Petition — NLRB v. Catholic Bishop of Chicago

i ¥ Supreme Court, U. &;

FILED

77-752 ‘NOV 95 1977

° | .

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

THE CATHOLIC BISHOP OF CHICAGO, a corporation sole,

and

DIOCESE OF FORT WAYNE-SOUTH BEND, INC., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

WADE H. McCREE, JR.,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

JOHN S. IRVING,

General Counsel,

JOHN E. HIGGINS, JR.,

Deputy General Counsel,

CARL L. TAYLOR,

Associate General Counsel,

NORTON J. COME,

Deputy Associate General Counsel,

CAROL DE DEo,

Attorney,

National Labor Relations Board,

Washington, D.C. 20570.

Page

ad aa 1

SESE ro I Ie RA ORES © RN 2

Question presented _ 2

Constitutional provision and statute involved © 2

Statement oat de Lae 5

A. The Board proceedings 5

B. The decision of the court of appeals 9

Reasons for granting the petition ae 12

Conclusion TE aoe Se a eeuiGcs.caes 24

a edaeons la

Appendix B 5la

Appendix C 53a

Appendix D 69a

Appendix E 85a

Appendix F . 92a

CITATIONS

Cases:

Association of Hebrew Teachers of

Metropolitan Detroit (United Hebrew

Schools), 210 NLRB 1053 | < 7

Associated Press v. National Labor Rela-

tions Board, 301 U.S. 103 =... ~—s«wi17, 18

Board of Education y. Allen, 392 U.S.

Sarees Me?

Board of Jewish Education of Greater

Washington, D.C., 210 NLRB 1037____ 7

Ul | III

. Cases—Continued Page

—_ age

Cases—Continued ° National Labor Relations Board v. Roman

Braunfeld v. Brown, 366 U.S. 599 13, 21 Catholic Diocese of Brooklyn, 535 F. 2d

Broadrick vy. Oklahoma, 413 U.S. 601 19 1387 x 23

Cantwell v. Connecticut, 310 U.S. 296. 13 National Labor ‘Relations Booud ¢ Vv. ‘Went.

Cap Santa Vue, Inc. v. National Labor worth Institute, 515 F. 24 550 7

Relations Board, 424 F. 2d 883 21 Nazareth Regional High School v. Na-

Cardinal Timothy Manning, Reman Cath- tional Labor Relations Board, 549 F. 2d

olic Archbishop of the Archdiocese of 873 aa 23

Los Angeles, 223 NLRB 1218, pending Pacific Union Conference of Seventh-Day

on petition for review, C.A. 9, No. 77- Adventists vy. Marshall, No. A-81, de-

1286 8 cided August 2,1977 cst 7

Cornell University, 183 NLRB 329 7 Parker vy. Commissioner, 365 F. 2d 792,

Grutka v. Barbour, 549 F. 2d 5, certio- certiorari denied, 385 U.S. 1026 21

rari denied, 431 U.S. 908 18 Picker Corporation, 222 NLRB 296 17

H. K. Porter Co. v. National Labor Rela- Prince v. Massachusetts, 321 U.S. 158 21

tions Board, 397 U.S. 99 16 Railway Employes’ Dept. v. Hanson, 351

Hammond vy. United Papermakers & Pa- U.S. 225 OS 22

perworkers Union, 462 F. 2d 174, cer- Rescue Army Vv. Municipal Court of Los

tiorari denied, 409 U.S. 1028 21 Angeles, 331 U.S. 549 18

Henry M. Hald High School Association, Roemer v. Board of Public Works of

213 NLRB 415 23 Maryland, 426 U.S. 736 19

Lemon v. Kurtzman, 403 U.S. 602 9, 15, 20 Roman Catholic Archdiocese of Baltimore,

Linscott vy. Millers Falls Co., 440 F. 2d Archdiocesan High Schools, 216 NLRB

14, certiorari denied, 404 U.S. 872 21 US ae. 5 ae ee 8

Meek v. Pittenger, 421 U.S. 349 9 Serbian Eastern Orthodox Diocese v. Mili-

Mitchell v. Pilgrim Holiness Church Corp., vojevich, 426 U.S. 696 18

210 F. 2d 879, certiorari denied, 347 Sherbert v. Verner, 374 U.S. 398 13

U.S. 1013 : 21 United States v. Kissinger, 250 F. 2d 940,

National Labor Relations Board \ v. _ Jones certiorari denied, 356 U.S. 958 21

& Laughlin Steel Corp., 301 U.S. 1 21 United States v. Raines, 362 U.S. 17 19

National Labor Relations Board v. Mercy United States v. Reynolds, 98 U.S. 145 13

College, 536 F. 2d 544 7 Watchtower Bible & Tract Society v. Los

National Labor Relations Board vy. Reli- Angeles County, 181 F. 2d 739, certio-

ance Fuel Oil Corp., 371 U.S. 224 22 rari denied, 340 U.S. 820 21

Cases—Continued Page

Wisconsin v. Yoder, 406 U.S. 205. -—s«:«13, 21

Wolman v. Walter, No. 76-496, decided

June 24, 1977 15

Yott v. North American Rockwell Corp.,

501 F. 2d 398 : 21

Constitution, statutes, and regulation:

United States Constitution, First Amend-

ment — . passim

National Labor Relations Act, as amended

(61 Stat. 136, 73 Stat. 519, 29 U.S.C.

151 et seq.) ania’ a 2

Section 1, 29 U.S.C. 151 2

Section 2(2), 29 U.S.C. 152(2) 3

Section 7, 29 U.S.C. 157 - ae 3,17

Section 8(a), 29 U.S.C. 158(a) 3, 16

Section 8(a)(1), 29 U.S.C. 158(a)

(1) 3, 6,8

Section 8(a) (5), 29 U.S.C. 158(a)

(5) 4,6,8

Section 8(d), 29 U.S.C. 158(d) 16

Section 9(a), 29 U.S.C. 159(a) 4

Section 9(c)(1), 29 U.S.C. 159(c)

(1) : 4,6

Section 9(c)(1)(A), 29 U.S.C. 159

(c) (1) (A) — 4

Section 14(c)(1), 29 USC. 164(c)

|, | EES ; 22

29 U.S.C. 108.1 scdeeaedealanannatnaas 7

Miscellaneous:

Hearings on H.R. 8410 (Labor Reform

Act of 1977) before the Subcommittee

on Labor-Management Relations of the

House Committee on Education and La-

bor, 95th Cong., lst Sess. (1977)

“Mater et Magistra,” an encyclical of

Pope John XXIII on Christianity and

Social Progress (May 15, 1961), re

printed in The Encyclicals and Other

Messages of John XXIII (1964) -

Official Catholic Directory (1977)

Pope Leo XIII, Rerum Novarum (Park-

inson ed. 1924)

Page

14

14

12

14

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No.

NATIONAL LABOR RELATIONS BOARD, PETITIONER

v.

THE CATHOLIC BISHOP OF CHICAGO, a corporation sole,

and

DIOCESE OF FORT WAYNE-SOUTH BEND, INC., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Solicitor General, on behalf of the National

Labor Relations Board, petitions for a writ of cer-

tiorari to review the judgment of the United States

Court of Appeals for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A,

infra) is reported at 559 F. 2d 1112. The decisions

and orders of the National Labor Relations Board

(Apps. C and D, infra) are reported at 224 NLRB

1221 and 224 NLRB 1226.

(1)

2

JURISDICTION

The judgment of the court of appeals (App. B,

infra) was entered on August 3, 1977. On October

20, 1977, Mr. Justice Stevens extended the time for

filing a petition for a writ of certiorari to and in-

cluding December 1, 1977. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether application of the National Labor Rela-

tions Act to schools operated by the Roman Catholic

Church, which teach both religious and secular sub-

jects, violates the Establishment or Free Exercise

Clauses of the First Amendment.

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

The First Amendment to the United States Con-

stitution provides in pertinent part:

Congress shall make no law respecting an es-

tablishment of religion, or prohibiting the free

exercise thereof * * *.

The relevant provisions of the Nationa] Labor Rela-

tions Act, as amended (61 Stat. 136, 73 Stat. 519,

29 U.S.C. 151 et seg.), are as follows:

Section 1. * * *

> * * * *

It is hereby declared to be the policy of the

United States to eliminate the causes of certain

substantial obstructions to the free flow of com-

merce and to mitigate and eliminate these ob-

structions when they have occurred by encour-

aging the practice and procedure of collective

bargaining and by protecting the exercise by

workers of full freedom of association, self-

organization, and designation of representatives

of their own choosing, for the purpose of nego-

tiating the terms and conditions of their employ-

ment or other mutual aid or protection.

* * o « +

Section 2(2) The term “employer” includes

any person acting as an agent of any employer,

directly or indirectly, but shall not include the

United States or any wholly owned Government

corporation, or any Federal Reserve Bank, or

any State or political subdivision thereof * * *.

* a * s s

Section 7. Employees shall have the right to

self-organization, to form, join, or assist labor

organizations, to bargain collectively through

representatives of their own choosing, and to en-

gage in other concerted activities for the purpose

of collective bargaining or other mutual aid or

protection, and shall also nave the right to re-

frain from any or all such activities * * *.

* * s s s

Section 8(a) It shall be an unfair labor prac-

tice for an employer—

(1) to interfere with, restrain, or coerce em-

ployees in the exercise of the rights guaranteed

in section 7;

a * * * -

4

(5) to refuse to bargain collectively with the

representatives of his employees, subject to the

provisions of section 9(a).

* * * * *

Section 9(a) Representatives designated or

selected for the purposes of collective bargaining

by the majority of the emnloyees in a unit ap-

propriate for such purposes, shall be the exclu-

sive representatives of all the employees in such

unit for the purposes of collective bargaining in

respect to rates of pay, wages, hours of employ-

ment, or other conditions of employment: * * *.

(c)(1) Whenever a petition shall have been

filed, in accordance with such regulations as may

be prescribed by the Board—

(A) by an employee or group of employees or

any individual or labor organization acting in

their behalf alleging that a substantial number

of employees (i) wish to be represented for col-

lective bargaining and that their employer de-

clines to recognize their representative as the

representative defined in section 9(a), * * *

the Board shall investigate such petition and if

it has reasonable cause to believe that a question

of representation affecting commerce exists shall

provide for an appropriate hearing upon due no-

tice. * * * If the Board finds upon the record of

such hearing that such a question of representa-

tion exists, it shall direct an election by secret

ballot and shall certify the results thereof.

5

STATEMENT

A. The Board Proceedings

Respondent The Catholic Bishop of Chicago, a

corporation sole, operates two parochial secondary

schools, Quigley North and Quigley South, in Chicago,

Illinois. The schools’ academic and extracurricular

programs, as well as their admissions and vocational

guidance policies, indicate that they are essentially

college preparatory high schools. Students are offered

a wide range of courses in mathematics, English,

social studies, sciences, foreign languages, fine arts

and physical education, in addition to a required

course on religion for one period (45 minutes) three

or five days a week, and enjoy supervised after-school

activities (such as debating, science fairs, athletic

competition against other private and public schools,

drama and music instruction and social events) typi-

cal of many secular high schoois. The Quigleys are

accredited by the North Central Association of Sec-

ondary Schools and Colleges, are “fully recognized”

by the State of Illinois (a form of certification beyond

minimum state requirements), and are subject to

state laws concerning curriculum and attendance

(Tr. 336-338, 344-349, 393-397, 403, 425, 515-530,

553, 637, 650, 686).’ Respondent Diocese of Fort

1“Tr.” refers to the transcript of the Quigley representa-

tion proceeding before the Board. Although admission to the

Quigley schools is generally limited to boys who demonstrate

some interest in the priesthood or a “potential for Christian

leadership” (Tr. 608, 778-779), few of the schools’ graduates

Wayne-South Bend, Inc., operates five parochial sec-

ondary schools in northeastern Indiana that are simi-

lar to the Quigley schools except that they apparently

have a lower “degree of religious orientation” (App.

A, infra, p. 4a, n. 5).

In September and October 1975, pursuant to sepa-

rate representation petitions filed by the Quigley Edu-

cation Association, an affiliate of the Illinois Educa-

tion Association, and the Community Alliance for

Teachers of Catholic High Schools (the “Unions”)

under Section 9(c)(1) of the National Labor Rela-

tions Act, 29 U.S.C. 159(c) (1), elections were con-

ducted in units composed of all lay faculty members

at the high schools (App. E, infra, p. 85a; App. F,

infra, p. 92a).* The Unions won the elections and

were certified as the exclusive bargaining representa-

tives of the employees in the two units. After re-

spondents (the “Employers”) refused to bargain with

the Unions, the Regional Director issued complaints

alleging that the Employers’ conduct violated Section

8(a)(5) and (1) of the Act, 29 U.S.C. 158 (a) (5)

and (1). The Employers admitted their refusal to

ever become priests. The majority go on to public or private

college and secular employment. No evidence was presented

that any similar limitation is placed on admission to the

Indiana schools.

* The unit at the Quigley schools consisted of 46 teachers

while the unit at the Indiana schools (South Bend St. Joseph

High School, Mishawaka Marian High School, Fort Wayne

Bishop Luers High School, Fort Wayne Bishop Dwenger High

School and Huntington Catholic High School) consisted of

approximately 182 teachers.

T

bargain but contended, as they had in the earlier

representation proceedings, that the schools involved

were “completely religious” and thus that the Board

should decline to assert jurisdiction under its discre-

tionary standard.’ They further argued that, in any

event, the Board’s assertion of jurisdiction over such

schools was prohibited by the First Amendment (App.

C, infra, pp. 55a-56a; App. D, infra, p. 71a).

The Board held that the Employers were not en-

titled to relitigate the determinations made in the

representation proceedings that the schools, while

religiously associated, were not completely religious

and that they therefore satisfied the Board’s discre-

tionary standard for asserting jurisdiction (App. C,

infra, pp. 58a-59a; App. D, infra, p. 74a). The

‘In Cornell University, 183 NLRB 329, 334, the Board an-

nounced that it would assert jurisdiction over nonprofit, pri-

vate educational institutions that met a specified dollar-volume

standard (at present, gross annual revenues of $1 million or

more, 29 C.F.R. 103.1). See National Labor Relations Board

v. Mercy College, 536 F. 2d 544 (C.A. 2); National Labor Re-

lations Board Vv. Wentworth Institute, 515 F. 2d 550 (C.A. 1).

However, in Board of Jewish Education of Greater Washing-

ton, D.C., 210 NLRB 1037, the Board determined that, even

where this dollar standard had been satisfied, it would decline

to assert jurisdiction over “institutions primarily religious and

noncommercial in character and purpose, whose educational

endeavors are limited essentially to furthering and nurturing

their religious beliefs,” because to do so “would not effectuate

the policies of the Act.” See also Association of Hebrew

Teachers of Metropolitan Detroit (United Hebrew Schools),

210 NLRB 1053, 1058.

‘In the Quigley representation proceeding, the Board ex-

plained that its “policy is to decline jurisdiction over religious-

ly sponsored organizations ‘only when they are completely

8

Board also rejected the Employers’ constitutional

claims for the reasons set forth in Cardinal Timothy

Manning, Roman Catholic Archbishop of the Arch-

diocese of Los Angeles, 223 NLRB 1218, pending on

petition for review, C.A. 9, No. 77-1286, which it

summarized as follows (App. C, infra, pp. 58a-59a;

App. D, infra, p. 74a):

(1) the purpose of the Act is to maintain and

facilitate the free flow of commerce through the

stabilization of labor relatiins; (2) the provi-

sions of the Act do not interfere with religious

beliefs; and (3) regulation of labor relations

does not violate the first amendment when it in-

volves a minimal intrusion of religious conduct

and is necessary to obtain that objective.

Accordingly, the Board concluded that the Employers

had violated Section 8(a) (5) and (1) of the Act, and

religious, not just religiously associated’ ” ( App. E, infra, p.

86a), quoting from Roman Catholic Archdiocese of Baltimore,

Archdiocesan High Schools, 216 NLRB 249, 250. The Board

found that the two Chicago high schools “operate primarily

as college preparatory schools within the class over which

the Board has heretofore asserted jurisdiction”; that, “[a]s

to the 1974 graduating class, the most recent prior to the

hearing, only 16 percent of the class went on to Niles College,”

the Diocesan Seminary College; that “the academic curriculum

is similar to that of other high schools, both private and pub-

lic”; and that “the Quigley schools also maintain a substan-

tial number of extracurricular activities including interschool

sports and intramural activities similar to those engaged in

by students in other high schools” ( App. E, infra, pp. 87a-

88a). A similar determination was made with respect to the

high schools in Diocese of Fort Wayne-South Bend (App. F,

infra, p. 93a, n. 2).

Pisa Gm

rr pen

9

it ordered them to cease and desist from the unfair

labor practices ane to bargain collectively with the

Unions (App. C, infra, pp. 65a-67a; App. D, infra,

pp. 81la-82a).

B. The Decision of the Court of Appeals

The court of appeals denied enforcement of the

Board’s orders (App. A, infra). Initially, the court

concluded that the Board’s determination that the

schools involved here were not “completely religious”

and, hence, were within the Board’s jurisdictional

standard, was an abuse of discretion in light of this

Court’s recent decisions involving state aid to paro-

chial schools, in which such schools “had been gener-

ically labeled in a manner which appeared to be in-

consistent with a constitutional basis for differentiat-

ing between ‘completely religious’ and ‘religicusly

associated’ ”’ (id. at 21la).°

Having rejected the Board’s discretionary attempt

to exempt certain religious schools from its jurisdic-

tion, the court of appeals went on to decide “the

larger constitutional question,” because “it would

follow that the Board would necessarily have to as-

. ifically, the court of appeals relied on statements in

Pah ne awl 403 U.S. 602, and Meek v. Pittenger, 421

U.S. 349, that parochial schools are “ ‘an integral part of the

religious mission of the Catholic Church’” involving sub-

stantial religious activity and purpose” (Lemon, supra, 403

U.S. at 616), and that the “ ‘secular education those schools

provide goes hand in hand with the religious mission that is

the only reason for the schools’ existence” (Meek, supra, 421

U.S. at 266).

10

sert jurisdiction over all religious schools in view of

the otherwise inclusive scope of the statuie under

which it operates” (App. A, infra, p. 27a). The

court concluded that the Board’s assertion of juris-

diction over parochial schools violated the Establish-

ment and Free Exercise Clauses of the First Amend-

ment.® It found that “the very threshold act of cer-

tification of the union necessarily alters and impinges

upon the religious character of all parochial schools.”

Religious officials would “[n]o longer * * * be the

sole repository of authority as required by church

law,” but would have “to share ‘some decision-making’

with the union” (id. at 27a). Moreover, in the court’s

view, the “Board’s order to bargain unquestionably

* * * inhibits the bishops’ authority to maintain paro-

chial schools in accordance with ecclesiastical concern”

(id. at 29a-30a) :

If a bishop, for example, should refuse to renew

all lay faculty teacher contracts because he »e-

lieved that the union had adopted policies and

practices at odds with the religious character of

the institutions, or because he wanted to replace

lay teachers with religious-order teachers who

* The court of appeals made no distinction between the two

Religion Clauses of the First Amendment and instead blended

its discussion of “free exercise” and “establishment” principles

because of its “belief that there has been some blurring of

sharply honed differentiations” (App. A, infra, p. 48a). It

found that the Board’s invo!vement in the labor relations of

church-related schools ran afoul of both Clauces, which have

“the identical purpose of maintaining a separation between

Church and State” (id. at 49a).

teas ee

a

7.

|

11

had become available, under ecclesiastical law he

would have the right if not the duty to take that

action. Yet, under the National Labor Relations

Act, he might well be found guilty of an unfair

labor practice. * * * The real difficulty is found

in the chilling aspect that the requirement of

bargaining will impose or the exercise of the

bishops’ control of the religious mission of the

schools. To minimize friction between the Church

and the Board, prudence will ultimately dictate

that the bishop tailor his conduct and decisions

to “steer far wider of the unlawful zone” of im-

permissible conduct. * * * If, for example, a

teacher should give a strong pro-union speech at

a meeting one week and the next week would

advocate the cause of birth control to his or her

students or favor the availability to poor people

of abortion, the bishop would be confronted with

a choice of foregoing his right to discharge the

heretical employee or do so at the risk of a pro-

tracted and expensive unfair labor practice pro-

ceeding before the Board which would certainly

in part involve the Church’s religious policies

and beliefs.

Although the court of appeals noted that the Act’s

imposition of a bargaining obligation inevitably re-

sults in some restriction on every covered employer’s

freedom to conduct his business, it concluded that

such restrictions, while justified “on the general in-

dustrial and commercial scene” by sound legislative

policy considerations, must give way when they con-

flict with the First Amendment (App. A, infra, p.

30a). The court also distinguished “permissible gov-

12

ernmental impingements upon the operation of the

church schools,” such as fire inspections, zoning laws,

and state compulsory attendance requirements, on the

ground that such regulations, unlike a Board bar-

gaining order, have no “clear inhibiting potential

upon the relationship between teachers and employ-

ers” (id. at 30a-31la). Finally, the court observed that

such regulations applied equally to all schools, where-

as the Board’s determination to assert jurisdiction

over parochial schools did not apply to public schools,

which are expressly exempted from the statutory defi-

nition of “employer” (id. at 32a).

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals that applica-

tion of the National Labor Relations Act to parochial

schools is prohibited by the Free Exercise and Estab-

lishment Clauses of the First Amendment is errone-

ous and constitutes a serious departure from the prin-

ciples that this Court has consistently applied in

determining whether the application of government

regulatory programs to religious institutions offends

the Constitution. Moreover, the question decided by

the court below is an important one; its decision

would restrict the reach of the Act in a significant,

sensitive area involving some 10,000 schools and more

than 100,000 lay teachers throughout the nation.’

’ There are 107,856 lay faculty members alone in the 9,976

primary and secondary schools affiliated with the Catholic

Church in the United States. Official Catholic Directory,

general summary, pp. 1-2 (1977).

OO Beta waders

13

1. The First Amendment provision that “Congress

shall make no law respecting an establishment of re-

ligion, or prohibiting the free exercise thereof,” em-

braces two concepts, “freedom to believe and freedom

to act. The first is absolute but, in the nature of

things, the second cannot be. Conduct remains sub-

ject to regulation for the protection of society.”

Cantwell v. Connecticut, 310 U.S. 296, 303-304. It is

therefore settled that the “freedom to act, even when

the action is in accord with one’s religious convic-

tions,” may be reasonably restricted by neutral leg-

islation. Braunfeld v. Brown, 366 U.S. 599, 603. See

United States v. Reynolds, 98 U.S. 145, 166. How-

ever, only those governmental “interests of the high-

est order and those not otherwise served can over-

balance legitimate claims to the free exercise of re-

ligion.” Wisconsin v. Yoder, 406 U.S. 205, 215.

Accordingly, where it is claimed that regulation

“interferes with the practice of a legitimate religious

belief, it must appear either that the [government]

does not deny the free exercise of religious belief

by its requirement, or that there is a [governmental ]

interest of sufficient magnitude to override the in-

terest claiming protection under the Free Exercise

Clause.” Jd. at 214. See also Sherbert v. Verner,

374 U.S. 398, 403. Application of these principles

demonstrates that the Board’s orders in these cases

do not violate the First Amendment.

a. The purpose of the National Labor Relations

Act, to encourage the practice and procedure of col-

lective bargaining in order to preserve industrial

14

peace and protect workers’ rights, is entirely secu-

lar. Moreover, the Employers have never alleged that

bargaining with a union is contrary to their re-

ligious beliefs;* they assert only that the First

Amendment prohibits a governmentally-imposed or-

der to do so. However, the contention that parochial

school operations must be exempt from the require-

ments of general legislation merely because they have

a religious purpose has been rejected in a variety

of other contexts. Such schools are not immune from

regulations such as fire inspections, zoning ordinances,

health and safety standards, minimum wage laws,

compulsory attendance requirements, or a number of

other governmental restrictions that may have an

unintended, incidental effect upon the schools’ re-

* To the contrary, leaders of the Catholic Church have con-

sistently defended “the worker’s natural right to enter into

association with his fellows” for the purpose of bargaining

collectively with their employer and have recognized the duty

of government “to protect the rights of all its people, and

particularly of its weaker members, the workers * * *.”

“Mater et Magistra,” an encyclical of Pope John XXIII on

Christianity and Social Progress (May 15, 1961), reprinted

in The Encyclicals and Other Messages of John XXIII, 255-

256 (1964). See also Pope Leo XIII, Rerum Novarum (Park-

inson ed. 1924); Hearings on H.R. 8410 (Labor Reform Act

of 1977) before the Subcommittee on Labor-Management

Relations of the House Committee on Education and Labor,

95th Cong., Ist Sess. 411-423 (1977) (testimony of Monsig-

nor George C. Higgins, Secretary for Research of the United

States Catholic Conference).

ow inner mnematanll

meee | ia PM On we er seminal, ele

e-em oe

i eh tee) ot ch le Bo

Re ee ee ee ee er

6 A OME OO

15

ligious operations. See Lemon v. Kurtzman, supra,

403 U.S. at 614.’

Although the court of appeals acknowledged that

religious institutions may be subjected to reasonable

governmental regulation (App. A, infra, pp. 30a-

3la), it concluded that the requirements of the Act

were impermissible because they would impose a

“chilling aspect” on “the exercise of the bishops’ con-

trol of the religious mission of the schools” (id. at

29a). The court explained that school officials might

be induced to forego their right to take a bargaining

*The fact that church schools must comply with these

regulations also undermines the court’s view that the denial

of government financial aid to parochial schools entitles them

to be free of obligations under the Act (App. A, infra, p. 46a).

The court’s grounds for distinguishing other regulation of

parochial schools do not withstand analysis. For example, in

furtherance of the State’s interest “in insuring that its youth

receive an adequate secular education,” the State may require

that parochial schools only employ teachers with adequate

qualifications and “may examine both teachers and pupils to

ensure that the State’s legitimate interest is being fulfilled.”

Wolman Vv. Walter, No. 76-496, decided June 24, 1977, slip op.

9. See also Board of Education v. Allen, 392 U.S. 236, 245-

246. These requirements may well have a “clear inhibiting

potential upon the relationship between teachers and employ-

ers” in parochial schools. (App. A, infra, p. 31a). Nor may

fire inspection, school attendance and similar laws be distin-

guished on the ground that they are applicable to all schools,

whereas public schools are expressly excluded from the Act

(id. at 32a). Congress’ exclusion of government instrumen-

talities from the statutory coverage is irrelevant to the ques-

tion whether there is a constitutional bar to an extension of

the Act to all employees of private employers whose opera-

tions affect commerce. The Act applies to private secular

schools no less than to private religious schools.

16

position required by church doctrine or to fire a

heretical employee who is also a union adherent be-

cause the exercise of these rights would entail “the

risk of a protracted and expensive unfair labor prac-

tice proceeding before the Board which would cer-

tainly in part involve the Church’s religious policies

and beliefs” (id. at 30a). However, the assumption

of the court below that subjecting parochial schools

to the Board’s jurisdiction would “chill” school of-

ficials in the free exercise of their religious beliefs

and would unduly entangle the Board in religious

affairs rests upon an erroneous understanding of the

structure of the Act and the Board’s role in enforcing

its provisions.

Although the Board’s orders require employers

and unions to bargain in good faith about wages,

hours, and other terms and conditions of employ-

ment, the Board is in no sense a participant at the

negotiating table, nor can it compel a party to make

any concessions or to agree to any substantive con-

tractual provision. See 29 U.S.C. 158(d); H. K.

Porter Co. v. National Labor Relations Board, 397

U.S. 99. Similarly, in determining whether the firing

of an employee (or any other employer business deci-

sion) may have constituted an unfair labor practice,

the Board’s concern focuses solely on the secular is-

sue of anti-union conduct, not the substantiality of

the employer’s alleged motivation for his actions. See

29 U.S.C. 158(a). Thus, if a church official were to

contend that an employee, allegedly discharged for

union activity, was in fact fired for espousing hereti-

& (+ cvuieneiailee tal

A | nll 0 ag ali REY eM Mie PM

ee

17

cal views, the Board’s role would be limited to a de-

termination whether the employer’s alleged reason for

the discharge was the actual one; once it were de-

termined that the employee had not been removed or

disciplined in an effort to interfere with rights guar-

anteed by Section 7 of the Act, 29 U.S.C. 157, the

Board’s inquiry would end. If the employee had

been discharged because of the employer’s belief that

he or she was unqualified to teach in a parochial

school, the “validity as a part of church doctrine”

(App. A, infra, p. 38a) of that belief would play no

part in the Board’s decision. See, e.g., Associated

Press v. National Labor Relations Board, 301 U.S.

103, 131-132; Picker Corporation, 222 NLRB 296,

300-301.

Although the Board’s assertion of jurisdiction over

parochial schools may well require church officials

on occasion to justify actions alleged to have been

taken in violation of the Act, there is no reason to

believe that the necessity of proving to the satisfac-

tion of the Board or the courts that a bargaining

position was asserted in good faith or that an em-

ployee was not discharged for a prohibited reason

would deter such officials from taking that action.

The court of appeals offered no evidence that other

employers subject to the Act have compromised their

authority to manage their businesses out of fear of

Board scrutiny of their decisions. Moreover, this

speculative concern, even if legitimate, would not sup-

port a blanket exemption from the Act. The courts

and administrative agencies may not intrude into

18

essentially religious controversies (Serbian Eastern

Orthodox Diocese v. Milivojevich, 426 U.S. 696),

but a religious institution is not relieved of the obli-

gation to defend its position in a lawsuit over secu-

lar issues simply because of its status or the context

in which the dispute has arisen. See Rescue Army v.

Municipal Court of Los Angeles, 331 U.S. 549; Grut-

ka v. Barbour, 549 F. 2d 5 (C.A. 7), certiorari de-

nied, 431 U.S. 908. See also Pacific Union Conference

of Seventh-Day Adventists v. Marshall, No. A-81, de-

cided August 2, 1977 (Rehnquist, Circuit Justice).

In any event, even if there were a possibility that

the Board in a future case might inquire into the

validity of a doctrinal position in the course of an

unfair labor practice proceeding, that would provide

no justification for holding the Act unconstitutional

as applied in the present cases, where the Employers

did not seek to justify their refusal to bargain on

any church doctrine, the legitimacy of their religious

beliefs was not at issue, and the prospect of an im-

permissible governmental entanglement with or im-

pairment of religious affairs was wholly conjectural.

As this Court stated in Associated Press v. National

Labor Relations Board, supra, 301 U.S. at 131-132,

in rejecting a similar claim that application of the

Act to a newspaper would lead to inevitable inter-

ference with the First Amendment guarantee of free-

dom of the press:

The ostensible reason for Watson’s discharge, as

embodied in the records of the petitioner, is

“solely on the grounds of his work not being on

19

yk * *

a basis for which he has shown capability.

The actual reason for his discharge, as shown

by the unattacked finding by the Board, was his

Guild activity and his agitation for collective

bargaining. The statute does not preclude a dis-

charge on the ostensible grounds for the petition-

er’s action; it forbids discharge for what has

been found to be the real motive of the petitioner.

These considerations answer the suggestion that

if the petitioner believed its pol'cy of impartiality

was likely to be subverted by Watson’s continued

service, Congress was without power to interdict

his discharge. No such question is here for deci-

sion. Neither before the Board, nor in the court

below, nor here has the petitioner professed such

belief. It seeks to bar all regulation by contend-

ing that regulation in a situation not presented

would be invalid. Courts deal with cases upon

the basis of the facts disclosed, never with non-

existent and assumed circumstances.

See also Roemer v. Board of Public Works of Mary-

land, 426 U.S. 736, 761; Broadrick v. Oklanoma, 413

U.S. 601, 610; United States v. Raines, 362 U.S. 17,

21.”

1° The court of appeals’ conclusion that the mere “possibil-

ity of entanglement” in future cases is enough to render the

Act unconstitutional as applied to the Employers (App. A,

infra, p. 36a) also ignores the fact that, if the Board were

ever to issue an order that invaded First Amendment rights,

there would be ample opportunity under the Act to obtain

judicial review before the order is enforced. Hence, the

Board’s assertion of jurisdiction over private religious schools

does not present the “comprehensive, discriminating, and con-

20

In sum, the Employers’ position amounts in es-

sence to the claim that they have a constitutional right

to commit unfair labor practices—that, even though

their businesses fall within the language of the Act,

they may refuse to bargain with the representatives

of their employees and may discharge or otherwise

discriminate against cimployees because of union ac-

tivity. They make this claim despite their concession

that their religious beliefs do not sanction, much less

require, the conduct of their labor relations in a man-

ner found by Congress to be contrary to the public

interest. Rather, the Employers contend that the

Board, in determining whether an unfair labor prac-

tice may have been committed, necessarily wouid be

forced to intrude into prohibited areas. Because these

fears are unfounded or, at the very least, speculative,

the court of appeals erred in denying enforcement of

the Board’s orders.

b. As noted above, the Employers have never con-

tended that the Board’s bargaining orders would re-

quire them to take action inconsistent with their re-

ligious beliefs. Even if the Board’s assertion of ju-

risdiction over parochial] schools could be shown to

regulate conduct that was based upon religious con-

victions, however, such regulation would be permis-

tinuing state surveillance” (Lemon v. Kurtzman, supra, 403

U.S. at 619) found to be inherent in some school aid pro-

grams.

21

sible if justified by a compelling state interest. Wis-

consin v. Yoder, supra, 406 U.S. at 214."

The National Labor Relations Act reflects Con-

gress’ judgment that the denial of the right of em-

ployees to organize and to bargain through repre-

sentatives of their own choosing is likely to lead to

strikes and other activity that would disrupt the free

flow of commerce. National Labor Relations Boara vy.

Jones & Laughlin Steel Corp., 301 U.S. 1, 42. The

courts have repeatedly recognized the importance of

this federal concern in rejecting claims that the Act’s

mandatory bargaining (Cap Santa Vue, Inc. v. Na-

tional Labor Relations Board, 424 F. 2d 883, 890

(C.A. D.C.)) and union shop (Yott v. North Amer-

can Rockwell Corp., 501 F. 2d 398, 403 (C.A. 9);

Hammond v. United Papermakers & Paperworkers

Union, 462 F. 2d 174, 175 (C.A. 6), certiorari denied,

409 U.S. 1028; Linscott v. Millers Falls Co., 440 F. 2d

14, 17-18 (C.A. 1), certiorari denied, 404 U.S. 872)

11 See, e.g., Braunfeld v. Brown, 366 U.S. 599 (state law

barring retail sales on Sunday); Prince v. Massachusetts, 321

U.S. 158 (state child labor law); Parker v. Commissioner,

365 F. 2d 792, 795 (C.A. 8), certiorari denied, 385 U.S. 1026

(federal income tax law) ; United States v. Kissinger, 250 F. 2d

940, 943 (C.A. 3), certiorari denied, 356 U.S. 958 (federal

agricultural marketing law); Mitchell v. Pilgrim Holiness

Church Corp., 210 F. 2d 879, 884-885 (C.A. 7), certiorari

denied, 347 U.S. 1013 (federal minimum wage law); Watch-

tower Bible & Tract Society v. Los Angeles County, 181 F. 2d

739 (C.A. 9), certiorari denied, 340 U.S. 820 (state property

tax law).

22

provisions must yield to conflicting religious beliefs.”

The danger of economic strife if workers in religious

schools were deprived of the opportunity to engage

in collective bargaining or other concerted activity

justified the determination of Congress not to exempt

such schools from the rights and obligations imposed

on all other private employers and employees engaged

in operations that affect commerce.”* Parochial schools

are in many ways indistinguishable from the private

high schools that are within the Board’s jurisdiction;

there is no justification for a complete disparity in the

treatment of their labor relations. See Board of Edu-

cation v. Allen, 392 U.S. 236, 248.

“ Cf. Railway Employes’ Dept. y. Hanson, 351 U.S. 225,

236-238 (rejecting First Amendment challenge to union secur-

ity provisions of Railway Labor Act, 45 U.S.C. 152, Elev-

enth). ;

*s Although Congress vested in the Board the “fullest juris-

dictional breadth” possible under the Commerce Clause of the

Constitution (National Labor Relations Board v. Reliance

Fuel Oil Corp., 371 U.S. 224, 226), the Board has chosen

to confine its jurisdiction to those schools that have a sub-

stantial impact on commerce, as measured by gross annual

revenues and other factors. © © note 3, supra. The court of ap-

peals misconceived the purpose of the Board’s discretionary

jurisdictional standard in concluding that it was inconsistent

with this Court’s recent decisions involving public aid to

church-related schools (App. A, infra, pp. 14a-26a). The

Board’: ‘andard does not rest on the premise that the Consti-

tution v-aws a distinction between “completely religious” and

other religious institutions, but rather reflects its judgment

of how best to effectuate the policies of the Act. The court

should therefore have deferred to the Board’s discretionary

determination. See 29 U.S.C. 164(c) (1).

ee AONE ANA, ht bd ntl emer ot Be. Fn a RE eth ee ee ell Oe

ee a ee —

ee oe

23

2. There are more than 10,000 parochial schools

in the United States. A number of these schools have

acquiesced in coverage under the Act with no claim

of abridgement of religious freedom, although raising

the sort of issues litigated by employers generally

(see, e.g., National Labor Relations Board v. Roman

Catholic Diocese of Brooklyn, 535 F. 2d 1387 (C.A.

2); Henry M. Hald High School Association, 213

NLRB 415), while in others the collective bargaining

process has been working smoothly.

The court of appeals’ decision jeopardizes this

spirit of cooperative labor relations by encouraging

employers to challenge the Board’s assertion of juris-

diction over their schools on First Amendment

grounds “ and threatens to deprive thousands of em-

ployees throughout the United States of the protection

of the Act. Accordingly, review by this Court is

warranted.

1¢ In Nazareth Regional High School v. National Labor Rela-

tions Board, 549 F. 2d 878 (C.A. 2), for example, the employer,

a parochial high school, sought review of a Board finding that

it had committed several unfair labor practices. After enforce-

ment of the Board’s order had been granted in part, the em-

ployer sought rehearing on the basis of the court of appeals’

decision in this case, raising for the first time the constitu-

tional issue presented here. The employer’s motion for leave

to file its petition for rehearing out of time was denied on

November 14, 1977. Appeals challenging the constitutionality

of the Act as applied to religiously-affiliated schools are also

sub judice in the Third, Seventh and Ninth Circuits. Caulfield

v. Hirsch, C.A. 3, Nos. 77-2021 and 77-1972; Gordon Technical

High School, Directed by the Congregation of the Resurrec-

tion v. National Labor Relations Board, C.A. 7, No. 77-1583;

Cardinal Timothy Manning V. National Labor Relations Board,

C.A. 9, No. 77-1286.

—

24 la

CONCLUSION APPENDIX A

The petition for a writ of certiorari should be UNITED STATES COURT OF APPEALS

granted. FOR THE SEVENTH CIRCUIT

Respectfully submitted.

WabeE H. McCReEr, Jr., No. 76-1600

Solicitor General.

THE CATHOLIC BISHOP OF CHICAGO,

JOHN S. IRVING,

a corporation sole, PETITIONER,

General Counsel,

JOHN E., HIGGINS, JR.,

v.

Deputy General Counsel,

THE NATIONAL LABOR RELATIONS BOARD,

CARL L. TAYLOR,

RESPONDENT,

Associate General Counsel,

NoRTON J. CoME, | d

Deputy Associate General Counsel, .

inten THE LLINOIS EDUCATION ASSOCIATION, INTERVENOR.

Attorney,

National Labor Relations Board. ;

NOVEMBER 1977. No. 76-1638

DIOCESE OF FORT WAYNE-SOUTH BEND, INC.,

PETITIONER,

vw.

THE NATIONAL LABOR RELATIONS BOARD,

RESPONDENT.

On Petitions for Review and Cross-Applications

for Enforcement of Orders of the

National Labor Relations Board

WRI

2a

Argued January 21, 1977—Decided August 3, 1977

Before CUMMINGS, PELL, and SPRECHER, Circuit

Judges.

PELL, Circuit Judge. The First Amendment to the

Constitution of the United States specifies that Con-

gress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof.

The cases before us present the issue of whether this

constitutional prohibition (sometimes called a high

and impregnable wall,’ but more recently character-

ized as being a blurred, indistinct, variable barrier

depending on all the circumstances of a particular

relationship*) serves to prevent the National Labor

Relations Board, which functions pursuant to an Act

of Congress, from exercising jurisdiction over two

groups of secondary diocesan schools operated by the

Roman Catholic Church.

On June 12, 1974, the Quigley Education Associa-

tion, an affiliate of the Illinois Education Association,

intervenor herein, filed a representation petition with

the Board seeking to represent a bargaining unit com-

posed of lay teachers employed at Quigley Seminary

North and Quigley Seminary South, secondary schools

located in the City of Chicago and operated by The

Catholic Bishop of Chicago, a corporation s>'e, one of

‘Everson V. Board of Education, 330 U.S. 1, 18 (1947).

* Lemon V. Kurtzman, 403 U.S. 602, 614 (1971).

ee ee le Br Be lees ee te OD eee + aa

Pee meer “

3a

the employers* herein. On June 4, 1975, the Com-

munity Alliance, the other union here involved, filed

a representation petition with the Board seeking to

represent a bargaining unit composed of lay teachers

employed at five diocesan high schools,“ operated by

the Diocese of Fort Wayne-South Bend, Inc., one of

the employers, in Northeastern Indiana.°

> Throughout this opinion we shall generally use the terms

employers and bishops interchangeably. Under Canon Law,

the bishops are technically known as Ordinaries. Under the

laws of Illinois and Indiana, there are some differences in the

way in which the bishops have organized their dioceses for

purposes of adhering to the neutral and secular requirements

of state law. By the Act of February 20, 1861, the General

Assembly of Illinois transformed the then Catholic Bishop of

Chicago, and his successors in office, into a body politic, and a

corporation sole, under the name and style of “The Catholic

Bishop of Chicago.” In Indiana, the bishop operates the

diocese through a not-for-profit corporation. For the purposes

of this opinion, we will not incorporate distinctions between

the corporate entities and the persons of the Ordinaries.

+ All church operated schools, at least through the secondary

level, are frequently generically referred to by the public as

parochial schools. Technically, parochial schools would appear

to be those established by the parish and the high schools such

as those involved in the present cases would be properly

characterized as diocesan institutions. See T. BOUSCAREN AND

A. ELLIS, CANON Law: A TEXT AND COMMENTARY 746 (3d

rev. ed. 1957). Nevertheless, noting that Webster’s Third In-

ternational Dictionary gives a gloss to the popular usage by

defining “parochial school” as “[a}] school maintained by a

religious body usually for elementary instruction,” and be-

cause of reference herein to the so-called parochaid cases, we,

on occasion, will use the publicly understood reference.

‘ If the religious saturation of the Chicago schools as opposed

to the Indiana schvols should be significant, it appears clear

4a

In the representation hearings conducted during

1975, the employers contended, inter alia, that the

Board should decline jurisdiction under its own juris-

dictional criteria, and that in any event the First

Amendment prohibited the Board’s taking jurisdic-

tion of these schools. The employers’ jurisdictional

arguments were rejected on the basis of the Board’s

decisions in Roman Catholic Archdiocese of Baltimore,

Archdiocesan High Schools, 216 NLRB 249 (1975);

and Cardinal Timothy Manning, Roman Catholic

Archbishop of the Archdiocese of Los Angeles, a Cor-

poration Sole, Etc., 223 NLRB 1218 (1976). Elec-

tions were ordered in one unit of all the lay faculty

at the two Quigley schools* and one unit of the five

on the records before us, and apparently is not disputed, that

the Quigley schools had a higher degree of religious orienta-

tion than did the Indiana schools. The intervening union does

not deny that to be admitted to the Quigley schools a boy must

receive a recommendation from his parish priest stating that

the boy has some interest in the priesthoud or has the

character and ability to give the local pastor reason to think

he has the potential for Christian leadership, either as a priest

or a layman. This is a change from former years as prior to

1970 only boys who had a positive desire to be priests were

admitted to the Quigley schools. On the other hand, the In-

diana schools are typical of so-called parochial high schools

found throughout this country maintained and operated by

the Roman Catholic Church. Because of the result we reach in

these cases with regard to the Indiana schools, we do not

deem it necessary to give significance to the apparently

greater religiosity of the Quigley schools.

* The brief for the Chicago employer complains of mystifica-

tion that the Board found 46 laymen and a mere $65,500 in in-

terstate purchases as posing a threat to interstate commerce

of the type that the National Labor Relations Act was intend-

ee ee ~

fia ml

a thea

OO eee

Pe ee ee eee Ont Cee. ed ie ne

5a

Indiana diocesan high schools. The unions won the

elections and were certified by the Board as the ex-

clusive representatives of the lay faculties in the units.

Following the unions’ requests to bargain collec-

tively, the employers refused to bargain in order to

obtain judicial review of the Board’s representation

decisions. The unions then filed unfair labor practice

charges with the Board, and complaints issued cuarg-

ing the employers with refusing to bargain with the

unions in violation of Sections 8(a)(5) and (1) of

the Act, 29 U.S.C. $§ 158(a)(5) and (1). Motions

for summary judgment in both cases were filed with

the Board. In response, both employers admitted that

they continued to refuse to bargain collectively with

the lay teachers and raised again the affirmative de-

fense that the Board had no jurisdiction over the

seminary high schools and the five diocesan high

schools.

The Board granted the motions for summary judg-

ment and held that the employers had violated Sec-

tions 8(a)(5) and (1) of the Act, 29 U.S.C. §§ 158

ed to meet. It was also pointed out by this employer that it

was necessary for the operating budgets for the two Quigley

schools to be totalled together as the Board did to meet the

Board’s jurisdictional standard for private educational in-

stitutions as contained in 29 C.F.R., Part 103, Subpart A,

§ 103.1 (1970), of $1,000,000. We note, however, that the Act

authorizes the Board to decide in each case the appropriate

unit and whether that should be the employer unit or some

other type, 29 U.S.C. § 159(b). Here the Board was within its

statutory authority of selecting an employer unit. The Chicago

employer’s brief has not pursue ] the matter and we shall

likewise refrain from further pursuit.

6a

(a)(5) and (1), by refusing to bargain with the

certified bargaining representatives of their employ-

ees. In reaching these decisions, the Board rejected

the employers’ constitutional contentions on the basis

that

(1) the purpose of the Act is to maintain and

facilitate the free flow of commerce through the

stabilization of labor relations; (2) the provi-

sions 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 minimal intrusion on religious conduct and is

necessary to obtain that objective.

The Board’s orders require the employers to desist

from the unfair labor practices found and from in-

terfering with their employees’ rights under Section

7 of the Act, 29 U.S.C. § 157. Affirmatively, the

Board’s orders require the employers to baryain with

the unions upon request and to post appropriate no-

tices.

The Board’s Decisions and Orders issued on June

18, 1976, and are reported at 224 NLRB No. 164

(1976); and at 224 NLRB No. 165 (1976). The re-

spective church employers have petitioned this court

to review and set aside the orders and the Board has

cross-applied for enforcement of its orders. This

court has jurisdiction in the proceedings under Sec-

tions 10{e) and (f) of the National Labor Relations

Act, as amended, 29 U.S.C. §§$ 160(e) and (f).

On the day that oral argument was heard in the

present cases, argument was also heard with regard

bk ete ee RARE. were

s ACh. 4. bbe Ee cs

ne et

Ta

to the attempted exercise of jurisdiction by the Board

over parochial schools in another diocese in Indiana.

In that case the bishop had not gone through the

Board procedures as in the present cases. The dis-

trict court in the third case had granted an injunc-

tion as to the continuance of the Board proceedings

and as to an unfair labor practice charge arising out

of a discharge during the representation effort. This

court acting through the same panel as in the present

cases, in an opinion written by Judge Cummings,

unanimously agreed that the district court had no

jurisdiction because the status quo in the case did not

impede the free exercise of religious belief inasmuch

as if the union should win the election and be certi-

fied by the Board, the bishop-plaintiff could refuse to

bargain with the union and test the validity of the

Board’s jurisdiction in this court. “Any First Amend-

ment challenge may later be presented in this Court.”

Grutka v. Barbour, 549 F.2d 5, 10 (7th Cir. 1977),

cert. denied, U.S. ——, 45 U.S.L.W. 3718 (May

83, 1977). But cf. Caulfield v. Hirsch, 46 U.S.L.W.

2025 (E.D.Pa. July 7, 1977).

The Board, now that the administrative procedures

which were not followed in Grutka have been fol-

lowed here, takes the position primarily that there is

no First Amendment infringement in the Board’s ex-

ercise of jurisdiction but secondarily that, even if

there conceivably could be a problem “down the line,”

any such problem would have to be litigated later and

“the Board would be compelled to try to make some

8a

reasonable accommodation to the religious purposes

of the school.”

To put the present cases into perspective, we will

survey briefly the developments which have resulted

in the present purported exercise of jurisdiction by

the Board. The irreptitious process of bringing pri-

vate educational institutions within the ambit of the

National Labor Relations Act commenced in 1970. In

Cornell University, 183 NLRB 329 (1970), the Board,

ending a long time refusal to assert jurisdiction over

non-profit educational institutions as a class, stated

that it would no longer decline to assert such jurisdic-

tion. This history was reviewed with regard to another

non-profit institution of higher education by the First

Circuit in NLRB v. Wentworth Institute, 515 F.2d

550 (1st Cir. 1975). That court rejected the argu-

ment that such educational institutions must be im-

pliedly excluded either because of the Act’s legislative

history or the Board’s earlier policy and held instead

that the Act, clear on its face, could not be understood

to preclude jurisdiction. We accept Wentworth as

established law in this respect.’

* It would seem beyond any reasonable likelihood that the

founding fathers in granting in Article I, Section 8 of the Con-

stitution the power to Congress to regulate commerce among

the several states could have had in mind that any Act of Con-

gress controlling the relations between teachers and the

proprietors of a private local secondary school would be

justified under the commerce power provision. One calls to

mind the attitude in a somewhat analogous situation found in

Trustees of Dartmouth College Vv. Woodward, 17 U.S. (4

Wheat.) 517 (1819), and Daniel Webster’s oral argument

referring to the small college “and yet there are those who

9a

Nevertheless, the Board declined to extend this

phase of its recently enlarged jurisdiction to schools

found to be “completely religious” and hence declined

jurisdiction, where the schools were devoted exclu-

sively to teaching religion or religious subjects. See,

e.g., Association of Hebrew Teachers of Metropolitan

Detroit, 210 NLRB 1053, 1058 (1974); Board of

Jewish Education of Greater Washington, D.C., 210

NLRB 1037 (1974). In the following year, however,

the Board refined its standard of jurisdiction and ac-

cepted jurisdiction where the instruction was not lim-

ited to religious subjects and religiously associated

schools sought to provide a general education, albeit

love it,” in which argument he also said in a passage which

the founding fathers might have deemed applicable to the

cases before us:

The case before the court is not of ordinary importance,

nor of every-day occurrence. It affects not this college

only, but every college, and all the literary institutions of

the country. They have flourished, hitherto, and have

become in a high degree respectable and usefu! to the

community. They have all a common principle of ex-

istence, the inviolability of their charters. It will be a

dangerous, a most dangerous, experiment, to hold these

institutions subject to the rise and fall of popular parties,

and the fluctuation of political opinions. If the franchise

may be, at any time, taken away or impaired, the proper-

ty also may be taken away, or its use perverted.

Id. at 598-99.

Nevertheless, and being not unmindful that recognition of

the scope of the commerce power ciause has long since passed

the comprehension of the founding fathers, we accept the

applicability of the clause to private schools, provided, of

course, that its exercise does not run afoul of the First

Amendment constitutional protection. See generally Wisconsin

v. Yoder, 406 U.S. 205, 213-15 (1972).

10a

an education based on religious principles. Roman

Catholic Archdiocese of Baltimore, Archdiocesan High

Schools, supra.

The Board’s position with regard to schools at least

of the type of those found in the diocese of Fort

Wayne-South Bend is set forth in its 1976 Los An-

geles case, supra, 223 NLRB at 1218, as follows:

We also do not agree that the schools are

religious institutions intimately involved with

the Catholic Church. It has heretofore been the

Board’s policy to decline jurisdiction over in-

stitutions only when they are completely re-

ligious, not just religiously associated. Roman

Catholic Archdiocese of Baltimore, Archdiocesan

High Schools, 216 NLRB 249 (1975). The

schools perform in part the secular function of

educating children, and in part concern them-

selves with religious instruction. Therefore, we

will not decline to assert jurisdiction over these

schools on such a basis. Roman Catholic Arch-

diocese of Baltimore, Archdiocesan High Schools,

supra.

The procedural route followed in the two cases be-

fore us varied somewhat, but the result reached was

identical in that the constitutional claims were re-

jected. In case No. 76-1600, the representation peti-

tion had originally been dismissed without a hearing

by the Acting Regional Director on the basis of Board

of Jewish Education. The petitioning union filed an

administrative appeal, and the Board reinstated the

petition and directed the Regional Director to proceed

with a hearing. After the hearing, by direction of

the Regional Director the proceeding was transferred

ten te ae

lla

to the Board for decision. In response to the employ-

er’s contention that the schools involved were minor

seminary schools operated independently of each other

and beyond the Board’s purview and that assertion

of jurisdiction would constitute an impermissible en-

tanglement between State and Church, the Board cit-

ing Baltimore stated that its policy was to decline

jurisdiction over religiously sponsored organizations

only when they are completely religious, not just reli-

giously associated. The Board concluded by finding

no merit in the contentions that the two schools in-

volved were minor seminary schools and therefore

“completely religious.” In analyzing the record pro-

duced at the hearing the Board noted that the Arch-

bishop’s policy reflected the desires of the Church to

admit those who might adopt the vocation of the

priesthood but that in reality the two Quigley schools

operated primarily as college preparatory schools

“within the class over which the Board has heretofore

asserted jurisdiction.” Noting that of the 1974 gradu-

ating classes only 16% went to the diocesan seminary

college, that the academic curriculum was similar to

that of other high schools, both private and public,

and that the schools maintained a substantial number

of extracurricular activities including interschool

sports and intramural activities similar to those en-

gaged in by students in other high schools, the Board

stated that under these circumstances the Quigley

schools, while religiously associated, “are not com-

pletely religious,” and are the type over which the

Board asserted jurisdiction.

12a

When the unfair labor practice case later came be-

fore the Board, summary judgment was granted es-

sentially on the basis that nothing was presented

which would require the Board to reexamine the deci-

sion made in the representation proceeding. In an-

swer to the employer's contention that summary judg-

ment was inappropriate because the Board had never

fully determined or addressed itself to the constitu-

tional issues raised in the representation case, the

Board responded that the constitutional contentions

were clearly raised in the employer’s extensive brief

to the Board and that the Board’s decision in ordering

an election had made specific reference to the Church-

State entanglement contention in finding “that the

Quigley schools, while religiously associated, are not

completely religious and of the type over which the

Board has asserted jurisdiction.” Further, the Board

stated that it could not agree with the constitutional

coniention because of the principles set forth more

fully in the Los Angeles case, i.e., that the purpose of

the Act is to maintain and facilitate the free flow of

commerce through the stabilization of labor relations,

that the provisions of the Act do not interfere with

religious beliefs, and that the regulation of labor rela-

tions does not violate the First Amendment “when it

involves a minimal intrusion of religious conduct”

and is necessary to obtain the objective of the Act.

In Case No. 76-1638, the original decision and di-

rection of election was issued by the Acting Regional

Director at Indianapolis, Indiana, and summarily dis-

posed of the constitutional claim as follows: “The

a

13a

Employer’s contentions that jurisdiction should not

be asserted because of its religious character are re-

jected. Archdiocese of Baltimore, 216 NLRB No. 54.”

The Board’s response thereafter was equally sum-

mary, as appears from the following teletype: “EM-

PLOYER REQUEST FOR REVIEW OF ACTING

REGIONAL DIRECTOR’S DECISION AND DI-

RECTION OF ELECTION IS HEREBY DENIED

AS IT RAISES NO SUBSTANTIAL ISSUES WAR-

RANTING REVIEW. REQUEST FOR ORAL AR-

GUMENT IS ALSO DENIED.”

When the unfair labor practice case came before

the Board, the Board’s order handed down the same

day as the order in Case No. 76-1600 essentially fol-

lowed the same pattern as previously discussed herein

with regard to the Chicago case. Again reliance was

placed on the tripartite statement of the principles of

the Los Angeles case including the involvement of a

minimal intrusion of religious conduct. There is, how-

ever, in the Board’s order no express finding that the

Fort Wayne-South Bend schools were not “ . nletely

religious.” By virtue of the Acting Regh mu wvirec-

tor’s reliance on Baltimore and the Board citation of

Los Angeles, we may assume, however, that implie7!y

the Board found the diocesan high schools not ‘4 ‘«

“completely religious” and that the Board had ct

abandoned this standard.

The Board contends that it did not abuse its discre-

tion in finding that under its standard the two Chi-

cago minor seminaries and the five Indiana diocesan

high schools were not “completely religious.” It ob-

i iii

l4a

serves that the employers do not appear to be ques-

tioning its declination of jurisdiction over “completely

religious” schools but seem to contend that the Board

misapplied the self-imposed jurisdictional standard.

Thus, apart from its contention that there is no First

Amendment bar to the application of the Act to Cath-

olic schools, the Board argues that the record amply

supports its findings. At the same time, however, the

Board argues that this court should not review the

Board’s formulation of its jurisdictional standard in

the absence of extraordinary circumstances such as

unjust discrimination, citing, inter alia, NLRB v.

Carroil-Naslund Disposal, Inc., 359 F.2d 779, 780 (9th

Cir. 1966) (“The question is whether the Board has

violated its own self-imposed jurisdictional standards.

It is well settled that the extent to which the Board

chooses to exercise its statutory jurisdiction is a mat-

ter of administrative policy within the Board’s discre-

tion... and is not a question for the courts... in

the absence of extraordinary circumstances, such as

unjust discrimination. .. .”)

Because the core question before us is whether the

Board’s exercise of jurisdiction over the schools con-

stitutes an improper breaching of the separation wall

provided by the Religion Clauses of the First Amend-

ment, we regard this issue, being as it is one which

has caused frequent discussions in the Supreme Court

in other contexts, as sufficiently extraordinary * to re-

* Adjudication of the constitutionality of Congressional

enactments has generally been thought beyond the jurisdic-

tion of administrative agencies. Grutka, supra at 8. There is

5

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15a

quire us to analyze the Board’s jurisdictional stand-

ard by examining it in the light of the cases dealing

with the Religion Clauses.

We find the standard itself to be a simplistic black

or white, purported rule containing no borderline de-

marcation of where “completely religious” takes over

or, on the other hand, ceases. In our opinion the

dichotomous “completely religious—merely religiously

associated” standard provides no workable guide to

the exercise of discretion. The determination that an

institution is so completely a religious entity as to

exclude any viable secular components obviously im-

plicates very sensitive questions of faith and tradi-

tion. See, e.g., Yoder, supra, 406 U.S. 205. At some

point, factual inquiry by courts or agencies into such

matters would almost necessarily raise First Amend-

ment problems. If history demonstrates, as it does,

that Roman Catholics founded an alternative school

system for essentially religious reasons and continued

to maintain them as an “integral part of the religious

mission of the Catholic Church,” Lemon, supra at 616,

courts and agencies would be hard pressed to take of-

ficial or judicial notice that these purposes were

undermined or eviscerated by the determination to of-

fer such secular subjects as mathematics, physics,

chemistry, and English literature.

in the present cases no facial challenge to the statute under

which the Board is proceeding but rather one to the applica-

tion of the statute to certain parochial schools. The manner of

application as we pointed out in Grutka required the develop-

ment of a factual record, which has now been done.

l6a

In our view the Board decisions dealing with the

present question demonstrate that the Board has es-

sentially adopted a per se rule’ that Catholic secon-

dary schools will be subject to its statutory judisdic-

tion. The simple truth is that the Board had defined

those Catholic schools which offer the regular range

of secondary subjects as being intrinsically incapable

of meeting its jurisdictional standard of “completely

relizious.”

Thus, in Baltimore, the Board noted the Archdio-

cese’s contention that the Board should not assert its

jurisdiction because of its religious character. Be-

cause the Archdiocese “concede[d] that instruction

is not limited to religious subjects,” the Board re-

jected the contention. Similarly, in Los Angeles, the

Board could not agree “that the schools are religious

institutions intimately involved with the Catholic

Church,” even though its decision formally recited

that the twenty-six schools were owned and operated

by the Archdiocese of Los Angeles. The rationale

for rejecting the Cardinal’s contention was that

[t]he schools perform in part the secular func-

tion of educating children, and in part concern

* The Board has apparently chosen, as it customarily does, to

approach the issue of the jurisdictional standard for parochial

secondary schools through case-by-case decision-making rather

than by the use of its formal rule-making powers un-

der Section 6 of the Act, 29 U.S.C. § 156. Fora critique of this

phase of the Board’s procedures in another education field, see

Kahn, The NLRB and Higher Education: The Failure of

Policy Making through Adjudication, 21 U.S.L.A. L. REV. 63,

167 et seq. (1973).

Nat One >

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17a

themselves with religious instruction. Therevore,

we will not decline to assert jurisdiction over

these schools on such a basis.

223 NLRB at 1218. _

Under the rationale the Board has adopted, it Is

readily apparent that secondary schools operated by

various dioceses of the Roman Catholic Church can

never be characterized as “completely religious.”

Once the employer admits the fact that its schools

are performing “in part the secular function of edu-

cating children,” it becomes definitionally impossible

under the Board’s cases to establish that the institu-

tions can be anything else but “merely religiously

associated.”’ ;

The vagaries of litigation seldom present a “no

lose” situation. Yet the Board’s formulation of the

“misapplication of jurisdictional standards” argu-

ment does seem to present a quintessential example

of one. Assuming that the amount of gross revenues

suffices, institutions which the Supreme Court has

generically labeled as ‘“‘sectarian,” “substantially -

ligious,” ‘“‘pervasively sectarian,” “church-affiliated,

and “religious-pervasive institutions,” e.g., Roemer v.

Board of Public Works of Maryland, 426 U.S. 736,

748-54 (1976); Meek v. Pittenger, 421 U.S. 349, 366

(1975); Levitt v. Committee for Public Education,

413 U.S. 472 (1973); Committee for Public Educa-

tion v. Nyquist, 413 U.S. 756, 767-68 (1973) ; Lemon

v. Kurtzman, supra, are definitionally transmuted in-

18a

to schools which are “merely religiously associated.” *°

The total inability of the employers to overcome what

appears to be an irrebuttable presumption in practi-

cal operation makes more understandable the com-

plaint of the employers that the Board is cruelly

whip-sawing their schools by holding that institu-

tions too religious to receive governmental assistance

are not religious enough to be excluded from its

regulation,

Following the premise in the recent Wolman case,

id. at 4962-63, that irrespective of the height, breadth,

straightness, or fissures in the Religion Clauses sep-

aration wall, the Court’s numerous precedents in this

area are firmly rooted and now provide substantial

guidance, we turn to the teaching to be derived from

those cases.

As an initial matter, while the so-called parochaid

cases are concerned primarily with whether the flow

of benefits from governmental sources to the church

schools should be prohibited, an equally basic pur-

pose of the Religion Clauses is also to see that no

religion is inhibited. “[W]Je will not tolerate either

governmentally established religion or governmental

interference with religion.” Walz v. Tax Commission

*° The most recent case in the present area is that of Wolman

v. Walter, U.S. ——, 45 U.S.L.W. 4861 (June 24, 1977),

a case which some observers have interpreted as retreating

somewhat from a staunch insistence on the separation of

Church and State. We observe nevertheless that the decision

refers with regard to instructional materials and equipment

to “the impossibility of separating the secular educational

function from the sectarian... .” Jd. at 4866.

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19a

of the City of New York, 397 U.S. 664, 669 (1970).

As a result of the tension inevitably existing between

the Free Exercise and the Establishment Clauses,

“our cases require the State to maintain an attitude

of ‘neutrality,’ neither ‘advancing’ nor ‘inhibiting’

religion.” (Footnote omitted.) Nyquist, supra at 788.

We find particularly significant this statement in

Walz, supra at 669:

Each value judgment under the Religion

Clauses must therefore turn on whether par-

ticular acts in question are intended to establish

or interfere with religious beliefs and practices

or have the effect of doing so. Adherence to the

policy of neutrality that derives from an accom-

modation of the Establishment and Free Exer-

cise Clauses has prevented the kind of involve-

ment that would tip the balance toward govern-

ment control of churches or governmental re-

straint on religious practice. [Emphasis added. ]

We find no basis in the present record for thinking

that the Board has made any value judgments under

the Religion Clauses as to whether their exercise of

jurisdiction will have the effect of interfering with

religious beliefs or practices. That the Board did not

do so is no doubt a conscious consequence of the

Board’s realization that measuring the degree of re-

ligiosity in any particular institution would perforce

involve it in answering the sensitive question as to

how far religion pervades that institution. Avoiding

the question, however, does not and cannot negative

its continued existence, nor can a wooden adherence

to a jurisdictional standard of “merely religiously as-

20a

sociated’”’ mean that simply because a school includes

in its curriculum secular subjects it is thereby de-

prived of the protection of the Religion Clauses in its

recognized pursuit of the propagation of its religious

faith.”

‘While the Board purported to avoid an excursion into

religiosity by the use of its simplistic test, the record in one of

the cases reflects several cases of attention to strictly religious

matters. There were several questions by counsel for the un-

ion on these subjects, and the following occurred in colloquy

between the hearing officer and one of the employer’s wit-

nesses:

Q Now, we have had quite a bit of testimony already as

to liturgies, and I don’t want to beat a dead horse; but

let me ask you one question: If you know, how many

liturgies are required at Catholic parochial high

schools; do you know?

A I think our first problem with that would be defining

liturgies. That word would have many definitions. Do

you want to go into that?

I believe you defined it before, is that correct, when

you first testified?

I am not sure. Let me try briefly to do it again, okay?

Yes.

A liturgy can range anywhere from the strictest sense

of the word, which is the sacrifice of the Mass in the

Roman Catholic terminology. It can go from that all

the way down to a very informal group in what we

call shared prayer.

Two or three individuals praying together and re-

flecting their own reactions to a scriptural reading.

All of these—and there is a big spectrum in between

those two extremes—all of these are popularly re-

ferred to as liturgies.

I see.

Now, possibly in repeating your question, you could

give me an idea of that spectrum, I could respond

more accurately.

rPOPr ff

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21a

Indeed, with regard to the matter of neutrality or

noninterference, the position of the Court is a more

positive one than mere neutrality but is a positive

“hands off” stricture with respect to “the decisions of

the highest judicatories of a religious organization of

hierarchical polity on matters of discipline, faith, in-

ternal organization, or ecclesiastical rule, custom, or

law.” Serbian Eastern Orthodox Diocese for the

United States of America and Canada v. Milivoje-

vich, 426 U.S. 696, 713 (1976) ; Presbyterian Church

v. Blue Hull Memorial Presbyterian Church, 393

U.S. 440 (1969); Gonzalez v. Roman Catholic Arch-

bishop of Manila, 280 U.S. 1 (1929); Kreshik v. St.

Nicholas Cathedral of the Russian Orthodox Church

of North America, 363 U.S, 190 (1960).

We have earlier herein collectively referred to some

of the recent Supreme Court cases involving chal-

lenged state aid to parochial schools and pointed out

in that connection that these institutions had been

generically labeled in a manner which appeared to be

inconsistent with a constitutional basis for differenti-

ating between “completely religious” and “religiously

associated.” For further elaboration on that particu-

lar aspect of the present cases, we turn to language

contained in two cases:

On the basis of these findings the District

Court concluded that the parochial schools con-

stituted “an integral part of the religious mis-

Q Well, let us stick with the formal Masses. If you know

how many Masses are required at Catholic parochial

high schools?

22a

sion of the Catholic Church.” The various char-

acteristics of the schools make them “a powerful

vehicle for transmitting the Catholic faith to the

next generation.” This process of inculcating

religious doctrine is, of course, enhanced by the

impressionable age of the pupils, in primary

schools particularly. In short, parochial schools

involve substantial religious activity and pur-

pose.

The substantial religious character of these

church-related schools gives rise to entangling

church-state relationships of the kind the Re-

ligion Clauses sought to avoid. Although the Dis-

trict Court found that concern for religious

values did not inevitably or necessarily intrude

into the content of secular subjects, the consid-

erable religious activities of these schools led the

legislature to provide for careful governmental

controls and surveillance by state authorities in

order to ensure that state aid supports only

secular education. [Footnote omitted. ]

Lemon, supra at 616.

Several teachers testified, however, that they

did not inject religion into their secular classes.

And the District Court found that religious

values did not necessarily affect the content of

the secular instruction. But what has been re-

counted suggests the potential if not actual haz-

ards of this form of state aid. The teacher is

employed by a religious organization, subject to

the direction and discipline of religious authori-

ties, and works in a system dedicated to rearing

children in a particular faith. These controls

are not lessened by the fact that most of the lay

i ks weet diet ols has Bl SEE Wt ran Bed adil ele Rachie wit mo

23a

teachers are of the Catholic faith. Inevitably

some of a teacher’s responsibilities hover on the

border between secular and religious orienta-

tion.

We need not and do not assume that teachers

in parochial schools will be guilty of bad faith or

any conscious design to evade the limitations 1m-

posed by the statute and the First Amendment.

We simply recognize that a dedicated religious

person, teaching in a school affiliated with his or

her faith and operated to inculcate its tenets, will

inevitably experience great difficulty in remain-

ing religiously neutral. Doctrines and faith are

not inculeated or advanced by neutrals. With

the best of intentions such a teacher would find

it hard to make a total separation between secu-

lar teaching and religious doctrine. What would

appear to some to be essential to good citizen-

ship might well for others border on or con-

stitute instruction in religion. Further difficul-

ties are inherent in the combination of religious

discipline and the possibility of disagreement be-

tween teacher and religious authority over the

meaning of the statutory restrictions.

Id. at 618-19.

Mr. Justice Douglas in his concurring opinion in

Lemon graphically demonstrated the thorough religi-

ous permeation of the entire curriculum of parochial

schools in the following language:

Elimination of prayers is only part of the prob-

lem. The curriculum presents subtle and diffi-

cult problems. The constitutional mandate can

in part be carried out by censoring the curricula.

24a

What is palpably a sectarian course can be

marked for deletion. But the problem only starts

there. Sectarian instruction, in which of course,

a State may not indulge, can take place in a

course on Shakespeare or in one on mathematics.

No matter what the curriculum offers, the ques-

tion is, what is taught? We deal not with evil

teachers, but with zealous ones who may use any

opportunity to indoctrinate a class.”

It is well known that everything taught in

most parochial schools is taught with the ulti-

mate goal of religious education in mind. Rev.

Joseph H. Fichter, S.J., stated in Parochial

School: A Sociological Study 86 (1958) :

“It is a commonplace observation that in

the parochial school religion permeates the

whole curriculum, and is not confined to a

single half-hour period of the day. Even

arithmetic can be used as an instrument of

pious thoughts, as in the case of the teacher

who gave this problem to her class: ‘If it

takes forty thousand priests and a hundred

and forty thousand sisters to care for forty

million Catholics in the United States, how

many more priests and sisters will be needed

to convert and care for the hundred million

non-Catholics in the United States?’ ” ™

Id. at 634-35.

'* Mr. Justice Douglas’ supporting footnote 20 read as

follows:

“In the parochial schools Roman Catholic indoctrina-

tion is included in every subject. History, literature,

geography, civics, and science are given a Roman Catholic

slant. The whole education of the child is filled with

eo ae eee ee ee ee a ee eee

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25a

The Court restated its conclusions regarding the

religious character of parochial schools in Meek v.

Pittenger, supra at 365:

[I]t would simply ignore reality to attempt to

separate secular educational functions from the

predominantly religious role performed by many

of Pennsylvania’s church-related elementary and

secondary schools. ...

The Court, quoting from Hunt v. McNair, 413 U.S.

734, 743 (1973), referred to the schools as institu-

tions “in which religion is so pervasive that a sub-

stantial portion of . . . [their] functions are subsumed

in the religious mission... .” Id. at 366.

The Court then explained:

The church-related elementary and secondary

schools . . . typify such religion-pervasive institu-

tions. The very purpose of many of those schools

is to provide an integrated secular and religious

education; the teaching process is, to a large ex-

tent, devoted to the inculcation of religious values

and belief. See Lemon v. Kurtzman, 403 U.S.,

at 616-17 . . . “{T]he secular education those

schools provide goes hand in hand with the re-

ligious mission that is the only reason for the

propaganda. That, of course, is the very purpose of such

schools; the very reason for going to all of the work and

expense of maintaining a dual school system. Their pur-

pose is not so much to educate, but to indoctrinate and

train, not to teach Scripture truths and Americanism, but

to make loyal Roman Catholics. The children are

regimented, and are teld what to wear, what to do, and

what to think.’ L. Boettner, Roman Catholicism 360

(1962) .”

26a

schools’ existence. Within the institution, the

two are inextricably intertwined.”

Id. at 366.

The parochial schools in the cases before us are in-

distinguishable from those described in Lemon and

Meek other than that the Quigley schools are even

more completely religiously oriented. All of these es-

sentially patricentric schools are completely subject to

the authority of the respective bishops who have the

general right of vigilance as to faith and morals and

direct authority as regards religious instruction.* The

bishops operate the schools through functionaries who

are completely subservient to the bishops’ authority.

The purpose of the schools is to carry out the teaching

mission of the Catholic Church. The teachers share

in the ecclesiastical authority of the Bishop, and all

teachers are expected to assist the students to become

good Christians. The fact that these institutions pro-

vide a secular as well as a religious education does not

detract from the fact that the religious mission “is

the only reason for the schools’ existence.” Meek,

supra at 366.

At this point it might appear upon the basis of the

principles established in the Supreme Court cases

‘s The Ordinaries of the places (the residential bishops) have

the right and duty to watch that in any schools within the

territory nothing is taught and nothing is done which is con-

trary to faith or good morals. The bishops “have also the right

to approve teachers and textbooks of religion; and also to de-

mand in the interest of religion and morality that either

teachers or books be removed ... .” BOUSCAREN AND ELLIS,

supra at 747.

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27a

that enforcement should be denied because the perme-

ation of religion throughout the entire curriculum of

the schools is such that the Board finding them to be

only religiously associated constituted an abuse of the

Board’s discretion. The Board, however, also contends

that if it cannot exempt from its jurisdiction schools

which are “completely religious,” or for that matter,

scheols which are “partly religious” or even “reli-

gious in some degree,” it would follow that the Board

would necessarily have to assert jurisdiction over all

religious schools in view of the otherwise inclusive

scope of the statute under which it operates. Because

of this position, we find it necessary to turn to the

larger constitutional question.

We find ourselves, however, in agreement with the

employers’ contention that the very threshold act of

certification of the union necessarily alters and im-

pinges upon the religious character of all parochial

schools. No longer would the bishop be the sole reposi-

tory of authority as required by church law. Canon

1381. As the Board recognizes, the bishop has now

to share “some decision-making” with the union and,

as a practical matter, must now consult the lay fac-

ulty’s representative on all matters bearing upon the

employment arrangement. As Professor Brown, Asso-

ciate Dean of Yale Law School, has observed:

Once a bargaining agent has the weight of

statutory certification behind it, a familiar proc-

ess comes into play. First, the matter of salaries

is linked to the matter of workload; workload

is then related directly te class size, class size to

28a

range of offerings, and range of offerings to cur-

ricular policy. Dispute over class size may also

lead to bargaining over admissions policies. This

transmutation of academic policy into employ-

ment terms is not inevitable, but it is quite

likely to occur.

Brown, Collective Bargaining in Higher Education, 67

MicuH. L.REv. 1067, 1075 (1969).

In a law review article several years later quoting

the above statement of Professor Brown, it is stated

that from the evidence of contracts which have al-

ready been negotiated Professor Brown’s views ap-

pear to be correct. Kahn, The NLRB and Higher

Education, supra at 80. The later article points out

that the National Labor Relations Act which was de-

signed and has been administered according to tradi-

tional collective bargaining doctrines is inappropriate

for higher education. The faculty’s bargaining in-

terests, the article points out, extend beyond the tra-

ditional scope of collective bargaining and, at least

as to the faculty of a college or university, “the term

‘conditions of employment’ has a meaning which

leaves very little not subject to bargaining.” Jd. at

79. A report quoted in the article points out because

faculty members are both professionals and employees

their interests span a wide range of substantive is-

sues, the resolution of which will determine the role

of the institution and the status and opportunities of

the individual faculty members. First among the cate-

gories considered to be of legitimate interest are edu-

cational and administrative policies. Jd. at 80. While

de ee ee

29a

the article in question is directed at the college level,“

we are unaware of any reason that the same approach

would not be involved in the secondary schools by the

professional lay teachers there employed.

The Board’s order to bargain unquestionably, in

our opinion, inhibits the bishops’ authority to main-

tain parochial schools in accordance with ecclesiastical

concern. If a bishop, for example, should refuse to

renew all lay faculty teacher contracts because he be-

lieved that the union had adopted policies and prac-

tices at odds with the religious character of the insti-

tutions, or because he wanted to replace lay teachers

with religious-order teachers who had become avail-

able, under ecclesiastical law he would have the right

if not the duty to take that action. Yet, under the

National Labor Relations Act, he might well be found

guilty of an unfair labor practice. 29 U.S.C. § 158

(a)(1), (3) and (5). See, e.g., NLRB v. Burnup &

Sims, Inc., 379 U.S. 21 (1964). The real difficulty

is found in the chilling aspect that the requirement of

bargaining will impose on the exercise of the bishops’

control of the religious mission of the schools. To

14 We emphasize, as we did in connection with our discussion

of Wentworth, supra, that we do not herein question the cor-

rectness of the exercise of Board jurisdiction over private,

non-sectarian schools. Our inclusion of references to the

Brown and Kahn articles is not intended to reflect any change

of position on the Wentworth premise but is to demonstrate

what we regard will be the inevitable tenor and direction of

negotiations on conditions of employment between professional

faculty members and school administrators at all educational

levels.

30a

minimize friction between the Church and the Board,

prudence will ultimately dictate that the bishop tailor

his conduct and decisions to “steer far wider of the

unlawful zone” of impermissible conduct. Speiser v.

Randall, 357 U.S. 513, 526 (1958). If, for example,

a teacher should give a strong pro-union speech at a

meeting one week and the next week would advocate

the cause of birth control to his or her students or

favor the availability to puor people of abortion, the

bishop would be confronted with a choice of foregoing

his right to discharge the heretical employee or do so

at the risk of a protracted and expensive unfair labor

practice proceeding before the Board which would cer-

tainly in part involve the Church’s religious policies

and beliefs.

In sv'm, it is unrealistic to say that an employer

which has to honor a bargaining order is not substan-

tially inhibited in the manner in which it conducts

its operations. This is true of all bargaining orders

but on the genera) industrial and commercial scene

sound policy considerations have upheld this imposi-

tion, inhibiting though it may be, which policy decla-

rations are found at 29 U.S.C. §§ 141 and 151. We

do not disagree with the soundness of the legislative

policy determinations which have been consistently up-

held by the courts. We only say that when that im-

position conflicts with the Religion Clauses that the

First Amendment protective wall should prevail. See

Sherbert v. Verner, 374 U.S. 398, 406-09 (1963).

We, of course, must recognize that there are per-

missible governmental impingements upon the opera-

en ws. — Citta: pita

sale Di icine i ae

3la

tion of the church schools. Chief Justice Burger in

Lemon, supra at 614, pointed out that the prior hold-

ings of the Court do not call for total separation be-

tween Church and State; total separation not being

possible in an absolute sense. The opinion then indi-

cated that some relationship between government and

religious organizations was inevitable such as fire in-

spections, building and zoning regulations, and state

requirements under compulsory school-attendance

laws. These were listed as examples of necessary and

permissible contacts. To the extent that it is argued

that the present Board action is similar to these nec-

essarily permissible contacts, we do not agree. Laws

on matters such as fire inspections and compulsory

attendance do not have the clear inhibiting potential

upon the relationship between teachers and employers

with which the present Board order is directly con-

cerned. -

Further, the type of governmental restrictions

found in laws pertaining to zoning, school-attendance,

and similar subjects involve a distinction which has

been recognized in the parochaid cases as significant

with regard to the matter of aid and conversely it

would seem should be significantly applicable to the

inhibiting side of the coin. Thus, in Nyquist, supra

at 782 n. 38, the Court stated the following: “Allen

fie. Board of Education v. Allen, 392 U.S. 236

(1968) | and Everson differ from the present litiga-

tion in a second important respect. In both cases the

class of beneficiaries included ul! schoolchildren, those

32a

in public as well as those in private schools. See also

Tilton v. Richardson, supra, [403 U.S. 672 ( 1971) |

in which federal aid was made available to all insti-

tutions of higher learning, and Walz v. Tax Comm’n,

supra, in which tax exemptions were accorded to all

educational and charitable nonprofit institutions.”

(Emphasis in original.) The inhibiting restrictions

resulting from the Board’s determination that it will

exercise jurisdiction over parochial secondary schools

is not applicable to the great bulk of the secondary

schools in this country being, of course, public schools

which are operated by political subdivisions of states

which are expressly exempted from the definition of

“employer.” 29 U.S.C. § 152(2).

The Board concedes that “disputes in parochial

schools may well involve issues of religious doctrine,”

but asserts that its only concern in deciding disputes

would be focused on the commission of unfair labor

practices which are inherently unrelated to differences

of religious interpretation. The Board further con-

tends that even if it were to intrude into doctrinal

matters, inadvertently or otherwise, the remedy would

be, not to strip it of its general jurisdiction to adjudi-

cate underlying unfair practice disputes, but simply

to require it to decide its case without regard to the

merits of the alleged doctrinal issues. We have diffi-

culty in following the Board’s rhetoric. We are unable

to see how the Board can avoid becoming entangled

in doctrinal matters if, for example, an unfair labor

practice charge followed the dismissal of a teacher

either for teaching a doctrine that has current favor

Pe ee eee

:

7

33a

with the public at large but is totally at odds with

the tenets of the Roman Catholic faith, or for adopt-

ing a lifestyle acceptable to some, but contrary to

Catholic moral teachings. The Board in processing

an unfair labor practice charge would necessarily

have to concern itself with whether the real cause for

discharge was that stated or whether this was merely

a pretextual reason given to cover a discharge ac-

tually directed at union activity. The scope of this

examination would necessarily include the validity as

a part of church doctrine of the reason given for the

discharge.

That these paradigmatic situations proposed above

are not merely fanciful horror tales devised by an

employer who seeks to avoid labor board jurisdiction

is rather persuasively demonstrated by charges that

have actually been filed as demonstrated by one em-

ployer’s brief. a

The summary in one of the briefs is as follows:

Three unfair labor practices — ee

been filed with respect to the very schools In-

volved in this case. In Case No. 25-CA-7932-3

filed May 7, 1976 with NLRB Region 25, In-

dianapolis, Indiana, for example, the Union

charged that the Diocese committed an unfair

labor practice when it refused to offer a teacher

a contract. The Diocese responded that the

teacher’s contract was not renewed because inter

alia she exposed biology students to sexual

theories of Masters and Johnson that were con-

trary to the teachings of the Catholic Church.

In Case No. 25-CA-7932, filed May 4, 1976, with

34a

NLRB Region 25, Indianapolis, Indiana, to cite

another example, a simile. charge was filed be-

cause the Diocese refused to renew a teaching

contract. The Diocese responded that the teach-

er’s contract was not renewed because the teacher

married a divorced Catholic and was no longer

in good standing with the Church. The third

case, Case No. 25-CA-7932-2, was filed May 7,

1976, with NLRB Region 25, Indianapolis, In-

diana. The Diocese refused to renew a teaching

contract because the teacher was unwilling to

structure a course in religion as directed by the

principal and chairman of the religion depart-

ment. Whether these actions constitute firing for

cause is for the Board to decide. Compare 29

U.S.C. §$160(c). To make such decisions, how-

ever, the Board inevitably must assay the moral

teachings of the Church there at issue and delve

into two thousand years of religious tradition.”

The same brief also refers to an unfair labor prac-

tice charge by a teacher at the parochial high school

in the diocese of Gary, Indiana, which charge was a

part of the subject of the action involved in Grutka,

supra. The charge there was that the recitation of a

prayer by the Catholic bishop of the diocese inter-

fered with employees’ rights and the Board’s com-

plaint as filed according to the employers’ briefs

read in part as follows:

“On or about the dates set forth below in 1976,

and at the place set forth below, the Respondent,

** The sixth and seventh sentences of this extract appeared

in a footnote in the employer’s brief. They have been relocated

in the quoted extract for purposes of clarity.

_ ~

* bed

ati Pe oe ee ee

te ees << ‘web Bes

35a

by and through its supervisors and agents

named, did:

(a) Make implied promises of benefit and

threats of reprisal to induce employees to cease

their union activities and to cease their affilia-

tion with the American Federation of Teachers

by reciting to said employees a prayer entitled

‘Repent Ye Sinful Children;’ and in reading

aloud to said employees the General Epistle of

Saint James, Chapter 4, Verses 1-10—Father

Casimer Senarik and Father Sierkierski—Feb-

ruary 26 at the residence of Bishop Andrew G.

Grutka.”

We are advised that subsequent to the filing of the

employers’ original briefs this particular charge was

dismissed by an Administrative Law Judge. It is of

interest to note, however, that the charge was dis-

missed only after three days of testimony and 531

pages of transcript. We agree with the employers

that such a dismissal does very little to establish the

Board’s sensitivity to the principles of the Religion

Clauses.

The Board also argues what appears to be a “case

or controversy” contention by arguing that the as-

serted constitutional injury cannot be merely specu-

lative but must be demonstrable reality or as the mat-

ter was phrased during oral argument, there con-

ceivably could be a problem “down the line” which

would have to be litigated at some subsequent time

but that there is no present problem. As we have

already indicated, we do not regard the exposure

which the certification forces upon the two bishops to

36a

be speculative or fanciful. The whole tenor of the

Religion Clauses cases involving state aid to schools

is that there does not have to be an actual trial run

to determine whether the aid can be segregated, re-

ceived and retained as to secular activities only but

it is sufficient to strike the aid down that a reasonable

likelihood or possibility of entanglement exists. Thus,

we find the language in Lemon, supra at 619, con-

cerning a difficulty in “the possibility of disagree-

ment between teacher and religious authorities over

the meaning of the statutory restrictions.” (Empha-

sis added.) Also in the same case we find, at 620, the

language: “This kind of state inspection and evalua-

tion of the religious content of a religious organiza-

tion is fraught with the sort of entanglement that the

Constitution forbids. It is a relationship pregnant

with dangers of excessive government direction of

church schools and hence of churches.” . . . “[W]e

cannot ignore here the danger that pervasive modern

governmental power will ultimately intrude on re-

ligion and thus conflict with the Religion Clauses.”

(Emphasis added.)

Likewise, the Court in Walz, supra at 674, had nou

difficulty in forecasting the reasonably-to-be-expected

result from the elimination of the real estate tax ex-

emption for church property as including tax fore-

closures:

Elimination of exemption would tend to expand

the involvement of government by giving rise to

tax valuation of church property, tax liens, tax

’

-

’

;

37a

foreclosures, and the direct confrontations and

conflicts that follow in the train of those legal

processes.

To anticipate that tax foreclosures would follow in

the train of the legal processes would require that the

no longer exempt church would be unable or unwilling

to pay its real estate tax and would be confronted

with a tax foreclosure suit. The certitude of en-

tanglement with doctrinal matters in our opinion is

much greater than in the present case than the possi-

bilities involved in Walz.

Both the union and the Board rely heavily upon

the early case of Associated Press v. NLRB, 301 U.S.

103 (1937), and argue that the question before this

court is no different in principle than the question be-

fore the Court in the earlier case. We find the reli-

ance misplaced. We do not read Associated Press

as really having anything to do with freedom of the

press under the First Amendment. The case that

came before the Court in Associated Press did not

and we do not see how it could have involved free-

dom of the press. Very simply the case that came

before the Court involved an employee who was dis-

charged for his activities in connection with the News-

paper Guild. 7d. at 125. In its answer before the

Board the employer had denied that the discharge

was due to Guild activities. Apparently there had

been a contention before the Board that the dis-

charge was solely on the grounds of the work not

being on a basis of which he had shown capability.

This contention was not pursued in the Supreme

38a

Court which, as stated above, had an unchallenged

situation before it of discharge for union activity.

It is true that the Court purported to address First

Amendment freedom of speech and freedom of press

questions but held that the statute as applied to the

petitioner did not abridge these freedoms. The Court

made it clear that the application of the Act to the

Associated Press did not in any way interfere with its

freedom not to employ or not to retain an incompetent

editor or one who failed to edit the news to reflect the

facts without bias or prejudice. This involved simply

a matter common to all employers of not hiring or re-

taining an employee who would not or does not carry

out directions or instructions or subverts those direc-

tions. Failure of a newspaper employee to carry out

a publisher-employer’s policy would not bear on free-

dom of the press; a failure of a lay teacher to carry

out a bishop-employer’s policy would directly inter-

fere with the exercise of religion.

Reasons for discharge other than for union activity

prohibited by the Act in the case of the news media

would as we see it have nothing to do with freedom of

the press, whereas in the cases before us as we have

indicated hereinbefore doctrinal reasons or violation

of doctrinal or church principles would directly con-

cern the Religion Clauses of the First Amendment. In

sum, the right of the Associated Press either to dis-

charge or not to hire an employee because of incom-

petency or for any other reason other than those pro-

tected by the Act would not in our opinion be de-

pendent upon or in any way related to its right of

39a

press freedom, a freedom belonging to it by virtue of

the Constitution. That, as has been said, is not true

of the situation involved in the cases here under con-

sideration.

We are not unmindful that the four dissenting jus-

tices rested their disagreement upon their fears that

the majority opinion constituted an infringement up-

on the freedom of the press. The rationale of the

dissent, however, was that “freedom of the press” ob-

viously meant more than publication and circulation

but included the right to adopt or pursue a policy

without governmental restriction. Jd. at 137. The

dissenters accepted as true the statement of the rea-

son for the discharge but stated that they were “of

opinion that the constitutional immunity of the press

does not permit any legislative restriction of the au-

thority of a publisher, acting upon his own judg-

ment, to discharge anyone engaged in the editorial

service,” terming such a restriction in itself to be an

abridgement of the freedom of the press. Jd. at 137-

38.

In Associated Press, as the majority points out,

even the ostensible claim before the Board was that

the discharge was on a matter of capability and there

was no claim before the Board nor a claim before the

Court that the employee would show bias in his fu-

ture reporting or editorial work. This was too much

a non-existent and an assumed circumstance with-

out any basis in fact for the Court to address the

matter. On the other hand, in the situation in which

we are involved, we have attempted to demonstrate

40a

that the necessity of bargaining and negotiating with

faculty members on conditions of employment inevit-

ably involves conflicts concerning the religious pro-

gram of the schools and infringement of the First

Amendment Religion Clauses. Inevitably some of a

lay teacher’s responsibilities must hover on the im-

precise border between religious and secular orienta-

tion.

During oral argument, counsel for the Board was

asked what the situation would be if a bishop should

attempt to discharge a teacher-heretic and unfair

labor practice charges were filed. The Board’s coun-

sel expressed the opinion that the Board would be re-

quired in that situation to take cognizance of the re

ligious nature of the grounds for discharge and give

respect to that. He repeated that the First Amend-

ment would require, in his opinion, the Board to

take cognizance of this special kind of reason. He

further supplemented the observation by expressing

the opinion that the Board would be compelled “to

try to make some reasonable accommodation to the

religious purpose of the school.” He thought that the

First Amendment demanded at least that, and it was

his understanding that the Board would not order

reinstatement of a heretic in the classroom. He ex-

pressed the opinion that such reinstatement would be

well beyond the power of the Board. He further dif-

ferentiated accommodation from entanglement.

Even if we were to assume that the Board in han-

dling parochial school teacher cases would consider

itself bound by the statements of its counsel in an

4la

oral argument before this court, as to which we must

confess extreme skepticism, we have difficulty in find-

ing avoidance of entanglement by the employing bish-

op in governmental toils in his future conducting of

the religious programs of the schools under his aegis.

We direct our attention to just what “accommoda-

tion” might mean. We can without citing authority

recognize the word “accommodation” as having long

definitional experience in the law pertaining to bills

and notes or the law merchant. That development of

law is little use to us here. More recently the term

is periodically found in other areas. Thus, in Brother-

hood of Railroad Trainmen v. Chicago River & Indi-

ana Co., 353 U.S. 30, 40 (1957), Chief Justice War-

ren wrote that there had to be accommodation of the

Norris-LaGuardia Act with the Railway Labor Act

so that the obvious purpose in the enactment of each

was preserved. Significantly, however, in speaking

for the Court, he stated that the purposes of the two

Acts were reconcilable.” Still more recently an area

of litigation has developed under Title VII of the Civil

Rights Act of 1964, coincidentally implicating Religion

Clauses questions. A specific case in this respect is

Cummins v. Parker Seal Company, 516 F.2d 544 (6th

16 We are not, of course, in the present cases concerned with

reconciling the purpose of two equal strength statutes. Recon-

ciliation in the statutory situation could reasonably con-

template adjustments. While a statute may be adjusted so as

not to offend a constitutional right, we would deem that the

reverse route of adjusting the constitutional right so as not to

offend the statute, or its application, is one which is not

susceptible of pursuit.

42a

Cir. 1975). That case involved an EEOC regulation,

29 C.F.R. § 1605.1 (1974). This regulation was to the

effect that the duty of an employer not to discriminate

on religious grounds as required by the Civil Rights

Act included an obligation on the part of the employer

to make reasonable accommodations to the religious

needs of employees and prospective employees where

such accommodations could be made without undue

hardship on the conduct of the employer’s business.

Id. at 546. The majority of the Sixth Circuit panel

held that the religious accommodation rule did not

violate the First Amendment with Judge Celebrezze

dissenting on constitutional grounds. In Yott v. North

American Rockwell Corporation, 428 F. Supp. 763

(C.D. Cal. 1977), the district court found itself un-

persuaded by the majority in Cummins and held that

the religion provisions of the Civil Rights Act of 1964

violated the Establishment Clause of the First Amend-

ment of the United States Constitution. A similar

question was involved in Trans World Airlines, Inc.

v. Hardison, U.S. ——, 45 U.S.L.W. 4762 (June

16, 1977). However, the constitutional issue was not

reached because of the Court’s disposition of the case,

which was that the employer had not violated the Act

or the Regulation inasmuch as its conduct constituted

reasonable accommodation under the circumstances

and in the light of the “undue hardship” standard.

Although Cummins was affirmed by an equally divided

Court, 429 U.S. 65 (1976), the Court subsequently

granted rehearing and vacated its own judgment and

that of the court of appeals and remanded for further

43a

consideration in the light of the Trans World Airlines

case. U.S. ——, 45 U.S.L.W. 3839 (June 27,

1977). in

This synopsis of recent litigation in the religion

area persuades us that at the very least there is a

substantial constitutional question presented where

what is involved is an “accommodation” or, synony-

mously, an adjustment or an adaptation or a com-

promise and settlement involving a First Amendment

right. A “reasonable accommodation” by the Board

“ty the religious purposes of the school” on the presen-

tation of a doctrinal issue in an unfair labor practice

case would implicitly appear to us to involve the neces-

sity of explanation and analysis, and probably verifi-

cation and justification, of the doctrinal precept in-

volved, all of which would itself erode the protective

wall afforded by the constitutional right.

If as the Board counsel indicated during oral argu-

ment in the present cases, reasonable accommodation

would mean that where the religious question was

presented for discharge or failure to hire it would

override somehow the fact that the discharge or fail-

ure to hire was also motivated by antiunion reasons,

then it would seem there would be still other substan-

tial constitutional questions presented. At this point

putting aside for the moment the fact that even to

reach the stage of convincing the Board of the neces-

sity of an accommodation, the bishop, as we have men-

tioned previously in this opinion, would have to elimi-

nate the pretextual aspect of claimed justification

which would involve the matter of showing the valid-

44a

ity of the claimed doctrinal position advanced. We

are not unmindful in that respect that the freedom of

exercise of religion includes adhering to beliefs which

may not be generally accepted or may indeed be

deemed generally unacceptable but never to the point

of being proscribed as a religious belief even though

subject to prohibition as a practice, for example, be-

lief in polygamy. The matter of the constitutional

toleration of diverse religious views was aptly stated

by Justice Douglas in United States v. Ballard, 322

U.S. 78, 87 (1944):

The Fathers of the Constitution were not un-

aware of the varied and extreme views of re-

ligious sects, of the violence of disagreement

among them, and of the lack of any one religious

creed on which all men would agree. They fash-

ioned a charter of government which envisaged

the widest possible toleration of conflicting views.

Man’s relation to his God was made no concern

of the state. He was granted the right to wor-

ship as he pleased and to answer to no man for

the verity of his religious views. The religious

views espoused by respondents might seem in-

credible, if not preposterous, to most people. But

if those doctrines are subject to trial before a

jury charged with finding their truth or falsity,

then the same can be done with the religious

beliefs of any sect. When the triers of fact un-

dertake that task, they enter a forbidden domain.

The First Amendment does not select any one

group or any one type of religion for preferred

treatment. It puts them all in that position.

[Emphasis added. ]

45a

Thus, and applicable to the present context, we can

judicially note that there is some division on the ac-

ceptability of birth control, and certainly wide division

on that of abortion. On the latter, at least, the

division of opinion is not merely confined to non-

Catholics.

The real difficulty, even if accommodation could

otherwise properly be brought to play in the present

situation, is that it would run afoul of well-established

principles applicable to all other employers in the labor

relations area. “[O]nce it has been proved that the

employer engaged in discriminatory conduct which

could have adversely affected rights to some extent,

the burden is upon the employer to establish that he

was motivated by legitimate objectives since proof of

motivation is most accessible to him.” [Emphasis in

original.] NLRB v. Great Dane Trailers, Inc., 388

U.S. 26, 34 (1967). “[T]he rule is well established

that although ample valid grounds may exist for the

discharge of an employee, that discharge will violate

$ 8(a) (3) if it was in fact motivated, even partially,

by the employee’s union activity.” [Emphasis added. ]

NLRB vy. The Pembeck Oil Corporation, 404 F.2d 105,

109 (2d Cir. 1968), vacated on other grounds and

remanded, 395 U.S. 828 (1969).

In sum, on this point it appears clear that the ex-

istence of a valid ground for discharge is not suffi-

cient, if it was merely a pretext or the discharge was

based in part on an unlawful ground. NLRB vy. Ad-

vanced Business Forms Corporation, 474 F.2d 457,

464 (2d Cir. 1973). We fail to comprehend the real

46a

possibility of accommodation in the present context

without someone’s constitutional rights being violated,

which in turn would seem to preclude the possibility

of accommodation as an answer to the obviation of the

religious entanglement problem.

In reaching the conclusion that we have in this

opinion that those who undertake to teach young peo-

ple in parochial schools which have been denied state

aid because of their pervasive religious nature are as

such teachers denied the important protective rights

of the National Labor Relations Act, we cannot be

unmindful of the substantial importance of the na-

tional policy as stated in that Act of “encouraging the

practice and procedure of collective bargaining and by

protecting the exercise by workers of full freedom of

association, self-organization, and designation of rep-

resentatives of their own choosing, for the purpose of

negotiating the terms and conditions of their employ-

ment or other mutual aid or protection.” 29 U.S.C.

§ 151. A church which chooses to educate its own

young people in schools which it is required essentially

to finance without governmental aid should because of

the essentially religious permeation of its curriculum

be equally freed of the obviously inhibiting effect and

impact of the restrictions of the National Labor Rela-

tions Act in conducting the teaching program of those

schools. We, of course, would assume that a church

so choosing would usually not itself be unmindful of

the desirability of affording its young people an edu-

cation which would suitably equip them mentally for

participation in daily life and that this obvious desire

4Ta

will require the securing and retention of teachers of

competence, many of whom in this day and age will

not be altogether motivated in seeking employment by

the love of the institution which they are seeking.

Having indicated our holding on these cases, we

add comments on two matters.

The first matter is an economic one. In our research

we had occasion frequently to note references of one

sort or another to the fact that private education has

played and is playing a significant and valuable role

in raising national levels of knowledge, competence,

and experience, that these schools are confronted with

increasingly grave fiscal problems the resolution of

which by increasing tuition charges forces parents to

turn to the public schools and that this in turn exacer-

bates the problems of public education at the same

time that it weakens support for the parochial schools.

See, e.g., Nyquist, supra at 795.

We now learn that during the present year the

Vatican for the first time has called for government

financial support of the world’s Roman Catholic

schools, warning that in the present situation these

schools could be more and more frequently available

only to the rich without public aid.”

While the fact that the abolition of parochial schools

would undoubtedly throw a tremendous financial

burden upon taxpayers whose already heavy school

tax costs are reducec by the substantial numbers of

students in parochial schools, nevertheless the eco-

17 Chicago Sun-Times, July 6, 1977, at 4.

48a

nomic factor has not been a persuasive one, and, in

fact, has not been given a decisional aspect in the

parochaid cases. Indeed, in Nyquist, supra at 795-96,

the Court pointed out that the economic factor if any-

thing militates against state aid and that increasing

state aid could lead to divisiveness related to religious

beliefs and practice and the need for continuing and

increasing annual appropriations. We do observe,

however, that an evenhanded approach to justice

might seem to suggest that the Religion Clauses, serv-

ing as they do as a buckler to stop financial aid to

these schools should not now be any less effective to

ward off the inhibiting effect of the governmental

regulation here involved.

Secondly, we have generally in this opinion referred

to the Religion Clauses rather than dwelling on the

differentiations between the dual aspects of the Re-

ligion Clauses of “establishment” and “free exercise”’

of religion. Our treatment of the Religion Clauses

jointly has been because of our belief that there has

been some blurring of sharply honed differentiations.

Even though “establishment” may at one time have

been construed to mean establishing a state religion,

it is no longer so but as is pointed out in Lemon, supra

at 612, a key word in the First Amendment is “re-

specting”’ and that a law may be one “respecting” a

forbidden objective while falling short of its total

realization. There are substantial aspects in the pres-

ent cases, in our opinion, not only of sovereign involve-

ment in the reljgious activity under the establishment

clause but there is undoubtedly, in our view, also cur-

494

tailment of the free exercise of religion under the

second prong of the Religion Clauses. Under these

circumstances we have felt it sufficient to leave the

matter of disposition jointly on the Religion Clauses,

each of which has the identical purpose of maintaining

a separation between Church and State.

For the reasons set forth herein, the orders of the

National Labor Relations Board in these cases dated

June 18, 1976, are hereby set aside and the Board’s

cross-applications for enforcement of said orders are

denied.

50a

SPRECHER, Circuit Judge, concurring. In concurring

with Judge Pell’s persuasive opinion, I would only

add that the National Labor Relations Board, in at-

tempting to steer a course between the Scylla and

Charybdis of the Establishment and Free Exercise

Clauses, has collided with one and fallen into the

other. The Board’s assertion of jurisdiction will have

the effect of inhibiting the practice of religion by regu-

lating it, yet by conceding that this will inexorably

force it to “accommodate” and prefer religious em-

ployers and conversely to discriminate against secular

employers in like situations, it will in the constitu-

tional sense “establish” the religions with which it

deals.

A True Copy:

Teste:

/s/ Krystine F. Juleen

Deputy Clerk of the United States

Court of Appeals for the

Seventh Circuit

5la

APPENDIX B

OPINION BY JUDGE PELL

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

August 3, 1977

BEFORE:

HON. WALTER J. CUMMINGS, Circuit Judge

HON. WILBUR F. PELL, JR., Circuit Judge

HON. ROBERT A. SPRECHER, Circuit Judge

No. 76-1600

THE CATHOLIC BISHOP OF CHICAGO,

a corporation sole, PETITIONER,

vs.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT,

ILLINOIS EDUCATION ASSOCIATION, INTERVENOR.

No. 76-1638

DIOCESE OF FORT WAYNE-SOUTH BEND, INC.,

PETITIONER,

v8.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT.

52a

On Petitions for Review and Cross-Applications

for Enforcement of Orders of the

National Labor Relations Board

This cause came on to be heard on the transcript

of the record from the National Labor Relations

Board and was argued by counsel.

On consideration whereof, it is ordered and ad-

judged by this Court that the orders of the National

Labor Relations Board in these cases dated June 18,

1976, are hereby set aside and the Board’s cross-

applications for enforcement of said orders are denied,

in accordance with the opinion of this Court filed this

date.

53a

APPENDIX C

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 Illinois

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 amend-

ment to the complaint on December 19, 1975, and

January 6, 1976, respectively, alleging that Respond-

ent had engaged in and was engaging in unfair labor

practices affecting commerce within the meaning 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 amendment

to the complaint were duly served on the parties to

this proceeding.

With respect to the unfair labor practices, the com-

plaint as amended alleges in substance that on Novem-

ber 3, 1975, following a Board election in Case 13-

54a

RC-13402 the Union was duly certified as the exclu-

sive collective-bargaining representative of Respond-

ent’s employees in the unit found appropriate;* 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 bargaining 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-

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

' Official notice is taken of the record in the representation

proceeding. Case 13-RC-13402, as the term “record” is de-

fined 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.

55a

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 proceding,’ 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 con-

tends, 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) Re-

2 The Respondent’s 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.

56a

spondent’s impact on commerce is slight; and (4)

assertion of jurisdiction would violate the first amend-

ment. In addition, the Respondent’s answer denies

the appropriateness of the unit. In their Motions for

Summary Judgment and submissions, counsel for the

General Counsel and the Union contend that each of

Respondent’s jurisdictional arguments was individ-

ually considered and determined in the prior repre-

sentation proceeding and may not be relitigated. 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,’

the Regional Director ordered proceedings transferred

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-

ment chairmen at Respondent’s Quigley North and

Quigley Soutn 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

*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 appealed and the

Board reinstated the petition on the grounds that the issues

could best be resolved by a hearing.

57a

church-state entanglement and would impinge upon

free exercise of religion. Respondent further con-

tended, in substance, that the Board shou i not

assert jurisdiction because the separately operated

schools did not meet the Board’s discretionary juris-

dictional standards, and also because they were minor

seminaries, primarily religious in character. In addi-

tion, Respondent contended that department chair-

men 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 Re-

spondent’s contentions.‘ With respect to the juris-

dictional issues, the Board, referring specifically to

Respondent’s contention that assertion of jurisdiction

would constitute impermissible church-state entangle-

ment, found (1) that the Quigley schools, while re-

ligiously associated, were not completely religious

and were of the type over which the Board has as-

serted 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

department chairmen. The election, held on October

17, 1975, was won by the Union.

Respondent filed with the Regional Director timely

objections reiterating its previously raised jurisdiction

* 220 NLRB 359 (1975).

58a

and unit contentions. On November 3, 1975, the

Regional Director issued his Supplemental Decision

and Certification of Representative, finding that Re-

spondent’s objections did not involve conduct of the

election and were tantamount to a motion for recon-

sideration of the Board’s decision which need not be

considered. Accordingly, he overruled them entirely

and certified the Union. No appeal was taken 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 deter-

mined or addressed itself to the constitutional issues

raised in the representation case. We find Respond-

ent’s argument without merit. Respondent’s constitu-

tional contentions were clearly raised in its extensive

brief to the Board and the Board’s decision made

specific reference to Respondent’s church-state en-

tanglement contention in finding “that the Quigley

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 Archdio-

cese 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

* Cardinal Timothy Manning, Roman Catholic Archbishop

of the Archdiocese of Los Angeles, a Corporation Sole, etc.,

223 NLRB 1218 (1976).

59a

provisions of the Act do not interfere with religivus

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.*

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,

* See Pittsburgh Plate Glass Co. Vv. N.L.R.B., 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 ap-

propriateness of the unit. In the underlying representation

proceeding, Case 13-RC-13402, Respondent litigated unit ap-

propriateness and may not relitigate that issue here.

60a

deny Respondent’s motion to dismiss * and grant the

Motion for Summary Judgment.°

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

religiously oriented high schools, Quigley North and

Quigley South, the only facilities involved in this pro-

ceeding. Respondent, annually, in the course and con-

duct of its operations of Quigley North and Quigley

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

‘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 Respondent’s

address that the charge had been filed on December 5, 1975,

and duly served on the Respondent on December 9, 1975.

* In view of our determination herein, we find it unnecessary

to rule upon the Respondent’s contention regarding the pro-

priety of the Union’s Motion for Summary Jidgment.

6la

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 consti-

tute a unit appropriate for collective-bargaining pur-

poses 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; ex-

cluding 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, librar-

ians, 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-

62a

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, re-

fused 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.

63a

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.

Vv. 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 commences

to bargain in good faith with the Union as the rec-

ognized bargaining representative in the appropriate

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 (C.A.

64a

5, 1964), cert. denied 379 U.S. 817 (1964); Burnett

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, direc-

tor of student activities, director of formation, direc-

tor of counseling services, office clerical employees,

maintenance employees, cafeteria workers, watchmen,

librarians, nurses, al! religious faculty, and all guards

and supervisors as defined in the Act, constitute a

unit appropriate for the purposes of collective bar-

gaining within the meaning of Section 9(b) of the

Act.

4. Since November 3, 1975, the above-named labor

organization has been and now is the certified and

exclusive representative of all employees in the afore-

said appropriate unit for the purpose of collective

bargaining within the meaning of Section 9(a) of

the Act.

65a

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.

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

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-

66a

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; ex-

cluding rectors, procurators, dean of studies,

business maneger, director of student activities,

director of formation, director of counseling serv-

ices, office clerical employees, maintenance em-

ployees, cafeteria workers, watchmen, librarians,

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 understand-

ing is reached, embody such understanding in a signed

agreement.

(b) Post at Quigley North and Quigley South

Schools, Chicago, Illinois, copies of the attached notice

marked “Appendix.” * Copies of said notice, on forms

© In the event that this Order is enforced by a Judgment of

a United States Court of Appeals, the words in the notice

67a

provided by the Regional Director for Region 13,

after being duly signed by Respondent’s representa-

tive, shall be posted by Respondent immediately upon

receipt thereof, and be maintained by it for 60 conse-

cutive days thereafter, in conspicuous places, includ-

ing all places where notices to employees are cus-

tomarily posted. Reasonable steps shall be taken by

Respondent to insure that said notices are not altered,

defaced, or covered by any other material.

(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.

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 IIli-

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.

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.”

68a

WE WILL, upon request, bargain with the

above-named Union, as the exclusive representa-

tive of all employees in the bargaining unit de-

scribed below, with respect to rates of pay, wages,

hours, and other terms and conditions of employ-

ment, and, if an understanding is reached, em-

body such understanding in a signed agreement.

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, Chi-

cago, Illinois; excluding rectors, procurators,

dean of studies, business manager, director of

student activities, director of formation, di-

rector of counseling services, office clerical

employees, maintenance employees, cafeteria

workers, watchmen, librarians, nurses, all re-

ligious faculty, and all guards and super-

visors as defined in the Act.

THE CATHOLIC BISHOP OF CHICAGO,

A CORPORATION SOLE

69a

APPENDIX D

Diocese of Fort Wayne-South Bend, Inc. and Commu-

nity Alliance for Teachers of Catholic High Schools

(C,.A.T.C.H.). Case 25-CA-7622.

June 18, 1976

DECISION AND ORDER

By CHAIRMAN MURPHY AND MEMBERS JENKINS

AND PENELLO

Upon a charge filed on December 23, 1975, by

Community Alliance for Teachers of Catholic High

Schools (C.A.T.C.H.), herein called the Union, and

duly served on the Diocese of Forth Wayne-South

Bend, Inc., herein called the Respondent, the General

Counsel of the National Labor Relations Board, by

the Regional Director for Region 25, issued a com-

plaint and notice of hearing on January 14, 1976,

against Respondent, alleging that Respondent had

engaged in and was engaging in unfair labor practices

affecting commerce within the meaning of Section 8

(a) (5) and (1) and Section 2(6) and (7) of the Na-

tional Labor Relations Act, as amended. Copies of

the charge, complaint, and notice of hearing before

an Administrative Law Judge were duly served on

the parties to this proceeding.

With respect to the unfair labor practices, the com-

plaint alleges in substance that on September 12,

1975, following a Board election in Case 25-RC-5984,

70a

the Union was duly certified as the exclusive collective-

bargaining representative of Respondent’s employees

in the unit found appropriate; ' and that, commencing

on or about September 12, 1975, and at all times

thereafter, Respondent has refused, and contiiuues to

date to refuse, to bargain collectively with the Union

as the exclusive bargaining representative, although

the Union has requested and is requesting it to do so.

On January 23 and February 11, 1976, Respondent

filed its answer to the complaint and amendment to

answer admitting in part, and denying part, the alle-

gations in the complaint.

On March 1, 1976, counsel for the General Coun-

sel filed directly with the Board a Motion entitled

“Motion To Strike Portions of Respondent’s Answer

and Motion For Summary Judgment.” Subsequently,

on March 15, 1976, the Board issued an order trans-

ferring the proceeding to the Board and a Notice To

Show Cause why the General Counsel’s Motion for

Summary Judgment should not be granted. On

March 29, 1976, Respondent filed a response to the

Notice To Show Cause and motion to dismiss com-

' Official notice is taken of the record in the representation

proceeding, Case 29-RC-5984, as the term “record” is defined

in Secs. 102.68 and 102.69(g) of the Board’s Rules and Regu-

lations, Series 8, as amended. See L7T'V Electrosystems, Inc.,

166 NLRB 9388 (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 878 (1967),

enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA,

as amended.

Tla

plaint,’ memorandum in support and motion for oral

argument.

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 and motion to dismiss

complaint, and memorandum in support, Respondent

denies unit appropriateness and contends in sub-

stance that it is exempt from Board jurisdiction

becauce (1) it is a not-for-profit entity operating pa-

rochial high schools, (2) its five high schools do not

meet the Board’s discretionary jurisdictional stand-

ards, (3) the five high schools have only a slight

impact on commerce and, therefore, the Board should

decline jurisdiction, and (4) assertion of jurisdiction

herein would violate the first amendment. In the

motion for summary judgment, counsel for the Gen-

* Although the response is captioned “Response To Motion

To Strike And Response In Question To Motions For Sum-

mary Judgment Made By General Counsel And Charging

Party And Motion To Dismiss Complaint,” the Charging

Party herein did not file a motion for summary judgment.

*The Respondent’s 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.

72a

eral Counsel contends that all issues raised by Re-

spondent were litigated in the representation case and

may not be relitigated here. We agree.

Review of the record, including the representation

proceedings in Case 25-RC-5984, shows that, at the

hearing on the representation petition, Respondent

argued that jurisdiction should not be asserted be-

cause of the religious character of its high schools

and that any unit should include all high school and

elementary teachers, both lay and religious. In sup-

port thereof, the Respondent filed a posthearing brief

detailing its unit position and its contention that as-

sertion of jurisdiction would violate the first and

fourteenth amendments. On July 17, 1975, the Acting

Regional Director issued a Decision and Direction of

Election in which, relying on the Board’s decision in

Roman Catholic Archdiocese of Baltimore, 216 NLRB

249 (1975), he rejected Respondent’s contention that

jurisdiction should not be asserted because of the re-

ligious character of the schools and found, in effect,

that Respondent, with an annual budget of over $1

million with $185,000 direct annual inflow for the

five high schools together, met the Board’s discre-

tionary jurisdictional standards. He also ordered an

election in a single unit of all lay faculty at Re-

spondent’s five high schools and, contrary to the

Respondent, included therein the department chair-

man and excluded therefrom elementary school teach-

ers and nonlay teachers. Respondent filed timely

exceptions and addenda thereto and its posthearing

brief, constituting a proper request for review, re-

73a

iterating its unit and jurisdiction contentions, as-

serting that Roman Catholic Archdiocese of Baltimore,

supra, is an erroneous decision and requesting oral

argument. By telegram of September 2, 1975, the

Board denied Respondent’s request for review on the

grounds that it raised no issues warranting review

and also denied the request for oral argument. The

election, held on September 4, 1975, was won by the

Union. On September 12, 1975, the Regional Direc-

tor, in the absence of objections, certified the Union.

Thereafter on October 14, 1975, Respondent filed a

motion for reconsideration and for reopering of the

record and to adduce additional eviden:e on the

grounds that the interval of 1 week between the set-

ting of the date of the representation case hearing

and the hearing itself was insufficient to prepare and

present evidence relevant to the constitutional issues

and to Respondent’s contention that its impact on

commerce was slight. By telegram dated October 22,

1975, the Board denied the motion as untimely.’

*In this proceeding, Respondent contends that the lack of

sufficient time to prepare for the representation hearing con-

stitutes a denial of due process. The record indicates that the

petition was filed on June 6, 1975, and that the hearing officer

on June 17 set the hearing for June 24. Respondent does not

now assert that any request for postponement of the hearing

was made. Further, the Respondent submitted a posthearing

brief which was also filed with the Board in its request for

review and in which the Respondent discussed the unit and

jurisdictional issues. Finally, it was not until October 14,

1975, after it had litigated the issues raised in the representa-

tion case, that the Respondent first raised untimely the issue

of the sufficiency of time to prepare its case. Accordingly, we

find no denial of due process.

74a

In its response to the Notice To Show Cause, Re-

spondent contends that summary judgment is inap-

propriate because the Board has never fully deter-

mined or addressed the constitutional issues raised

in the representation case. We find Respondent’s ar-

gument without merit. Respondent’s constitutional

contentions were clearly raised in its posthearing

brief and reiterated in its request for review which

was denied by the Board on the grounds that the

request raised no substantial issues warranting re-

view. 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 facili-

tate the free flow of commerce through the stabiliza-

tion of labor relations; (2) the provisions of the Act

do not interfere with religious beliefs; and (3) regu-

lation of labor relations does not violate the first

amendment when it involves a minimal intrusion on

religious conduct and is necessary to obtain that ob-

jective. It thus appears that the Respondent is at-

tempting to raise herein issues litigated and resolved

in the underlying representation case.

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 tu .eliti-

° Cardinal Timothy Manning, Roman Catholic Archbishop

of the Archdiocese of Los Angeles, a Corporation Sole, 223

NLRB 1218 (1976).

75a

gate issues which were or could have been litigated in

a prior representation proceeding.®

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 discovered

or previously unavailable evidence, nor does it allege

that any special circumstances exist herein which

would require the Board to reexamine the decision

made in the representation proceeding. We therefore

find that the Respondent has not raised any issue

which is properly litigable in this unfair labor prac-

tice proceeding. We shall, accordingly, deny Re-

spondent’s motion to dismiss and grant the Motion

for Summary Judgment.’

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, a not-for-profit Indiana corporation with its

principal office and place of business at Fort Wayne,

Indiana, and at various other facilities in Indiana,

® See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146,

162 (1941): Rules and Regulations of the Board, Secs.

102.67 (f) and 102.69(c).

7 Having granted the Motion For Summary Judgment, we

find it unnecessary to pass on the motion to strike portions

of respondent’s answer.

76a

where it is engaged at said facilities in the operation

of private nonprofit educational institutions. During

the past 12 months, a representative period, Respond-

ent, in the course and conduct of its operation, re-

ceived a gross volume of revenue for unrestricted use

exceeding $1 million and purchased and received at

its Indiana facilities, goods and materials valued in

excess of $50,000 directly from points located outside

Indiana.

We find, on the basis of the foregoing, that Re-

spondent is, and has been at all times material herein,

an employer engaged in commerce within the mean-

ing 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

Community Alliance for Teachers of Catholic High

Schools (C.A.T.C.H.), is a labor organiaztion within

the meaning of Section 2(5) of the Act.

Ill. 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:

77a

All full-time and regular part-time lay (non- )

religious) professional faculty members of the

Respondent’s five high schools, including teach-

ers, librarians, guidance deans, moderators of

student council, and all department chairper-

sons who are teachers, athletic directors, em-

ployees of the Respondent employed at its fa-

cilities exclusive of religious, all office clerical

employees, teacher aids (part-time para-profes-

sionals), cafeteria workers, assistaut or vice

principals, business managers, nurses, custod-

ians, guards, and all supervisors as defined in

the Act.

2. The certification

On September 4, 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 25, 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

This text is long and has been trimmed here. Open the source document for the complete record.