Nazareth Regional High School

National Labor Relations Board - Board Decisions

Apr 29, 1987

283 N.L.R.B. 763 (N.L.R.B. 1987)

NAZARETH REGIONAL HIGH SCHOOL
Nazareth Regional High School and Lay Faculty
Association , Local 1261 , American Federation
of Teachers, AFL-CIO. Cases 29-CA-9978,
29-CA-9978-2, and 29-CA-10012
29 April 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 21 May 1985 Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief to the Board.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge concluded that because the Respond-
ent is operated by an independent, predominantly
lay board of trustees, over which the Diocese of
Brooklyn has virtually no control, the Board
should assert jurisdiction over the Respondent
based on the Board's decision in Roman Catholic
Diocese of Brooklyn, 243 NLRB 49 (1979), enf.
denied sub nom. Bishop Ford Central Catholic High
School, 623 F.2d 818 (2d Cir. 1980), cert. denied
450 U.S. 996 (1981). We disagree with the judge
for the following reasons.
The `facts, as set out more fully by the judge, in-
clude the following. The Respondent's predecessor,
Nazareth High School, was one of nine high
schools - operated by the Roman Catholic Diocese
of Brooklyn until about 1971.1 In 1972, because of
rising costs, the Brooklyn Diocese organized the
Henry M. Hald High School 'Association as an
educational corporation for the purpose of operat-
ing the diocesan high schools. The diocese contin-
ued to own and control the schools, and the
Bishop of Brooklyn and other churchmen of the di-
ocese were trustees of the Hald Association.
On 16 August 1974 title to the Nazareth High
School property was transferred to, a newly formed
independent educational corporation, Nazareth Re-
gional High School (the Respondent), which was
to operate Nazareth as a regional high school. The
Respondent was granted the property to have and
' The frill-tune permanent lay teachers at the nine schools have been
represented by the Union since 1966 In Roman Catholic Diocese of Brook-
lyn, 222 NLRB 1052 (1976), enfd 535 F.2d 1387 (2d Cir. 1976), the
Board found that the respondent 's predecessor violated Sec. 8(a)(5) and
(1) by refusing to bargain with the union and violated Sec. 8(a)(3) and (1)
by refusing to hire an individual for discriminatory reasons
763
to hold so long as it "continues the operation of a
Roman Catholic high school ... upon the cessa-
tion of which, title and interest ... shall revert to
the [diocese]."
The Respondent derives most of its operating
funds from tuition; it receives no funds from the di-
ocese. The Respondent's policies are set by a 15-
member board of trustees, the majority of whom
are lay persons whose children attend or have at-
tended the school. At the time of the hearing, two
board members were members of Catholic religious
orders: the Respondent's principal, who is a Xave-
rian brother, and a Franciscan brother. Generally,
new board members are nominated and voted on
by current board members. The Bishop of Brook-
lyn, however, can appoint one or two board mem-
bers as his observers. The Respondent's principal
reports to the board.
The Respondent does not require its students to
be Catholic, although the Respondent's principal
"guessed" that 75 percent of the students are
Catholic. The Respondent's principal also
"guessed" that over 90 percent of the faculty are
Catholic.2 Only 4 of the approximately 65 faculty
members are members of religious orders, including
the principal and an assistant principal. The Re-
spondent's principal has the responsibility for
hiring and firing the faculty, and he does so with-
out consulting with the Bishop, except when hiring
a priest. When hiring faculty, the principal asks
candidates if they are willing to 'teach, Catholic
doctrine.
Students are required to take a religion course in
each of -their 4 school years. Students study the
Old Testament in their first year; the New Testa-
ment in their second year; morality in their third
year; and marriage in their fourth' year, all with an
emphasis on traditional Catholic views. Although
the Respondent's religion department is composed
entirely of lay teachers, the Respondent's principal
testified that he depends an the lay teachers to
transmit the values of the Catholic Church to the-
students. Moreover, the principal testified that
teachers who teach courses other than religion also
have a responsibility to impart and develop Catho-
lic moral values; for example, when sex is taught in
a biology class or a health class, the teacher should
also discuss the moral aspects of'sex.
The Respondent's faculty handbook states that it
is "a private Catholic preparatory' school ]which,
in] emphasizing the traditional study of arts and
sciences, defines itself in the attempt to transmit the
teachings of Jesus Christ and His Church." The
z The judge incorrectly stated that the Respondent estimated that 70
percent of the faculty are Catholic.
283 NLRB No. 116
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent's student, handbook states that the stu-
dents "belong to a Christian community and .. .
are expected to be a sign of the values which Jesus
taught."
The outward indicia that the Respondent is a
Catholic school include the fact that there is a cru-
cifix,in each classroom; mass is celebrated daily in
the school's third-floor chapel; each day one of the
religion classes is_ assigned to attend and participate
in the mass; meat is not served on Fridays during
Lent; and a prayer is read over the public address
system, each morning. Secondary indicia that the
Respondent is a Catholic- school include its partici-
pation, in an athletic league composed of diocesan
high schools; its being listed in various publications
of the Diocese of Brooklyn as a Catholic ' high
school; and its voluntary membership in the Na-
tional Catholic Educational Association.
The Respondent uses the services of the superin-
tendent of schools' of the Diocese of Brooklyn,
who is appointed by the Bishop, to keep abreast of
various-secular educational requirements and devel-
opments. The principals of the area Catholic high
schools, including the Respondent, meet with the
superintendent regularly, and they receive commu-,
nications from him approximately once a week.
The Respondent also refers the curriculum of the
religion department to a representative of the
Bishop for, review after the start of the school year,
although there is no formal requirement that it
must do so. Rather, the Respondent appears to be
continuing a practice used by its predecessor, the
diocesan Nazareth High School.
The Respondent employs a_ chaplain who is ap-
pointed by the diocese. The diocese directs the'Re-
spondent concerning what the chaplain, is to be
paid. The chaplain is part of the Respondent's
guidance department and is available to the stu-
dents for consultation on religious matters.
, The amended complaint in the instant case al-
leges that the Respondent violated ' Section 8(a)(3)
and (1) of the Act by discharging two employees
because of their strike activity and violated Section
8(a)(5) and (1) by having established the position of
debating coach and'having set the'salary and other
terms of that position without -having bargained
with the Union. The Respondent's answer, , as
amended at the hearing, admitted virtually all the
allegations of the amended complaint except for
the issue of whether the Board could assert juris-
diction over the Respondent.
In Roman Catholic Diocese of Brooklyn, 243
NLRB 49 (1979), enf. denied sub nom. Bishop Ford
Central Catholic High School,-623 F.2d 818 (2d Cir.
1980), cert. denied 450 U.S. 996 (1981), the Board
asserted jurisdiction over the respondent, finding
that it was not "church operated" within the mean-
ing_ of NLRB v. Catholic Bishop of Chicago; 440
U.S. 490 (1979).3 In -contrast to the schools in
Catholic Bishop, which were 'operated by either the
Archbishop of Chicago or the Diocese of Ft.
Wayne-South Bend, the school in Bishop Ford was
operated by an independent lay board of trustees
over which the diocese had no control. The dio-
cese in Bishop Ford had no representatives on the
board of trustees, did not control the school's oper-
ation, and did not exercise any influence over
hiring and policymaking decisions. The Board con-
cluded that the school was an entity separate and
distinct from the' Church, and that therefore juris-
diction should be asserted over the school.
The judge in the instant case noted that the pre-
hearing stipulation signed by the parties,-,as well as
the overall ' record, established that the facts and
issues presented here were virtually identical to
those in Bishop Ford, above. Following the Board's
decision in Bishop Ford, the judge concluded that
there was no impediment to the Board' s assertion
of jurisdiction in the instant case . The judge then
expressed his views about the positions of the par=
ties in this case. lie found, in sum, that jurisdiction
could be asserted because the Diocese of Brooklyn
did not fund or control the Respondent, and be-
cause there was no evidence that the alleged unfair
labor practices affected the rights guaranteed by
the religion clausess of the U.S. Constitution.
The Board's decision, issued this day, in Jewish
Day School of Greater Washington, 283 NLRB 757
(1987), involved, a school that, like the schools in
Bishop Ford and the instant case, was operated by a
predominantly lay board of directors. , In Jewish
Day School, the Board overruled, its decision in
Bishop Ford, finding that Bishop Ford interpreted
Catholic Bishop in, an overly restrictive manner by
holding that a school that was not directly operat-
ed by a religious organization was not "church- op-
erated." The Board in Jewish Day School explained
that the analysis in Catholic Bishop did not focus on
a school's direct affiliation with religious organiza-
tions, but rather focused on a school's religious
purpose, the teacher's role in effectuating that pur-
pose, and the potential effects of the Board's exer-
cise of jurisdiction. The Board concluded, that
8 In Catholic Bishop,, the Supreme Court held that teachers in- church-
operated schools were not within the Board's jurisdiction because the
Board's exercise of jurisdiction in such a situation "would give rise to se-
rious constitutional questions ," 440 U .S. at 501, by potentially interfering
with the school's religious mission and character. The Court found that
church-operated schools involved "substantial religious activity and pur-
pose" and that the "substantial religious character of these church-related
schools gives rise to the entangling church-state relationships of the kind
the Religion clauses sought to avoid." Id. at 503, quoting Lemon v. Kurtz-
man, 403 U.S. 602 (1971)
NAZARETH REGIONAL HIGH SCHOOL
Catholic Bishop precludes the Board from exercis-
ing jurisdiction when a union seeks to represent a
unit of 'teachers in a school whose "purpose and
function in substantial part are to propagate a reli-
gious faith." Jewish Day School, supra at 761. Ap-
plying this standard, the Board held that it was
precluded from - asserting jurisdiction over the
Jewish Day School, and it accordingly dismissed
the election petition filed by the Union.
We find that Jewish Day School, which overruled
the Board's decision in Bishop Ford and thereby
eliminated the underpinnings of the judge's deci-
sion in the instant case, 4 controls our decision here.
As in Jewish Day School, we find that the Respond-
ent's purpose and function in substantial part'are to
propagate a religious faith. As noted above, the Re-
spondent defines itself in its faculty handbook by
its "attempt to transmit the teachings of Jesus
Christ and His Church," and in ,its student hand-
book states that students are "expected -to be a sign
of the values which Jesus taught." The Respond-
ent's principal asks applicants for teaching positions,
if they are willing to teach Catholic doctrine.
Teachers of both religion and nonreligion courses
are expected to impart the values of the Catholic
Church to the students. Furthermore, religion'
classes are mandatory at all grade levels. The Re-
spondent's religious purpose is also highlighted by
the fact that mass is celebrated daily in the school's
third-floor chapel, that each day a religion class is
assigned to attend and participate in that mass, and
that a prayer is read over the public address system
each morning. Thus, we find applicable here the
following statement by the Second Circuit in
Bishop Ford:
It is, the suffusion of religion into the, curricu-
lum 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 and not the vesting of legal
title or the responsibility of operation. [623
F.2d at 823.]
Moreover, the physical plant of,the Respondent is
subject to a right of reverter to the diocese, condi-
tioned on the Respondent's continued operation as
a Catholic school. ,5
In view of the foregoing, we find that our asser-
tion of jurisdiction here would create the same sig-
nificant risk of constitutional infringement that the
'i As noted above, the parties stipulated that the facts and issues in the
instant case were virtually identical to those in Bcrhop Ford '
5 This right of reverter is the same as that used by the diocese in
Brehop Ford, which prompted the Second Circuit to state that the school
was "only conditionally separated from the Diocese and the condition
imposed is its continuing allegiance and loyalty to the Church." 623 F.2d
at 824.
765
Supreme Court foresaw in Catholic Bishop. Accord-
ingly, we conclude that the Board is precluded
from asserting jurisdiction, and we shall dismiss the
complaint.
ORDER
The complaint is dismissed.
Elliot J. Mandel, Esq., for the General Counsel.
Kevin J. McGill Esq. (Clifton, Budd, Burke & DeMaria),
of New York, New York, for Nazareth Regional High
School.
Robert M. Gordon, Esq. (Gordon & Librie), of New York,
New York, for Lay Faculty Association, Local 1261,
American Federation of Teachers, AFL-CIO.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
only issues raised by the pleadings, as amended at the
hearing, are whether or not Nazareth Regional High
School (Respondent) is an employer within the meaning
of Section 2(6) and (7) of the National Labor Relations
Board (the Act), and whether assertion of the Board's ju-
risdiction over Respondent would violate the religion
clauses of the first amendment to the Constitution of the
United States.
The consolidated complaint in these cases, as amended
at the hearing, alleges that Respondent is an employer
within the meaning of Section 2(6) and (7) of the Act
and that Respondent has violated Section 8(a)(1), (3), and
(5) of the Act. In particular, Respondent is alleged to
have violated Section 8(a)(1) and (3) by discharging two
employees (and not reinstating them until the next day)
because they had been on strike and to have violated
Section 8(a)(1) and (5) by having established the position
of debating coach and set the salary and other terms of
employment therefor without having bargained collec-
tively thereon with Lay ' Faculty Association, Local
1261, American Federation of Teachers., AFL-CIO (the
Union).1
Respondent's answer, as amended at the hearing, ad-
mitted virtually all allegations of the amended complaint
but framed the jurisdictional issues set out above. '
The hearing was held before me on September 24 and
25, 1984.
On the entire record,2 including my olbservation of the
demeanor of the witnesses, and after full consideration of
,the briefs filed by the General Counsel and Respondent,
I make the following
' Other unfair labor practice allegations were withdrawn at the hear-
ing
2 After the hearing closed, Respondent filed a motion to supplement
the record to receive in evidence an affidavit of one of its witnesses. The
Union objected . Respondent's motion is denied . I note that A. Exh 1 al-
ready contains some of the data referred to in the affidavit annexed to
Respondent 's motion. The other matters in that affidavit cannot be con-
sidered newly discovered evidence and, in any event, would constitute
cumulative evidence that would not warrant a re opening of the hearing.
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
JURISDICTION
The facts set out below are contained in reported
Board decisions and in the transcript, including exhibits,
of the hearing before me. ,
A. Background
The Roman Catholic Diocese of Brooklyn encom-
passes the boroughs of Brooklyn and Queens in New
York. Up until about 1971, it operated nine diocesan
high schools. One of these was Nazareth High School.
Since 1966, the full-time permanent lay teachers at
those nine schools have been represented by the Union
for purposes of collective bargaining.
In 1971, the Bishop of Brooklyn, because of rising
costs, appointed a task force to make recommendations
concerning the future of those schools. The task force
recommended that "the Diocese withdraw completely
from the sponsorship of high schools by closing four of
them outright . . . others . . . to be offered to Religious
Communities who would assume full responsibility for
operating them and still other schools were to be turned
over to regional boards who would assume full fiscal re-
sponsibility." The Bishop adopted certain of those rec-
ommendations. As to Nazareth High School, he deter-
mined that it will continue as a diocesan high school as
its principal "agreed to [operate] the school without
asking for any diocesan subsidy [and that he would] ex-
plore the feasibility of establishing a board to assume full
responsibility."
In 1972, the Brooklyn Diocese organized the Henry
M. Hald High School Association as an educational cor-
poration, under the laws of the State of New York, for
the purpose of operating the diocesan high schools. The
Bishop and other churchmen of the Brooklyn Diocese
were ,the-trustees of the, Hald Association. The Diocese
owned the schools,and retained control over them.
The Hald Association entered into a collective-bar-
gaining agreement, with the, Union- covering "all full
time, permanent lay teachers employed in the member
schools of the Association."
One of the school members of the Hald Association
was Bishop Kearney High School. On September 13,
1973, proprietorship of that school was transferred to a
religious community, the Sisters of St. Joseph, That reli-
gious organization was held to be the successor to the
Hald Association and to have violated Section 8(a)(1)
and (5) of the Act by having failed and refused to recog-
nize the Union as bargaining agent for its' lay faculty.
The General Counsel had contended that the Diocese,
the Hald Association, and the Sisters of St. Joseph were
all alter egos of each other. The Board held that, while
the Diocese and the Hald Association were alter egos,
the Sisters of ' St. Joseph exercised sufficient independ-
ence in operating the school to obviate the operation 'of
the alter ego doctrine as to them but they were found to
be Hald's successor, as noted above. The complaint was
dismissed as' to the Hald Association. Incidentally, the
Board noted that, in the absence of exceptions, it adopt-
ed pro forma the finding that the school's operations af-
fected commerce within the meaning of Section 2(2), (6),
and (7) of the Act and the conclusion that the Board
should assert jurisdiction. See Henry M. Hald High
School Assn., 213 NLRB 415 (1974). -
B. Respondent as Successor
By letter dated December 10, 1973, the Union was in-
formed that, effective August 31, 1974, operation and
control over Nazareth High School would be transferred
from the Hald Association "to a neighborhood communi-
ty group -which would operate Nazareth as a, regional
high school."
On August 16, 1974, title to the school property oper-
ated as Nazareth High School was transferred to a newly
formed educational corporation, Nazareth_ Regional High
School, for it to have and to hold so long as it "contin-
ues the operation of a Roman Catholic high school .. .
upon the cessation of which, title and interest . . . shall
revert to the [Diocese]."
The Union sought information concerning the planned
change. The Board found that the Hald Association and
also Respondent, as Hald's successor , had violated Sec-
tion 8(a)(1) and (5) by having refused to furnish the re-
quested data, Respondent also had violated Section
8(a)(1) and (3) of the Act. See Roman Catholic Diocese of
Brooklyn, 222 NLRB 1052 (1976).
C. The Bishop Ford Case
Another of the nine schools that were members of the
Hald Association was severed therefrom and was-operat-
ed thereafter under an independent board of trustees. Re-
specting that school, the Board found, that the new entity
was a successor to Hald as to lay faculty employed at
the school and that the separate refusals to bargain by
the Hald Association and by the school itself were each
violative of the Act. See Roman Catholic Diocese- of
Brooklyn, 236 NLRB 1 (1978). The cited case and a sup-
plemental decision thereon, discussed further below, are
referred to herein as the Bishop Ford case.
D. How the Jurisdictional Issue Was Raised
No issue had been raised in any of the foregoing cases
concerning the Board's jurisdiction over high schools op-
erated by the Brooklyn Diocese.
On March 21, 1979, the U.S. Supreme Court decided
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490. It af-
firmed the holding of the U.S. Court of Appeals for the
Seventh Circuit reported at 559 F.2d 1112 (1977). The
Seventh Circuit had determined that the ' Board's order
(requiring diocesan high schools to bargain collectively
with a certified labor organization ) infringed on the au-
thority of the bishops of the Roman Catholic Church to
maintain those parochial institutions in accordance with
ecclesiastical concern and the Board thereby had im-
properly curtailed the rights of the bishops under the re-
ligion clauses of the first amendment . The Seventh Cir-
cuit stated that, the very hearing on which the Board
predicated its findings was itself insensitive to the princi-
ples of the religion clauses. The Court also touched on
the "parochai"'issue, always a factor in first amendment
cases in this area and it considered other factors. The
NAZARETH REGIONAL HIGH SCHOOL
Seventh Circuit observed finally that a church that ,chose
to educate its people without financial aid from the Gov-
ernment should be equally free from the inhibitions of
the Act. The Supreme Court, in reviewing the Seventh
Circuit's opinion, consciously sought to avoid the consti-
tutional issues and stated that it would make a narrow in-
quiry as to whether the exercise of the Board's jurisdic-
tion over church-operated high schools presents a signifi-
cant risk that the religion clauses of the first amendment
will be infringed. The high schools involved in that case
were operated by the Roman Catholic Dioceses in Chi-
cago and in Fort Wayne-South Bend. The court stated
that it would first consider whether the exercise of the
Board's jurisdiction posed a significant risk of such an in-
fringement. It discussed various aspects of the case and
noted, among other things, that the Board's very process
of inquiry into the religious concerns of those schools
may impinge on rights protected by the religion clauses.
The Court then determined that serious first amendment
questions would follow the Board's assertion of jurisdic-
tion over church-operated schools. The Court next ob-
served that precedent required it to seek to avoid the
constitutional issue . On that premise, it proceeded to
focus its attention on whether Congress had intended
that the Board assert jurisdiction over church-operated
schools. After noting that Congress had not clearly ex-
pressed an affirmative intention that the Board assert
such jurisdiction, the Court concluded that it could
avoid the constitutional issue by affirming, the lower
court's conclusion that church-operated schools were
exempt from the Act's coverage.
The Board's order in the Bishop Ford case, discussed
above, was brought before the United States Court of
Appeals for the Second Circuit, which remanded the
case for the purpose, inter alia, of reconsidering the
Board's jurisdiction over Bishop Ford Central Catholic
High School. The Board reviewed the record in that
case and determined that Bishop Ford was being operat-
ed as a separate institution , was governed by °an inde-
pendent lay board of trustees over which the Brooklyn
Diocese had no control, and that Bishop Ford High
School "was clearly beyond the definition of a `church-
operated' school The Board held further that as Bishop
Ford High School "was an entity separate and distinct
from the church, [t]here would be no danger, in asserting
jurisdiction, of entanglement of the Government with the
church." The Board thus concluded that there was no
impediment to its asserting jurisdiction over Bishop Ford
High School and reaffirmed its original Decision and
Order regarding that respondent. See Roman Catholic
Diocese of Brooklyn, 243 NLRB 49 (1979).
The Board applied to the U.S. Court of Appeals,
Second Circuit, for enforcement of its supplemental deci-
sion in Bishop Ford. The court denied enforcement, hold-
ing that the Board lacked jurisdiction. The court there
reasoned that, if the Board were correct, then Bishop
Ford would be entitled to financial aid from the Govern-
ment. It observed that the commitment of the school's
faculty to religious values and their obligation to propa-
gate those values provide the risk of entanglement suffi-
cient to deprive the Board of jurisdiction. See NLRB v.
Bishop Ford Catholic High School, 623 F.2d 818 (2d Cir.
767
1980). The Union's petition for a writ of certiorari was
denied.3
E. The Instant Case
After the initial pleadings in this case were filed, Re-
spondent moved for summary judgment concerning juris-
diction. The parties entered into a factual stipulation and
joined in a request that the Board transfer the case di-
rectly to itself for consideration. On January 5, 1984, the
case was transferred to the Board. On April 26, 1984, the
Board denied Respondent's motion and remanded the
matter for a hearing; the Board noted that the stipulation
of facts presented to it did not specifically address Re-
spondent's funding or the relationship and control, if any,
over Respondent's board of trustees by the Diocese of
Brooklyn.
In the late -1960s, 34 members of the Brothers of St.
Francis Xavier (Xaverian brothers) were teaching at Re-
spondent's predecessor diocesan school, Nazareth High
School. At the time of the hearing in this case, there was
only one left, Respondent 's principal.
Respondent operates a 4-year school. It has 1080 Stu-
dents and 65 faculty. Tuition is $1940 annually including
expenses. Respondent derives virtually all of its operat-
ing moneys from tuition. The Diocese of Brooklyn does
not subsidize it with any monetary contribution. Re-
spondent's policies are set by a 15-member board of
trustees, most of whom are laypersons whose children
attend school there. Another board member is a non-
Catholic clergyman, several others are honorary mem-
bers, and the remaining are members of Roman Catholic
religious orders (i.e., Respondent's principal and a Fran-
ciscan brother). The Bishop of Brooklyn appoints two
board members as his observers.
Respondent's president has sole responsibility for
hiring all faculty and he reports to the independent
board of trustees. Respondent's brief notes that the presi-
dent can be removed by the Bishop of Brooklyn inas-
much as he is a member of a religious order. I do not
view this as an element of direct control of Respondent
by the Bishop inasmuch as the independent board of
trustees could designate a lay replacement. Realistically,
as Respondent's president testified, the emphasis in
recent years has been towards placing more and more re-
sponsibility and, correspondingly, authority, in the hands
of the laity whereas in the past, the clergy dominated.
Respondent does not require its students to be Catho-
lic nor are they asked if they are. Its president "guesses"
that 75 percent of the students are Catholic. The same
observation applies to faculty except that Respondent es-
timates that 70 percent of the faculty are Catholic.
The outward indicia that Respondent is 'a Catholic
school include the fact that a crucifix is in each of the
classrooms, that mass is celebrated at the school daily,
that one of the religion classes is assigned each day to
attend and participate in the daily mass, and that a
prayer, excerpted from the daily mass, is read over the
public address system at the start of each schoolday.
3 450 U.S. 996.
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
, Religion courses are required for all students on a 5-
day-a-week basis for each of the 4 school years. first year
students study the Old Testament; second year students
study the New Testament; third year students are given
courses in morality; and fourth year students study mar-
riage, all with emphasis on traditional Catholic views, in-
cluding those on abortion.
Respondent uses the services of the superintendent of
schools of the Diocese of Brooklyn to keep abreast of
various secular requirements and developments and
refers its religion department curriculum to the superin-
tendent's office for review. There does not appear to be
any formal requirement that Respondent must consult
with the Diocese office in that regard. Rather, Respond-
ent seems to be continuing- a practice used by its prede-
cessor, the diocesan Nazareth High School. In Respond-
ent's brief, there is the statement that the Diocese "over-
sees the religious curriculum at [Respondent]" and Re-
spondent premises that statement in part on the testimo-
ny of Respondent's principal that "he is under obligation
to participate with the Superintendent [of Schools for the
Diocese of Brooklyn]." Concerning those assertions, I
again note that there is no independent evidence that Re-
spondent is obligated to clear its curriculum in its reli-
gion department with the Diocesan office. Rather that
"obligation" is based , on continuing a prior practice and
on the personal sense of responsibility that guides Re-
spondent's president as a member of a Catholic religious
order. That is not to suggest that the obligation is less.
Indeed, as it would spring from conviction rather than a
written rule, the commitment may well be greater.
Secondary indicia as to Respondent's being a "Catho-
lic" school include its participation in athletic activities
in a league comprised of diocesan high schools, its being
listed in various publications of the Diocese of Brooklyn
as a Catholic high school, and its voluntary membership
in the National Catholic Educational Association.
Respondent has published a faculty handbook that
states that it is "a private Catholic preparatory school
[which, in] emphasizing the traditional study of the arts
and sciences, defines itself-in the attempt to transmit the
teachings of Jesus Christ and His Church."
The-handbook issued to Respondent's students informs
them that they -"belong to a Christian community and
... are expected to be a sign of the values which Jesus
taught."
- Respondent employs a chaplain whose services are ob-
tained from the Diocese. The chaplain is available to the
students for consultation in religious matters. The brief
submitted by Respondent states that "[u]ndoubtedly, this
chaplain would report to the Bishop [unsatisfactory
events]." That comment is based on speculation and I
give it no weight.
Finally, I note that the parties joined in a stipulation
that the jurisdictional facts in Bishop Ford Catholic High
School, supra, are substantially similar to those in the in-
stant case.
F. Recent Case Law Development
The General Counsel and Respondent had filed briefs
that carefully `analyzed the opinions in the cases dis-
cussed above and also in the cases cited and discussed in
those opinions. Subsequent to the filing of these briefs,
two cases were decided that bear on the jurisdictional
issues before me. These parties were given leave to, and
did, file supplemental briefs concerning those recent
cases.
In Universidad Central de Bayamon, 273 NLRB 1110
(1984), the Board rejected a contention that the universi-
ty was a religious institution exempt from the coverage
of the Act under the rationale of Catholic Bishop of Chi-
cago, supra. The Board, in rejecting that contention,
noted that the university is not owned, financed, or con-
trolled by the Roman Catholic Church or the Dominican
Order and that the university's academic mission is secu-
lar. The Board, however, did revise the scope of its
order to relieve the university from bargaining concern-
ing the terms and conditions of employment of its in-
structors in its CEDOC program as that program's pri-
mary objective remained the training of priests for the
ministry.
In a non-Board case decided this year by the U.S.
Court of Appeals for the Second Circuit, the court held
that the N.Y. State Labor Relations Board had jurisdic-
tion over diocesan high schools operated by the Roman
Catholic Archdiocese of New York. See Catholic High
School Assn. of the Archdiocese of New York v Edward R.
Culbert, 753 F.2d 1161 (2d Cir. 1985). The court noted
that delicate constitutional issues were presented in ad-
dressing the difficult and sensitive question left open by
the Supreme Court in` Catholic Bishop, supra. The same
constitutional questions considered by the Seventh Cir-
cuit in Catholic Bishop were analyzed. The Second Cir-
cuit "decline[d] to follow the Seventh Circuit down [the]
slippery slope" whereby the Seventh Circuit had found
that collective bargaining inevitably would enmesh the
State with the rights guaranteed under the religion
clauses of the first amendment. The Second Circuit
quoted the Fifth Circuit's statement, "that faculty mem-
bers are expected to serve as exemplars of practicing
Christians does not serve to make the terms and condi-
tions of their employment matters of church administra-
tion and thus purely of ecclesiatical concern."-The court
then weighed other factors. Ultimately, it concluded that
the State of New York had a compelling interest to pro-
tect and that the exercise of the state board's jurisdiction
is justified as it would have indirect and incidental effect
on decisions on parochial schools involving religious
issues . The court also noted that the National Labor Re-
lations Board did not have jurisdiction' of the diocesan
schools involved, in view of the holding in Catholic
Bishop.
G. Analysis'
The stipulation signed by the parties prior to the open-
ing of the hearing and the overall record in this case es-
tablish that the essential, facts and issues are virtually
identical with those considered by the Board in its sup-
plemental decision in Bishop Ford, supra (243 NLRB 49).
As I am obligated to follow Board precedent unless and
until it is reversed by the U.S. Supreme Court, I find, as
did the Board in the second Bishop Ford case, that there
is no impediment to the Board's assertion of jurisdiction
NAZARETH REGIONAL HIGH SCHOOL
over Respondent in the case before me. That deteiiiiina-
tion effectively decides the issues in this case, at least for
my purposes.' Still, I may- well have the obligation to
submit to the Board my views as to 'the respective posi-
tions of the parties, each of whom candidly acknowl-
edges that the merits of their respective claims will be
pressed on appeal. Further, the Board's remand order of
April 26, 1984, permits the parties to renew their conten-
tions . before me and, presumably , I am to make recom-
mendations thereon. I turn then to the consideration of
those matters.
There is no evidence that Respondent's board of trust-
ees has acted under the direction of the Diocese of
Brooklyn, nor is there evidence that the Diocese has
ever sought to influence the board of trustees by indirec-
tion. Further, Respondent has voluntarily availed itself of
the various services offered by the diocesan superintend-
ent of schools. In all matters involving labor relations
policies, Respondent has sole control. In financial mat-
ters, Respondent bears sole responsibility.
The evidence bearing directly on religious consider-
ations in this case are to some extent equivocal. Thus, al-
though school begins with a prayer and, while classes are
regularly scheduled to attend religious services with at-
tendance compulsory, Respondent consciously hires fac-
ulty and enrolls on a nonreligious basis . Its president is of
the opinion that the great majority of its faculty and its
students profess to be Roman Catholics.
I do not view it as my function to determine how "re-
ligious" or how "Catholic" Respondent's curriculum is,
especially as "there is some question whether the Board
has the authority to rule on the constitutionality of the
Act itself." See Mid American Health Services, 247 NLRB
752 (1980). Rather, my responsibility is discharged by
weighing the evidence as to the extent, if any, the
Brooklyn Diocese controls or funds Respondent and by
ascertaining obvious problem areas that have developed
or could develop by reason of the impact of labor rela-
tions policies on religious endeavors. On this last point, I
note that'the labor relations history of Respondent and
its predecessors discloses no obvious problems that im-
pacted adversely on the rights guaranteed by the religion
clauses. The unfair labor practice allegations in this case
and in prior cases, insofar as they affected first amend-
ment rights, could just as easily have involved any com-
mercial enterprise and could just as routinely be resolved
by the Board. I do not mean to minimize Respondent's
contention by making that observation. Rather, I do so
in order to underline what appears to be the crucial
aspect of this case insofar as the issue of the Board's ju-
risdiction ultimately is concerned.
The sole concern of the Board should be whether or
not its assertion of jurisdiction could adversely impact on
any rights Respondent may have under the religion
clauses. The answer, dictated by practical experience in
past cases involving Respondent and by the absence of
any evidential basis demonstrating an actual conflict, is
simply that there is no demonstrable impediment to the
assertion of jurisdiction. As a corollary, it may be fairly
said that, if any such impediment exists, it could readily
be removed simply by Respondent's surrendering its in-
dependence from the Diocese and then enveloping itself
769
with` the, protection accorded diocesan schools under
Catholic Bishop of Chicago.
I have alluded to matters that are the real areas of
concern in cases involving the religion clauses. From my
reading of those cases, it seems obvious that decisions of
the Courts, bearing on issues involving the Board's juris-
diction and rights guaranteed by those clauses, disclose
that the relevant and significant factors they take into ac-
count are much broader in scope than those considered
by the Board. This appears to be because the Courts ad-
dress a broader spectrum of policy issues than does the
Board, in evaluating the merits of a claim of undue gov.
ernmental interference with rights guaranteed by the reli-
gion clauses . Thus, as is obvious from a reading of the
cases discussed above, the Courts have (a) posed and
considered hypothetical conflicts, (b) expressed in vari-
ous ways no little concern that "parochaid" as it is
termed may be fostered by permitting the Board to assert
its jurisdiction, and (c) weighed matters outside the
Board's area of expertise.4 The Court decisions make it
clear that the Board's function is relatively limited. In
fact the Courts have observed that the Board's inquiry is
to be restricted to so limited an area that the., very in-
quiry into the jurisdictional issues does not unduly im-
pinge on the rights protected by the religion clauses. Ob-
viously, some inquiry is to be made. The proper scope of
the Board's inquiry should be limited to three areas: that
is, funding, control of labor relations policies, and wheth-
er the Board's inquiry itself would probably (not hypo-
thetically) impinge on the rights protected by the reli-
gion clauses. The test used by the Board in the second
Bishop Ford case properly limits the scope of the inquiry
for the Board purposes.
In short, jurisdiction should be asserted over Respond-
ent as the Diocese of Brooklyn does not fund or control
Respondent and as there is no evidence that the unfair
labor practice issues herein improperly impacted on the
rights guaranteed by the religion clauses.5 As I read Uni-
versidad Central de Bayamon, supra, the Board's holding
"that the University's academic mission is secular" is, in
context, a fording that the assertion of jurisdiction would
not impinge on the rights protected by the religion
clauses. I am hesitant about making an overall evaluation
as to Respondent's mission in the instant case, especially
as the Supreme Court in Catholic Bishop cautioned
against the prospect that such an inquiry might itself be
impermissible by reason of the first amendment. The
courts of appeals themselves do not hesitate to make
such evaluations but, for the reasons set forth above, the
4 Thus, in Archdiocese of New York, supra, the Second Circuit took into
account the contents of papal encyclicals ; the Seventh Circuit in Chicago
Bishops, supra, quoted secondary authority having to do with the "true
scripture . . . Americanism . . and [the making ofd loyal Roman Catho-
lics"; the Second Circuit in Bishop Ford II observed that "the tenets of
Roman Catholicism do not emanate from the Bishop of Brooklyn with all
deference to that prelate." The Board 's area of inquiry , in my view, is
not so expansive as to authorize it to weigh considerations such as those.
5 The opinion of the Second Circuit in Archdiocese of New York, supra,
contains , in my view , an exemplary approach in evaluating whether the
unfair labor practices in the instant case unduly impinged on first amend-
ment rights
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Courts seem to fulfill a broader role than that allocated
to the Board.
Respondent separately contends that the assertion of
jurisdiction , by 'the Board in this case would violate the
equal protection component of the Fifth amendment to
the Constitution of the United States . Respondent argues
that it would be denied , the protection accorded diocesan
schools,-, althoughAt is pervasively religious in-character,
solely because it is not owned by the hierarchy of the
Roman Catholic Church . The difficulty I have with this
argument is that it begs _ the very question to be an-
s-wered.. If the , U.S. Supreme , Court were to have held
that an independent school (operated by a lay board of
trustees to teach, inter alia , certain religious beliefs) is
not subject to the Board 's jurisdiction, Respondent may
well have a valid point . The precedent controlling my
decision , however, does not support Respondent's equal
protection view.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act and it will effectuate
the policies of the • Act to assert jurisdiction.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. By having discharged Steven Monroe and Arthur
Weyranch and by not reinstating them to full employ-
ment until the next day , because of their activities on
behalf of the Union, Respondent has violated Section
8(a)(1) and (3) of the Act.
4. By having failed and refused to bargain collectively
-with the Union as to the duties , salary, and other em-
ployment terms and conditions of its debating coach, Re-
spondent has violated Section 8 (a)(1) and (5) of the Act.
5. The violations described above in paragraphs 3 and
4 constitute unfair labor practices that affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent shall be ordered to make whole Steven
Monroe and Arthur Weyranch for all moneys they lost,
with interest as a result of their unlawful discharge; the
amounts to be calculated in accordance with F. W. - Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977).
[Recommended Order omitted from publication.]