Gordan Technical High School

National Labor Relations Board - Board Decisions

Aug 8, 1979

243 N.L.R.B. 1188 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
Gordon Technical High School, directed by the Con-
gregation of the Resurrection and Gordon Technical
High School Education Association, an affiliate of
the Illinois Education Association and the National
Education Association. Case 13-CA- 16011
August 8, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JINKINS
AND PENEI.LO
On May 17, 1977. the National Labor Relations
Board issued a Decision and Order in the above-enti-
tled proceeding' finding that Respondent had vio-
lated Section 8(a)(5) and (1) of the Act by refusing,
since on or about November 18, 1976, and at all times
thereafter, to bargain collectively with the above-
named labor organization as the exclusive bargaining
representative of its employees in the appropriate
unit.2 As a remedy for the unfair labor practice found.
the Board, inter alia, ordered Respondent to bargain
with the Union as the exclusive representative of the
employees in the appropriate unit and, if an under-
standing was reached, to embody such an under-
standing in a signed agreement.
Thereafter, Respondent filed a petition for review
of the Board's Order with the United States Court of
Appeals for the Seventh Circuit. Subsequently, on
March 21, 1979, the United States Supreme Court
issued its decision in N. L. R. B. v. The Catholic Bishop
of Chicago, et al.3 In that case the Court affirmed a
decision of the Seventh Circuit denying enforcement
of a bargaining order the Board had issued against a
church-operated Catholic school.4 Thereafter, the
Board decided to, sua sponte, reconsider its decision
in this proceeding in light of the Court's opinion in
Catholic Bishop, supra. Accordingly, on April 25,
1979, the Board filed a "Motion To Withdraw Record
Pending Reconsideration" with the Seventh Circuit.
On May 1, 1979, the court granted the Board's mo-
tion, remanded the case to the Board, and ordered
'229 NLRB 708.
O2 n September 20, 1976, following a Board election in Case 13-RC-
14012, the Union was certified as the exclusive bargaining representative for
the employees in the following unit:
All lay teachers employed by the Respondent at Gordon Technical
High School, located at 3633 California Avenue, Chicago. Illinois. in-
cluding department chairmen and part-time teachers teaching 20 per-
cent or more of the full-time load; excluding faculty who are members
of a religious order, part-time faculty teaching less than 20 percent of a
full load, guards and supervisors as defined in the Act.
'440 U.S. 490, 163
The Catholic Bishop of Chicago v. N.L.R.B., 559 F.2d 1112 (7th Cir.
1977), denying enforcement of 224 NLRB 1221 (1976).
that the proceeding be held in abeyance pending the
Board's decision on reconsideration.
Pursuant to the remand, the Board invited the par-
ties to file statements of position with respect to the
issues raised. Such a statement has been filed by Re-
spondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon reconsideration of the entire record in this
proceeding, including Respondent's statement of po-
sition, the Board has decided to vacate its previous
Decision and Order in this proceeding and to dismiss
the complaint.
Respondent, a private Catholic high school for
boys located in Chicago, Illinois, is operated by the
Congregation of the Resurrection, a Catholic reli-
gious order. As noted above, following a Board elec-
tion the Union was certified as the bargaining
representative of Respondent's lay teachers. Notwith-
standing the Board's certification, Respondent re-
fused to bargain with the Union, although the Union
requested it to do so. Thus, upon a charge filed by the
Union, the General Counsel of the National Labor
Relations Board, by the Acting Regional Director for
Region 13, issued a complaint alleging that Respon-
dent violated Section 8(a)(5) and (1) of the Act. Re-
spondent filed an answer and requested that the com-
plaint be dismissed.
Thereafter, counsel for the General Counsel filed a
Motion for Summary Judgment with the Board. Re-
spondent filed a Cross-Motion for Summary Judg-
ment which alleged, inter alia, that the Board should
decline to exercise jurisdiction over it since the exer-
cise of the Board's jurisdiction would inhibit the reli-
gious freedom guaranteed to it under the first amend-
ment to the Constitution.
The Board reviewed the record and noted that Re-
spondent had made the same allegations in the
above-noted representation proceeding. In this re-
gard, the Acting Regional Director, in concluding
that Respondent was an employer within the mean-
ing of the Act, found that, although Respondent re-
quired all students to attend religious education
courses, it was a "comprehensive high school with a
broad range of secular subjects." Thus, he determined
that Respondent was not a completely religious insti-
tution, and that its mode of operation was similar to
that of other high schools over which the Board had
asserted jurisdiction.5
5 See Cardinal Timotrh Manning, Roman Catholic Archbishop of the Arch-
diocese of Los Angeles, e al.. 223 NLRB 1218 (1976): Roman Catholic Arch-
diocese of Baltimore. Archdiocesan High Schools, 216 NLRB 249 (1975): The
Catholic Bishop of Chicago, A Corporation Sole. 220 NLRB 359 (1975)
243 NLRB No. 124
1188
GORDON TECHNICAL HIGH SCHOOL
Accordingly, the Board granted the General Coun-
sel's Motion for Summary Judgment on the ground
that Respondent was attempting to raise issues which
had been raised and resolved in the prior representa-
tion case. In so doing, the Board relied on the well-
settled rule that in the absence of newly discovered or
previously unavailable evidence or special circum-
stances a respondent in a proceeding alleging a viola-
tion of Section 8(a)(5) of the Act is not entitled to
relitigate issues which were or could have been liti-
gated in a prior representation proceeding.,
As noted above, subsequent to the Board's original
Decision and Order in this proceeding. the Supreme
Court issued its decision in Catholic Bishop, supra. In
its opinion the Court noted that although respondent
therein pressed its claims under the religion clauses of
the first amendment, it first had to consider, under its
traditional rules of statutory construction, "whether
Congress intended the Board to have jurisdiction over
teachers in church-operated schools,"7 before reach-
ing Respondent's constitutional claims.
The Court began its analysis of the intention of
Congress by stating:
There is no clear expression of an affirmative
intention of Congress that teachers in church-op-
erated schools should be covered by the Act. Ad-
mittedly, Congress defined the Board's jurisdic-
tion in very broad terms; we must therefore
examine the legislative history of the Act to de-
termine whether Congress contemplated that the
'See Pittsburgh Plate Glass Co v. N.L.R.B., 313 U.S. 146. 162 (1941):
Rules and Regulations of the Board, Secs. 102.67 (f) and 102.69(c).
N L.R.B. v. The Catholic Bishop of Chicago, supra.
grant of jurisdiction would include teachers in
such schools.8
After reviewing both the Act and its legislative his-
tory. the Court concluded that "Congress simply gave
no consideration to church-operated schools."
Accordingly, the Court affirmed the decision of the
Seventh Circuit that the Board did not have jurisdic-
tion over respondent on the ground that "in the ab-
sence of a clear expression of Congress' intent to
bring teachers in church-operated schools within the
jurisdiction of the Board,"' ° it would decline to con-
strue the Act in a manner that would require it to
resolve difficult questions arising out of the guaran-
tees of the first amendment freedom of religion
clauses.
Upon reconsideration of our prior decision in this
proceeding, we conclude that our assertion of juris-
diction over Respondent herein cannot stand because
it is contrary to the holding of the Court in Catholic
Bishop, supra.
Accordingly, we shall vacate our previous Decision
and Order and dismiss the complaint in its entirety.
ORDER
It is hereby ordered that the Board's Decision and
Order reported at 229 NLRB 708 be. and it hereby is,
vacated.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed in its entirety.
'Id
/Id
10 Id.
189