Roman Catholic Diocese of Brooklyn

National Labor Relations Board - Board Decisions

Feb 24, 1976

222 N.L.R.B. 1052 (N.L.R.B. 1976)

1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roman Catholic Diocese of Brooklyn , Henry M. Hald
High School Association , Nazareth Regional High
School and Lay Faculty Association, Local 1261,
American Federation of Teachers, AFL-CIO.
Cases 29-CA-3872 and 29-CA-4158
February 24, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On August 26, 1975, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the Acting General Counsel,
hereafter called General Counsel, the Charging Par-
ty, and Respondents Hald and Nazareth filed excep-
tions and supporting briefs.'
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge recommended dis-
missal of the allegations that Respondent Diocese
and Respondent Hald violated Section 8(a)(5) by
withholding information requested by the Union
concerning the plan to change management at Na-
zareth Diocesan High School and its effect upon
teachers' employment conditions, and that Respon-
dent Nazareth violated Section 8(a)(5) by its refusal
to bargain with the Union. Central to the Adminis-
trative Law Judge's determination is his finding that
the evidence does not prove that the Union, in fact,
represented a majority of the nonsupervisory teach-
ers either in the spring of 1974 or on September 1,
1974. We find merit in the General Counsel's and the
Charging Party's exceptions to these findings.
The Union and Respondent Hald were parties to a
collective-bargaining agreement which expired Au-
gust 31, 1974.3By letter dated December 10, 1973, the
Union was informed that, effective August 31, 1974,
i Respondent Nazareth characterized its exceptions as cross-exceptions
and its supporting brief as in opposition to the General Counsel's exceptions
as well as to the Administrative Law Judge 's Decision
2 Respondent Hald and Respondent Nazareth have excepted to certain
credibility findings made by the Administrative Law Judge It is the Board's
established policy not to overrule an Administrative Law Judge 's resolu-
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C A. 3,
1951). We have carefully examined the record and find no basis for revers-
in§ his findings.
Respondent Hald, an educational corporation formed pursuant to the
operation and control of Nazareth Diocesan High
School would be transferred from Respondent Hald
and Respondent Diocese to a neighborhood commu-
nity group which would operate Nazareth as a re-
gional high school. Nazareth Regional was to-be in-
corporated under a board of trustees which would
assume responsibility for the school's operation. In-
formed of this plan to change the school's operation,
the Union, in January 1974 and several times there-
after, requested that Respondents Hald and Diocese
provide it with information concerning the planned
change .4 The requested information was never fur-
nished by either Respondent.
We agree with the Administrative Law Judge's
finding that Brother Medard Shea's deliberate refus-
als to provide the requested information "constitute
the clearest refusals to,bargain in good faith.... "
The Administrative Law Judge, however, also recom-
mends dismissal of all 8(a)(5) allegations "on the sole
ground" that there is inadequate evidence of the
Union's majority status. As the foregoing indicates,
the Union requested information concerning the pro-
posed closing of Nazareth Diocesan High School
while a contract was in effect between the Union and
Respondent Hald. The requested information was
clearly relevant to dealings between the Employer
and Union in its representative capacity. Neither Re-
spondent Hald nor Respondent Diocese offers a rea-
sonable basis for doubting the Union's majority sta-
tus at the times the information was requested. In
these circumstances, whether the Union, in fact, rep-
resented a majority of the teachers when the new Na-
zareth Regional High School began operation is irrel-
evant to Respondent Hald's contractual obligation to
bargain with the Union at the times in question. Con-
trary to the Administrative Law Judge, therefore, we
find that Respondent Hald's refusal to provide the
requested information violated Section 8(a(5) and (1)
of the Act.
laws of the State of New York, was organized in 1972 by the Roman Catho-
lic Diocese of Brooklyn, New York, to operate a system of private, nonpro-
fit Catholic high schools in Brooklyn and Queens, New York. Brother Me-
dard Shea, assistant superintendent for teacher personnel of both
Respondents Diocese and Hald, testified that Respondent Hald "is an asso-
ciation of the Diocesan high schools , which was incorporated separately
within the framework of the Catholic Schools office." The Diocese of
Brooklyn owns the schools of the Hald Association and retains control over
the schools through the Catholic Schools office Until August 31, 1974, the
Union and Respondent Hald were parties to a multischool contract which
covered nine schools, including Nazareth Diocesan High School. See also
Henry M Hald High School Association, The Sisters of St. Joseph, 213 NLRB
415 (1974).
4 According to the testimony of both Robert Gordon, president of the
Union, and Brother Medard Shea , assistant superintendent for teacher per-
sonnel of both Respondents Diocese and Hald, the Union sought informa-
tion concerning - what effect the school's proposed closing would have on
teachers; who presently owned and operated the school and who would own
and operate the school after August 31, 1974 , who was on the board of
trustees designated to operate the school ; and who would serve as chairman
of the board of trustees
222 NLRB No. 156
ROMAN CATHOLIC DIOCESE OF BROOKLYN 1053
Failing to receive the information requested from
Respondents Hald and Diocese, and having 'heard
that Thomas Keenan was chairman of the board of
trustees which would operate the new Nazareth Re-
gional High School, Robert Gordon, the union presi-
dent, then sent a letter to Keenan claiming union
representative status and requesting a meeting. When
Keenan did not respond, Gordon telephoned him on
March 25. Keenan acknowledged that he was chair-
man of the board and also told Gordon the Union
would hear from Nazareth's counsel whom Keenan
refused to identify. Keenan then stated: "I don't un-
derstand what you're worried about though. We in-
tend to rehire all of the people back. They will be
retained next year." Not hearing from Nazareth's
counsel, Gordon again wrote Keenan, on April 11, to
confirm their earlier conversation. By letter dated
April 30, 1974, Keenan replied, disavowing any
promise to rehire all current Nazareth teachers.'
There was no further formal communication be-
tween Gordon and Keenan until June 20, 1974, after
the hiring of-the new faculty at Nazareth Regional
when Gordon again demanded that Respondent Na-
zareth recognize and bargain with the Union. Re-
spondent Nazareth did not respond to the Union's
demand.
Consideration of Respondent Nazareth's legal
obligations in this case is twofold: (1) whether Re-
spondent Nazareth succeeded to Respondent Hald's
bargaining obligation on and after September 1,
1974, when it commenced operation of Nazareth Re-
gional High School; and (2) whether Respondent
Nazareth violated Section 8(a)(5) and (1) of the Act
by failing and refusing to bargain with the Union
concerning the fixing of initial terms and conditions
of employment. '
We agree with the Administrative Law Judge's
conclusion that Respondent Nazareth was clearly a
successor employer. Notwithstanding Keenan's disa-
vowal of an intention to rehire all of the teachers
employed by Respondent Hald, the new faculty at
Nazareth Regional consisted almost entirely of the
teaching complement previously working at Nazar-
eth Diocesan. Thus, of the total of 55 lay teachers 6
5 At the hearing, Keenan also denied the statement concerning his intent
to hire all the teachers. The Administrative Law Judge, however, did not
credit Keenan's denial. Rather, the Administrative Law Judge credited
Gordon's version. We affirm the Administrative Law Judge's crediting of
Gordon's version since the clear preponderance of all the relevant evidence
convinces as that his resolution is correct Standard Dry Wall Products, Inc.,
supra
6 The contract between the Union and the Henry M. Hald Association
which expired August 31, 1974, provided- "C. The terms of this Agreement
shall apply only to full-time, permanent lay teachers employed in the mem-
ber schools of the Association " The Board has held that lay teachers may
compose an appropriate unit. Henry M. Hald High School Association, The
who were employed by Respondent Nazareth when
it began operation of Nazareth Regional on Septem-
ber 1, 1974, 49 were previously employed by Respon-
dent Hald at Nazareth Diocesan.? Of the 49 teachers,
38 were nonsupervisors.1 Nor did Respondent Nazar-
eth effect any other substantial change in the school's
operation. Even Brother Matthew Burke, who had
served as principal of Nazareth Diocesan for 5 years,
was rehired by Respondent Nazareth. We therefore
conclude that Respondent Nazareth succeeded to
Respondent Hald's bargaining obligation on Septem-
ber 1, 1974, when it commenced operation of Nazar-
eth Regional and had "selected as its work force the
employees of -the previous employer to perform the
same task at the same place they had worked in the
past." 9
In making this determination, we disagree with the
Administrative Law Judge's assessment that the rec-
ord evidence fails to-establish-the Union's majority
status. It is well settled that a successor employer is
obligated to bargain with a union which is the exclu-
sive representative of the employees acquired from
the predecessor, absent a reasonably based doubt
that such union represents a majority of the employ-
ees.10 This is so whether such representative status is
evidenced by a Board certification or by recognition
and the existence of a collective-bargaining con-
tract."
Therefore, after expiration of its contract with Re-
spondent Hald on August 31, 1974, the Union was
entitled to a continuing presumption that it was the
exclusive representative of the employees, subject to
rebuttal only by a showing of reasonably based
Sisters of St. Joseph, supra, Seton Hill College, 201 NLRB 1026 (1973). Re-
spondent Nazareth , however, contends that the religious teachers must be
included in the appropriate bargaining unit On the basis of the entire rec-
ord and the decisions cited above , we conclude that in this case a unit of lay
teachers excluding religious teachers is appropriate for the purposes of col-
lective bargaining . We note, however, that of the eight religious teachers
employed by Respondent Nazareth on September l all were previously em-
ployed by Respondent Hald at Nazareth Diocesan.
It is interesting that Brother Matthew Burke, principal of Nazareth Di-
ocesan for 5 years prior to continuing as principal of Nazareth Regional
after September 1, 1974, testified that during his years as principal the an-
nual turnover rate among teachers at Nazareth Diocesan was 10 to 15 teach-
ers per year. Since Respondent Nazareth hired only six new teachers, it
appears that a higher percentage of teachers returned during the transfer of
the school from Respondents Hald and Diocese to Respondent Nazareth
than was ordinarily the case in prior years.
S Respondent Nazareth, the Union , and General Counsel stipulated to the
supervisory status of 11 teachers after September 1, 1974. Respondent Hald
did not take a position with respect to this stipulation `
9 N L.R B. v. Burns International Security Services, Inc, 406 U.S. 272, 278
(1972).
10N.L KB. v. Downtown Bakery Corp, 330 F.2d 921 (C.A. 6, 1964);
N L R B. v McFarland and S.R. Hullinger, d/b/a McFarland & Hullinger,
306 F.2d 219 (C.A. 10, 1962); Burlington Roadbuilders 149 NLRB 791
(1964); Maintenance, Incorporated, 148 NLRB 1299 (1964).
u The Board has rested its majority finding on a presently existing or
recently expired' contract. See, e.g., Tom-A-Hawk Transit, Inc., 174 NLRB
124 (1969); Michaud Bus Lines Inc, et at., 171 NLRB 193 (1968); Valleydale
Packers, Inc, of Bristol, 162 NLRB 1486 (1967). '
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doubt as to such status.12 Here, this continuing pre-
sumption of majority status in the successor unit 13 is
strengthened by evidence that in April 1974, while
the Union's contract with Respondent Hald was still
in effect, 26 14 of the 44 15 nonsupervisory teachers
eventually employed by Respondent Nazareth were
then paying dues to the Union in accordance with
the contract's checkoff authorization provision 16 It is
also clear that Respondent Nazareth began opera-
tion of Nazareth Regional with knowledge that the
Union had representative status as contractual bar-
gaining representative of the teachers employed by
Respondent Hald.17
Respondent Nazareth, however, contends that it
possessed a reasonably based doubt as to the Union's
majority status and therefore could withhold recogni-
tion. We disagree. Particularly significant, in our
view, is that Respondent Nazareth did not question
the Union's majority status either in response to the
Union's June 20, 1974, demand - for recognition 18
12 It is noteworthy that in N L.R B. v. Burns International Security Serv-
ices, Inc., supra, the Supreme Court rejected a rule which would require the
previously represented employees to reaffirm their support for the union
after transition to the successor so as to make the union's majority in the
new operation mathematically demonstrable
13 The successor unit, under Respondent Nazareth, although a division of
the multischool unit existing under Respondent Hald, is also appropriate
since it may be an independently appropriate unit. Henry M Hald High
School Association, The Sisters of St Joseph, supra,' Howard Johnson Compa-
ny, 198 NLRB 763 (1972), Solomn Johnsky, d/b/a Avenue Meat Center, 184
NLRB 826 (1970)
i4 Included among this number is James P Marione As indicated below,
we find, contrary to the Administrative Law Judge, that Respondent
Nazareth's refusal to hire him constituted a violation of Sec 8(a)(3) Not
included among this number are R Mistretta who was a union member
until July 29, 1974, and M. Jeffers who was a union member until approxi-
mately August 10, 1974.
15 Included among this number are the six teachers newly hired by Re-
spondent Nazareth.
16
At the hearing, J Cunningham, William Burke, and R Sme, three non-
supervisory teachers whose union dues were still checked off in April 1974,
testified that they did not attempt to resign from the Union because they
were under the impression that they could not do so until October. As the
Administrative Law Judge correctly notes, the Board generally does not
accept oral testimony of earlier intent in matters of this kind We see no
reason to deviate from this rule here and therefore reject the oral testimony
of these three teachers. We also note, however, that even assuming that
these three teachers were not on dues checkoff in April 1974, that would still
leave 23 of the 44 nonsupervisory teachers employed by Respondent Naza-
reth who were on dues checkoff -
17 Thomas Keenan, chairman of Respondent Nazareth's board of trus-
tees, testified to this effect.
1e It is apparent from the record that Respondent Nazareth had complet-
ed hiring of its faculty sometime during the summer of 1974. Aware of this
fact, on June 20, 1974, Gordon, the union president, wrote to Thomas Keen-
an demanding that Respondent Nazareth recognize and bargain with the
Union. Since the record is inconclusive, however, as to exactly when Re-
spondent Nazareth had-actuhlly completed hiring of a majority of its
predecessor's teachers, we find that Respondent Nazareth's obligation to
recognize and bargain with the Union did not mature until September 1,
1974, on which date Respondent Nazareth commenced operation of Naza-,
reth Regional We further find that the repeated refusals of both Respon-
dent Hald and Respondent Nazareth to deal with the Union warrant a
finding that a request for recognition and bargaining by the Union after
September 1, 1974, would have been futile See Henry M. Hold High School
Association, The Sisters of St Joseph, supra' Central American Airways, 204
NLRB 161 (1973), Roadway Express, Inc, 170 NLRB 1446, 1448 (1968)
or when Nazareth Regional opened in September
1974.19 Indeed, the issue of majority status was- not
raised until the hearing.
We note, moreover, that in now asserting its de-
fense of reasonably based doubt, Respondent Naza-
reth relies on, inter alia, a June 3, 1974, -letter ad-
dressed to the parents of Nazareth High School
students and signed by 40 teachers. The letter ex-
pressed the disaffection of those teachers with a prior
union communication which had criticized the new
board of trustees and the treatment teachers were
being accorded by school authorities. Rather than
support a serious claim for doubting majority status,
the June 3 letter merely expressed certain teachers'
disagreement with a particular - union action. Even
assuming, arguendo,- that the letter would otherwise
constitute proof supportive of a claim of reasonably
based doubt, such is-not-,the case here since the letter
was prepared by Supervisors Peter Holmes 20 and
James Serpico.21 and signatures were, solicited by
them and others-. Inasmuch as Holmes and Serpico
were supervisors, we find that Respondent Hald
thereby engaged in coercive conduct, interfering with
employees' Section 7 rights, in violation of Section
8(a)(1) of the Act. That Serpico was also -a union
member 22 does not enable him to avoid the proscrip-
tions of the Act.23 Nor is personal knowledge- of
either Principal Brother Matthew Burke or Assistant
Superintendent of Personnel Brother Medard Shea a
prerequisite for the finding that Respondent Hald
violated Section 8(a)(1) through the conduct of Su-
pervisors Serpico and Holmes 24 Crucial to our find-
ing is that the teacher employees were- aware that
19 Nor did Respondent Hald question the Union's majority status when it
refused to provide the information requested by the Union in January and
the spring of 1974
20 Peter Holmes, chairman of the social studies department at the time in
question, is an admitted supervisor.
21 On June 3, 1974, James Serpico was coordinator of the music depart-
ment While Respondent Nazareth, the Union, and General Counsel stipu-
lated to the supervisory status of Serpico in June 1974, Respondent Hald
contends that he was not a supervisor at that time. On the basis of the entire
record, particularly the testimony of Brother Matthew Burke concerning the
duties of department coordinators, we find, in agreement with the Adminis-
trative Law Judge, that on June 3, 1974, James Serpico was a supervisor
within the meaning of Sec. 2(11) of the Act
22 Holmes resigned from the Union on September 24, 1973
23 There is no allegation herein, however, of improper employer influence
in union affairs or domination of the Union by the school in violation of
Sec. 8(a)(2) of the Act
24 In this vein, we do note, however, the testimony of teacher Rose Vitelli
who indicated that at the time Serpico- approached her with the letter, she
had not been informed of her status for the next school year. Nevertheless,
Serpico congratulated her on being rehired (by Respondent Nazareth) and
then asked her to sign the letter. Vitelli testified further that she signed the
letter because she was afraid of not being rehired Especially since Serpico
was not Vitelli's supervisor and ordinarily should have had no information
as to Vitelli's employment status which was not available to Vitelli, we can
draw an inference from the foregoing that Brother Matthew Burke or some
other high-level supervisor-of-Respondent Hald did-have knowledge of the
June 3 letter and that such letter was part of the antiunion campaign.
ROMAN CATHOLIC DIOCESE OF BROOKLYN 1055
Supervisors Holmes and Serpico were engaged in so-
liciting signatures on the letter, and that they were
recommending the signing of the letter"
In light of the foregoing, we view the record evi-
dence as reaffirming rather than negating the pre-
sumption of continuing majority status to which the
Union is entitled. We therefore conclude, as men-
tioned, that Respondent Nazareth succeeded to Re-
spondent Hald's bargaining obligation on September
1, 1974, when it commenced operation of Nazareth
Regional.
Having made this determination, we must consider
whether Respondent Nazareth was obligated to bar-
gain with the Union over the fixing of initial terms
and conditions of employment. In N.L.R.B. v. Burns
International Security Services Inc., supra, the Su-
preme Court instructed that a successor employer is
ordinarily free to set initial terms on which it will hire
a predecessor's employees since prior to hiring a full
complement of employees it will not be clear whether
the union representing the predecessor's employees is
also the majority representative of the successor's
employees. The Court also indicated, however, that
"there will be instances in which it is perfectly clear
that the new employer plans to retain all of the em-
ployees in the unit and in which it will be appropriate
to have him initially consult with the employees' bar-
gaining representative before he fixes terms." 26 This
is such a case.
As noted, Respondent Nazareth's total teaching
complement of 55 included 49 former Hald teachers.
When Respondent Nazareth hired such a preponder-
ance of Respondent Hald's employees, Thomas
Keenan's expressed intention to retain the former
Hald teachers became a reality. Since this intention
to retain the former Hald teachers was expressed by
Thomas Keenan on March 25, 1974,27 it became ap-
propriate at such time that Respondent Nazareth
consult with the Union before imposing initial terms.
During March and April 1974, however, Keenan
sent a letter to those who were then the faculty mem-
bers of Nazareth Diocesan requesting an indication
of whether or not the teachers were interested in em-
ployment at the new Nazareth Regional School. En-
25 For similar reasons, we find that the filing of an RD petition by Super-
visor Peter Holmes on October 18, 1974, and the circulation of an antiunion
petition in support of the RD petition on October 16, 1974, by Supervisors
Peter Holmes, Charles Reiter, and Jane Hill constituted coercive conduct
violative of See. 8(a)(1). See Bancroft Mfg. Co., Inc., et al., 189 NLRB 619,
627-630 (1971); Suburban Homes Corporation, 173 NLRB 497, 500 (1968);
Big Ben Department Stores, Inc, 160 NLRB 1925, 1932-33 (1966), enfd. 396
F.2d 78, 81, 82 (C.A. 2, 1968).
26 Burns, supra at 294-295.
27 it is important to recall that on March 17, 1974, Robert Gordon wrote
to Keenan claiming union representative status and requesting a meeting
Keenan's voiced intent to retain the Hald teachers was made to Gordon
during a telephone call made by Gordon and stemming from Keenan's
failure to answer Gordon's letter.
closed with this letter was a copy of a standard em-
ployment agreement containing the terms and condi-
tions of employment at Nazareth Regional High
School. Certain responses to Keenan's letter were
deemed unacceptable 28 Those faculty members who
submitted unacceptable letters were sent another let-
ter signed by Keenan informing them that they must
indicate whether they wanted to be employed as a
new employee of Nazareth Regional which "has no
intention of being bound by the terms and conditions
of employment which prevailed with a former
school." During the beginning of August 1974, the
standard employment - agreement executed by the
board of trustees was forwarded to the faculty for
their signatures. The lay teachers were accordingly
offered employment for the school year commencing
on September 1, 1974, on the basis of these unilater-
ally imposed terms.
Having found that during -the period in question
the Union was entitled to recognition as the teachers'
bargaining agent in an appropriate unit, we further
conclude that Respondent Nazareth was obligated to
bargain with the Union concerning the standard em-
ployment agreement which was sent directly to the
teachers 29 Our holding is limited, in accordance with
the Burns decision, to ensuring that in situations such
as here the successor employer refrains from dealing
with unit employees individually concerning their fu-
ture working conditions until it has initially consult-
ed with the Union. Had good-faith bargaining efforts
failed to result in agreement as to the proposed
terms, Respondent Nazareth then could-have initiat-
ed its own terms as the opening terms and conditions
of employment upon the commencement of opera-
tions. In bypassing the Union and dealing directly
with the teachers concerning their future working
conditions, Respondent Nazareth violated Section
8(a)(5) and (1) of the Act 30 Accordingly, we shall
28 Principal Brother Matthew Burke testified that some of the responses
were considered unacceptable because they were not "individually typed."
Approximately 10 "came in in ditto form with the words, you know, union
form throughout and nothing but a signature at the bottom ." Brother Burke
also acknowledged that some of the unacceptable letters referred to the
Union's presence The only two unacceptable letters on the record, which
were put into evidence by Respondent Nazareth, expressed the interest of
two teachers in continuing employment at the new Nazareth Regional
school Both letters also stated "This letter of intent in no way prejudices
our position with regard to terms of employment, which has frequently been
communicated to you by our elected representatives."
29 That Brother Burke testified that the agreement containing the terms
and conditions of Nazareth Regional was sent to 50-55 of 65-70prospective
teachers does not affect our application of the Burns "plans to retain" caveat
herein . The central fact remains that Respondent Nazareth expressed its
intention to retain all of the former Hald teachers on March 25, 1974, and
subsequently hired almost its entire teaching complement from among these
teachers. Only six new teachers were hired. We note that at least one of the
former Hald teachers, James Mirrione , was refused an offer of employment
for unlawful reasons.
30 See, e g., Good Foods Manufacturing & Processing Corporation, Chicago
Continued
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order Respondent Nazareth to recognize and, upon
request, bargain with the Union regarding the fixing
of initial terms and conditions of employment after
March 25, 1974.
We also disagree with the Administrative Law
Judge's conclusion that the evidence is insufficient to
support the allegation that Respondent Nazareth vio-
lated Section 8(a)(3) by refusing to hire James Mir-
rione for discriminatory reasons. Mirrione was a
dues-paying union member on checkoff. It is undis-
puted that during the Union's 4-week strike in Sep-
tember 1973 Mirrione actively engaged in picketing
and the drafting and distribution of union litera-
ture.31 In November 1973, Mirrione was elected by
the Nazareth teachers as alternate to Union Delegate
Stephen Monroe.
That both Respondent Hald and Respondent Naz-
areth wanted to get rid of the Union is also apparent.
As expressed by the Administrative Law Judge re-
garding the school authorities' failure to bargain with
the Union in good faith, it is clear that Principal
Brother Burke's intent "was to take advantage of the
occasion of the changeover to get rid of the Union."
It is against this background of Respondent
Nazareth's union hostility and Mirrione's union ac-
tivity 32 that the events culminating in Respondent
Nazareth's refusal to hire Mirrione must be viewed.
Indicative of Respondent Nazareth's unlawful mo-
tivation in refusing to hire Mirrione are the events
surrounding his involvement in the mini-marathon
incident. During March 1974, a mini-marathon was
held to culminate the fundraising drive for the new
school Nazareth Regional. When Dan Sullivan,
teacher and track coach,33 asked Mirrione if he was
going to run in the marathon, Mirrione said no, ex-
plaining that "he felt that the school was not .. .
fulfilling certain obligations . . . towards [the teach-
ers] as a group, we should not go out of our way in
such a great way to help." When Principal Brother
Burke heard of this conversation, 34 he wrote Mirrione
Lamb Packers, Inc -Division, 200 NLRB 623 (1972), Howard Johnson Com-
pan^; supra.
3 The Administrative Law Judge stated: " [Mirnone] was a publicized
participant for the least"
32 Mirrione's unrebutted testimony indicates that prior to the strike he
had contact with Principal Brother Burke approximately 3 or 4 times a week
on a personal basis and once a month in formal meetings of the theology
department. After the strike, Munone only met with Brother Burke once
during the entire 1973-74 school year.
33 The Administrative Law Judge erroneously termed Sullivan a head of a
de®artment.
Sullivan testified that he never discussed this incident with Principal
Brother Burke. Apparently, Burke heard of the incident from an assistant
principal, Richard Picardi, who overheard the conversation between Sulli-
van and Mirrione . Picardi was called as a witness to prove that, Mirnone
spoke very harshly to Sullivan The Administrative Law Judge, however,
discounted Picardi's testimony since it "revealed extreme hate and anger"
and Picardi "was obviously driven by uncontrollable personal dislike of
Munone."
a letter, dated March 28, 1974, accusing him of be-
coming actively involved in encouraging certain
members of the faculty to share in his attitude of
nonsupport for Nazareth's current fundraising activi-
ties. The letter also stated:
It is totally immaterial to me what your individ-
ual opinion might be, what I will not tolerate in
this school, however, is a faculty member active-
ly campaigning to enlist the support of other fa-
culty members in not participating in an ex-
tremely important school concern. [Emphasis
supplied.]
It is apparent that Mirrione's refusal to participate in
the marathon stemmed from the school's unlawful
avoidance of its obligation to inform the teachers,
through their bargaining agent, of what effect the
changeover would have on the teachers' status. When
considered in this context, Brother Burke's response
to Mirrione's position further evidences the deliber-
ate steps which the school had taken to discourage
union activity.
In April 1974, when Mirrione, unlike most other
teachers, had not received Keenan' s letter enclosing
the standard employment agreement for Respondent
Nazareth, Mirrione wrote to Keenan. When he did
not get a reply, Mirrione, accompanied by Union
Delegate Monroe, went to see Principal Brother
Burke. Over the repeated protests of both Monroe
and Mirrione, Burke insisted upon seeing Mirrione
alone, without his union delegate present. When Mir-
rione asked Burke why he had not been informed of
his status for the coming year, Burke simply replied,
"The Board of Trustees has not offered you a posi-
tion." A letter from Keenan dated June 13, 1974,
merely indicated that there were no available posi-
tions for the school year. Neither Burke nor Keenan
ever gave Mirrione-any further reasons for his nonre-
newal.35
Nevertheless, in testifying as to the reasons for not
rehiring Mirrione, Brother Burke stated that during
Mirrione's first year of teaching at Nazareth, 1972-
73, Mirrione's work performance was generally un-
satisfactory. Burke also indicated that he had met
with Mirrione regarding problems such as immature
behavior, exhibitionism, and a rather crass disregard
for authority which, for example, would take the
form of dress.
Notwithstanding Burke's assertions concerning
Mirrione's first-year performance, Mirrione was re-
35 In October 1974, Mirrione was informed by Father Hicks , the chaplain,
that two positions were available at Nazareth Regional. After applying for
these positions, Mirrione received a single-line response from Brother
Burke , dated October 11, 1974, indicating there were no jobs available at
Nazareth. From Stephen Monroe's unrebutted testimony, however, it ap-
pears that at the time Mirrione informed him of the October I1 responses
the two vacancies at Nazareth were still available.
ROMAN CATHOLIC DIOCESE OF BROOKLYN 1057
hired for the 1973-74 school year. The only three
written evaluations of Mirrione's teaching perfor-
mance for that year are favorable 36 In addition,
Thomas Kennedy, who was then acting chairman of
the religion department, and Mirrione's immediate
supervisor, testified that, in discussing Mirrione's
performance for the 1972-73 school year with Broth-
er Burke, Burke stated that Mirrione had a certain
flair for teaching and that the students were respon-
sive to him. Mirrione himself testified that, in dis-
cussing his work performance for the first year with
Brother Burke, Burke indicated that he was happy
with Mirrione's performance.
Further testifying that after the September 1973
strike he became more convinced that rehiring Mir-
rione was a mistake, Burke added that he had intend-
ed to rectify his mistake by February or March 1974.
Burke also stated that in his opinion, Mirrione's be-
havior had changed from exhibitionism to "very vi-
cious, vulgar behavior in the school." In this regard,
Burke cited one incident in which Mirrione allegedly
threw open the door of Cecelia Socci's classroom and
shouted "scab." Ms. Socci, however, testified for Re-
spondent Nazareth that the door was open and Mir-
rione walked by, saying "scab" loudly. Ms. Socci,
moreover, indicated that she did not mention the in-
cident to Brother Burke until a casual conversation
in July 1974, several months after Burke had decided
not to rehire Mirrione. Brother Burke also expressed
concern with statements made by Mirrione at a
meeting with representatives of Catherine McCauley
High School regarding what should be taught in a
marriage course. Mirrione apparently emphasized
the reality of marriage while belittling the sacramen-
tal aspects of marriage. The record indicates, howev-
er, that this incident was not related to Brother Burke
until late March or April 1974,37 again subsequent to
Burke's decision not to rehire Mirrione. The record
indicates, moreover, that at no time during the 1973--
74 school year did Burke mention the foregoing in-
cidents to Mirrione or formally discuss them with
Mirrione's immediate supervisor 38 before deciding
not to rehire' Mirrione at the new school. In light of
the foregoing, we find Burke's testimony unpersua-
sive. Rather, we are of the view that Burke's asserted
reasons for not rehiring Mirrione constitute an after-
36 The first two evaluations, dated November 29 and December 1, 1972,
were prepared by Thomas I. Kennedy, who was then acting chairman of the
religion department. The third evaluation, dated February 5, 1973, was pre-
pared by Mr. R. Long All three evaluations were sent to Brother Burke and
the third was also sent to Mr Kennedy.
37 Stephen Bradley, a participant at the meeting, informed Burke of
Mirrione's comments.
38 Thomas Kennedy, acting chairman of the religion department Burke
testified that Kennedy's favorable recommendation of Mirnone after his
first year at Nazareth was instrumental in his decision to rehire Mirrione for
a second year.
the-fact attempt to muster justification for Mirrione's
nonrenewal.
As noted by the Administrative Law Judge, most
significant about Burke's testimony is the extent to
which he emphasizes that all the stories he heard
about Mirrione's strike participation, including alleg-
edly offensive conduct towards nonstrikers, had
nothing to do with the decision not to hire him. In
light of all the testimony about strike misbehavior,
Burke's explanation casts serious doubt upon his
credibility. Of probative value, in this regard, is
Burke's own testimony that it was "subsequent to the
strike that I became more convinced that I had made
a mistake by taking him back before the strike."
As mentioned, however, none of the incidents al-
legedly occurring after the strike was ever discussed
with either Mirrione or his immediate supervisor
prior to Mirrione's nonrenewal. When considered in
the context of Respondent Nazareth's other unfair
labor practices as well as its refusal to give Mirrione
any reasons for his nonrenewal, we conclude that the
nonrenewal of Mirrione was motivated in substantial
part by his union activities, in violation of Section
8(a)(3).39
THE REMEDY
Having found that Respondent Nazareth violated
Section 8(a)(5) and (1) of the Act by refusing to rec-
ognize and bargain with the Union after September
1, 1974, and by bypassing the Union and dealing di-
rectly with the teachers as individuals regarding the
fixing of initial terms and conditions of employment
after March 25, 1974, we shall order it to cease and
desist therefrom and to take certain affirmative ac-
tion in order to effectuate the policies of the Act. The
remedy should be fashioned with a view toward re-
storing the situation, as nearly as possible, to that
which would have prevailed absent 'the unfair labor
practices. We shall therefore order Respondent Naz-
areth to bargain with the Union regarding terms and
conditions of employment after March 25, 1974; and
to make restitution to employees for any losses suf-
fered as a result of Respondent Nazareth's unilateral
imposition of wages and terms and conditions of em-
ployment, with interest at 6 percent per annum.
We have also found that Respondent Hald violat-
ed Section 8(a)(5) and (1) of the Act by its refusal to
provide the Union with information concerning the
39 Respondent Nazareth contends that the allegation concerning the non-
renewal of James Mirrione is time-barred by the 6-month requirement of
Sec 10(b) of the Act. The charge alleging Respondent Nazareth's unlawful
conduct concerning James Mirrione was filed December 23, 1974. Although
Mirrione was notified of his nonrenewal on June 13, 1974, it is clear that this
nonrenewal was effective September 1, 1974, and the charge so alleges. We
therefore conclude that Respondent Nazareth 's assertion of a 10(b) defense
is without merit.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change in operation and control of Nazareth High
School. It is apparent that the information requested
by the Union has now become outdated and is there-
fore valueless relative to the Union's function as bar-
gaining representative. In our view, therefore, the
bargaining obligation imposed upon Respondent
Nazareth is appropriate to remedy the unlawful re-
fusal to bargain found against Respondent Hald 40
Accordingly, we shall not order an additional reme-
dy directed specifically to Respondent Hald's unlaw-
ful refusal to provide information.
We shall order Respondent Nazareth to reinstate
James Mirrione and make him whole for any earn-
ings lost as a result of Respondent Nazareth's unlaw-
ful action. Accordingly, we shall direct that Respon-
dent Nazareth pay him an amount of money equal to
what he would have earned from September 1, 1974,
had he been rehired to his former or a substantially
equivalent position, plus interest at 6 percent per an-
num in accordance with F. W. Woolworth Company,
90 NLRB 289 (1950), and Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, Naza-
reth Regional High School, Brooklyn, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain, collectively
with Lay Faculty Association, Local 1261, American
Federation of Teachers, AFL-CIO, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate bargaining unit:
All full-time permanent lay teachers employed
by Nazareth Regional High School, Brooklyn,
New York, excluding supervisors as defined in
the Act.
(b) Implementing wages, hours, and other terms
and conditions of employment without notifying
and bargaining with the Union.
(c) Refusing to hire employees for engaging in
union activities.
(d) Threatening to take retaliatory action against
its employees for purposes of stopping their union or
strike activity.
40 It is well settled that a successor employer may be obligated to remedy
the unfair labor practices of its predecessor See, e.g, Golden State Bottling
Company, Inc, formerly Pepsi-Cola Bottling Company of Sacramento v
N.LR B, 414 U .S. 168 (1973); Perma Vinyl Corporation, Dade Plastics Co,
etc, 164 NLRB 968 (1967), enfd. sub nom. United States Pipe & Foundry
Company [Perma Vinyl Corp, Dade Plastics CoI v. N.L.R B, 398 F.2d 544
(C.A. 5, 1968)
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Recognize and bargain collectively with said
labor organization as the exclusive bargaining repre-
sentative of the employees in the above-described
unit concerning wages, hours, and other terms and
conditions of employment.
(b) Give notice to and bargain with said labor or-
ganization before implementing any future changes
in the working conditions of said employees.
(c) Make restitution to the employees in the ap-
propriate unit for any wages and benefits which may
have been lost by virtue of its unilateral implementa-
tion of terms and conditions of employment in the
manner set forth in the portion of this Decision and
Order entitled "The Remedy."
(d) Offer James Mirrione immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privi-
leges, and make him whole for any earnings he lost,
plus interest, as a result of his not being rehired effec-
tive September 1, 1974.
(e) 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
other records necessary to analyze the amount of
wages and benefits,- if any, accruing to employees un-
der this Order, and to analyze the amount of back-
pay due under the terms of this Order.
(f) Post at its high school called Nazareth Region-
al High School in Brooklyn, New York, copies of the
attached notice marked "Appendix." 41 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 29, after being duly signed by its
authorized representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 29, in
writing, within 20 days from the date, of this Order,
what steps the Respondent has taken to comply here-
with.
41 In the event that this 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
ROMAN CATHOLIC DIOCESE OF BROOKLYN 1059
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United -States Government
WE WILL NOT refuse to recognize and bargain
collectively with Lay Faculty Association, Local
1261, American Federation of Teachers, AFL-
CIO, as the exclusive bargaining representative
of all full-time permanent lay teachers employed
in Nazareth Regional High School, Brooklyn,
New York, excluding supervisors as defined in
the Act. -
WE WILL NOT implement changes in wages or
other conditions of employment without notice
to and consultation with the Union.
WE WILL make restitution, with interest, for
any wages and benefits which may have been
lost by virtue of any unilateral changes in the
terms and working conditions of employment
which we made, as is required by the remedy
ordered by the National Labor Relations Board.
WE WILL NOT refuse to rehire employees be-
cause of their engaging in union activities.
WE WILL NOT threaten to take retaliatory ac-
tion against our employees in order to curb their
union or strike activities.
WE WILL offer James Mirrione immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or other
rights and privileges, and make him whole, with
interest, for any earnings he lost as a result of his
not being rehired effective September 1, 1974.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed in Section 7 of the
Act.
NAZARETH REGIONAL HIGH SCHOOL
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this consolidated proceeding was held on - June 2-5,
1975, at Brooklyn, New York City, on complaint of the
General Counsel against Roman Catholic Diocese of
Brooklyn, Henry M. Hald High School- Association, and
Nazareth Regional High School, all three here called Re-
spondents. The complaint issued on March 21, 1975, on
charges filed by Lay Faculty Association, Local 1261,
American Federation of Teachers, AFL-CIO, herein
called the Union. The principal issues presented are wheth-
er the three Respondents unlawfully refused to bargain
with the Union in violation of 8(a)(5) of the Act, whether
they violated Section 8(a)(1), and whether Nazareth High
School separately discriminated against one teacher in vio-
lation of Section 8(a)(3). Briefs were filed by the General
Counsel, by the Diocese and by Nazareth Regional High
School.
Upon the entire record, and from my observation of the
witnesses, I make the following: -
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
In prior Board decisions, on the basis of factual com-
plaint allegations similar to those set out in the complaint
herein, the Board found that Roman Catholic Diocese of
Brooklyn, here called the Diocese, and the Henry M. Hald
High School Association, herein called Hald, are integrat-
ed entities, alter egos in fact, and engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.I
The record here shows that Nazareth Regional High
School, called Nazareth Regional for convenience, also de-
nves gross revenues from tuition fees and other sources in
excess of $1 million annually, and purchases books and
other educational equipment valued in excess of $50,000
annually from out-of-state sources. Accordingly, I find that
all of three of the named Respondents are engaged in com-
merce within the meaning of the Act and that it will effec-
tuate the policies of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
I find that Lay Faculty Association , Local 1261, Ameri-
can Federation of Teachers , AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This case arose in consequence of the union activities of
the lay teachers in a parochial senior high called Nazareth
in Brooklyn, New York. For some years the school had
been operated directly by the Roman Catholic Diocese of
Brooklyn and the Hald Association jointly. On September
1, 1974, the end of the usual school year, direct operation
of the school was taken over by the other group-including
a board of trustees and other officials-and the name of
the school was changed to Nazareth Regional High School:
It is still a Catholic school, and because it is a religious
institution, it remains, of course, subject to ultimate control
of the Diocese and its regularly constituted authorities.
The teachers had for some years, since 1966, been repre-
sented- in collective bargaining by the Union, as an integral
component part of a larger single bargaining unit joining
the teachers of nine high schools operated by the Diocese
in the area under a single contract. The last contract under
that arrangement covered the period September 1, 1972, to
August 31, 1974. Aware of the plan to change the immedi-
i Henry M Hold High School Association, 213 NLRB 415 (1974); Henry
M Hold High School Association and Roman Catholic Diocese of Brooklyn,
216 NLRB No 94 (1975)
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate management and control of this one school , the Union
attempted to obtain recognition from Nazareth Regional
as bargaining agent for the lay teachers at that one school,
but failed. The refusal of Nazareth Regional to bargain
with the Union on this basis is called a violation of Section
8(a)(5) of the Act. There is also an allegation that Diocese,
and its alter ego Hald, violated the same section when dur-
ing the school year 1973-74, it withheld, despite the
Union's request , information concerning the plan to
change management and its necessary effect upon the em-
ployment conditions of the teachers. These are the princi-
pal charges of wrongdoing . There are also separate allega-
tions, charged to both Respondents, of individual acts of
coercion, in violation of Section 8(a)(1), committed by su-
pervisors, and one allegation of illegal discrimination-re-
fusal to hire-involving a single teacher, called a violation
of Section 8(a)(3).
The Respondents offer a number of defenses. The Dio-
cese says the Union never did explain what information it
wanted, the Diocese was not obligated to talk to the Union
at all because it was definitely going out of business, and
the Union was not a legitimate labor organization anyway.
Respondent Nazareth contends it never had anything to do
with the Union, it is a new and separate employer altogeth-
er, and, besides, it had basis for reasonable doubt on
whether the Union ever represented a majority of its em-
ployees when it did become an employer. This Respon-
dent, too, adds the additional grounds for defense that the
Union is not really a labor organization. The remaining
defenses are secondary to the main issues.
This is essentially a successorship case. When Nazareth
Regional started the school year in September 1974 it had
hired, and was employing, 57 of the 63 lay teachers who
during the previous year had worked directly for the Dio-
cese. It was therefore clearly the successor within the
Board's meaning of the phrase 2 Was it therefore obligated
to bargain with the Union? There was much dispute
throughout the hearing over whether the obligation to bar-
gain, assuming it ever came into being, matured after the
teachers started actual work for Nazareth Regional, or ear-
her, during the spring of the year, on the ground that Na-
zareth Regional had definitely decided then to employ the
bulk of the old teaching complement. But in every refusal-
to-bargain-or Section 8(a)(5)-case, an essential element
of proof is that which supports a finding that at the mo-
ment of improper refusal, whenever it occurred, the claim-
ing union in fact was authorized by a majority of the em-
ployees involved to bargain on their behalf. In this instance
that proof consists of the last union contract, still in effect
between 1973 and 1974; again and again the Board has
held that the last contract in effect immediately before a
successor takes over establishes a presumption that the
union represented a majority sufficient to support a proper
demand for continued recognition? And presumptions, of
course, are rebuttal, as the cases also say .4
2 N.L R B. v. Burns International Security Services, Inc., 406 U.S. 272
(1972).
3 Tom-A -Hawk Transit, Inc, 174 NLRB 124 (1969), enfd . 419 F 2d 1025
(C.A 7, 1969)
4 Celanese Corporation of America, 95 NLRB 664 (1951), Frito-Lay, Inc
151 NLRB 28 (1965).
Despite a confusing multiplicity of contentions in de-
fense by the two Respondents , some even inconsistent with
others, this question-is the record evidence sufficient to
prove majority authorization of the Union by the teachers
involved when Nazareth Regional became the successor-
is the heart issue of this case. What the General Counsel
and the Union want above all is an affirmative order com-
pelling Nazareth Regional to bargain with the Union now,
and what the Respondents seek most to avoid is that same
burden. This fundamental, threshold, and here determina-
tive question, remains the same regardless of how the vary-
ing defenses be viewed . And as is true of all cases started
with presumptive proof, all matters of record which bear a
logical relationship to the factual issue must in fairness be
considered. And finally, in such a situation, no out-of-con-
text selection of only certain pertinent factors can be per-
mitted to decide the question.
A. Preliminary Statement
Every unfair labor practice case involves a number of
component elements. Among such questions here are
whether the agents of the Diocese in fact refused the
Union's requests for necessary information, whether Re-
spondent Nazareth in fact had already decided very early
in the year 1974 to hire the bulk of the old teacher cadre, or
actually made the decision when it first put them to work
on September 1, whether the Union demanded recognition
of Nazareth Regional in the spring or only after the teach-
ers were individually directly told to report to work later,
etc. And, of course , because it is a refusal-to-bargain case,
there is the ever present question whether the Union, at the
time of demand and refusal-be it a demand only for in-
formation from the Diocese or for recognition from Naza-
reth Regional-in fact was authorized by a majority of the
employees it had a right to represent.
In this case , because of the particular circumstances of
the collective bargaining of the past , this last element is in
doubt. The proof of majority authorization consists essen-
tially of the existing contract, said to raise a presumption of
continuing majority status. The facts of record, taken as a
whole, prove a fatal weakness in that presumption, such as
to make moot many of 'the collateral and otherwise essen-
tial component elements of the case. It would be pointless
therefore to repeat these other facts in too great detail.
If majority status had been adequately proved, I would
find, on the basis of all the evidence , that the remaining
elements have been adequately established. The decision
by the Diocese to end its direct control of the school was
announced late in 1973. Robert Gordon, president of the
Union, then talked several times to Brother Medard Shea,
the Diocese's assistant superintendent of teachers, and
asked for specific information about the planned change of
arrangement for employment . Shea ignored the repeated
requests. At the hearing he explained his reason was be-
cause Gordon had not put his request in writing. But Shea
recalled the several oral requests and admitted that at the
first talk on the subject Gordon asked, "Who would be
operating them, who were members of the board of trus-
ROMAN CATHOLIC DIOCESE OF BROOKLYN 1061
tees, some other conditions probably or what other condi-
tions would relate to the school . A number of these I did
write at the time . . . I put these into writing...." To say
at the hearing his reason for withholding data was because
it was not requested in writing , made Medard Shea a very
unconvincing witness. His deliberate refusals constitute the
clearest refusals to bargain in good faith and he was the
man in charge of labor relations.
Gordon wrote to Burke, always the principal of the
school -and in direct charge of its teachers , again seeking
enlightenment. The only- answer he received again was
from Shea instead, who told Gordon to stay away from
Burke . Burke took the position during the hearing he was
not a Diocese agent because the Diocese had already de-
cided to call it quits later, but that he was also not the
agent of Nazareth Regional because that group had not yet
come into being. This is not what could be called good
faith bargaining by either a predecessor or a successor em-
ployer . That Burke's intent from the beginning was to take
advantage of the occasion - of the changeover to get rid of
the Union , regardless of whether it consisted of no more
than a surface transaction , is also clear . When the teachers
were invited to apply individually for jobs, he sent a num-
ber of their responses back to them as unacceptable, be-
cause, as he testified, they were not "individually typed
... some . . . came in in ditto form with the words, you
know, union form throughout and nothing but a signature
at the bottom." This was the principal admitting his an-
tiunion state of mind at the very beginning.
Gordon also wrote, on March 17, to a Mr. Thomas
Keenan, a private lawyer who was programmed to become
and did become chairman of a board of trustees charged
with a certain supervision over the school , claiming union
representative status and asking ' for a meeting . His letter
ignored, he telephoned on the 25th, and Keenan told him
the Union would hear from counsel for -Nazareth. When
Gordon asked who was the lawyer, Keenan refused to say,
but did tell Gordon not to worry because "We intend to
hire all of the people back . They will be retained next
year." Gordon followed this with several more letters to
Keenan, always repeating the request for a meeting, one
demand as late as June 20. The only reply he ever received
was a note saying again "the legal issues" were in the hands
of attorneys , and disavowing the statement that Nazareth
Regional always intended to hire the bulk of the teachers.
Keenan appeared at the hearing to deny the statement
about intending to hire all the teachers . In his unselfish
devotion to the interests of this school Mr. Keenan is un-
questionably motivated by commendable ideals, but on
this specific matter of whether he did say, as early as of
March 1974, that the school intended to rehire "all the
people," I do,not credit this denial. There is too much, both
in Keenan's total testimony and in the related facts of the'
case, to support Gordon's version against his. Were the
complaint otherwise proved I would find Nazareth Region-
al illegally refused to bargain as far back as March 1974.
All these facts notwithstanding, the question whether the
Union could be said to have in'fact been authorized by a
majority of the school's teachers at the critical time or
times remains an essential element of the case.
B. Proof by Presumption
As stated above, when the high school opened in Sep-
tember 1974 there were at work 57 of the 63 teachers who
had worked for the Diocese . It is also a stipulation of fact
that during the fall semester, September 1973 to January,
there were 63 lay teachers working at Nazareth ' and cov-
ered by the Union's multischool contract , and this total
included 10 supervisors , consisting of chairmen and coor-
dinators.
The Union called a strike in September 1973, and most
of the teachers walked the picket line, including chairmen
and coordinators. It lasted 4 weeks; after a week some
teachers started to return to work, but even by the time the
strike was settled only about 20 teachers were at work.
There developed a division of opinion among the teachers
both as to the merits of the strike and the advisability of
continued adherence to the Union. The contract contained
a dues-checkoff provision, the form of the checkoff author-
ization precisely spelled out and saying it was irrevocable
for an entire year. A number of teachers were thus on dues
checkoff status at the time of the strike; the record shows
clearly most, if not all of the authorizations were due as
dated not to expire until the end of the school year the
following September.
There are documentary exhibits received in evidence
showing that eight teachers-none of them supervisors-
told the Union, and the school authorities, they wished to
resign from the Union as early as September 1973, and to
have their dues' checkoff discontinued . These were Gal-
lagher, Canale, Wuestman, Bradley, Hill, Milazzo, O'Don-
nell, and Shafer . Apparently these attempted checkoff can-
cellations were timely, for the only checkoff record placed
in evidence is for the month of April 1974 and-their names
are not listed there.
There is a relationship between the foregoing figures and
the basic question of majority status. Precisely stated, the
presumption arising from the contract means the very exis-
tence of the contract is prima facie evidence that the Union
was throughout its life authorized to act 'as the bargaining
agent by more than half of the employees covered' by the
contract , said at the hearing to total about 400 at the time
of the events. In the fall semester of 1973 only 63 of these
teachers were working at Nazareth High School, and there-
fore covered by the multischool contract . From the fact,
accepted by presumption, that the Union was authorized
by more than half of the 400, does it follow that it was also
authorized by more than half of these 63? The Board has
accepted such a presumption upon a presumption, as it
were, where a single employer 'was separated from a mul-
tiemployer contract unit about to, expire, and where there
were not sufficient other related factors to upset the pre-
sumption . It would have to be conceded, however, that the
second presumption is a little weaker than the first upon
which it rests. Restated: The fact of dispersion of the con-
tract unit is a fact relevant to the validity of the presump-
tion in any given case.
Any majority status concept requires a concomitant
finding as to the related 100-percent figure. Here the
whole-albeit limited to the Nazareth lay faculty-starts
with 63. The supervisors must be included at the start, for
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is clear there were union adherents among the chairmen
and coordinators . Indeed they were enthusiastic supporters
of the strike , at the beginning anyway, and one was even
the union delegate for this school . Stephen Monroe, coor-
dinator of the business department, was elected delegate by
the entire faculty, and his position was comparable to that
of the chief of a local where many local units are covered
by a single contract . Monroe had also long been the elected
treasurer of the entire union , and attended bargaining ses-
sions when the contract was negotiated.5
This means that the presumption, now extended to this
one high school , indicates more than half of 63 wanted to
be represented by the Union during the 1973-74 academic
year. But majority status in refusal-to-bargain cases,refers
to majority in an appropriate unit , excluding, of course,
supervisors. The count of 100 percent here therefore really
starts with 53, after the 10 supervisors are excluded. Of the
teachers who made up the majority of 63, how many were
chairmen and coordinators? Again, restated : Does it fol-
low from the fact the Union presumptively was authorized
by more than half of the 63 that it was also authorized by
more than half of the particular 53 who now remain in the
count?- Maybe yes and maybe no. And now the presump-
tion is diluted twice-once from the multischool whole to
the single school and once from the 63 man - 100 percent to
the 53 teacher count. At what point is the presumption so
weakened by related factors that it can no longer be
deemed valid?
Among the -indicators of majority status at any given
moment, and it is ordinarily a persuasive one, is payment
of union dues , or action towards having union dues
checked off the payroll. The demand and refusal here real-
ly came during the very early part of the year 1974, and to
strengthen the presumption of continuing majority the
General Counsel placed into evidence a list of employees
for whom the school checked off dues for the month of
April. It shows 41 names, but some must be ignored entire-
ly because they were supervisors all the time.
Payment of union dues and checkoff have been evaluat-
ed in more than one light. The fact that employees do not
pay dues is not necessarily an indication they do not desire -
to be represented by the Union in collective bargaining. By
like reasoning compulsory payment of union dues is not
meaningful evidence of intent to be -represented . Ordinarily
this situation arises when the contract- makes dues member-,
ship a .condition of employment. Here the contract did not
5 In his brief the General Counsel attempts to belittle the relevance now
of Monroe 's supervisory status; he stresses the fact this supervisor, after all,
only supervises one'teacher . But the supervisory status of all the chairmen
and coordinators is a legal conclusion -established at the General Counsel's
request by stipulation . The case was not tried on any theory that some are
representatives of management and some not , or that whatever legal conse-
quences flow from the fact of prior inclusion of supervisors shall apply to
some but not to others If the past prounion activities of the supervisors-
some yet to be reported here-now- makes the essential complaint untena-
ble, it is too late to restructure the entire case Whatever dual activities of
legal supervisors-sometimes encouraging and even coercing employees
into the union and sometimes pressuring them to get out-mean in the
context of -a refusal-to -bargain case is to be decided by legal principles in
total, and- not only partially . Nor will it change matters for the General
Counsel virtually to rewrite the complaint , as the first four pages of his brief
do, in order to. now allege the old contract excluded supervisors it did not
require membership , or dues, but the contractual irrevoca-
bility built into the checkoff authorizations which the em-
ployees signed had a like effect. Once signed up, back in
the beginning of -the school year, they could not get out
from under. If in fact by April 1974 the employees on
checkoff status had no power -to discontinue the checkoff
they had authorized, the fact of the checkoff the following
April becomes a much less persuasive indication of union
adherence . And there is much evidence in this -record
showing that, some employees-the exact number un-
known-did' desire to discontinue but were advised they
could not.
From the testimony of employees whose dues were still
checked off in April- Cunningham: "I was under the im-
pression from hearsay that you had to wait a year; there-
fore, I did not approach- anybody from the union leader-
ship to resign ." Reiter: "I tried to resign once and was told
that I was not allowed to until such-and-such date oc-
curred. Q. Who told you that? A. Mr. Stephen Monroe." "I
requested the procedure for resignation from the union. I
was told by Mr. Monroe that I could not resign from the
union until some date, I believe it was almost a year later,
in October , sometime." "It was so common a belief that I
don't think I would have-after that , most people again on
the faculty accepted that. We thought it was the way the
union was run." Holmes , another chairman-supervisor, tes-
tified several teachers spoke to him about the procedures in
effect for resigning from the Union . "The conversations all
had to do with the anniversary date in which I had to
resign before , I believe, October 1 of any given year. I had
resigned before October 31, I mean, not the first, but some
of these other people hadn't. That was the conversation. It
had to do with the fact that they had to wait for a year in
order to resign from the union." William Burke: "I was
under the impression that you needed to wait the year,
until October." Sme: "Q. Can you recall, Mr. Sme, whether
you ever had any conversations with Mr. Stephen Monroe
concerning procedure involved in resigning from the L.F.
A.? A. Not specifically, although I was under the impres-
sion, I think since the strike, that there was that specific
date in October. Judge Ricci: Do you know how you came
to have that impression? The Witness: I think in speaking
to Steve about other people who had attempted to resign at
that time ." These four teachers, none of them supervisors,
must be credited in their testimony. Supervisor Holmes re-
called others who spoke to him of their understanding
about the necessary waiting period for resignation. But
most insignificant of all is Monroe's testimony. He was the
union leader among these teachers , and therefore the one
to whom- dissident members would naturally turn if they
wished to withdraw He called off a number of names as
teachers -he remembered asking him how to go about re-
signing as far back as November 1973. Monroe did not
recall all the names with precision, conceding there might
have been "one or two others." But his testimony as a
whole shows clearly there were "resignations that were re-
ferred to earlier in my testimony that were received un-
timely in October 1973," and that-he did refer teachers to
"the contract, which indicated anniversary dates and the
procedure for withdrawing . -... And each time I referred
to the green book."
ROMAN CATHOLIC DIOCESE OF BROOKLYN 1063
This was management talking, not only being informed
by the rank-and-file they wished to withdraw from the
Union, but telling them they could not. He was a very
enthusiastic unioneer, treasurer of the whole union, dele-
gate-or leader-of the Nazareth school unit, and fore-
most activist on behalf of the Union in-its activities vis-a-vis
the employer on the other side. When word gets around
that you cannot resign from the union because the written
word given a month or so earlier binds you for a year, the
continuing checkoff of dues adds virtually nothing to the
presumption that later you are of a mind to be represented
by the union. When the rebuff to the would-be resignee
comes out of the-mouth of a supervisor, the idea that there-
after the employee voluntarily desired union representation
becomes-an absurdity.
Returning again _to numbers, the 63 among whom the
contract presumptively indicated majority, becomes 53
when the supervisors are eliminated. We have it in writing
that eight more in fact resigned. Four others appeared as
witnesses to say they wished to resign but held back be-
cause Monroe had spread the word they could not. Ordi-
narily the Board does not accept oral testimony of earlier
intent in cases of this kind, but when there is direct admis-
sion by the union leader that in fact people were made to
understand attempted resignation would be futile, such tes-
timony appears in a different light. How many others
whose names appear on the April 1974 dues-checkoff list
may also have wanted to quit but did not even make the
attempt, given known union or contract rules of the game?
The question is one of probabilities, not fact.
I find on this total record there can be no finding, pre-
requisite to any conclusion of violation of Section 8(a)(5)
of the Act, that the Union was authorized by a majority of
the nonsupervisory employees at the Nazareth High School
in the spring of 1974. There are too many facts, all directly
pertinent to the essential claim of majority standing, each
tending to weaken and offset the presumption said to arise
from the existing contract, to be swept away and ignored.
No matter how many distracting elements there may be in
any particular case, no single Board law requirement pre-
liminary for a finding of unfair labor practices can be
waived. -
C. 8(a)(5) and (1) Interwoven
Dismissal of all 8(a)(5).allegations is dictated in this case
primarily because of the character of what is called the,
collective-bargaining activities that went on at all times be-
fore -the hearing in- June 1975. The complaint issued on
March 21, 1975, and in its answer, filed April 18, Respon-
dent Nazareth Regional, said to be the successor, denied
the supervisory status allegations as to Holmes, Reiter, and
Hill. The Diocese filed its answer on April 1, and in it took
no position on whether Serpico, again Reiter, and Gallagh-
er were supervisors as also alleged in the complaint. It was
therefore obviously a last-minute decision of all the Re-
spondents to admit, by stipulation, that all five persons so
named are supervisors within the meaning of the Act. After
all, it is -not unnatural for a Respondent to deny agency
status in anyone said to have committed unfair labor prac-
tices chargeable to it. The Diocese held back as to the sta-
tus of Serpico, Reiter, and Hill before September 1, 1974,
but this was really a play on words intended -to confuse. It
is clear the chairman and coordinator posts these people
held at one time or another never changed, regardless of
which nominal board of trustees ran the school. The ambi-
valence thus revealed in the employer-whatever its name
at the moment-is understandable because the individuals
so named in the complaint were the same people who
throughout the "collective bargaining" of the past had
been on the side of the Union, had struck, held office, at
times egged the rank-and-file in encouragement of pro-
union activities. And the most glaring anomaly of all was
the presence of Monroe, treasurer of the Union and dele-
gate at this one high school, sitting throughout the hearing
next to the General Counsel as his client, so to speak, in
support of the complaint against his own employer. One
asks: What kind of collective bargaining was it that went
on if a representative of management-this is exactly what
Monroe always was and never mind the General Counsel's
attempt to eat his words in his-postheanng brief!-could
lead the Union team against the Company in peaceful ne-
gotiations first and then in acrimonious litigation during a
Board complaint proceeding? 6
The truth of, the matter is that, whatever their initial in-
tent may have been, the parties simply did not go about
"collective bargaining" as that fundamental concept is en-
visaged by the statute. In terms of statutory provisions and
established Board law, their activities of the past were inco-
herent, for the Company sat at both sides of the bargaining
table and glared from both sides of the picket line. But
successorship cases of necessity start with a history of col-
lective bargaining, the story of what went on in the past
between the predecessor and the continuing union.
It was to be expected from all this that there would be
illogical and inconsistent positions taken by all the partici-
pants in this tale. (1) At the hearing the General Counsel
expressly disavowed any contention that the Diocese and
Nazareth Regional, which now runs the school, are alter
egos. If it is a successor only-a separate entity-its duty to
bargain must rest upon the fact that the Union in fact was
the majority representative of the predecessor's employees.
But in his brief the General Counsel abandons that old
position and contends instead there was "only a nominal
change in the ownership, and financial responsibility for
Nazareth High School," and that it has "remained a star in
the firmament of the Diocese school system." Beautiful
words, and I think correct, especially when the brief adds -
that "Diocese and Hald still maintained a cooperative rela-
tionship with Nazareth so as to take this case out i of the
usual business context ... -." But successorship means the
buyer of the business has nothing to do with the interest of
the predecessor, and with this change of position the Gen-
eral Counsel makes a mockery of the fundamental, stipula-
tion underlying the case. - -
(2) At the hearing the, idea, was that Nazareth Regional
was obligated to recognize and deal with the Union in the
spring of 1974, when it decided with finality to hire just
6 The hearing lasted 4 days On the third day Monroe announced that the
evening before he had resigned his officer positions in the Union. It has
been said that in all tragedies there must be a touch of comedy. - -
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about all the old teaching staff. At one point in - the brief
the new group is charged with operating the school since
January 1, an absolute variance from the clear facts. More
significant, at another point in the brief, majority is said to
be shown as of September 1, 1974, because so many of the
teachers whose dues were being checked off in April were
at work . Now the whole idea that the expiring contract
presumes majority-the basis of successorship cases-goes
by the board, as I suppose it must since the contract was
too greatly enmeshed with management . Refusal to bar-
gain in September-assuming the 6-month-old checkoff
dues can be said to prove those same teachers were also
paying dues in September !-converts the complaint into a
Gissel' case , just another employer refusing to recognize a
valid majority claim of the moment . Here the entire succes-
sorship theory is left behind, and all the history of the pre-
decessor and its relations with the teachers-supervisors
and rank-and-file - alike-made meaningless.
(3) A third, and most important confusion in the theory
of complaint , results from the widespread participation by
supervisors in the "collective bargaining " of the past.
When the union officers learned , still in 1973, that the Dio-
cese had decided on drastic action at this one school-and
to discontinue direct operations-the teachers became
alarmed , and there was written communication between
Gordon , the union president , and Brother Shea, of the Dio-
cese , and Brother Burke , the local principal . There was also
communication back and forth between Thomas Keenan,
chairman of the new board of trustees , together with Prin-
cipal Burke , on one side , and the teachers individually, on
the procedures for them to work for the following school
year . Because this is a religious, private school , the parents
of the students have a greater participation interest, of
course . Unable to obtain information it felt necessary from
the Diocese or Burke, the Union wrote to the parents,
seeking their help , and in a sense complaining of the treat-
ment the teachers were being accorded by the school au-
thorities , whoever they were. Some teachers did not like
this, or the way the Union went about it. The result was a
petition, or letter , again addressed to the parents, dated
June 3 , 1974, and signed by many teachers , criticizing the
Union officers and disassociating themselves from the
Union complaint about the new board of trustees, etc. Re-
ceived into evidence , it shows 40 names, including five su-
pervisors-or chairmen of departments . This letter was
prepared by Serpico and Holmes ; both supervisors, and the
signatures were solicited by them , by Reiter and Hill, both
of whom had not yet become supervisors , and by others.
The complaint calls this activity of the teachers and the
supervisors union -busting tactics chargeable to both Re-
spondents.
After the new school year started , the split of opinion
among the teachers persisted . The Union continued its de-
mand for recognition , acting through its President Gordon,
a teacher in another school , but also continuously backed
by Monroe, the delegate here. Others were less sanguine,
and in October again supervisors got up an antiunion peti-
tion , this one dated October 16, and trying to unseat it
7 N.L R.B. v. Gissel Packing Co., Inc, 395 U S. 575 ( 1969).
altogether . Holmes even prepared and filed a decertifica-
tion petition with the Board on October 18. This petition
shows 22 names, including six supervisors of the moment.
Again signatures to the petition were concededly solicited
by supervisors , and again , of course , the entire decertifica-
tion attempt is called unlawful coercion by Nazareth Re-
gional.
There is no charge in this case alleging improper employ-
er influence in the union affairs, or domination of the
Union by the school . The supervisors simply were an integ-
ral part of the bargaining unit all along, with, apparently,
the blessings of both Union and Employer . These people
do not know how to go about collective bargaining accord-
ing to Federal law, but that is besides the point . Towards
the close of the hearing the General Counsel was asked
very precisely to explain , or reconcile the absolute inconsis-
tency that runs through this entire record . How can the
same supervisors , from one view be deemed acceptable
participants in union affairs-striking , holding union of-
fice, and bargaining towards a contract, and from another
view be looked upon as agents of their employer when they
change their minds and want to weaken the union position,
or abandon it? His brief ignores the entire subject as
though it did not exist. The Union filed no brief at all.
The contentions of the Respondent are no more under-
standable. Principal Burke is the chief manager of the
school and always was. He says he was putting together a
new and different business that had nothing to do with the
Union ; the teachers were going to work for somebody else.
But the lawyers for Nazareth Regional, while pretending
there was a wall completely separating them from the law-
yers representing the Diocese, also argued in defense that
their client had a reasonable doubt about the Union's ma-
jority and therefore had a right to withhold recognition.
Nothing could be further from the truth. No one ever once
claimed, before the spring of 1975, that all of these chair-
men and coordinators were supervisors and therefore im-
properly a part of the prounion activity. And certainly nei-
ther Respondent once voiced a doubt as to the Union's
representative strength , either in the spring of 1974, or
when the school opened. When Union President Gordon
wrote directly to Burke to ask what was going on, it was
Shea, the spokesman for the Diocese and for Hald, who
answered and told him to stay away from Burke . Why did
not one of the Respondents question majority then, or file
a decertification petition then? Instead , they jointly delib-
erately bypassed the Union and dealt with the employees.
There is no evidence to prove that higher management-
i.e., supervisors above the rank of chairman and coordina-
tor-encouraged or'inspired the antiunion attitude of the
lower supervisors in June or in October 1974. See Mont-
gomery Ward & Co., 113 NLRB 645 (1955). But neither is
there any more coherence in the inconsistent arguments of
the Respondent than there is in the contentions of the Gen-
eral Counsel.
None of these shifting positions and diversified conten-
tions, however inconsistent and however they may make
unpersuasive arguments on either side of the litigation, can
serve to alter the basic, objective factual question of major-
ity status . The record either proves the Union was author-
ized by a majority of the nonsupervisory teachers at the
ROMAN CATHOLIC DIOCESE OF BROOKLYN 1065
critical times, or it does not. Accordingly, on the sole
ground that the evidence falls short of proving the Union
in fact represented a majority of the nonsupervisory teach-
ers either in the spring of 1974 or on September 1, 1974, I
shall recommend dismissal of all the complaint allegations
of violations of Section 8(a)(5) against any of the Respon-
dents .'
I also find the evidence insufficient to prove the com-
plaint allegations that by their activities relating to the
June 3, 1974, petition critical of the Union, and involving
the predecertification petition of October 16 and the Octo-
ber 18 decertification petition itself, the supervisors named
in the complaint committed violations of Section 8(a)(1) of
the Act chargeable to any Respondent named.
There was an unfair labor practice committed by Broth-
er Matthew Burke, the school principal, on September 4,
1974, when the returning teachers were gathered for an
orientation meeting at a Mass. Martin Doyle, 12 years a
teacher, testified that in a talk to all the teachers then,
Burke spoke of "the unfortunate activities of last year. He
made reference to the strike and its aftermath. . . . he
promised never to mention it again but he was bringing it
up. He mentioned that we were trying to build a Christian
community at Nazareth Regional High School and that
any such activities that are disruptive of a Christian Com-
munity will be dealt swiftly and severely." "And he specifi-
cally said he was talking about the strike and its after-
math."
From the testimony of Arthur Weyhraugh: " [Burke]
mentioned the difficulties that had existed in the previous
year in the context of building a strong Christian commu-
nity at Nazareth and that any divisive activities would be
dealt with swiftly and severely." "... Q. Do you specifi-
cally recall Brother Matthew using the word `strike'? .. .
A. I do."
Burke's version of his talk is that he spoke of "the divi-
sive atmosphere that existed in the last year of the former
school.... in terms of the philosophy and what I excepted
to be the spirit, I made a very strong point that we could
not have fighting going on in the building, it just could not
be. That was the gist of my talk to the faculty." "... I had
mentioned . . . that all members of the community .. .
observe . . . the Christian philosophy . . . civil and coop-
erative . . . that was the gist of my talk.... Q. Do you
recall whether you-may have used the words swiftly and
severely? A. Something along those lines, yes." Burke de-
nied having referred to the strike or the Union specifically.
I credit the teacher witnesses . This was an alert and very
intelligent audience, and the principal' s message could not
have been clearer. Burke may like love and harmony
among men, and there is much to be said in his favor, but
religious conviction, however sincere, does not license inti-
midation of employees in their freedom to exercise the stat-
utory privilege of collective bargaining. See Cap Santa Vue
Inc. v. N.L.R.B., 424 F.2d 883 (C.A.D.C., 1970); Good
Foods Manufacturing & Processing Corporation, Chicago
Lamb Packers, Inc.-Division 195 NLRB 418 (1972). And if
8
Thts,dectsion makes moot the additional argument of Nazareth Region-
al that the religious teachers, monastic order members, must be included in
the appropriate bargaining unit.
self-organization among employees sometime results in dis-
cord and dissatisfaction dividing one group from another,
this too is a reality of life with which all of us must live
today. I find that by telling the teachers on September 4,
1974, that he would take measures to cut off union activi-
ties, or strike action of any kind in the future, the principal
violated Section 8(a)(l) of the Act as -agent of Nazareth
Regional High School.
D. Section 8(a)(3)
James Mirrione worked for 2 years teaching religion. He
was not hired by Nazareth Regional for the 1974-75 school
year and the complaint alleges the refusal to hire him con-
stituted a violation of Section 8(a)(3). When others were
invited to apply for posts and he was not, he made written
request. Receiving no answer, he visited Principal Burke
personally, and brought Monroe, the union delegate, as a
witness to whatever might be said. Burke said he did not
want Monroe to be present, but, present or not, the only
thing he would say to Marione in reply to the question why
the teacher was not offered a job was that the board of
trustees had decided against it. He stated no other reason
then.
If the question underlying this complaint allegation were
why did the Respondent so discriminate against Mirrione,
it would be difficult if not impossible to answer it. Burke
refused to say when Mirrione asked him at the time, and
the principal's testimony at the hearing as to why the
teacher was not hired leaves much to be desired. But the
real question here is not why he was not hired, but, rather,
does the evidence warrant a finding that in fact the reason
was protected union activity. It is a burden of proof resting
upon the complaint, and it is an affirmative one. As the
rule says, the General Counsel must prove any unfair labor
practices by a preponderance of the substantial evidence
on the record as a whole. See N.L.R.B. v. Glen Raven Silk
Mills, Inc., 203 F.2d 946 (C.A. 4, 1953). The General Coun-
sel concedes this is an inference contention here.
Mirrione was a dues-paying union member on checkoff.
He joined the strike all 4 weeks, and did not hesitate to
criticize the strikebreakers, loud and clear. There is no
question about company knowledge of his prostrike activi-
ties, for the Respondent took pains to prove one of the
principal's office assistants saw Mirrione berate a teacher
when she abandoned the strike; Mirrione denied pushing,
or hitting the strikebreaker, but admitted exchanging very
loud recriminations when she reached the parking lot after
crossing the picket line. In fact, Mirrione related how he
picketed in the driveway and sometimes only removed
himself from the path of entering cars when the police told
him to get out of the way. He was a publicized participant,
for the least. He was also elected by the teachers to be
alternate to Union Delegate Monroe, but there is little evi-
dence the superiors knew about this. Mirrione also testified
that he helped Monroe draft literature and other^communi-
cations to the employees during and after the strike, plac-
ing his initials under those of others at the bottom. About
this activity there is no evidence it ever came to the atten-
tion of management-i.e., management above the level of
chairman and coordinator. But, as already explained,
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge of union activities by chairmen and coordina-
tors is meaningless in this case because they were part and
parcel of the Union.
Principal Burke was the prune witness in defense re-
specting Mirrione, and he explained his reasons for not
hiring the teacher in conclusionary and purely generalized
terms describing him as plain worthless. Mirrione was
"generally unsatisfactory," "immature behavior," and "ex-
hibitionism, a rather crass regard for authority," "his work
was unsatisfactory." Burke referred to a number of specific
faults revealed during the 2 years of Mirrione's employ-
ment. The Respondent also offered the testimony of a
number of teachers whose combined stories paint an over-
all picture of complete and utter incompetence and failure
on the job. The defense in total on this score is a complete
combing of the past, dredging up every conceivable com-
plaint one can find against a teacher in a religious school.
And a good portion of the misbehavior now charged to
Mirrione graphically portrays his extensive participation in
the September 1973 strike.
Most of the faults to which Burke referred were only told
to him by others; his direct knowledge was very limited.
What is most significant about his explanation is that he
went out of his way to emphasize that all the stories he
heard about Mirrione's strike participation, and even al-
leged offensive conduct towards nonstrikers,'had nothing
to do with the decision not to hire him. Burke repeated
more than once that he cared not at all about any of that.
One wonders, therefore, why all the testimony about strike
misbehavior-real or fancied-was so much belabored at
the hearing. The question is one of motivation-why was
Mirrione treated so disparately? If the asserted defense be
appraised in terms of sincerity, honesty, etc., such pointless
embellishments start casting a serious doubt upon its entire
credibility. One teacher, Mullaney, testified that when she
abandoned the strike Mirrione one day used very dirty lan-
guage towards her, and even made an obscene gesture. An-
other, Socci, said that the day after the strike ended Mir-
rione called her a scab right inside the school, near her
classroom door. Mirrione denied these things. But Burke,
while saying at the hearing "what went on in the picket line
was no concern to me," and that the Socci and Mullaney
incidents were nothing he ever mentioned to Mirrione,
nevertheless stressed the assertion he deemed Mirrione un-
fit for employment because he was "vulgar," "loud, bois-
terous laughter, running about the building ...." This
sort of double talk-first disparaging a man generally and
then saying it had nothing to do with the case-does not sit
well in the principal of a senior high school.
Be that as it may, some of the faults brought out in
defense do bear a certain relationship to the asserted de-
fense, although some carry very little meaningful weight.
Early in the academic year 1972-73 Mirrione one day
came to the building in bluejeans. During that same year,
according to the very graphic recollection of a religious
teacher named Hicks, there were complaints by parents
about Mirrione's "lack of respect for . . . traditional Cath-
olic teachings," the "sacraments . . . were never empha-
sized enough," "the abortion thing was mentioned to me
several times." Hicks even said he had to transfer some
boys from Mirrione's class to his. He never talked to Mir-
rione about this and there is no indication Burke ever
heard or did anything about this intolerable behavior or
incompetence. At the close of that school year Mirrione
miscalculated the proper percentage of students who
should receive failing grades; the error required consulta-
tion with Burke and the head of the department before it
was straightened out. There is also a letter from one parent
complaining of Mirrione's views about abortion. The letter
was written in August 1973, after the boy had failed
Mirrione's course, and in it the mother reinforced her son's
position vis-a-vis the teacher by finding fault with how Mir-
rione had taught the course earlier in the year.
In the face of all this Mirrione was hired for the follow-
mg year. It comforts the defense little for Burke now
blandly to say he made a mistake in not firing the man
sooner. The fact is he did not.
And yet when an inference of illegality is proposed, fair-
ness requires that all those factors that do bear a decent
relationship to the question be considered. In March 1974
there took place a mini-marathon by the school children;
its purpose, as Mirrione admitted, "to culminate the fund
raising drive" for the school. Asked to participate, he re-
fused, because, as the head of department who asked him
to do so testified, "she felt that the school was not .. .
fulfilling certain obligations . . . towards us as a group, we
should not go out of our way in such a great way to help."
Burke heard of this and wrote him a letter in criticism.
There is disagreement among the witnesses on whether
Mirrione spoke too harshly to Sullivan that day, but I do
not think that minor issue is of great moment.9 What can-
not be ignored is that by his refusal Mirrione definitely
lessened his desirability on the faculty of a school in finan-
cial stress.
There was a departmental conference of theology teach-
ers also in the spring of 1974, attended by at least one
woman teacher from another school. Some participants got
the word to Burke that in their opinion Mirrione belittled
"the sacramentality of marriage," or otherwise underem-
phasized its religious aspect as distinguished from the "re-
ality." Again Mirrione explained this matter away as no
more than a philosophical play on words among the teach-
ers, but who can really pass judgment here? But again,
however, it cannot be gainsaid that a question of this kind,
in a school of this kind, raises something that the hiring
authorities have a right to consider in evaluating an appli-
cant for hire, or for rehire.
Reverting to the original question, there are other factors
to be considered. The case in favor of the complaint is not
helped by the fact that Mirrione was not called a month
later when there developed vacancies in the department.
Nor is it of significance here that, when the strike ended
and the auditorium where Mirrione used to meet with one
class was under reconstruction, no other place was found
for him and he had to dismiss that one class three times in
9 Sullivan, the head of the department, said only that Mirrione that day
spoke ""a little above the normal conventional level," and that he just "kind
of shrugged it off." I discount entirely the testimony of Richard Picardi, an
assistant principal, who was offered to prove that Mirrione spoke very
harshly to Sullivan. Picardi as a witness revealed extreme hate and anger,
spoke almost irrationally, and was obviously driven by uncontrollable per-
sonal dislike of Marione
ROMAN CATHOLIC DIOCESE OF BROOKLYN 1067
a single week. On the other hand-and these questions are
always like revolving tops-Mirrione was not the only loud
unioneer, or striker. Indeed, virtually all the teachers
struck, the majority of them for the entire 4 weeks. Most of
the teachers did as much to help the Union as he did, and
most were hired the next year. And there was also much
namecalling-scab-by others as well. Fuither, there were
other teachers who were not hired, and who also engaged
in the strike. And some quite active strikers were promot-
ed, or offered promotions. These are relevant factors that
cannot be ignored. Mirrione told a graphic story of his
union activities, but there is no significant proof to support
a subsidiary finding that he stood out among the others in
this respect. He said he helped Monroe write union leaflets,
but no one proved Burke, or other high authorities in the
school, knew this.
If the fact Mirrione favored the Union, plus the fact he
was not hired, are enough to prove the reason he was not
hired was because he favored the Union, it means any
teacher who struck and was not hired could also have been
added to the complaint. But union activities are not a form
of insurance against discharge. There must be something
probative to show the employer was out to get this one
man. The school authorities-and it does not really matter
in this special case whether they be called the Diocese or
Nazareth Regional board of trustees-wanted to get rid of
the Union; that much I am satisfied is true. And Burke
even told the assembled teachers in September he would do
something if they tried to strike, at least, again. But there
simply is not enough probative evidence to show he, or the
school, entertained a pinpointed animosity against this one
teacher because of his participation with a very large
group, all of whom did as much as, he.
In my considered judgment, I find the evidence on this
record as a whole insufficient to support the complaint
allegation as to Mirrione, and shall therefore recommend
dismissal of the complaint allegation to that effect.
CONCLUSIONS OF LAW
1. By threatening to take retaliatory action against its
employees in order to put a stop to their union or strike
activities, the Respondent Nazareth-Regional High School,
through its school Principal Brother Matthew Burke, has
engaged in and is engaging in unfair labor practices in vio-
lation of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]