283 N.L.R.B. 757 (N.L.R.B. 1987)

Jewish Day School Of Greater Washington, Inc.

National Labor Relations Board - Board DecisionsApr 29, 1987

283 N.L.R.B. 757 (N.L.R.B. 1987)

JEWISH DAY SCHOOL OF GREATER. WASHINGTON 757 Jewish Day School of Greater Washington , Inc. and American Federation of Teachers, Local, 3648, AFL-CIO, Petitioner . Case 5-RC-11219 29 April 1987 DECISION AND ORDER. BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, AND STEPHENS Upon a petition filed under Section 9(c) of the National Labor Relations Act,, a hearing was held on 2, 16, and 19 June 1980, before Hearing Officer Kenneth Henley. Following the hearing and pursu- ant to Section 102.67 of the National Labor Rela- tions Board Rules and Regulations, the Regional Director for, Region 5 transferred this case to the Board for decision. The Employer and the Peti- tioner filed briefs. The Board affirms the Hearing Officer's rulings, fording them free from prejudicial error. On the entire record, the Board makes the following find- ings. The Union seeks to represent a unit of teachers' at, the Jewish Day School (the Employer). The Jewish Day School is a private, nonprofit corpora- tion established in 1972 pursuant to the recommen- dation of a study prepared by, the American Asso- ciation for, Jewish Education. The study examined Jewish education in the Washington, D.C., area, and recommended the establishment of a broadly based community day school extending from kin- dergarten through high school. That recommenda- tion was adopted by the United Jewish Appeal Federation of Greater Washington, Inc. (UJAF).2 At the request of UJAF, a new facility for the school was constructed in Rockville, Maryland, with- funds from- the Greater Washington Jewish Community Foundation.3 Under the terms of a 99- X The unit description is as follows: All full time and part time teachers, including physical education teachers , athletic director, art teachers , music teachers, special edu- cation teachers, and teachers aides, guidance counselors and profes- sional librarians Vmployed by the employer at its Rockville, Mary- land facility , but excluding administrators, nonprofessional librarians, the consulting psychologist, clerical employees ; maintenance employ- ees, volunteers , 'guards and supervisois ,,as defined in the Act. The record establishes, that the librarian is also an English teacher, and that the athletic director is also a science teacher. Teacher aides provide individual remedial instruction to students and administrative assistance to teachers . Guidance counselors administer standardized testing and work with teachers to deal with the students ' psychological adjustment prob- lems 2 Bernard White, the president of the Jewish Day School , indicated \at the UJAF's primary purpose is to raise funds for the general welfare tewish people in the United States and abroad . White also testified 'i the local level the UJAF is involved in the details of planning for 'sh community. ;rester Washington Jewish Community Foundation was formed the purpose of buying land and constructing new buildings social welfare agencies such as the Jewish Community Center, Social Service Agency, and the Hebrew Home of Greater M. year lease, the Employer rents the facility from the Foundation for $1 per year, plus utilities and main- tenance costs. The Employer's bylaws provide for a 25-member board of governors and a 33-member board of di- rectors. Fifteen members of the board of governors are elected by the board of directors, and the re- maining 10, who are elected by the board of gover- nors in office at the time of the election, must be "active in community affairs, including the United Jewish,-Appeal and, the Board of Jewish Educa- tion." The responsibilities of the board of gover- nors include maintaining a liaison with a UJAF, the Board of Jewish Education, and other Jewish community organizations. The board of directors consists of 33 voting members4 as well as the president and the execu- tive vice president of the UJAF. At the time of the hearing all members of the board of directors were Jewish and three were rabbis. The board of direc- tors determines the Employer's policies, and man- ages and is ultimately responsible, for the affairs of the Employer.5 The bylaws also establish an education commit- tee ranging from 8 to 35 members-. Subject to the ratification of the board of director's, the education committee is ""responsible for -determining the school's educational policies, recommending an annual educational operating budget, determining admission requirements, and establishing, review- ing, and revising the curriculum. The bylaws pro- vide that the education committee "generally shall include religious and secular educators who are professionally trained,' and other individuals experi- enced in education." At the time of the hearing there were three rabbis on the -education commit- tee. The Employer's budget at the time of the hear- ing was $1.5 million, and"it had projected a budget of $1.8 million for the following year. Although predominantly funded by tuition, the Employer- re- ceives' approximately 20 percent of its funds from the UJAF,6 and it has also received annual individ- ual contributions in excess of $100,000: 4 The board of directors consists of 16 members elected by the mem- bers in office at the time of the election, 12 members elected by the par- ents of the school's students, the chairman of the board of governors, the president of the PTA, and the school's 3 immediate past presidents. 5' Responsibility for all decisions and programs of the board of direc- tors rests with two of the Employer's officers , the chairman of the board of governors, and the president . The other officers are a vice president and,'one or more secretaries and treasurers.6 The'UJAF requires the Employer to submit its budget for review, and the school is prohibited from engaging in new programs , or cancel- ling existing ones, without the UJAF's permission. White testified that the UJAF does not control the hiring of staff, administrators , or teachers, and does not comment on the curriculum unless the Employer seeks to implement a completely new project. .LRB No. 106 758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Employer's articles of incorporation state that its purposes. are, inter alia: (b) To establish, operate and maintain a syn- agogue or synagogues for religious worship and to provide for and conduct religious serv- ices in the Jewish faith in said synagogue or synagogues. (c) To establish, operate and maintain an in- stitution or institutions of learning in both reli- gious and secular subjects, which institution or institutions shall be subject to the following provisions and limitations: (i) Religious subjects shall be taught in ac- cordance with the principles of the Jewish faith with the purpose of giving each stu- dent a thorough Jewish education; (ii) Secular subjects shall meet the require- ments of the local school system for compa- rable grades ... . The Jewish Day School has also prepared a re- cruitment manual' for parents of prospective stu- dents, which states that: ... the school seeks to create an atmosphere to satisfy the needs of all its students. The chil- dren are exposed to a wide spectrum of reli- gious thought and interpretation. Each child, regardless of religious background, is encour- aged to enrich his or her understanding of Ju- daism and to identify with the Jewish people. There is no attempt,to impose any particular religious philosophy. According to the Employer's president, White, the manual's statement that there is "no attempt to impose any particular- religious philosophy" means that students are exposed to the conservative, or- thodox, reform, and reconstruction branches of Ju- daism, and that there is no attempt to favor the teachings of one over another. Although the admis- sion policy of Jewish Day School permits students who are not of the Jewish faith to attend, the Em- ployer's assistant principal for Judaic studies, Dr. Richard Wagner, testified that all students at Jewish Day School are Jewish. The chairman of the education committee, Baruch Fellner, testified that the committee's phi- losophy is to promote "an intense Jewish religious education."7 According to Fellner, the Employer's policy is to "inculcate Jewish ideas" within the children and "to inculcate . . . the performance of commandments which are derived directly from the five books of Moses." Fellner also testified that the school is designed to make the , spectrum of ° We note that Jeralyn Epstein, a teacher, generally denied perceiving an "intense" religious atmosphere at the school Jewish religious observance appealing so that-when the children become adults "they will choose an in- tense Judaic identity." The Jewish Day School offers religious subjects in its Judaic studies program and secular subjects in its general studies program. Religious instruction is mandatory in both the lower school, which extends from kindergarten through grade 6, and in the upper school, which encompasses grades 7 through 12. A child spends, 40 percent of his school day in Judaic studies courses and 60 percent in general studies courses. According to Assistant Principal Wagner, Judaic studies teachers in the lower school are responsible for teaching basic Hebrew language and literature, elementary Bible instruction, elementary instruction in basic elements of Jewish history,- and elementary instruction in the basic skills of Jewish life and law. Religious instruction is departmentalized in the upper school, and individual Judaic studies teachers specialize `in, for example, the Bible, Rabbinic liter- ature, Hebrew language, or Jewish history. The Employer, attempts to teach all Judaic studies courses-in Hebrew, depending on the qualifications of the teacher and the skill level of the students. - The record further establishes that the Employer seeks to integrate the Judaic studies and general studies programs. Fellner testified that there is no "line of demarcation" between the two, and that "the teaching of Judaism in all its elements is inex- tricably woven" into the secular courses. Wagner testified that the integration of the program is a "central feature" of the school,8 and that teachers from each program sometimes teach courses in conjuriction.9 The Employer also conducts separate orthodox, conservative, and reform prayer services in Hebrew each morning. Students are required to attend one of the services, and 1-day suspensions and other forms of discipline have been imposed on students who do not attend.10 Full-time teachers 9 To illustrate the integration of the programs, Wagner noted that third-grade teachers in both programs worked together to teach archaeol- ogy, with the Judaic studies teacher focusing on an archaeological site in Israel and the general studies teacher focusing on a site in Colorado. Wagner also noted that a general studies music teacher will frequently use examples of Jewish .music to teach basic elements of music, and that a general studies history teacher discussed the progressive era in American history with an emphasis on Jewish immigration to America occurring at the same time 9 One teacher at the school , Jeralyn Epstein, denied that her foreign language classes were integrated with religious studies, but she concede that other language teachers seek to promote such integration Ano• teacher, Carole Powers, conceded that to some extent she irate, Judaic studies into her general studies history class. 10 Fellner testified that the services are "well attended," but asserted that they were poorly attended : The teacher also to attendance was not well enforced but she , did not deny that di been imposed on some occasions Wagner testified that more day suspensions have been imposed. - JEWISH DAY SCHOOL OF GREATER WASHINGTON who are present at school during the first period of the day are also required to attend , and Wagner testified that the Employer "remind[s] them of their responsibilities " - if they fail to do so.1 l The meals for students in the upper school begin and conclude with a benediction. The school also requires that teachers , staff, and students observe Jewish dietary restrictions. Stu- dents who bring nonkosher food to school have been penalized , and the school has contacted the parents of such students to remind them of its die- tary policies . The parents ' manual notifies parents that the school observes "strict standards" with re- spect to dietary laws, and it outlines the types of food which parents may bring to school for class- room parties or holiday - celebrations. Students also study various Jewish holidays, and festivals . Prior to a holiday , students learn to per- form the rituals and , practices appropriate to the holiday . Wagner noted , for example, that the school conducts a "model Seder" before Passover.. In addition, Wagner testified that the school seeks to enforce rules of modesty in dress, and he noted specifically that boys are required to wear a cap.12 The Employer contends that the Board is pre- cluded from exercising its jurisdiction by the Su- preme Court's decision in NLRB P. Catholic Bishop of Chicago, 440 U.S. 490 (1979). The Union con- tends that Catholic Bishop is not controlling. For the reasons below we agree with the Employer. In Catholic Bishop, the Board had certified' a labor organization to represent a unit of lay teach- ers in each of two groups of precollege educational institutions . One group of schools was operated by the Catholic Bishop ' of Chicago, a corporation sole. Those schools offered special religious instruction as well as the same college-preparatory curriculum offered in public secondary schools . The other group of schools was operated by the Diocese of Ft. Wayne-South Bend , Inc., and also provided a secular education accompanied by mandatory reli- gious training. The central issue confronting the Supreme Court was "[w]hether teachers in schools operated by a church , to teach both religious and secular subjects are within the jurisdiction granted by the National Labor Relations Act. s 1 a The Court stated that if it 11 One teacher acknowledged that the attendance of teachers, is re- quired, but she asserted that "very few" actually attend. 12 Two teachers, Epstein and Powers, testified that modesty restric- tions are not enforced . However, the parents' manual states that students "should dress in a way that shows respect for the academic and religious environment of the school," and that "[b]oys are required to wear kippot at all tines except for gym." 13 440 U.S. at 491 759 were to construe the Act to grant jurisdiction, it would then be required to decide whether that grant of jurisdiction was constitutionally permissi- ble under the religion clauses of the first amend- ment to the United States Constitution. 14 Conse- quently, the Court first considered "whether Con-i gress intended the Board to have jurisdiction" over such teachers," and it in 'turn approached that in- quiry in two steps. The Court found,it necessary first to determine whether the Board's exercise of jurisdiction "would give rise to serious constitu- tional questions." 16 If such questions were raised, in the Court's view, it would then have to identify "the affirmative intention of the Congress clearly expressed" before concluding that the Act granted the Board jurisdiction over teachers in church-op- erated schools.17 The Court reviewed its decisions in cases involv- ing aid to parochial schools to determine whether "serious constitutional questions" were raised.18 It noted that in those cases it had recognized "the critical and unique role of the teachers in fulfilling the mission of a church-operated school" n 9 The teacher's key role, the Court observed, had been "the predicate" for its conclusion in those cases that "governmental' aid channeled through-teachers creates an impermissible risk of excessive govern- mental entanglement in the affairs of the church- operated schools."20 Relying on one such decision, Lemon v. Kurtzman,21 the Court noted that a teacher in such a school potentially could incorpo- rate "some aspect of faith or morals in secular sub'- jects."22 The Court emphasized "the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education," and ''it recognized that such a "conflict of functions" is in- 14 Id. at 499. 15 Id. at 500. The Court followed the principle that "an Act of Con- gress ought not be construed to violate the Constitution if any other pos- sible construction remains available." Id 16 Id. at 501. The Court also described this issue as "a narrow inquiry whether the exercise of the Board's jurisdiction presents a significant risk that the First Amendment will be infringed " Id at 502 17 Id . at 500, quoting McCulloch- v Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963). 18 The Court distinguished the issue of whether "serious constitutional questions" were raised from the actual constitutional issue of whether "excessive entanglement" has arisen between Government and religion It stated that "at this stage of our consideration we are not compelled to determine whether the entanglement is excessive as we would were we considering the constitutional issue." Id. at 502 . On the contrary, the Court indicated that it was making "a narrow inquiry whether the exer- cise of the , Board's jurisdiction presents a significant risk that the First Amendment will be infringed ." Ibid. 19 Id. at 501. 20 Id. at 501. 25 Lemon v. Kurtzman , 403 U.S 602 (1971). 22 440 U.S. at 501, quoting 403 U.S. at 617. 760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD herent in the teacher's situation .2 3 In the Court's view, the Government's "[g]ood intentions" could not avoid entanglement with the "religious mis- sion" of the school.24 The Court then noted two ways in which Board processes may run afoul of the first amendment. When a school argues that its alleged unfair labor practices were actually motivated by its religious creed, the Court observed that the Board may im- pinge on constitutional guarantees by inquiring whether the school's position was asserted in "good faith," and by examining the relationship of the school's position to its "religious mission."25 In addition, in, the Court's view, the Board's responsi- bility to determine mandatory subjects of bargain- ing would impact on church-operated schools. The Court stated that in a school "nearly everything" affects teachers, and therefore arguably would be a term and condition of employment,26 and conclud- ed that the Board's inquiry into these matters would inevitably "implicate sensitive issues."27 The Court quoted its statement in Lemon that parochial schools involve "substantial religious ac- tivity and purpose," and that the "substantial reli- gious character of those church-related schools gives rise to entangling church-state relationships of the `kind the - Religion Clauses sought to avoid."28 The Court also noted the observation of Justice Douglas in his concurring opinion in Lemon that "the raison d'etre of parochial schools is the propagation of a religious faith." 29 Recognizing a distinction between the "church-teacher relation- ship" and the "employment relationship in a public or other nonreligious school," the Court concluded that the Board 's exercise of jurisdiction over teach- ers in parochial schools would raise serious consti- tutional questions.30 Having reached this conclusion, the Court then found "no clear expression of an affirmative inten- tion of Congress that teachers in church-operated schools should be covered by the Act."31 The Court stated that in the absence of such an inten- tion, it would "decline to construe the Act in a manner that could in turn'-call upon the Court to 23 Id. at 501 , quoting 403 U.S. at 617. The Court also quoted its obser- vation in Meek v. Pittenger, 412 U S. 349, 370 (1975), that regardless of the subject matter being taught, "a teacher remains a teacher, and the danger that religious , doctrine will become intertwined with secular in- struction persists." 24 440 U.S. at 502. 25 Id, at 502. 26 Id . at 503, quoting Springfield Education Assn. Y. Springfield School Dist. No. 19, 24 Ore. App. 751, 759, 547 P.2d 647, 650 (1976). 27 Id . at 503. 28 Id . quoting 403 U.S. at 616. 29 Id. quoting 403 U.S. at 628 90 Id . at 504. 31 Id . at 504. The Court reviewed the legislative history of the Act and its amendments in reaching this conclusion. resolve difficult-and sensitive" constitutional ques- tions.32 The Board interpreted Catholic Bishop . in Bishop Ford Central Catholic High School, 243 NLRB 49 (1979), enf. denied 623 F.2d 818 (2d Cir. 1980). In that case, where a union represented a unit of lay faculty members, the Board exercised its jurisdic- tion after concluding that Bishop Ford Central was not a "church-operated" school within the meaning of Catholic Bishop. The Board noted that the schools in Catholic Bishop were operated either by the Archbishop of Chicago 'or the Diocese of Ft. Wayne-South Bend . In contrast, the Board empha- sized, the operation of Bishop Ford Central had been transferred from a corporation organized by the Roman Catholic Diocese of Brooklyn to an in- dependent lay board of trustees. The Board noted that the Diocese did not control the operation of the school, did not exercise influence over hiring and policymaking decisions, and had no representa- tives' on the board of trustees. The Board conclud- ed that the 'school was "an entity separate and dis- tinct from the church," -that there would be, no danger of entanglement by asserting jurisdiction, and that there was "no special church-teacher em- ployment relationship" which the Supreme Court had identified in Catholic Bishop as giving rise to first amendment questions.33 The Board found in essence that the school was not "church-operated" because it was not directly operated by a religious organization. The Board therefore concluded that its assertion of jurisdiction would not raise "serious constitutional questions" within the meaning of Catholic Bishop.. After a careful review of this issue, we have decided to overrule Bishop Ford Central Catholic High, School because-we have concluded that it places an overly restrictive interpretation on Catholic Bishop. Although the Court in Catholic Bishop often used the term "church-operated schools," its analysis did not focus on the schools' direct affiliation with reli- gious organizations. On the contrary, the Court's conclusion that "serious constitutional questions" would be raised was grounded in its analysis of the purpose of the school, the role of the teacher in ef- fectuating that purpose, and the potential effects of the Board's exercise of jurisdiction. We first note that the Court's analysis repeatedly emphasized a school's religious purpose rather than its affiliation with religious organizations. The Court observed that parochial schools involve 32 Id. at 507. 32 243 NLRB at 50-51 In NLRB v. Bishop Ford Central Catholic High School, supra, the United States Court of Appeals for the Second Circuit reversed the'Board's decision and concluded that Catholic Bishop preclud- ed the Board from exercising jurisdiction. JEWISH DAY SCHOOL OF GREATER WASHINGTON "substantial religious activity and purpose,"34 that church-related schools have a "substantial religious character,"35 and that "the raison d'etre of parochi- al schools is the propagation of a religious faith."36 The Court also referred to the "religious mission" of a school in discussing both the ' impact of the Board's unfair labor practice proceedings37 and the inability of Government to avoid entanglement even when motivated by "good intentions."38 In light of this discussion, we think it reasonable to infer that the Court simply intended the term "church-operated schools" to be a shorthand de- scription of schools whose purpose and function in substantial part are to propagate a religious faith. We note in this connection that a school's affili- ation with a religious organization may be one factor to consider in determining its purpose, but nowhere did the Court indicate that a school's reli- gious purpose ends with the severance of that affili- ation.39 The Court's analysis also focused on the teach- er's role in effectuating a school's religious pur- pose. We note the Court's emphasis on "the critical and unique role of the teacher in fulfilling the mis- sion of a church-operated school, 1140 and its recog- nition that the teacher's "key role" was "the predi- cate" for its holdings in cases involving aid to pa- rochial schools.41 The Court also reaffirmed its statement that a teacher in such a school poses a danger to "the separation of the, religious from the purely secular aspects of pre-college education."42 The Court further stated that a teacher's "conflict of functions inheres in the situation,"43 thereby suggesting that its observations are applicable in virtually all cases involving teachers in schools Whose purpose and function in substantial part is the propagation of a religious faith. As we read Catholic Bishop, the Court further concluded that the source of the significant risk of constitutional infringement is the potential impact of the Board's processes on the relationship be- tween school and teacher. In this connection, the Court specifically observed that the Board would inject itself into disputes concerning the motive behind a school's conduct and the subjects affect- 34 440 U.S. at 503, quoting 403 U.S at 616 35 Id. at 503, quoting 403 U.S. at 616. 36 Id. at 503, quoting 403 U.S. at 628. 87 Id. at 502. s Ibid. a9 We note that in NLRB v. Bishop Ford Central Catholic High School, supra, the Second Circuit found that "the religious mission of Ford Cen- tral was not terminated by its severance from the Diocese." 623 F.2d at 822. 4° 440 U.S at 501 41 Ibid. 42 Id . at 501 , quoting 403 U S. at 617. 411 Id at 501, quoting 403 U.S. at 617. 761 ing teachers about which a school must bargain.44 It also emphasized that the "church-teacher rela- tionship in a church-operated school differs from the employment relationship in a public or other nonreligious school."45 In view of the foregoing considerations, we overrule Bishop Ford Central Catholic High School, and we conclude that Catho- lic Bishop precludes the Board from exercising its jurisdiction where a union seeks to represent46 a unit of teachers in a school whose purpose and function in substantial47 part are to propagate a re- ligious faith.48 Applying our interpretation of 'Catholic Bishop to the instant case, we find abundant evidence that the Employer's purpose and function in substantial part is the propagation of a religious faith. As noted above, its articles of incorporation state that among its central aims are to teach religious sub- jects "in accordance with the principles of the Jewish faith with the purpose of giving each stu- dent a thorough Jewish education," and to estab- lish a synagogue "for religious services in the Jewish faith." The Employer's recruitment manual indicates that each child is encouraged "to identify with the Jewish people," a statement , corroborated by Fellner's testimony that the school is designed to encourage a child to' "choose an intense Judaic identity" upon reaching adulthood. Fellner also tes- tified that the education committee seeks to pro- mote "an intense Jewish religious education." We especially emphasize that these principles are effectuated by the substantial suffusion of religion into the curriculum.49 Religious instruction is man- datory at all grade levels, and the Judaic studies program encompasses an array of courses, includ- ing instruction in the Hebrew language, the Bible, Rabbinic literature, and Jewish history, life, and 44 Id . at 502-503. 45 Id . at 504. 46 Although this casShas arisen in a representation context, we think it, clear that Catholi Bishop would also apply in cases where teachers are alleged to be the object of unfair labor practices. 47 We have utilized the word "substantial" in light of the Supreme Court's recognition that parochial schools involve "substantial" religious activity and purpose and "substantial" religious character . 44D U.S. at 503, quoting 403 U S . at 616. In this connection we are mindful of the Second Circuit's statement that "there may be an issue in some cases as to how much religious orientation is required to characterize a school as religious." 623 F 2d at 823. 48 Our decision is limited to teachers in educational institutions whose purpose and function in substantial part is the propagation of a religious faith. We need not consider here whether the Board 's exercise of jurisdic- tion with respect to other employee classifications in such institutions would raise serious constitutional questions 49 We note in NLRB v. Bishop Ford Central Catholic High School, 623 F.2d at 823, the Second Circuit stressed the importance of the religious nature of the curriculum- It is the suffusion of religion into the curriculum and the mandate of the faculty to infuse the students with the religious values of a reli- gious creed which create the conflict with the Religion Clauses 762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD law. A child devotes 40 percent of his school day to religious study, and there is evidence that the Employer, as a policy matter promotes the integra- tion of the Judaic studies and general studies pro- grams. The Employer's religious purpose is also- highlighted_by its mandatory morning prayer serv- ices, its adherence to Jewish dietary laws, and its attempt to observe at least some traditional Jewish dress restrictions. 50 In light of all of the above, we find that our as- sertion of jurisdiction here would create the same significant risk of constitutional infringement that the Supreme Court foresaw in Catholic Bishop. Consequently, we fmd that we are precluded from asserting jurisdiction, and we shall dismiss the peti- tion. ORDER The' petition is dismissed. MEMBER JOHANSEN, dissenting. I do not agree with my colleagues' extension of Catholic Bishop, 440 U.S. 490 (1979), to a school operated by a predominantly lay board of directors and a lay administration. The Jewish Day School is a nonprofit corporation founded under the auspices of the United Jewish Appeal to respond to the needs of the Jewish community in Washington, D.C. Eligibility for service on the board of direc- tors is limited only by the requirement that 10 members of the board of governors must be "active in community affairs, including the United Jewish Appeal and the Board of Jewish Education." Eligi- soIn view of the abundant evidence of the Employer's religious pur- pose, we find it unnecessary to consider the Employer's ties to the UJAF and other Jewish community organizations. bility for service on the curriculum committee is circumscribed only by the guideline in the corpo- rate bylaws that members "generally shall include religious and secular educators who are profession- ally trained, and other individuals experienced in education." A very small minority of the board of directors and the curriculum committee are rabbis, and there are no clergy-administrators. Contrary to my colleagues, I am unable to con- clude that the reliance of the Court in Catholic Bishop on the critical role of teachers, and : its em- phasis on the importance of the religious mission of the school, can be divorced from the Court's awareness that the schools at issue were operated by a religious institution. The Court posed the issue before it as whether teachers "in schools' operated by a church" are subject to Board jurisdiction. Id. at 491. It 'found- the danger of constitutional in- fringement in the possibility .of Board inquiry into the good faith of "clergy-administrators." Id. at 502. Finally, the Court summarized the factual un- derpinning of its conclusion that serious first amendment 'questions could arise from Board juris- diction by stressing that the "church-teacher" rela- tionship in a church-operated school differs from the employment relationship in public or other nonreligious' schools. Id. at 504. In my view, the extreme sensitivity the Court ex- hibited to first amendment concerns in Catholic Bishop sprang from the essential fact that the- schools were operated by the church itself. Here, the record does not support a finding that Jewish Day School is operated by a religious institution. Accordingly, I would not find Catholic" Bishop con- trolling, and would assert jurisdiction in this case.