Catholic Bishop of Chicago v. N.L.R.B., WAYNE-SOUTH

• Decision Date: 03 August 1977
• Docket Number: 76-1638,Nos. 76-1600,WAYNE-SOUTH,s. 76-1600
• Parties: 95 L.R.R.M. (BNA) 3324, 82 Lab.Cas. P 10,066 The CATHOLIC BISHOP OF CHICAGO, a corporation sole, Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent, and The Illinois Education Association, Intervenor. DIOCESE OF FORTBEND, INC., Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1112

559 F.2d 1112

95 L.R.R.M. (BNA) 3324, 82 Lab.Cas. P 10,066

The CATHOLIC BISHOP OF CHICAGO, a corporation sole, Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent, and The Illinois Education Association, Intervenor.

DIOCESE OF FORT WAYNE-SOUTH BEND, INC., Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 76-1600, 76-1638.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 21, 1977.

Decided Aug. 3, 1977.

Don H. Reuben, Chicago, Ill., Jerome J. O'Dowd, Fort Wayne, Ind., for petitioner.

Samuel Edes, Chicago, Ill., for intervenor.

Elliott Moore, John C. Rother, John D. Burgoyne, N.L.R.B., Washington, D.C., for respondent.

Before CUMMINGS, PELL and SPRECHER, Circuit Judges.

PELL, Circuit Judge.

The First Amendment to the Constitution of the United States specifies that Congress 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, ¹ but more recently characterized as being a blurred, indistinct, variable barrier depending on all the circumstances of a particular relationship ² 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 Association, an affiliate of the Illinois Education Association, intervenor herein, filed a representation petition with the Board seeking to represent a bargaining unit composed 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 sole, one of the employers ³ herein. On June 4, 1975, the Community 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, ⁴ operated by the Diocese of Fort Wayne-South Bend, Inc., one of the employers, in Northeastern Indiana. ⁵

In the representation hearings conducted during 1975, the employers contended, inter alia, that the Board should decline jurisdiction under its own jurisdictional criteria, and that in any event the First Amendment prohibited the Board's taking jurisdiction 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 Corporation Sole, Etc., 223 NLRB 1218 (1976). Elections were ordered in one unit of all the lay faculty at the two Quigley schools ⁶ and one unit of the five Indiana diocesan high schools. The unions won the elections and were certified by the Board as the exclusive representatives of the lay faculties in the units.

Following the unions' requests to bargain collectively, 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 charging 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 defense that the Board had no jurisdiction over the seminary high schools and the five diocesan high schools.

The Board granted the motions for summary judgment and held that the employers had violated Sections 8(a)(5) and (1) of the Act, 29 U.S.C. §§ 158(a)(5) and (1), by refusing to bargain with the certified bargaining representatives of their employees. 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 provisions of the Act do not interfere with religious beliefs; and (3) regulation of labor relations does not violate the first amendment when it involves a 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 interfering with their employees' rights under Section 7 of the Act, 29 U.S.C. § 157. Affirmatively, the Board's orders require the employers to bargain with the unions upon request and to post appropriate notices.

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 respective 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 Sections 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 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 district court in the third case had granted an injunction 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 certified 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 Amendment challenge may later be presented in this Court." Grutka v. Barbour, 549 F.2d 5, 10 (7th Cir. 1977), cert. denied, 431 U.S. 908, 97 S.Ct. 1706, 52 L.Ed.2d 394 (1977). But cf. Caulfield v. Hirsch, 46 U.S.L.U. 2025 (E.D. Pa. July 7, 1977).

The Board, now that the administrative procedures which were not followed in Grutka have been followed here, takes the position primarily that there is no First Amendment infringement in the Board's exercise 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 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 private 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 jurisdiction. This history was reviewed with regard to another private nonprofit institution of higher education by the First Circuit in NLRB v. Wentworth Institute, 515 F.2d 550 (1st Cir. 1975). That court rejected the argument that such educational institutions must be impliedly 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. ⁷

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 exclusively 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 accepted jurisdiction where the instruction was not limited to religious subjects and religiously associated schools sought to provide a general education, albeit 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 Angeles 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 institutions only when they are completely religious, 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 themselves with religious instruction. Therefore, we will not decline to assert jurisdiction over these schools on such a basis. Roman Catholic Archdiocese of Baltimore, Archdiocesan High Schools, supra.

The procedural route followed in the two cases before us varied somewhat, but the result reached was identical in that the constitutional claims were rejected. In case No. 76-1600, the representation petition had originally been dismissed without a hearing by the...