The Catholic Bishop of Chicago

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1221 (N.L.R.B. 1976)

THE CATHOLIC BISHOP OF CHICAGO
The Catholic Bishop of Chicago , A Corporation Sole
and Illinois Education Association Case 13-CA-
14944
June 18, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
Upon a charge filed on December 5, 1975, by Illi-
nois Education Association, herein called the Union,
and duly served on The Catholic Bishop of Chicago,
a Corporation Sole, herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 13, is-
sued a complaint and notice of hearing and an
amendment to the complaint on December 19, 1975,
and January 6, 1976, respectively, alleging that Re-
spondent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended
Copies of the charge, complaint, notice of hearing
before an Administrative Law Judge and amend-
ment to the complaint were duly served on the par-
ties to this proceeding
With respect to the unfair labor practices, the com-
plaint as amended alleges in substance that on No-
vember 3, 1975, following a Board election in Case
13-RC-13402 the Union was duly certified as the
exclusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate,' and that, commencing on or about November
25, 1975, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so On December 31, 1975,
and January 16, 1976, Respondent filed its answer to
the complaint and amendment to answer, admitting
in part, and denying in part, the allegations in the
complaint
On January 12, 1976, the Union filed with the
Board a response to the answer and affirmative de-
fenses and a motion to transfer the case to the Board
and to enter summary judgment On January 19,
1976, Respondent and the General Counsel filed re-
'Official notice is taken of the record in the representation proceeding
Case 13-RC-13402 as the term record is defined in Secs 102 68 and
102 69(g) of the Board s Rules and Regulations Series 8 as amended See
LTV Electrosystems Inc 166 NLRB 938 (1967) enfd 388 F 2d 683 (C A 4
1968) Golden Age Beverage Co 167 NLRB 151 (1967) enfd 415 F 2d 26
(C A 5 1969) Intertype Co v Penello 269 F Supp 573 (D C Va 1967)
Follett Corp 164 NLRB 378 (1967) enfd 397 F 2d 91 (C A 7 1968) Sec
9(d) of the NLRA as amended
1221
sponses to the Union's motion On January 26, 1976,
the Union filed an amended response
On February 19, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment Subsequently, on February 26,
1976, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the Motions for Summary Judgment should not
be granted Respondent thereafter filed a response to
Notice To Show Cause and motion to dismiss the
complaint, a memorandum in support, and a motion
for oral argument Counsel for the General Counsel
and the Union subsequently filed responses and op-
position to Respondent's motions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
Upon the entire record in this proceeding,' the
Board makes the following
Ruling on the Motion for Summary Judgment
In its answer, amendment to answer, response to
the Notice To Show Cause, motion to dismiss com-
plaint, and memorandum in support, Respondent
contends, in substance, that it is exempt from Board
jurisdiction because (1) it is a not-for-profit religious
entity engaged in the operation of minor seminaries,
(2) the schools are separately operated and do not
meet discretionary jurisdictional standards, (3)
Respondent's impact on commerce is slight, and (4)
assertion of jurisdiction would violate the first
amendment In addition, the Respondent's answer
denies the appropriateness of the unit In their Mo-
tions for Summary Judgment and submissions, coun-
sel for the General Counsel and the Union contend
that each of Respondent's jurisdictional arguments
was individually considered and determined in the
prior representation proceeding and may not be relit-
igated We agree
Review of the record, including the representation
proceedings in Case 13-RC-13402, establishes that
after a hearing on jurisdiction and unit questions,3
the Regional Director ordered proceedings transfer-
red to the Board The Union submitted a brief to the
Board, arguing that Respondent' s religious associa-
tion did not exempt it from board jurisdiction and
that a single unit of lay teachers, including depart-
2 The Respondents motion for oral argument is hereby denied as the
positions of the parties are adequately set forth in their submissions in this
and the representation proceedings
3 The Acting Regional Director originally had dismissed the petitions on
the grounds that Respondent s activities at the two schools were intimately
connected with the religious activities of that institution The Union ap
pealed and the Board reinstated the petition on the grounds that the issues
could best be resolved by a hearing
224 NLRB No 164
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment chairmen at Respondent's Quigley North and
Quigley South Preparatory High Schools, was appro-
priate In its brief, Respondent extensively argued
that assertion of jurisdiction would violate the first
amendment, as interpreted by the United States Su-
preme Court, in that it would involve impermissible
church-state entanglement and would impinge upon
free exercise of religion Respondent further con-
tended, in substance, that the Board should not as-
sert jurisdiction because the separately operated
schools did not meet the Board's discretionary juris-
dictional standards, and also because they were mi-
nor seminaries, primarily religious in character In
addition, Respondent contended that department
chairmen were supervisors who should be excluded
from the unit
On September 16, 1975, the Board issued its Deci-
sion and Direction of Election, rejecting the
Respondent's contentions 4 With respect to the juris-
dictional issues, the Board, referring specifically to
Respondent's contention that assertion of jurisdic-
tion would constitute impermissible church-state en-
tanglement, found (1) that the Quigley schools, while
religiously associated, were not completely religious
and were of the type over which the Board has assert-
ed jurisdiction, (2) that the two schools operated as
an integrated enterprise which met the Board's dis-
cretionary jurisdictional standards, and (3) that it
would effectuate the purposes of the Act to assert
jurisdiction The Board ordered an election in a sin-
gle unit of all Respondent's lay faculty, including de-
partment chairmen The election, held on October
17, 1975, was won by the Union
Respondent filed with the Regional Director time-
ly objections reiterating its previously raised jurisdic-
tion and unit contentions On November 3, 1975, the
Regional Director issued his Supplemental Decision
and Certification of Representative, finding that
Respondent's objections did not involve conduct of
the election and were tantamount to a motion for
reconsideration of the Board's decision which need
not be considered Accordingly, he overruled them
entirely and certified the Union No appeal was tak-
en to the Board from the Regional Director's ruling
In its response to the Notice To Show Cause, Re-
spondent contends that summary judgment is inap-
propriate because the Board has never fully de-
termined or addressed itself to the constitutional
issues raised in the representation case We find
Respondent's argument without merit Respondent's
constitutional contentions were clearly raised in its
extensive brief to the Board and the Board's decision
made specific reference to Respondent's church-state
entanglement contention in finding "that the Quigley
4 220 NLRB 359 (1975)
schools, while religiously associated, are not com-
pletely religious and are of the type over which the
Board has asserted jurisdiction " Further, we cannot
agree with Respondent's constitutional contention
since, as more fully set forth in the recent Archdiocese
of Los Angeles case,' (1) the purpose of the Act is to
maintain and facilitate the free flow of commerce
through the stabilization of labor relations, (2) the
provisions of the Act do not interfere with religious
beliefs, and (3) regulation of labor relations does not
violate the first amendment when it involves a mini-
mal intrusion of religious conduct and is necessary to
obtain that objective
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding 6
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the de-
cision made in the representation proceeding We
therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding' We shall, accordingly,
deny Respondent's motion to dismiss 8 and grant the
Motion for Summary Judgment 9
On the basis of the entire record, the Board makes
the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, an Illinois corporation and has operated two
5 Cardinal Timothy Manning Roman Catholic Archbishop of the Archdio
cese of Los Angeles a Corporation Sole etc 223 NLRB 1218 (1976)
6 See Pittsburgh Plate Glass Co v NLRB 313 U S 146 162 (1941)
Rules and Regulations of the Board Secs 102 67(f) and 102 69(c)
7 In its answer to the complaint Respondent denies the appropriateness
of the unit In the underlying representation proceeding Case 13-RC-
13402 Respondent litigated unit appropriateness and may not relitigate that
issue here
8 In its answer Respondent alleges that the charge contains a declaration
defective under Sec 102 11 of the Rules and Regulations of the Board We
find no merit in this contention Except for the absence of a date the
declaration follows Board rules The minor discrepancy does not constitute
a material defect in the charge particularly in view of Respondents address
that the charge had been filled on December 5 1975 and duly served on the
Respondent on December 9 1975
9 In view of our determination herein we find it unnecessary to rule upon
the Respondent s contention regarding the propriety of the Union s Motion
for Summary Judgment
THE CATHOLIC BISHOP OF CHICAGO 1223
religiously oriented high schools, Quigley North and
Quigley South, the only facilities involved in this
proceeding Respondent, annually, in the course and
conduct of its operations of Quigley North and Quig-
ley South, has an operating budget in excess of $1
million and has purchased goods and materials from
directly outside the State of Illinois in an amount
valued in excess of $65,000
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein
II THE LABOR ORGANIZATION INVOLVED
Illinois Education Association is a labor organiza-
tion within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A The Representation Proceeding
1 The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9 (b) of the
Act
All full-time and regular part-time lay teach-
ers, including physical education teachers em-
ployed by the Respondent at the Quigley North
and Quigley South Schools, Chicago, Illinois,
excluding rectors, procurators, dean of studies,
business manager, director of student activities,
director of formation, director of counseling
services, office clerical employees, maintenance
employees, cafeteria workers, watchmen, librari-
ans, nurses, all religious faculty, and all guards
and supervisors as defined in the Act
2 The certification
On October 17, 1975, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 13, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on November 3, 1975, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act
B The Request To Bargain and Respondent's Refusal
Commencing on or about November 7, 1975, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit Commencing
on or about November 25, 1975, and continuing at
all times thereafter to date, the Respondent has re-
fused, and continues to refuse, to recognize and bar-
gain with the Union as the exclusive representative
for collective bargaining of all employees in said
unit
Accordingly, we find that the Respondent has,
since November 25, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
V THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit See Mar-Jac Poultry Company, Inc, 136
NLRB 785 (1962), Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd 328 F 2d 600
(CA 5, 1964), cert denied 379 U S 817 (1964), Bur-
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd 350 F 2d 57 (C A 10, 1965)
The Board, upon the basis of the foregoing facts
and the entire record, makes the following
CONCLUSIONS OF LAW
1 The Catholic Bishop of Chicago, a Corporation
Sole, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 Illinois Education Association is a labor organi-
zation within the meaning of Section 2(5) of the Act
3 All full-time and regular part-time lay teachers,
including physical education teachers employed by
the Respondent at the Quigley North and Quigley
South Schools, Chicago, Illinois, excluding rectors,
procurators, dean of studies, business manager, di-
rector of student activities, director of formation, di-
rector of counseling services, office clerical employ-
ees, maintenance employees, cafeteria workers,
watchmen, librarians, nurses, all religious faculty,
and all guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act
4 Since November 3, 1975, the above-named la-
bor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act
5 By refusing on or about November 25, 1975,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the Act
6 By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act
7 The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act
Catholic Bishop of Chicago, a Corporation Sole, Chi-
cago, Illinois, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Illinois Education Asso-
ciation as the exclusive bargaining representative of
its employees in the following appropriate unit
All full-time and regular part-time lay teach-
ers, including physical education teachers em-
ployed by the Respondent at the Quigley North
and Quigley South Schools, Chicago, Illinois,
excluding rectors, procurators, dean of studies,
business manager, director of student activities,
director of formation, director of counseling
services, office clerical employees, maintenance
employees, cafeteria workers, watchmen, librari-
ans, nurses, all religious faculty, and all guards
and supervisors as defined in the Act
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act
2 Take the following affirmative action which the
Board finds will effectuate the policies of the Act
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement
(b) Post at Quigley North and Quigley South
Schools, Chicago, Illinois, copies of the attached no-
tice marked "Appendix " 10 Copies of said notice, on
forms provided by the Regional Director for Region
13, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other materi-
al
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, The
10 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
THE CATHOLIC BISHOP OF CHICAGO 1225
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Illi-
nois Education Association as the exclusive rep-
resentative of the employees in the bargaining
unit described below
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of em-
ployment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment The bargaining unit is
All full-time and regular part-time lay
teachers, including physical education teach-
ers employed by the Respondent at the Quig-
ley North and Quigley South Schools, Chica-
go, Illinois, excluding rectors, procurators,
dean of studies, business manager, director of
student activities, director of formation, direc-
tor of counseling services, office clerical em-
ployees, maintenance employees, cafeteria
workers, watchmen, librarians, nurses, all reli-
gious faculty, and all guards and supervisors
as defined in the Act
THE CATHOLIC BISHOP OF CHICAGO, A
CORPORATION SOLE