
far-reaching the Great Falls decision will be. On its face, it would seem likely
to reduce any union-driven salary pressures on exempt religious schools,
allowing them to maintain more competitive tuition levels. However, some
colleges that might be eligible for an exemption under the new rules may already
have collective bargaining in place or may not oppose unions as fiercely as the
Montana university did.</P>
<P>And the decision limits only the protections of the National Labor Relations
Act. But last fall, in a case involving teachers at Catholic schools in Boston,
a federal district judge in Massachusetts ruled that part of another federal
labor statute called the Taft-Hartley Act could not be applied to
church-operated schools without raising First Amendment issues.</P>
<P>Notwithstanding the protracted battle in Great Falls, Catholic institutions
are not doctrinally opposed to collective bargaining, said Julie N. Secviar,
senior vice president for strategic resources for the Franciscan Sisters of
Chicago Service Corporation, which manages Catholic hospitals, nursing homes and
retirement communities.</P>
<P>In fact, the ethical health care directives of the <A
title="More articles about United States Conference of Catholic Bishops"
href="http://topics.nytimes.com/top/reference/timestopics/organizations/u/united_states_conference_of_catholic_bishops/index.html?inline=nyt-org">United
States Conference of Catholic Bishops</A> require “recognition of the rights of
employees to organize and bargain collectively without prejudice to the common
good.” </P>
<P><SPAN class=bold>Next, Exemptions for Hospitals?</SPAN></P>
<P>At the other end of the spectrum stand the Seventh Day Adventists, a
Christian denomination with more than 14 million members worldwide. Like many
denominations, it provides global humanitarian relief and maintains a large
network of church schools and colleges, including Loma Linda University in
California. But it also operates the largest Protestant nonprofit health care
system in the country, with 38 hospitals in 10 states, 23 nursing homes and
44,000 employees.</P>
<P>And not one of those employees is in a union, for a very simple reason: The
church believes that collective bargaining “defies Christ’s admonitions that
behavior must be directed by individual conscience” and “is inherently
disruptive” of the church’s healing mission, as lawyers for the denomination
first explained to the national labor board in 1998.</P>
<P>The lawyers were responding to a petition by the California Nurses
Association to represent the nonsupervisory nurses employed at Ukiah Valley
Medical Center.</P>
<P>As in the Great Falls case, the lawyers argued that the labor board had no
jurisdiction because the hospital was a religious institution and to force it to
recognize or bargain with a union would violate its freedom under the First
Amendment and the Religious Freedom Restoration Act.</P>
<P>As in the Great Falls case, <A title="The N.L.R.B. rules for a union"
href="http://www.nlrb.gov/nlrb/shared_files/decisions/332/332-59.htm">the labor
board ruled otherwise</A>. The next step should have been union balloting,
explained Jeffrey A. Berman, the Sidley Austin lawyer who represented the
hospital in the case. But the nursing association withdrew its petition and the
case ended, he said.</P>
<P>According to the American Hospital Association, about one of every four of
its members has a religious affiliation. But the Adventists’ problem before the
labor board was that hospitals, unlike religious schools, were specifically
included in the board’s jurisdiction by Congress. The only labor-law
accommodation that Adventists have been able to win from Congress was a
provision in 1974 allowing church members to pay the equivalent of their union
dues to one of several agreed-upon secular charities, according to Mr.
Berman.</P>
<P>Adventist hospitals are still waiting for their own Great Falls moment. As
Mr. Berman put it, “We’re not asking for carte blanche, for the ability to be
exempt from all laws — just with respect to what is unique about these
hospitals.”</P>
<P> </P>
<P> </P><NYT_AUTHOR_ID></NYT_AUTHOR_ID>
<P id=authorId>Andrew Lehren conducted computer analysis for this series, and
Donna Anderson provided online research
assistance.</P></DIV></FONT></DIV></BODY></HTML>