St. Edmund's High School

National Labor Relations Board - Board Decisions

Sep 6, 2002

337 N.L.R.B. 1260 (N.L.R.B. 2002)

1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
St. Edmund’s Roman Catholic Church, Brooklyn, the
Dennis Maloney Institute, d/b/a/ St. Edmund’s
High School, and St. Edmund’s Roman Catholic
Church, Brooklyn, d/b/a/ St. Edmund’s Elemen­
tary School, a single employer and Service Em­
ployees International Union, Local 74, AFL–
CIO, Petitioner. Case 29–RC–9666
September 6, 2002
DECISION ON REVIEW AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On June 8, 2001, the Regional Director for Region 29
of the National Labor Relations Board issued a Decision
and Direction of Election in this proceeding (pertinent
portions of which are attached as an appendix), directing
an election in a unit of the Employer’s custo­
dial/maintenance employees. In directing the election,
the Regional Director found that the Board’s juris diction
was not precluded by the Supreme Court’s decision in
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
(1979), because the employees seeking to organize do
not “directly participate in the furtherance of the Em­
ployer’s religious mission.”
On June 21, 2001, the Employer filed a request for re-
view of the Regional Director’s Decision and Direction
of Election. In its request for review, the Employer ar­
gued that the Regional Director’s view of Catholic
Bishop and its progeny was too narrow and that subse­
quent Board decisions found the assertion of jurisdiction
unwarranted over religious institutions, regardless of the
organizing employees’ function vis -à-vis the employer’s
religious mission. The Petitioner filed a request for re-
view on June 19, 2001, contending that the Regional
Director erred in finding William Struthers a statutory
supervisor. On July 3, 2001, the Board granted the Em­
ployer’s request for review but denied the Petitioner’s
request for review.
Having carefully considered the record in this proceed­
ing, we find, contrary to the Regional Director, that as­
sertion of jurisdiction in this proceeding is unwarranted
and that the petition for an election among the Em­
ployer’s custodial workers should be dismissed.
The Employer is a Roman Catholic Church and school
located in Brooklyn, New York. The Employer’s complex
consists of three main parts (1) the Church and its associ­
ated buildings, including a rectory and a convent; (2) the
elementary school; 1 and (2) the high school, located on the
1 The elementary school is located in the same building as the
Church. The center of the St. Edmund’s Church/elementary school
building houses the Church with the school’s classrooms surrounding
the Church.
same city block as the Church/elementary school and con­
nected to these other buildings by a paved path.
All of the custodial employees are employed by the
Church. In addition to working in the schools, these em­
ployees have performed routine maintenance work in the
Church itself and have helped to prepare the Church for
important religious holidays. Additionally, they have
performed routine maintenance work in both the convent
and the rectory. Moreover, because the Church and the
elementary school share a commo n building, whenever
the janitors clean the front of the school or its interior
hallways, they are in essence servicing these for the
Church as well.
Based on these and other facts recited in his Decision
and Direction of Election, the Regional Director found,
and no party disputes, that the Church, the elementary
school, and the high school are a single employer. How-
ever, the Regional Director found that jurisdiction over
the Employer was not prohibited by NLRB v. Catholic
Bishop of Chicago, supra, and its progeny. Relying on
the Board’s decisions in Ecclesiastical Maintenance Ser­
vices, 325 NLRB 629 (1998), and Hanna Boys Center,
284 NLRB 1080 (1987), enfd. 940 F.2d 1295 (9th Cir.
1991), the Regional Director concluded that the jurisdic­
tional question did not rest on whether the employer was
a religious institution, but rather, the role the specific
employees attempting to organize played in effectuating
the Employer’s religious purpose. Because the custodial
employees did not play a direct role in the furtherance of
the Employer’s religious mission, he held that jurisdic­
tion was proper. We disagree.
Here, it is undisputed that the Church and its related
schools are one, single employer. Father Brophy, the
Parish Pastor, testified without contradiction that the
Church furthers its religious mission through both its
weekly religious services and the two associated schools.
Further, the schools are located either adjacent to, or in
the same building as, the parish Church. It is also undis­
puted that the custodial employees have performed work
in both the Church and its associated buildings.
Generally, the Board will not assert jurisdiction over
nonprofit, religious organizations. Motherhouse of the
Sisters of Charity, 232 NLRB 318 (1977); Board of Jew­
ish Education of Greater Washington, D.C., 210 NLRB
1037 (1974). In Riverside Church, 309 NLRB 806
(1992), and Faith Center-WHCT Channel 18, 261 NLRB
106 (1982), the Board reaffirmed that it will not assert
jurisdiction over religious institutions which operate “in
a conventional sense using conventional means” and
declined to assert jurisdiction over secular employees of
religious institutions, without whom the employers could
not accomplish their religious missions.
337 NLRB No. 189
ST. EDMUND’S HIGH SCHOOL 1261
The cases relied upon by the Regional Director are in-
apposite. Hanna Boys Center involved a home for trou­
bled boys and Ecclesiastical Maintenance Services in­
volved a separate corporation, albeit founded by the Ro­
man Catholic Church, to perform cleaning and mainte­
nance services for church operated properties. Unlike the
present case, neither concerned an employer which was
itself a religious institution.
Instead, the Board’s decisions in Faith Center and Riv­
erside Church are squarely on point. In Faith Center, the
Board found that the assertion of jurisdiction over a church
employer was unwarranted where the union was seeking
to organize a unit of the employer’s broadcast engineers.
In declining to assert jurisdiction, the Board reasoned that
the church’s broadcasts were “essentially an electronic
extension of its church” and remained unpersuaded by the
fact that the engineers performed a purely secular function.
See Faith Center, 261 NLRB at 107. Similarly, in River-
side Church, the Board declined to assert jurisdiction over
a church employer where the union sought to represent a
unit of service and maintenance employees employed by
and working at the church and its related facilities. See
Riverside, 309 NLRB at 807.
Here, given the close integration between the Church
and the schools, the undisputed testimony that the
schools are part of the Church’s religious mission, the
Regional Director’s single employer finding, and the fact
that the Church directly employs all of the employees
seeking representation, we find that the assertion of ju­
risdiction is unwarranted.2
Accordingly, the Regional Director’s decision is re-
versed and the petition is dismissed.
APPENDIX
REGIONAL DIRECTOR’S REPORT
DECISION AND DIRECTION OF ELECTION
. . . .
2. St. Edmund’s Roman Catholic Church, Brooklyn, the
Dennis Maloney Institute, d/b/a St. Edmund’s High School, and
St. Edmund’s Roman Catholic Church, Brooklyn, d/b/a St.
Edmund’s Elementary School, referred to during the hearing as
2 In voting to reverse the Regional Director’s decision, Member
Liebman agrees with her colleagues that, under current law, jurisdiction
may not be asserted in this case. While she did not join then-Chairman
Gould and Member fox in voting to overrule the Board’s decision in
Riverside Church, supra, in the later Ecclesiastical Maintenance Ser­
vices, supra (which, in any event, was not necessary to the resolution of
that case), upon further reflection she questions whether Riverside
Church is sound precedent. In her view, NLRB v. Catholic Bishop of
Chicago, 440 U.S. 490 (1979) (involving teachers), does not compel
the Board to decline jurisdiction over custodial employees of church-
operated schools.
“a single employer or joint employers,”1 herein collectively
called the Employer, took the position that the Board lacks
jurisdiction under NLRB v. Catholic Bishop of Chicago, 440
U.S. 490 (1979), which held that the Board does not have juris­
diction over teachers employed by church-operated schools. In
addition, the Employer objected to “the nomenclature, ‘St. Ed­
mund’s Roman Catholic Church d/b/a St. Edmund’s Elemen­
tary School,’” claiming that they are “one and the same entity.”
As its witness, the Employer called Father Edward Brophy, a
Roman Catholic priest who is Pastor of the parish.
The Service Employees International Union, Local 74, AFL–
CIO, (the Petitioner), took the position that the Board has juris­
diction over the Employer, because the employees it seeks to
represent perform “cleaning and maintenance work, that has
nothing to do with religious faith or religious practices.” As its
witnesses, the Petitioner called Dwain Johnson, a maintenance
worker at Dennis Maloney Institute d/b/a St. Edmund’s High
School, (the high school or the institute); John Malone, a main­
tenance worker at St. Edmund’s Elementary School, (the ele­
mentary school); William Struthers, who is alleged by the Em­
ployer to be a 2(11) supervisor; and Barry White, business
agent for the Petitioner, who testified briefly regarding the Peti­
tioner’s representation of maintenance employees at other fa­
cilities owned and operated by the Catholic Church.
The parties stipulated that the Employer’s gross annual reve­
nues, with or without contributions and donations, are over $1
million, and that it purchases and receives goods, products, and
materials valued in excess of $5000 annually directly from
firms located outside the State of New York.
The Employer argues that the instant case falls under the hold­
ing in NLRB v. Catholic Bishop of Chicago, supra, where the
United [States] Supreme Court determined that the exercise of
the Board’s jurisdiction over lay faculty members employed by
Catholic secondary schools could present a “significant risk that
the First Amendment will be infringed.” Catholic Bishop, supra
at 491. In light of “the critical and unique role of the teacher in
fulfilling the [religious] mission of a church-operated school,” the
Supreme Court was concerned that by requiring church-operated
schools to bargain with unions representing teachers, and by
delineating mandatory bargaining subjects with respect to teach­
ers, the Board might encroach upon the schools’ right to exercise
control over their religious function. Catholic Bishop, 440 U.S.
at 490. In addition, the Court was fearful that religious schools
accused of unfair labor practices might assert that their “chal­
lenged actions were mandated by their religious creeds,” necessi­
tating a Board inquiry into the good faith of the schools’ de­
fenses. Catholic Bishop, supra at 490. In order to avoid the pos­
sibility of having to invalidate a portion of the NLRA on First
Amendment grounds, the Court decided the case on an alterna­
tive theory, concluding that the Board could not exercise jurisdic­
tion over parochial school teachers in the absence of a “clear
1 Neither party took a position at the hearing as to whether the Em­
ployer is a single employer or joint employers. In its brief, the Em­
ployer contended for the first time that the Employer is a single-
integrated enterprise. For the reasons discussed infra pp. 22–24 [omit­
ted from publication.] I agree with the Employer and find that the Em­
ployer is a single-employer.
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
expression of an affirmative intention of Congress that teachers
in church-operated schools should be covered by the Act.”
Catholic Bishop, supra at 491–492.
One of the concerns expressed in Catholic Bishop was later
resolved against a church-operated school which argued that
the First Amendment precluded government inquiry into an
alleged discriminatory discharge that the school claimed to be
religiously motivated. Ohio Civil Rights Commission v. Dayton
Christian Schools, Inc., 477 U.S. 619 (1986). The Supreme
Court ruled that the Ohio Civil Rights Commission “violate[d]
no constitutional rights by merely investigating the circum­
stances of the discharge . . . if only to ascertain whether the
ascribed religious-based reason was in fact the reason for the
discharge.” Dayton Christian Schools , 477 U.S. at 624. The
Court noted that “[e]ven religious schools cannot claim to be
wholly free from some state regulation.” Dayton Christian
Schools, ibid. In several of its more recent cases, the Supreme
Court has placed its imprimatur on government aid to religious
schools entailing at least as much church-state entanglement as
would the assertion of Board jurisdiction. For example, the
Court reinstated a program previously found unconstitutional,
in which public school teachers, monitored by the New York
City Board of Education, provide remedial education in reli­
gious schools. Agostini v. Felton, Chancellor, Board of Educa­
tion of the City of New York, 521 U.S. 213, 2015 (1997), over-
ruling Aguilar v. Felton, 473 U.S. 402 (1985); School District
of Grand Rapids v. Ball, 473 U.S. 373 (1985). Last year, the
Court held that a government program which loans educational
materials and equipment to religious schools does not violate
the Establishment Clause, even though government monitoring
was insufficient to prevent the diversion of materials and
equipment for religious purposes. Mitchell v. Helms, 530 U.S.
793 (2000), overruling Meek v. Pittenger, 95 S.Ct. 1753 (1975);
Wolman v. Walter , 97 S.Ct. 2593 (1977).2 The Court has also
held that supplying a publicly paid sign-language interpreter to
a deaf student attending a Roman Catholic high school, to fa­
cilitate the understanding of everything from mathematics to
Mass, does not violate the Establishment Clause. Zobrest v.
Catalina Foothills School District, 509 U.S. 1 (1993). In
Agostini v. Felton, the Court observed that “[i]nteraction be-
tween church and state is inevitable, and we have always toler­
ated some level of involvement between the two.” 521 U.S. at
215 (1997).
In the late 1970s, one of the first Board cases to apply Catho­
lic Bishop interpreted it as permitting Board jurisdiction over
lay faculty members employed by a Catholic secondary school
which was deemed not to be “church-operated,” because it was
administered by an independent lay board of trustees. Bishop
Ford Central Catholic High School, 243 NLRB 49 (1979), enf.
denied 623 F.2d 818 (2d Cir. 1980). The Board overruled
Bishop Ford in Jewish Day School of Greater Washington, 283
NLRB 757 (1987), pointing out that the Supreme Court’s
analysis in Catholic Bishop “did not focus on the schools’ di-
2 The Employer’s brief relies on a portion of Catholic Bishop in
which the Supreme Court’s discussion of the church-state entanglement
problem was based on its holdings in Meek and Wolman, which are no
longer good law. Brief of Employer, p. 14.
rect affiliation with religious organizations . . . [but on] the
purpose of the school, the role of the teacher in effectuating that
purpose, and the potential effects of the Board’s exercise of
jurisdiction.” Jewish Day School, 283 NLRB at 760. Accord­
ingly, the Board construed Catholic Bishop to preclude it from
asserting its jurisdiction “where a union seeks to represent a
unit of teachers in a school whose purpose and function in sub­
stantial part are to propagate a religious faith,” regardless of
whether the school is “church-operated.” Jewish Day School,
283 NLRB at 761; accord: Nazareth Regional High School, 283
NLRB 763 (1987).
Conversely, the Board has found it appropriate under Catholic
Bishop to exercise its jurisdiction over employers which are
church-operated, but whose purpose and function, and the tasks
performed by their employees, are primarily secular. For example,
Ecclesiastical Maintenance Services , 325 NLRB 629 (1998)
(EMS)3 involved an employer owned and operated by the Roman
Catholic Archdiocese of New York for the purpose of “assist[ing]
in the fulfillment of the religious, educational and other charitable
purposes of the . . . Archdiocese . . . which are carried out by the
churches, schools, hospitals, and other institutions owned, operated,
supervised or controlled by . . . the Roman Catholic Church within
the Archdiocese,” by providing “cleaning, maintenance, painting
and repairing services for these institutions.” EMS, 325 NLRB at
629. In exercising jurisdiction over EMS’s service and mainte­
nance employees (whose functions were similar to those of the unit
employees in the instant case), the Board reasoned that “the critical
inquiry addressed by the Court in Catholic Bishop is the employ­
ees’ role in the participation of religious activities, not in merely
making them possible . . . [T]he cleaning and maintenance employ­
ees employed by the Employer, while perhaps assisting in the
Church’s religious activities, do not participate in them.” EMS,
325 NLRB at 631. The Board has exercised jurisdiction over a
wide range of church-operated employers whose employees are not
directly involved in effectuating their religious missions. See, e.g.,
University of Great Falls, 331 NLRB 1663 (2000) (faculty of uni­
versity founded by a Catholic religious order); Upstate Home for
Children, Inc., 309 NLRB 986 (1992) (nurses employed by resi­
dential school for mentally retarded children, affiliated with the
American Baptist Church); Salvation Army Williams Memorial
Residence, 293 NLRB 944 (1989), enfd. w/o opinion, Salvation
Army, 923 F.2d 846 (2d Cir. 1990) (kitchen and maintenance
workers at a residential facility for mature adults, under the direc­
tion and control of a Salvation Army minister); Salvation Army of
Massachusetts Dorchester Day Care Center , 271 NLRB 195
(1984), enfd. 763 F.2d 1 (1st Cir. 1985) (teachers, janitor, cook and
social worker at child care center operated by the Salvation Army);
Volunteers of America, Los Angeles, 272 NLRB 173 (1984), enfd.
777 F.2d 1386 (9th Cir.1985) (alcoholism specialists, cooks and
janitors employed by an alcoholism program operated by Volun­
teers of America (held to be a bona fide Christian church)); St
3 In EMS , two Board members indicated that they were in favor of
overruling Riverside Church in the City of New York, 309 NLRB 806
(1992), in which the Board declined to exercise jurisdiction over the
church’s maintenance workers. The Riverside case, relied on by the
Employer herein, is anomalous in that it does not cite or discuss Catho­
lic Bishop, but employs the Board’s pre-Catholic Bishop analytic
framework.
ST. EDMUND’S HIGH SCHOOL 1263
Louis Christian Home, 251 NLRB 1477 (1980), enfd. 663 F.2d 60
(8th Cir. 1981) (child-care workers, maintenance employee and
storeroom clerk employed by emergency residential treatment
center for battered, abused, and neglected children, operated by the
Christian Church Disciples of Christ); Harborcreek School for
Boys, 249 NLRB 1226 (1980) (child-care workers, teachers, teach­
ers aides, nurses, kitchen workers, laundry workers, and mainte­
nance workers employed by a school for troubled boys owned and
operated by a Catholic diocese).
Particularly instructive in resolving the instant case is Hanna
Boys Center, 284 NLRB 1080 (1987), enfd. 940 F.2d 1295, 1302
(9th Cir. 1991), cert. denied 504 U.S. 985 (1992), involving two
bargaining units of nonteachers at a Catholic residential facility
for boys. One of these bargaining units included “child care
workers, recreation assistants, cooks, cooks helpers, and mainte­
nance employees including plumbers, electricians, gardeners, and
custodians . . . excluding . . . professional employees, priests,
nuns, and religious brothers, guards and supervisors as defined in
the Act.” Hanna Boys Center, 284 NLRB at 1080 fn. 1. The
duties of child-care workers included bringing the children to
chapel to say their morning prayers, “select[ing] a boy to say the
evening prayer,” and “[t]eaching values: ethical principles, reli­
gious observances.” Hanna Boys Center , 284 NLRB at 1081,
1082. However, since the child care workers and other unit em­
ployees were not teachers, and did not have a crucial role in fos­
tering the Center’s religious mission, the Board found that “[t]he
sensitive First Amendment issues surrounding the assertion of
jurisdiction over teachers noted by the Court in Catholic Bishop
are not involved in the assertion of jurisdiction over the child-
care workers and other unit members in the present case.” Hanna
Boys Center, 284 NLRB at 1083. Ultimately, pursuant to an
election conducted prior to the Board’s decision, a union was
certified to represent the above-described unit, and the Board
issued a bargaining order after the Center “tested cert.” Hanna
Boys Center, 293 NLRB 359 (1989).
In enforcing the Board’s bargaining order, the Ninth Circuit
declared that the Board’s exercise of jurisdiction was “clearly
constitutional.” Hanna Boys Center, 940 F.2d 1295, 1302
(Ninth Cir. 1991). The court’s discussion of the First Amend­
ment implications of Board jurisdiction is summarized here, in
order to clarify the potential constitutional issues at stake. The
Ninth Circuit’s analysis began with the observation that the
Establishment Clause was intended to protect against “sponsor-
ship, financial support, and active involvement of the sovereign
in religious activity.” Hanna Boys Center, 940 F.2d at 1303
(quoting Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)). The
Court then applied the three-part test articulated by the Su­
preme Court in Lemon v. Kurtzman: to avoid an Establishment
Clause violation, “the Board’s application of the NLRA to
Hanna’s non-teaching employees (1) must have a secular pur­
pose, (2) must have a primary effect that neither advances nor
inhibits religion, and (3) must not foster excessive state entan­
glement with religion.” Hanna Boys Center, 940 F.2d at 1303
(citing Lemon, 403 U.S. at 612–613). Since the purpose and
primary effect of extending the Act’s protection to employees
are “clearly secular,” the Ninth Circuit’s analysis focused on
“Lemon’s third, ‘entanglement’ prong.” Hanna Boys Center,
940 F.2d at 1303.
Under Lemon, there are “three factors to be weighed in deter-
mining excessive entanglement: the character and purpose of the
institution that [is] benefited, the nature of the aid that the State
provides, and the resulting relationship between government and
the religious authority.” Hanna Boys Center, 940 F.2d at 1304
(quoting Lemon, 403 U.S. at 615). With regard to the first of these
factors, the Ninth Circuit found that “the Catholic faith of [the
Center’s] founders is woven thoroughly into the institution.”
Hanna, 940 F.2d at 1304. However, as for the second factor, the
“nature of the aid the State provides” (or in Hanna, the “nature of
the activity the government mandates”), the court found that the
employees at issue did not conduct religious services, teach relig­
ion, or further Hanna’s religious mission. Hanna, ibid. Accord­
ingly, any labor relations issues which would arise with respect to
these employees “should not involve the Board in issues of theol­
ogy . . . and should involve the Board minimally, if at all, in
Hanna’s religious mission.” Hanna, ibid. The court pointed out
that Board jurisdiction would not “render any benefit to the Catho­
lic religion or any other religion, or advance non-religion or relig­
ion generally.” Hanna, ibid. Furthermore, there was no evidence
that the religious beliefs of either Hanna or the Roman Catholic
Church “would be affronted by unionization or collective bargain­
ing.” Hanna, ibid.
Turning to the third factor, the “resulting relationship be-
tween government and the religious authority,” the court noted
that Board jurisdiction would “require governmental involve­
ment only with respect to specific charges which may be filed
on behalf of these employees. It will not involve the Board in
continuing or systematic monitoring of the Church’s activities
and should not involve monitoring the religious aspects of
Hanna’s activities at all. Board involvement will not create the
reality or the appearance of the government’s supervising or
collaborating with the Church.” Hanna, 940 F.2d at 1304.
When the court weighed these three factors, it concluded that
“Board jurisdiction here does nothing to ‘establish’ religion.
Nor does Board jurisdiction here present a threat to government
neutrality with respect to religion . . . [or] create ‘active in­
volvement of the sovereign in religious activity’ . . . or continu­
ing government surveillance of the type the Supreme Court
condemned in Lemon . . . . Hanna, 940 F.2d at 1305.
With respect to Hanna’s Free Exercise argument, the Ninth
Circuit applied the traditional test set forth in Sherbert v.
Verner, 374 U.S. 398 (1963), which “requires the weighing of
three factors: (1) how much Board jurisdiction will interfere
with the exercise of religious beliefs; (2) the existence of a
compelling or overriding state interest justifying a burden on
religious beliefs; and (3) whether accommodating those beliefs
would unduly interfere with the fulfillment of the government
interest.” The court held that “Board jurisdiction here will not
interfere with the free exercise of religious beliefs of anyone at
Hanna. Catholic doctrine has no objection to unionization or
collective bargaining. The pervasively secular nature of these
employees’ duties ensures that Board involvement in labor
disputes will be confined to the secular aspects of Hanna’s
operations.” Hanna, 940 F.2d at 1306. The court then bal­
anced the “minimal showing of any impact on religious belief
or practice” against “the compelling governmental interest in
‘promo[ting] the peaceful settlement of industrial disputes by
1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
subjecting labor-management controversies to the mediatory
influence of negotiation.” Hanna, 940 F.2d at 1306 (quoting
Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964). Accordingly,
the Ninth Circuit found that extending the Act’s protection to
the disputed employees would not violate the Free Exercise
Clause. Hanna, supra at 1306.
In a recent case, the Board found that even where a hospital
was operated by the Seventh Day Adventist Church, whose
teachings “prohibit its members from participating in labor
unions, paying dues to labor unions, or operating with the pres­
ence of labor unions,” the government interest in preventing
labor strife and extending the NLRA’s protections to employ­
ees was sufficiently compelling to justify the Board’s exercise
of jurisdiction over the hospital’s registered nurses. Ukiah
Valley Medical Center, 332 NLRB 602 (2000).
The record reflects that St. Edmund’s Parish includes the
church and elementary school, which occupy the same build­
ing, the high school, a rectory and two convents. There is no
evidence regarding the location of the two convents; the other
buildings are all on the same block in Brooklyn. The church
and elementary school share the same front entranceway and
entrance corridor, although the schoolchildren usually enter
through a side door. The Employer emphasized that when the
elementary school custodians clean the sidewalk in front of the
school, shovel the snow, or clean the entrance corridor, they are
de facto performing the same service for the church. Photo-
graphs of the church/elementary school and high school, which
were offered into evidence by the Employer, reveal the promi­
nence of imagery associated with Roman Catholicism.
Father Edward Brophy testified that as Pastor of St. Ed­
mund’s Parish since December 2000,4 he is its administrator
and spiritual leader. He is ultimately responsible for the opera­
tion of the elementary school, the rectory, and the church. The
Pastor is one of the five trustees of the St. Edmund’s Parish
Corporation, the others being the Bishop and Vicar General of
the Brooklyn Diocese and two lay parishioners selected by the
pastor.5 In addition, Pastor Brophy is the chairman of the board
of trustees and sole member6 of the Dennis Maloney Institute
d/b/a St. Edmund Preparatory High School. Father Brophy is
in charge of hiring the principals of both the high school and
elementary school, and his signature appears on employment
contracts with the two principals. Pastor Brophy has to approve
all hiring and firing decisions concerning all elementary school
4 Father Brophy testified that he became the administrator of the par­
ish on December 1, 2000, and was canonically installed as the pastor on
January 14, 2001. The Bishop of Brooklyn appointed him as pastor on
October 31, 2000. He was ordained a Catholic priest in 1993, having
previously served as a librarian and English teacher at two Catholic
high schools.
5 The church’s certificate of incorporation reflects that its original
trustees held the same titles, in 1925.
6 The institute’s corporate bylaws provide that the trustees are the
governing body of the Corporation, charged with its administration, the
effectuation of its corporate purposes, and the stewardship of its prop­
erty, and that the Member’s exclusive powers include appointing trus­
tees and officers, approving the trustees’ long-range strategic plans,
reviewing financial statements submitted by the trustees, and approving
any change in the philosophy and mission of the Corporation.
personnel, including the teachers. At the high school, by con­
trast, the principal hires the teachers and staff. Father Brophy
leaves the day-to-day operation of the high school to the princi­
pal, the assistant principal or vice principal, and the teachers.
St. Edmund’s Parish owns the land on which the schools and
other buildings are located. It appears from the record that it
also owns the buildings themselves. The parish permits the high
school to use the building it occupies on condition that it be
maintained properly and used for a Catholic high school. Pas-
tor Brophy maintained that the parish does not charge rent to
the school, but that there is “a transfer of funds from the school
to the parish.” The frequency and amount of this transfer of
funds was not mentioned. The high school also purchases
bookkeeping services from the parish; one bookkeeper manages
the accounts for the high school, the elementary school, and
“the rest of the church.” In addition, the pastor pays the utility
bills for the church/elementary school, rectory, high school, and
convents. Only the pastor can sign checks on the behalf of the
church and the two schools, although these entities have three
separate bank accounts. The tuition money charged by the high
school is kept in its separate account and used to operate the
school. The institute pays its teachers’ salaries directly.
The custodians/janitors who work at the high school are on
the payroll of St. Edmund’s Roman Catholic Church, and the
high school purchases the janitorial services from the parish.
The pastor, as chairman of the institute, transfers an unspecified
amount of money (which may or may not correspond with the
janitors’ wages) from the Institute’s account to the church’s
account to pay for these janitorial services. In addition, Wil­
liam Struthers receives two paychecks each week, from both
the church and the elementary school. John Malone testified
that at various times, he has received paychecks drawn on the
account of the church, the elementary school, and the high
school. Both he and Johnson have been transferred back and
forth between the high school and elementary school, and have
occasionally performed work in the parish’s other buildings.
Struthers performs work in all the buildings.
Father Brophy testified that the high school “exists, first of
all, for the development and the formation and the spread of the
Roman Catholic faith.” Similarly, the primary purpose of the
elementary school is “the transfer of the faith, and worship of
the faith.” These “ultimate purpose[s]” take precedence over
the secondary goal of teaching secular subjects. With respect to
religious studies, the elementary school prepares students to
receive the sacraments of First Communion, Penance, and Con­
firmation, in the church contained within the same building.
The elementary school also provides a religious education pro-
gram for children who do not attend St. Edmund’s. The stu­
dents at both the elementary and high schools use the church
for such purposes as Mass, Confession, prayer services, and the
observance of Lent. Sometimes the parishioners use the
schools’ facilities.
Not all the students at the two schools are Roman Catholics,
however, and the record does not disclose whether attendance
is required at church or at the elementary school’s religious
training program. Father Brophy did not know whether classes
such as mathematics, chemistry, biology, or history, contain a
specific religious component, and he did not mention whether
ST. EDMUND’S HIGH SCHOOL 1265
the high school provides a religion class or any religious train­
ing. The pastor testified that he does not know of any faculty
members who are not Catholics, but he did not indicate whether
adherence to the faith is a requirement for teachers, or whether
the faculty includes members of the clergy. Based on the re-
cord as a whole, however, I find that the elementary and high
schools have a predominant religious purpose and mission.
Nevertheless, there is no evidence that the custodial/main­
tenance employees and laborers are directly involved in effec­
tuating the schools’ religious mission. Unit employees Johnson
and Malone testified that they clean the grounds at the two
schools, pick up papers, sweep, mop, clean the cafeterias and
bathrooms, change light bulbs, clean and empty garbage cans,
shovel snow, unclog toilets, fix leaky sinks, and make other
basic repairs. They are sometimes called upon to clean the
parking area used by teachers, principals, and staff. In addition,
they occasionally perform cleaning or light maintenance tasks
at the rectory and convents. Before and after Christmas, Easter
and Confirmation, they help to clean and maintain the church
itself, to prepare the church and clean up afterwards. In addi­
tion, Father Brophy stated that the custodians maintain the heat­
ing system in the building occupied by both the church and the
elementary school. Father Brophy indicated that the “custodial
staff, sexton, whoever,” clean the church regularly. However, it
is not clear from Pastor Brophy’s testimony whether the quoted
phrase refers to members of the petitioned-for bargaining unit,
which consists only of employees who regularly work at the
elementary school and high school.
Father Brophy asserted that the custodial/maintenance em­
ployees and laborers assist him in fulfilling his obligation to
ensure that the buildings of the parish are maintained in good
order, so that they can be used by both the schoolchildren and
parishioners in the service of the Roman Catholic faith. The
Employer submits that under these circumstances, cleaning a
corridor cannot be viewed as secular. However, unit employees
have no role in the “development,” “formation,” “spread,”
“transfer” or “worship” of the Roman Catholic faith. The cus­
todial/maintenance employees and laborers who work at the
two schools do not teach the children, or help to instill religious
beliefs in them. Their interaction with students is nonexistent
or minimal. Unit employees are not required to attend mass as
part of their job duties. The Employer does not question them
about their religious faith or affiliation, either at the time of hire
or afterwards. Some are not Catholics.
Neverthetheless, Father Brophy maintained that he “would
expect that their behavior is not going to, in any manner, shape
or form, contradict the Catholic faith.” Even when the unit
employees are on their own time, he added, he “would expect
that there would not be public scandalous behavior which
would offer a direct confrontational contradiction to the teach­
ing of the Church.” According to Pastor Brophy, such behavior
could result in “discipline up to and including discharge.” In
addition, Pastor Brophy professed himself unable to bargain
over a number of hypothetical future bargaining proposals that
could be made by Petitioner in its representation of the unit.
These included any proposals affecting the scheduling of mass,
proposals to resolve grievances through anything other than the
Catholic Church’s internal dispute resolution procedures, and
any proposals “that violated the Church’s faith and morals,”
such as a hypothetical demand for a health and welfare plan
which could theoretically include birth control, abortion cover-
age, benefits for significant others, and the inclusion of homo­
sexuals in a family unit.
Under cross-examination, Pastor Brophy admitted that he
has never communicated to the custodial/maintenance employ­
ees or laborers the expectation that they conform their behavior
to the tenets of the Catholic Church. In addition, he conceded
that he has never asked custodial or other staff whether they
have ever practiced birth control, undergone abortions, had
homosexual relations, or had “significant others.” Pastor Bro­
phy testified that the lay faculty members at the high school are
represented by a union, and that his predecessors never told him
of any problems with negotiations. He was aware that teachers
at some other Catholic schools are unionized, but he did not
know of any instances where unions representing them had
demanded birth control and abortion funding, or holidays, or
vacations that interfered with the operations of the church.
Pastor Brophy will be participating in negotiations with the
union representing the high school teachers.
In sum, the record evidence establishes that the employees in
the petitioned-for unit, like those in EMS and Hanna, do not
directly participate in the furtherance of the Employer’s reli­
gious mission. The concerns expressed by the Employer re­
garding possible bargaining proposals by Petitioner are purely
hypothetical. Moreover, the Board cannot compel the Em­
ployer to agree to a proposal offensive to Roman Catholicism;
it can only require the Employer to bargain in good faith. Ac­
cordingly, I find that the exercise of Board jurisdiction is not
precluded by the Catholic Bishop line of cases.
Discussion of Single-Employer Issue
The four operative criteria used to determine whether two
separate employers constitute a single employer or single inte­
grated enterprise are: (1) interrelation of operations; (2) com­
mon management; (3) centralized control of labor relations; and
(4) common ownership. JMC Transport, 283 NLRB 554, 555
(1987). However, no one of these factors is controlling, and it
is not necessary for all four of these factors to be present. JMC,
283 NLRB at 555; Blumenfeld Theatres Circuit, 240 NLRB
206 (1979), enfd. 626 F.2d 865 (9th Cir. 1980). Single-
employer status depends on all the circumstances of the case.
Emsing’s Supermarket, 284 NLRB 302, 303–304 (1987); Blu­
menfeld, supra at 215. Accordingly, the Board has “on several
occasions made a finding of single employer status in the ab­
sence of a common labor relations policy, and even when it had
been affirmatively shown that each of two corporations held to
be a single employer established its own labor relations policy.”
Blumenfeld, 240 NLRB at 215 (citing Radio Union v. Broad-
cast Service of Mobile, Inc., 380 U.S. 255 (1960)); see Jerry’s
United Super, 289 NLRB 125, 135 (1988). Similarly, a single-
employer finding may be made where there is “little or no em­
ployee interchange.” Blumenfeld, 240 NLRB at 215; see Jerry’s
United Super, 289 NLRB 125, 135 (1988); see also Soule Glass
& Glazing Co., 246 NLRB 792, 795 (1979).
In the instant case, the operations of the church, elementary
school, and high school are interrelated. They share the same
1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
overall purpose: the propagation of Roman Catholicism. Stu­
dents from both schools use the church, and parishioners some-
times use the school’s facilities. The church and elementary
school share the same building, and all three entities are on land
owned by the St. Edmund’s Parish, which is part of the Roman
Catholic Diocese of Brooklyn. The schools and church share
the same bookkeeper. Although custodians in the petitioned-
for bargaining unit are primarily assigned to either the elemen­
tary or the high school, the record reflects that they are some-
times called upon to help out in other buildings, including the
church. Most have received at least some of their paychecks
directly from the church. In the past, at least two bargaining
unit members have been transferred between the high school
and elementary school.
In addition, Pastor Brophy has managerial duties with re­
spect to all three entities, and it appears that he will have pri­
mary responsibility for labor relations policy. For example, the
Pastor stated that he will be involved in labor negotiations with
the union representing the lay high school teachers. He has to
approve all hiring and firing decisions concerning the elemen­
tary school teachers and staff, as well as the custodial staff
assigned to the church and the two schools. His testimony
regarding hypothetical future bargaining proposals by Peti­
tioner implies that if Petitioner prevails in a Board election,
Pastor Brophy will also participate in labor negotiations regard­
ing the custodial/maintenance employees and laborers who
work in the high school and elementary school.
Based upon the stipulations of the parties, and the record as a
whole, I find that the Employer is a single integrated enterprise,
that it is engaged in commerce within the meaning of the Act,
and that it will effectuate the purposes of the Act to assert juris­
diction herein.
3. The parties stipulated that Service Employees Interna­
tional Union, Local 74, AFL–CIO, (the Petitioner), is a labor
organization within the meaning of Section 2(5) of the Act.
Based upon the stipulation of the parties, and the record as a
whole, I find that the Petitioner is a labor organization within
the meaning of the Act. The labor organization involved herein
claims to represent certain employees of the Employer.
4. A question affecting commerce exists concerning the rep­
resentation of certain employees of the Employer within the
meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.
5. The Petitioner is seeking an election in a unit consisting of
all full-time and regular part-time custodial/maintenance employ­
ees and laborers7 employed by the Employer at St. Edmund’s
High School, located at 2472 Ocean Avenue, Brooklyn, New
York, and at St. Edmund’s Elementary School, located at 1902
Avenue T, Brooklyn, New York, excluding all clerical employ­
ees, teachers, guards and supervisors as defined in the Act.
7 During the hearing, the unit employees were also referred to as janitors.