Diocese of Fort Wayne-South Bend

National Labor Relations Board - Board Decisions

Jun 17, 1977

230 N.L.R.B. 267 (N.L.R.B. 1977)

DIOCESE OF FORT WAYNE-SOUTH BEND
Diocese of Fort Wayne-South Bend, Inc. and Commu-
nity Alliance for Teachers of Catholic High
Schools (C.A.T.C.H.). Cases 25-CA-7932, 25-
CA-7932-2, and 25-CA-7932-3
June 17, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On February 23, 1977, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Diocese of Fort
Wayne-South Bend, Inc., Fort Wayne, Indiana, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I The Respondent's request for oral argument is hereby denied as the
record and briefs adequately present the issues and positions of the parties.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: A hearing in
this consolidated proceeding was held at Fort Wayne,
Indiana, on September 8 and 9, 1976,1 on complaint of the
General Counsel against Diocese of Fort Wayne-South
Bend, Inc. (herein Respondent), 2 based upon original
charges filed on May 6 and 10. The order consolidating
cases, complaint, and notice of hearing were issued on June
30.
The principal issues in this case are whether Respondent
discriminated against two of the lay teachers at its Marian
High School, Mishawaka, Indiana, in violation of Section
All dates hereinafter refer to the calendar year 1976, unless otherwise
specified.
2 Thomas M. Clusserath appeared for Respondent at the hearing;
however, by motion dated January 18, 1977, he moved to withdraw his
230 NLRB No. 38
8(aX3) and (1) of the National Labor Relations Act, as
amended (herein the Act), when it refused to renew their
contracts of employment in the latter part of April. Also
involved is an allegation of an independent violation of
Section 8(aXl1) of the Act.
By its duly filed answer, Respondent denied the
commission of any unfair labor practices and affirmatively
asserted that the National Labor Relations Board (herein
the NLRB) could not and/or should not assert jurisdiction
in this matter. It was further asserted that the failure to
renew the contracts of the employment of the two teachers
was based upon good and sufficient cause and "served the
end of maintaining the religious, moral, and disciplinary
concepts being fostered in Respondent's Marian High
School." Finally, Respondent affinrmatively asserted that it
did offer one of the lay teachers a I-year contract to teach
in another of its religiously oriented high schools, Hunting-
ton Catholic High School, but that said offer was rejected
by the teacher.
Following the close of the hearing, helpful posthearing
briefs filed by counsel for the General Counsel and by
counsel for Respondent have been duly considered.
Upon the entire record, and from my observation of the
demeanor of the witnesses,3 I make the following:
FINDINGis OF FACT
I. JURISDICTION
By Decision and Direction of Election dated July 17,
1975, in Case 25-RC-5984 (not reported in Board
volumes), the NLRB asserted jurisdiction over Respondent
based upon the following finding:
The employer's annual budget for the five high schools
operated by it exceeds $1 million annually and its
annual direct inflow is about $185,000. The employer's
contentions that jurisdiction should not be asserted
because of its religious character are rejected. Roman
Catholic Archdiocese of Baltimore, Archdiocesan High
Schools, 216 NLRB 249 (1975).
Based upon the foregoing, as well as a substantially
similar stipulation of facts in the instant record, I find that
jurisdiction should be asserted in the instant proceeding.
II. THE LABOR ORGANIZATION INVOLVED
I find that Community Alliance for Teachers of Catholic
High Schools (C.A.T.C.H.) (herein the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As previously noted, Respondent operates five high
schools in the Diocese; however, Marian High School is
the only facility directly involved in the instant proceeding.
appearance. No objection having been filed by any of the parties, said
motion is hereby granted.
3 Cf. Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159. 1161
(1966).
267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At all times material, there were approximately 30 lay
(nonreligious) professional faculty members employed at
this facility. Prior to the events here at issue, there is no
evidence that any of the employees had ever been
represented for purposes of collective bargaining by a labor
organization.
The Union's organizational campaign commenced in the
spring of 1975, such campaign encompassing the lay
faculty at all five of Respondent's high schools. Shortly
thereafter, apparently in May or June 1975, the Union filed
a petition for an election with the NLRB (Case 25-RC-
5984), upon which a hearing was held in the latter month.
The NLRB's Decision and Direction of Election issued on
July 17, 1975, finding as an appropriate unit the full and
regular part-time lay faculty at the five high schools with
certain additions and exclusions not pertinent herein. The
election was held in early September. The Union won and
was certified as the collective-bargaining representative on
September 12, 1975. However, Respondent refused to
bargain with the Union upon the latter's request, based
principally upon its contention that the Board lacked
jurisdiction (see 224 NLRB 1226 (1976)). At the time of the
hearing herein, that case was pending for review before the
United States Court of Appeals for the Seventh Circuit.
Notwithstanding Respondent's refusal to bargain as
aforesaid, the record herein shows that some of the
teachers continued to pursue activities on behalf of the
Union. Thus, officers were elected and a newsletter was
published and distributed. One of the teachers (an alleged
discriminatee herein) was selected as the building represen-
tative (shop steward) and sought to bring to the attention
of the principal of the high school a number of grievances
of the faculty, of which more anon. During the period,
officials of Respondent made certain statements indicating
an antipathy toward the Union and, in April, refused to
renew the contracts of two of the teachers who were
officials of the Union. It is this conduct which is attacked
in the complaint and to which we now turn for analysis.
B. The Animus of the Respondent
As far as the record shows, the first evidence of
Respondent's hostility toward the Union was expressed in
a letter of Reverend Dr. James Seculoff, superintendent of
schools, addressed to all Catholic high school teachers,
dated August 25, 1975. The letter itself is not attacked in
the complaint as an unfair labor practice; however, it
expresses the policy of Respondent on the subject and
clearly may be considered along with all the other evidence
as bearing upon motive relevant to the 8(a)(3) issues.4 Thus
the letter expresses the policy of the Diocese which "does
not favor a union for the profession of teachers." It points
out the disadvantages of belonging to a union, such as
paying and being assessed fines and assessments, and
direction by "one man or clique rule." The remainder of
the letter was spent in pointing out the precarious financial
situation of the high schools, and that a raise in tuition
from current levels (which might be necessary as a result of
higher wage rates caused by a union contract) would have
4 See, e.g., Southern Desk Company, 116 NLRB 1168, 1177 (1956), enfd.
246 F.2d 53 (C.A. 4, 1957).
serious consequences regarding continuation of the
schools.
Additional expressions of hostility to the Union by
Father Seculoff occurred at the September meeting of the
area board of education which took place a few days
following the NLRB election, mentioned hereinabove.
Only four or five members (not a full complement) were
present on this occasion. One of the members was Charles
Hall, a teacher and chairman of the science department at
St. Joseph's High School (one of the Respondent's five high
schools), and Father Seculoff, who was present as an ex
officio member. Although the subject of the Union was not
on the agenda of the meeting, Hall made a statement in
favor of the Union and expressed his opinion as to some of
the reasons why the Union came into existence. According
to Hall's testimony, Seculoff responded that the high
schools would in fact close and be put up for sale, and that
the Diocese would reopen them in a couple of years staffed
with nonunion teachers and parents. Seculoff denied
making such statement but admitted that, after Hall's
speech, the board went into a confidential session for the
purpose of exploring the various options open to Respon-
dent in view of the Union's victory in the election. Father
Seculoff averred that none of the discussion was to be in
the minutes, "so they threw out all kinds of wild ideas and
the worst type of things and some good things that could
possibly happen if the Union came in .... I was listening
to what other members said. I might have said that I heard
this happening in other places and do you think it will
happen here." Father Seculoff insisted that he could not
have made the statement in the manner in which Hall
testified since the policy of Respondent is to only hire
certified and licensed teachers which would, of course,
exclude parents.
Again, the foregoing incident is not alleged as an
independent violation of Section 8(a)(1). After a consider-
ation of all relevant factors, including the context in which
the alleged statements are supposed to have been made, I
am convinced and find that Seculoff reaffirmed his
hostility to the Union and expressed dire consequences to
the schools if the Union prevailed as the teachers'
bargaining representative.
Phil Niswonger was a lay teacher at Marian High School
during the school year 1975-76, and joined the Union in
October 1975. Thereafter he was selected as the building
representative, i.e., a shop steward. In early February, he
was present in the school cafeteria along with Father
Seculoff, Principal DeVliegher, Mrs. DeHahn, and a Dr.
Jim McDonald (other teachers). According to Niswonger's
testimony, the subject of the Union arose and disagreement
was expressed between him and Father Seculoff as to the
number of union members. Seculoff made the comment
that he felt that there were only about 30 members, while
Niswonger indicated that according to the vote there were
over 80 teachers that voted in favor of the Union, and
therefore membership was closer to that number. Thereaf-
ter, Seculoff referred to one Brian Waldron, a teacher at
268
DIOCESE OF FORT WAYNE-SOUTH BEND
another of Respondent's high schools, who was a candidate
for membership on the Union's Board of Directors. 5
Seculoff expressed his intention to dismiss Waldron and
surmised that "that would be the end of the Union because
if you chop off the head of an organization, you defeat the
organization." Then Father Seculoff said that he would
next year get rid of a few more and then by the third year,
there would be no union members left and in that same
sequence he said "maybe I will get rid of four or five
members this year and that would take care of the Union if
there was anybody left, we will get them the following year
and by the third year there will be none left." 6
On or about March 30, Virginia Black was a teacher and
department chairperson over the department of religion at
Marian High School. On that evening, Father Seculoff
drove her home and stayed on for a few minutes. He asked
Black about Phil Niswonger's teaching abilities and she
responded that she was very pleased with him as a
teacher-that he was very dedicated and willing, and was a
very good Catholic. Father Seculoff made the remark that
Niswonger made a terrible mistake by joining the Union.7
I find the foregoing implied threat to constitute interfer-
ence, restraint, and coercion in violation of Section 8(aX)(1)
of the Act.8
C. The Alleged Discriminatees
1. Phil Niswonger
Phil Niswonger had been a teacher of religion and social
studies at Marian High School since 1972. In addition to
his teaching duties, he had been, since 1973, a swimming
coach, for which he received an additional stipend. On top
of the foregoing contractual obligations, Niswonger also
engaged in certain extracurricular activities at the school
such as: (1) moderator for the Marian High School tutors,
(2) cochairman of the display case committee, (3) student
work director, and (4) cafeteria moderator. Both the
chairperson of his department, Virginia Black, and Princi-
pal DeVliegher characterized Niswonger as being a
tremendously willing and dedicated person as far as the
giving of his time to activities for the betterment of Marian
High School.9
From the foregoing, as well as from my observation of
the demeanor of this individual, it is readily apparent that
he is an outgoing and outspoken individual. Thus, the
record shows that he spoke up at faculty meetings on issues
involving all faculty members, presenting on their behalf
points of view on various issues. Indeed, he also presented
the students' point of view on problems to the principal
and other members of the administration. It might be
reasonably anticipated that the exercise of this kind of
initiative would, on occasion, be the source of dissatisfac-
5 See, e.g., G.C. Exh. 8.
6 Credited testimony of Niswonger. Father Seculoff did not deny this
statement, and neither DeVliegher nor DeHahn was interrogated concern-
ing the incident. McDonald was not called as a witness.
T Credited testimony of Black. Father Seculoff did not, in his testimony,
deny making such statement.
I It is not crystal clear from the record that Black was a teacher at the
time of the incident. That is to say, she testified that subsequently, in April,
Principal DeVliegher asked her to step down as department chairman and
she presumably retained her teaching status since she was currently
tion and friction between Niswonger and some of the
faculty members on one hand and the principal on the
other. For example, the record reflects that on one
occasion Niswonger allowed one athletic team to use the
equipment of another, which was supposedly against the
rules and regulations. On another occasion, he unilaterally
made a decision as to how to best deal with a pilfering
problem without clearing it with high authority. However,
as far as the record shows, Niswonger was never officially
reprimanded or warned about such conduct by the
principal or other members of the school's administration.
As previously noted, Niswonger became a member of the
Union in October 1975, and shortly thereafter was selected
as the building representative (shop steward). As such, he
had occasion to talk with members of the faculty who
asked him to intervene on their behalf with DeVliegher as
respects certain problems or grievances. Accordingly, at
the end of the swim season in February, Niswonger wrote a
letter to DeVliegher consisting of four single-spaced,
typewritten pages in which he pointed out several areas in
which he thought changes might be made which would
result in better relationships among the faculty members.
Niswonger stated that he was writing to DeVliegher from
many perspectives: (1) as a concerned catholic, (2) as a
member of Marian's faculty, and (3) "officially as the
'C.A.T.C.H.' representative to Marian."
A few days later DeVliegher met with Niswonger in the
former's office to discuss the contents of the letter.
DeVliegher made it clear at the outset that he was talking
to Niswonger as "principal to teacher and not in any other
capacity that was stated in the letter." '°0 DeVliegher
testified that there was no further discussion of "the Catch
organization, as such." However, Niswonger testified that
DeVliegher stated that he (DeVliegher) had discussed
Niswonger's letter with Father Seculoff after DeVliegher
received it but before the meeting with Niswonger, and that
Seculoff noticed a concern when he learned from the letter
that Niswonger was a union member, and stated to
DeVliegher that "I thought Phil was our friend."
Furthermore, at the meeting between DeVliegher and
Niswonger, the former asked how many people were
members of the Union, but Niswonger refused to tell him,
stating that he probably already had an idea who they
were. DeVliegher stated that he knew that Mrs. DeHahn
was a member and that he knew as a result of Niswonger's
letter that the latter was a member. Niswonger asked if
DeVliegher knew of anyone else, to which the latter
responded that he did not know "for sure" but he had his
suspicions."
DeVliegher testified that during the latter part of April
he had several conversations with Niswonger concerning
the renewal of the latter's teaching contract. He further
testified that he "had determined that [he] would not be
employed by Respondent at the time of the hearing. In any event,
Respondent made no contention respecting this point at any time during the
proceeding.
9 In addition to the activities enumerated above, Niswonger also found
time to be a leader of a local community troop of the Boy Scouts of
America.
1' Testimony of DeVliegher.
" Credited testimony of Niswonger. DeVliegher did not directly deny
the foregoing statements attributed to him.
269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
renewing [Niswonger's] contract ... ," but that the
conversation concluded with the understanding that "there
would be a distinct possibility of extending a contract ...
with the understanding that what had been done by him on
behalf of others would not continue." That is to say, that
whatever good intentions Niswonger possessed with re-
spect to presenting the problems of others to DeVliegher,
"he had taken upon himself responsibilities and had gone
beyond what was appropriate for his particular station in
the school . . . and what was appropriate for him as a
member of the faculty." 12
DeVliegher testified that he further advised Niswonger to
encourage the individual faculty members and students to
see DeVliegher directly with whatever complaints they had
rather than having such complaints conveyed to him by
Niswonger.
Niswonger testified that on April 27 he had a conversa-
tion with DeVliegher in the latter's office at the latter's
request, at which time DeVliegher stated that he was
thinking of not renewing Niswonger's contract and listed
the following reasons: (I) he was too involved in girls'
athletics; (2) he was too involved in student affairs and
revealed to the students confidential matters discussed at
faculty meetings; and (3) Niswonger was generally the
cause of all the problems at Marian High School. However,
according to Niswonger, DeVliegher did not indicate a
final determination not to renew the contract at that time
but indeed indicated that Niswonger would probably
receive a contract. However, on April 30, there was a
conversation among DeVliegher, Niswonger, and Robert
Haas, the athletic director, during school hours. DeVliegh-
er opened the meeting by stating that there were still some
unresolved situations which, if left unresolved, would
apparently preclude issuing Niswonger a contract. At that
point, Haas turned to Niswonger and said, "Phil, will you
accept me as athletic director, yes or no?" Niswonger said
yes. Haas then inquired, "Will you not speak about any
athletic meeting outside the athletic department meeting?
Yes or no?" Niswonger said that he was not clear about
what Haas meant and could not answer the second
question. At that point Haas had to leave and told
DeVliegher, "I charge you to terminate Mr. Niswonger as
swim coach," and left the room. Niswonger met again with
DeVliegher in the afternoon after school and DeVliegher
indicated that what Haas meant was that the substance of
any athletic departmental meeting should be kept in
confidence, to which Niswonger agreed. They also dis-
cussed some rumor of irregularity in the athletic depart-
ment, the exact nature of which was not disclosed in the
record.
On the evening of April 30, at approximately 10 o'clock,
DeVliegher and Haas went to Niswonger's house.13 At that
time DeVliegher handed Niswonger a paper which served
notice that the latter's contract would not be renewed.
DeVliegher testified that the reason that the notice was
served at that particular point in time was because of the
12 Testimony of DeVliegher.
13 DeVliegher testified that Haas accompanied him simply to indicate to
Niswonger that a particular individual (whose name was not disclosed in the
record) was not involved in the rumor which was the subject of discussion
the preceding afternoon.
4 The newsletter (G.C. Exh. 8) indicates that DeHahn ran unopposed
deadline for renewal of a teacher's contract, and he felt
that, if a different conclusion was reached in the future as a
result of further discussions, the notice could be rescinded.
Niswonger testified that he inquired of DeVliegher the
reasons for the notice to which DeVliegher responded that
he and Haas had "come to the conclusion that [Niswonger]
had been trying to solve the problems at Marian and that
he had been unsuccessful."
2. Linda DeHahn
DeHahn was first employed by the Respondent in the
spring of 1974 as a substitute teacher, completing the
unexpired term of another faculty member in the science
department. Thereafter, she became a regular full-time
teacher completing two full contract terms (1974-75, and
1975-76) before her contract was not renewed by De-
Vliegher in late April. One of the principal subjects taught
by DeHahn was biology, and she had several classes
consisting of both classroom and laboratory work.
The record reflects that DeHahn was active on behalf of
the Union, and that DeVliegher became aware of such
activities by early fall of 1975. Thus the officers of the
Union were named in the Union's September 15, 1975,
newsletter which was distributed to all faculty members
and which became the object of a dispute between
DeVliegher and DeHahn. '4
In September 1975, DeHahn attended the monthly
faculty meeting. It appears that there was some discussion
concerning faculty tickets to athletic events, and that the
policy of the Respondent had been recently changed to
allowing faculty members one ticket instead of two.
DeHahn spoke up at the meeting and accused the
administration of changing the policy as a retaliatory
measure for the faculty's voting in the Union. Athletic
Director Haas denied that it was a retaliatory measure,
claiming that it was due to the financial situation of the
athletic department. Subsequently, DeHahn discussed the
issue with DeVliegher who affirmed Haas' position. During
this conversation, DeHahn advised DeVliegher that she
was the vice president of the Union, and that her
statements reflected the union members' feelings concern-
ing the matter.15
DeVliegher recalled that, sometime in January or
February, he had a conversation with DeHahn in his office
about the Union. He asked to speak with her because of
the number of leaflets and bulletins which had been
distributed in the teachers' mailboxes. DeVliegher advised
DeHahn that he considered the mailboxes to be of a
confidential nature and that the mailboxes were not to be
invaded or used by someone else. DeHahn agreed not to
distribute the material to any teacher who was not a
member of the Union.
The record reflects several instances, prior to latter April
1976, wherein Mrs. DeHahn's conduct as a teacher was
called into question by DeVliegher. The first of such
for vice president of the Union and, with one exception, was the only faculty
member from Marian High School running for union office.
1' Credited testimony of DeHahn; DeVliegher did not deny the
statements attributed to him. As previously noted, Haas was not called as a
witness.
270
DIOCESE OF FORT WAYNE-SOUTH BEND
instances was in April 1975, when it was apparently
reported to DeVliegher that four students in her seventh
hour class were playing cards. After a discussion with
DeHahn, DeVliegher noted that DeHahn "used bad
judgment in allowing the students to play cards. It will not
happen again." '6
A second incident occurred about September 1975, when
DeVliegher advised DeHahn that some students had
complained to the guidance officer that her biology 2
course was not being taught in the depth that they had
expected. DeHahn explained that this was a new course for
her and she had discussed the matter with him before the
course was offered. She advised that she would take up the
matter further with the students, which she did. The matter
was not mentioned again until DeVliegher brought it up at
the exit interview.
Finally, there was a matter of the distribution by
DeHahn of a reading list to the students in her biology
class. It appears that a portion of the course was devoted to
a study of human reproduction. In connection with such
study, DeHahn prepared a list of five books for "extra
reading."l? She was called into DeVliegher's office con-
cerning the matter, the latter stating that he had received a
phone call from a parent objecting to the list. DeHahn
stated that the list was prepared to indicate to the students
some kinds of materials which might lead them away from
the sensational matter which was on the market and which
they had easy access to at the local drugstore, and that the
reading matter was in no way required or even strongly
suggested. However, DeVliegher requested that she with-
draw the list, to which she objected on the grounds that this
would call more attention to it than it deserved. The matter
was finally resolved when it was agreed that a second list
prepared by DeVliegher would be distributed to the
students.
DeHahn attended the March 1976 faculty meeting
which, the record reflects, was a rather emotional affair.
DeHahn spoke at the meeting which, among other things,
involved some discussion about alleged discrimination
against girls' versus boys' use of gym facilities. DeHahn's
conduct at the meeting became a subject of discussion in a
subsequent meeting between DeVliegher and Niswonger.
The latter expressed concern that DeVliegher "put down"
DeHahn at the March faculty meeting. DeVliegher stated
that DeHahn did not have any business or concern to
discuss the topic at hand.
In late April, in a conversation between DeVliegher and
DeHahn in the former's office, he advised her that he had
determined not to renew her contract. When she asked
why, he enumerated the following reasons: (1) her
classroom discipline left a good deal to be desired; (2) he
"seriously questioned" the value or competency which one
particular class of biology had been presented, in this
connection, he had particular reference to the complaint in
1' Resp. Exh. 7.
l" Resp. Exh. 4. Three of the books were written by the celebrated duo of
Masters and Johnson; another was written by David Rubin entitled
"Everything You Always Wanted to Know About Sex."
'I In this connection, DeVliegher had particular reference to the
"ongoing friction between the athletic and nonathletic faculty which was
agitated by conversations of which [DeHahn ] was a part."
19 In this connection I note the testimony of Department Chairman
September 1975, hereinabove discussed; and (3) he had
noticed a "widening divergence in our points of view
educationally and philosophically besides noting the fact
that other rules and regulations were not given sufficient
attention." DeVliegher further testified that, although he
did not mention the matter of the reading list specifically at
that time, he had that subject in mind when he used the
term "philosophically divergent points of view." After
having his memory refreshed by use of a preheating
affidavit, DeVliegher also recalled that, during the exit
interview with DeHahn, he mentioned the fact that he had
been made aware of conversations between her and other
faculty members during the cafeteria hour in which "she
expressed ideas during her lunch hour with other faculty
members which created or intensified feelings of agitation
among faculty members." 18
DeHahn's version of the exit interview is somewhat at
variance with that of DeVliegher's. Thus, with respect to
the matter of class discipline and complaints from students,
she stated that she was aware only of the September
incident which she thought had been resolved, and that he
agreed that there had not been any complaints since that
time. With respect to the dress code, she spoke of the
temperature in the labs which she felt warranted a
departure from the dress code, and the fact that the sleeves
on the girls' jackets brushing against glass beakers resulted
in excess breakage.' 9 DeHahn testified that DeVliegher
mentioned something about attendance of students that
the dean had mentioned to him "a time or two," and she
asked why she had not been notified about that since she
was unaware of it.20 Finally, with respect to the matter of
discussion of topics during the lunch hour which agitated
the faculty, DeHahn testified that DeVliegher "agreed that
faculty members did not give up their freedom of speech
when they went through the doors of Marian High
School."
Analysis and Concluding Findings with Respect to
the 8(aX3) Allegations
As set forth above, the Respondent has cited certain
delinquencies on the part of both employees which it
asserts provided ample cause under the Act for its
determination not to renew their contracts. On the other
hand, the General Counsel argues that it was the union
activities of the employees, to which Respondent was
unalterably opposed, that prompted Respondent's con-
duct. The legal principles governing the resolution of this
issue have been often stated, and may be briefly reviewed,
as follows:
The issue before us is not, of course, whether or not
there existed grounds for discharge of these employees
apart from their union activities. The fact that the
employer had ample reason for discharging them is of
Virginia Black who testified undeniably that "Mr. DeVliegher admitted that
nobody enforces the dress code 100 percent."
20 This apparently refers to the testimony of Sister Michael Ann Durer,
dean of students at the time, who testified that she was aware that DeHahn
did not accurately record absences on some occasions since DeHahn would
not record some students as absent that the administration knew were
absent because the parents had telephoned about them.
271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no moment. It was free to discharge them for any
reason good or bad, so long as it did not discharge them
for their union activity. And even though the discharges
may have been based upon other reasons as well, if the
employer was partly motivated by union activity, the
discharges were violative of the Act. [N.LR.B. v. Great
Eastern Color Lithographic Corp., 309 F.2d 352, 355
(C.A. 2, 1962), enfg. 133 NLRB 911 (1961).]
The mere existence of valid grounds for a discharge
is no defense to a charge that the discharge was
unlawful, unless the discharge was predicated solely on
those grounds, and not by a desire to discourage union
activity. [Sunshine Biscuits, Inc. v. N.L.RB., 274 F.2d
738, 742 (C.A. 7, 1960), cited with approval in N.L.R.B.
v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A.
7, 1964).]
Again, it was stated in Hartsell Mills Company v.
N.LR.B., 111 F.2d 291, 293 (C.A. 4, 1940):
It must be remembered, in this connection, that the
question involved [a finding of discrimination] is a pure
question of fact; that, in passing upon it, the Board may
give consideration to circumstantial evidence as well as
to that which is direct; that direct evidence of a purpose
to violate the statute is rarely obtainable; and that
where the finding of the Board is supported by
circumstances from which the conclusion of discrimi-
natory discharge may legitimately be drawn, it is
binding upon the courts, as they are without power to
find facts or to substitute their judgment for that of the
Board.
Applying the foregoing principles to the facts in the case
at bar, I am convinced, and therefore find, that although
the Respondent proffered reasons which it asserted
provided ample basis for the refusal to renew the
employees' contracts, the union activities of the employees
played a substantial part in the Respondent's motivation,
and therefore the terminations violated Section 8(aX3) and
(1) of the Act.
Thus, the record clearly shows that the Respondent was
exceedingly hostile to the union activity of its employees,
considering it not only a threat to its financial security but
also as a divisive force in the operation of its religious
school system. Moreover, the principal of the school, who
was solely responsible for making the ultimate decision to
terminate, had been well aware for several months prior to
the actual terminations in late April that the two employees
involved were active participants in union activities;
indeed, DeVliegher admitted that they were the only two
members of the faculty whom he knew to be members of
the Union. With this background, we proceed to an
examination of the evidence relied upon by the Respon-
dent for its conduct since as stated in N.LR.B. v. Great
Dane Trailers Inc., 388 U.S. 26, 34 (1967), cited in N.L.R.B.
v. Armcor Industries, Inc., 535 F.2d 239, 243 (C.A. 3, 1976):
21 Testimony of DeVliegher.
22 Indeed, if the cause of termination related solely to the conflict
between Haas and Niswonger, DeVliegher could have remedied the
When the record established a prima facie case that
"the employer engaged in discriminatory conduct
which could have adversely affected employee rights to
some extent, the burden is upon the employer to
establish that he was motivated by legitimate objectives
since proof of motivation is most accessible to him."
As respects Niswonger, DeVliegher acknowledged that
he had been a member of the faculty for 4 years, the fast 3
years of which DeVliegher "had no serious misgivings or
exceptions to take of his teaching performance or to his
conduct or to his example . . he was a giving person and
enthusiastic person and that I did express my thanks and
admiration for his dedication to the school and to the
various other activities."21 However, he cautioned Niswon-
ger that the amount of extracurricular activities should not
be an infringement upon the latter's primary responsibility
as a teacher. Moreover, DeVliegher testified that he had
not been aware in the first 3 years that a certain amount of
difficulty had arisen between Niswonger and other mem-
bers of the faculty. Testifying in a rather long and rambling
dissertation, DeVliegher seemed to be indicating that it was
in the last year of his employment that the activities and
efforts of Niswonger were "gravely hindering the object of
peace and harmony and cooperation." The record reflects,
as hereinabove discussed, that these matters came to a
head when Niswonger wrote the February 24 letter to
DeVliegher where he set forth, among other things, that he
wished to discuss matters of concern with DeVliegher in his
capacity as the "Catch" representative to Marian. De-
Vliegher refused to recognize Niswonger in this capacity,
and it appears that DeVliegher's attitude toward Niswon-
ger deteriorated rapidly from that point. Indeed, 2 or 3
weeks following the March faculty meeting, Niswonger
asked DeVliegher if the latter would still be interested in
having an informal meeting with the concerned teachers, to
which DeVliegher replied, "There would be no further
discussion on any topic for the rest of the year."
Based upon the foregoing, I can only conclude that
DeVliegher was willing to countenance the frustrations
caused by Niswonger's extracurricular activities until such
time as Niswonger sought to pursue these matters as a
union representative and not simply as an "omsbudsman,"
a term previously used by DeVliegher to characterize him.
In short, it was only after Niswonger donned the apparel of
a building representative that he became so obnoxious as
to warrant the most extreme form of discipline which the
Respondent had power to impose.22 Thus, the record
reflects no instance in which DeVliegher or any other
representative of Respondent ever cautioned or warned
Niswonger that any further activities of his would be the
subject of nonrenewal of his teaching contract. Moreover, I
note that at the hearing Respondent sought to raise an
additional reason (failure to promptly report grades) which
had not previously been mentioned as a cause for the
situation by relieving Niswonger of his responsibilities in the athletic
department, as Haas suggested.
272
DIOCESE OF FORT WAYNE-SOUTH BEND
termination. This has been held to be an indicia of
discriminatory motivation.2
In sum, I find and conclude that Respondent was
motivated, at least in part, by Niswonger's concerted and
union activities in its conclusion not to renew his contract
in April 1976. Accordingly, it violated Section 8(aX3) and
(1) of the Act, and I shall recommend an appropriate
remedy. 24
I reach the same conclusion with respect to the case of
Mrs. DeHahn. To be sure, there were several instances,
above set forth, which arose during her teaching career
which were the object of some criticism by DeVliegher.
However, none were deemed of such importance by
DeVliegher that he ever warned or cautioned DeHahn that
she would be subject to nonrenewal of her contract if
another such incident occurred (which it did not). The one
incident involving the reading list, which Respondent
sought to emphasize at the hearing, was not even explicitly
mentioned as a cause for termination by DeVliegher at the
exit interview. Indeed, the activity of DeHahn which
seemed most to irritate DeVliegher was her speaking out at
the March faculty meeting and her activities during
cafeteria hour in "agitating" other members of the faculty.
It may be reasonably inferred that DeVliegher related such
outspoken conduct to Mrs. DeHahn's prominence in the
Union and sought to nip such activities in the bud.25 In
short, Respondent here did not sustain its burden of
establishing that it "was motivated by legitimate objec-
tives," and I find and conclude that DeHahn's termination
was motivated, at least in part, by her active participation
in the Union, to which Respondent was opposed. I
therefore find and conclude that the failure of Respondent
to renew her contract was discriminatory and therefore
violative of Section 8(aX3) and (1) of the Act. 26
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the interstate opera-
tions of Respondent, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
23 See, e.g., Inland Motors, 175 NLRB 851. 852 (1969); Hurd Corporation,
143 NLRB 306, 318 (1963); The Tompkins-Johnson Co., 224 NLRB 31
(1976).
z4 Respondent. in its seventh affirmative defense to the complaint,
asserted that it did offer Niswonger a I-year contract to teach in another of
its high schools. Huntington Catholic High School, for the 1976-77 school
year and that said offer was rejected by Niswonger on or about June 21.
Niswonger explicated the reasons for his refusal in a letter dated June 18
(Resp. Exh. I l). I do not deem such offer, which would, among other things.
tend to undermine the strength of the Union at Manan High School, as
being sufficient to impair my finding of discrimination and/or to conclude
that Respondent thereby fulfilled its duty of reinstatement.
25 See, e.g., Duo-Bed Corporaton v. N.LR.B., 337 F.2d 850 (C.A. 10,
1964), cert. denied 380 U.S. 912 (1965); Hartsell Mills Company v. N.LR.B.,
supra, N.L.R.B. v. Jamestown Sterling Corp., 211 F.2d 725 (C.A. 2, 1954).
20 In connection with both cases of alleged discrimination. I have not
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating against Phil Niswonger and Linda
DeHahn, in the manner aforesaid, because they engaged in
activities on behalf of the Union, as described above, and
by thereafter failing and refusing to reinstate them,
Respondent has violated Section 8(aX I) and (3) of the Act.
4. By warning its employees that they made a mistake
by joining the Union, the Respondent has interfered with,
restrained, and coerced employees within the meaning of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(aX)() and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
It having been found that Respondent unlawfully failed
and refused to renew the contracts of employment of Phil
Niswonger and Linda DeHahn, in the manner aforesaid, it
is recommended that Respondent offer said employees
immediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for loss
of earnings that they may have suffered as a result of the
discrimination against them. Any backpay found to be due
shall be computed in accordance with the formula set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
As the unfair labor practices committed by Respondent
strike at the very heart of employee rights safeguarded by
the Act, I shall recommend that Respondent be placed
under a broad order to cease and desist from in any
manner infringing upon the rights of employees guaranteed
in Section 7 of the Act.27
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER28
The Respondent, Diocese of Fort Wayne-South Bend,
Inc., Fort Wayne, Indiana, its officers, agents, successors,
and assigns, shall:
overlooked the testimony of Respondent's witnesses that DeVliegher, in
April. held a meeting of some department chairmen and older teachers in
which they voted on whether certain other teachers (including DeHahn and
Niswonger) should be retained. The group voted that the two alleged
discrminatees should not be retained. However, I have given this evidence
little probative value since DeVliegher testified that (I) it was not normal
procedure, and (2) the decision not to renew Niswonger and DeHahn's
contracts was made by him "somewhere in March."
27 N.LR.B. v. Enrwistle Manufacruring Company, 120 F.2d 532, 536 (C.A.
4, 1941).
28 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discouraging membership in Community Alliance
for Teachers of Catholic High Schools (C.A.T.C.H.), or
any other labor organization, by failing or refusing to
renew contracts of employment, or otherwise discriminat-
ing against employees because of their union membership
or activities.
(b) Warning employees that they had made a mistake by
joining the Union.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist the above-named labor
organization, to bargain collectively through representa-
tives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all
such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Phil Niswonger and Linda DeHahn immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to seniority or other rights or privileges,
and make them whole for any loss of earnings they may
have suffered by reason of the discrimination against them
in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary
and relevant to analyze and compute the amount of
backpay due under this recommended Order.
(c) Post at its Marian High School, Mishawaka, Indiana,
copies of the attached notice marked "Appendix." 29
Copies of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by the
Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to faculty members are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
29 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Community
Alliance for Teachers of Catholic High Schools
(C.A.T.C.H.), or any other labor organization, by
refusing to renew contracts of employment, or other-
wise discriminating against employees because of their
union membership or activities.
WE WILL NOT warn employees that they made a
mistake by joining the above-named labor organiza-
tion.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights to self-organization, to form, join, or assist the
above-named labor organization, or any other labor
organization, to bargain collectively through represen-
tatives of their own choosing, to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
WE WILL offer Phil Niswonger and Linda DeHahn
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, and will restore their
seniority and other rights and privileges.
WE WILL pay them any backpay they may have lost
as a result of our discrimination against them.
All our employees are free to become or remain, or
refrain from becoming or remaining members of a labor
organization.
DIOCESE OF FORT WAYNE-
SOUTH BEND, INC.
274