Because most church lawsuits seem to arise in “at will” or “right to work” employment law states, there are few instances in which collective bargaining agreements have been material or pivotal in reported court rulings. There are several lessons, however, to be gleaned from the court decisions available that considered collective bargaining agreements. Foremost may be the limitations on the statutes governing collective bargaining agreements.
In Jusino v Federation of Catholic Teachers, Slip Op. (2nd Cir. 2022), the Plaintiff was allegedly terminated after engaging, willfully or involuntarily, in disputes with parents, student, and the public about a lecture Plaintiff gave regarding racism as sin. Plaintiff was a teacher in a Catholic High School. The Plaintiff in a prior separate lawsuit sued the employing parochial school and a settlement was reached. Afterwards, Plaintiff sued the union that sought employment arbitration on his behalf. Plaintiff alleged the union failed to allege violations by the employer of federal civil rights employment statutes. The opinion does not reveal why the union refused to present those claims but was willing to press others. The federal trial court, affirmed by the federal court of appeals for the 2nd Circuit, based dismissal on the conclusion that the National Labor Relations Act, as amended by the Labor Management Relations Act, were inapplicable to disputes between parochial-school teachers and the union. Both federal courts relied upon NLRB v Catholic Bishop of Chicago, 440 US 490 (1979), in which the United States Supreme Court held the statutes did not bring teachers in church – operated schools within the statutory coverage. Therefore, the Plaintiff could state no claim for relief against the union supported by those statutes because they did not apply.
Arguably, some or all of the federal statutes the Plaintiff demanded be the subject of arbitration brought by the union also exempted religious entities. In any event, counsel should generally confirm that statutory language creates an actionable claim.
We reported the decision of the United States Court of Appeals for the 5th Circuit in McRaney v North American Mission Board, Southern Baptist Convention, 996 F3d 346 (5th Cir. 2020), cert. denied, 210 L ED 2d 961, 141 S Ct 2852 (2021). The Plaintiff was formerly employed as the Executive Director of the General Mission Board of Maryland / Delaware. The Plaintiff alleged the Defendant made false statements about him that caused him to be fired from his position, caused him to be “uninvited” to speak at a large mission symposium, and posted a picture of him at the Defendant’s offices to malign him. The trial court dismissed the case on Ecclesiastical Abstention Doctrine grounds but the 5th Circuit reversed the dismissal. The only theories of recovery espoused were for intentional interference with business relationships, defamation, and intentional infliction of emotional distress. There was no employment claim made that might implicate the Ministerial Exception. We noted on remand there might be discovery.
In McRaney v North American Mission Board of the Southern Baptist Convention, Inc., Order Reconsidering Quashing of Subpoena (ND Miss. 2022), the federal trial court on remand vacated its order quashing the Defendant’s subpoena to the Plaintiff’s former employer to obtain the personnel file and other documents. The trial court did so based on the opinion of the 5th Circuit that the dismissal of the case on Ecclesiastical Abstention Doctrine grounds was premature. The trial court allowed the subpoena to be reissued and allowed the former employer to respond as they might to any subpoena seeking those types of documents.
If the evidence produced in response to the subpoena, if any is produced, proves the termination of Plaintiff was, indeed, based on ecclesiastical or church disciplinary policies, it may result in dismissal of the case a second time. It may also prove the termination of Plaintiff by the employer was caused, or not caused, by the actions of the Defendant. Employers must be rational in their creation of termination records and not let the angst or emotion of the moment cloud the record. The termination record should be documented under the supervision of counsel when the sensitive nature of the Plaintiff’s position, apparently as a sort of chief executive officer, seems to require an especially accurate record.
Typically, church management employees consist of clergy and clerical staff. Some churches are large enough to employ other additional managers and staff. Generally, these positions are financial management positions, child day care managers and other types of positions. The church staff accountant, the child day care director, and the facility manager are usually not strictly ministerial. Nevertheless, they may have ministerial duties. Those duties may or may not keep them inside the frontiers of the Ministerial Exception to federal or state employment laws and leave the church immune.
In Congregation B’Nai Zion of El Paso, slip op. (Tex. Civ. App. 2022), the synagogue employed an “executive director” but terminated her three years later. The terminated executive director alleged she was not a minister. The church alleged her duties included ministerial matters. In order to resolve the factual conflict, the trial court held the plea to the jurisdiction of the court in abeyance and ordered discovery on the merits. The appellate court held a jurisdictional appellate ruling was premature because the trial court had not ruled on jurisdiction. Thus, the appellate court remanded the case to the trial court to permit limited discovery on the jurisdictional issue. Upon termination of the executive director, the church leadership issued a letter explaining the termination to the “voting members” but never mentioning the former employee by name. The terminated person alleged the letter was defamatory because the letter reported the implementation of a new financial audit requirement. The church alleged the letter was required to achieve financial transparency as required by governing documents.
We must await further rulings or developments regarding whether an “executive director” or “office manager” (as the former employee explained the duties of the position) is sufficiently ministerial to trigger the Ministerial Exception. Also, whether the report of events to the “voting membership” in a letter was defamatory has yet to be decided. The real lesson of the reported case is that interlocutory appellate review to extinguish expensive full-blown discovery in a case the court will likely hold is barred by the Ecclesiastical Abstention Doctrine or the Ministerial Exception must not be premature. There must be sufficient record, i.e., evidentiary materials, so that the court can easily see there are prohibited ecclesiastical inquiries required to decide the issues. The duties of an “executive director” or “office manager” typically will be sufficiently ministerial to trigger the Ministerial Exception because such an employee operates at the clergy level to operate the infrastructure of the church. Intertwined with church governance issues such an employee will be typically immersed in confidential ministerial decision making even if they are not leading worship services. Such an employee may decide which minister will lead at least on a given day.
Some denominations ordain, license or certify persons as credentialed or authorized to engage in specified religious rites or activities. These same denominations usually accord themselves the power to revoke that which they have given. The revocation might be based on religious doctrines or it might be based on secular sounding reasons like failure to renew or failure to pay fees or dues. Revocation or withdrawal of such permissions to engage in specified religious rites or activities can effectively prohibit the formerly licensed person from engaging in any official role in the denomination. There is not likely to be any recourse in the event of revocation or withdrawal of permission to act.
In Bacharach v Star K Certification, Slip Op. (Mary. App. 2022), the trial court dismissed the Plaintiff’s tortious interference with contract claim on Ecclesiastical Abstention Doctrine grounds and because the Plaintiff’s corporation, which was also a named party, was “forfeited” by the state, probably for the failure to renew its incorporation. Plaintiff alleged Defendant was the third-party vendor that the denomination used to oversee certification of adherence to the laws of “Kashrut,” and certification to act as “mashgiach,” “someone who oversees the preparation of kosher food.” The Plaintiff’s certification to act as “mashgiach” was withdrawn. The Defendant denomination allegedly notified Plaintiff’s business contacts that Plaintiff was no longer certified as a kosher caterer. The appellate court affirmed the dismissal and held the determination of whether Plaintiff was wrongfully decertified required an inquiry into religious doctrine governing kosher food preparation. The appellate court also affirmed the dismissal of the claim by Plaintiff’s corporation because it was a “forfeited” corporation that could not maintain a lawsuit.
The Plaintiff in the reported case may have been certified by a different denomination or different group within the denomination as well as by the Defendants but the opinion’s recitation of that fact is stingy on the details. Nevertheless, where available, certification by more than one authoritative source would not be a bad practice. Falling out of favor with one group might not end the ability to serve or minister if it is possible to remain in favor with another. The notification of Plaintiff’s business contacts by the withdrawing licensure authority in the age of transparency, however, may no longer be actionable if the licensing authority had some duty to speak regarding termination of the licensure.