McCormick v. Hirsch

Decision Date03 November 1978
Docket NumberCiv. A. No. 78-968.
Citation460 F. Supp. 1337
PartiesMost Rev. J. Carroll McCORMICK, Bishop, Catholic Diocese of Scranton, Plaintiff, v. Peter W. HIRSCH, Regional Director For the Fourth Region, National Labor Relations Board, Defendant, and Bishop Hoban Education Association, of the Pennsylvania State Education Association and the National Education Association, Defendant Intervenor.
CourtU.S. District Court — Middle District of Pennsylvania


William B. Ball, Joseph G. Skelly, Philip J. Murren, Ball & Skelly, Harrisburg, Pa., for plaintiff.

Margery E. Lieber, Deputy Asst. Gen. Counsel for Sp. Litigation, Kathy L. Krieger, Washington, D. C., Leonard Leventhal, Regional Atty., Dorothy L. Moore, Wm. J. Green, Jr., Philadelphia, Pa., for Peter W. Hirsch.

Catherine C. O'Toole, Harrisburg, Pa., for intervenor.


HERMAN, District Judge.


This case raises the important First Amendment question of where the wall between church and state should be placed with respect to a non-public Catholic Church School and the National Labor Relations Board. The underlying constitutional issue is whether the National Labor Relations Board has jurisdiction over Roman Catholic schools that employ lay teachers who seek unionization. Specifically, the question now before the Court is whether a preliminary injunction should be entered enjoining the National Labor Relations Board from asserting jurisdiction over a Catholic parochial high school. After carefully reviewing the law pertaining to this Court's subject matter jurisdiction, the cases relevant to this First Amendment claim, and after applying the criteria for determining whether a preliminary injunction should issue on the facts now of record, we have concluded that the entering of a preliminary injunction is not only proper, but necessary to protect the religious freedom of this Plaintiff, the Catholic School, and those members of its religious mission; and of no less importance, to carry out the fundamental purpose of the First Amendment, by prohibiting encroachment of the government beyond the wall where entanglement and the burdening of religious liberty begins.


Plaintiff, The Most Rev. J. Carroll McCormick, is the Bishop of The Catholic Diocese of Scranton, Pennsylvania and is the spiritual and temporal superior of all Catholic elementary and secondary schools within the Diocese. One of these schools is Bishop Hoban High School, the religious enterprise involved in this suit. The Defendant, Peter W. Hirsch, is the Regional Director for the Fourth Region of the National Labor Relations Board. Jurisdiction is asserted under 28 U.S.C. §§ 1331, 2282, and 2284, and the claims are alleged to arise under the First, Fifth and Ninth Amendments of the Constitution of the United States.

The factual background of this lawsuit began on September 15, 1978 when Bishop Hoban Education Association, PTE/NEA (hereinafter "union") filed a representation petition under Section 9 of the National Labor Relations Act, (hereinafter "NLRA"), as amended, 29 U.S.C. § 141 et seq., with the Fourth Region of the National Labor Relations Board, (hereinafter "NLRB"), seeking certification as the exclusive representative of the lay teachers employed at Bishop Hoban High School. The petition requested the NLRB to conduct an investigation and following a hearing, to direct a representation election among "all full-time and regular part-time certified, non-certified, degreed and non-degreed lay teachers, and all full-time lay guidance counselors, nurses, librarians, department heads and athletic director." On the same date the NLRB's regional office mailed to the Bishop Hoban Board of Pastors a copy of the union's petition along with a number of other NLRB documents explaining the Board's upcoming investigation and procedures.

The documents requested the prompt submission of answers to a questionnaire entitled "Interstate Commerce Data", copies of correspondence, existing or recently expired collective bargaining contracts, and an alphabetized list of employees described in the petition. The documents also requested that Plaintiff post notices on the premises of the school relating to the NLRB proceedings. On September 25, 1978 the NLRB sent a "Notice of Representation Hearing" for the representation proceeding that was scheduled for October 5, 1978. Plaintiff then filed his complaint on October 2, 1978 requesting a temporary restraining order, a preliminary and permanent injunction, and a declaration that the NLRA, as amended, is unconstitutional as applied to the Plaintiff.

After a hearing on October 3, 1978 this Court granted Plaintiff's motion for a temporary restraining order and enjoined the NLRB from conducting the representation hearing scheduled for October 5, 1978. Defendant then sought leave to appeal pursuant to 28 U.S.C. § 1292(b) and the Third Circuit Court of Appeals denied the appeal. A hearing on the preliminary injunction was then held on October 13, 1978 and Bishop Hoban Education Association was permitted to intervene as a Defendant. Subsequently oral argument was heard on the motion for preliminary injunction on October 20, 1978.


The first question that must be resolved is whether this Court has subject matter jurisdiction to entertain this lawsuit. Only two prior decisions have ruled on this specific issue and they have arrived at opposite conclusions.2 In Caulfield v. Hirsch, (E.D.Pa. July 7, 1977) Judge Van Artsdalen held that the District Court had jurisdiction to enter a preliminary injunction and moreover, he ruled that the only other reported decision on the issue, Grutka v. Barbour, 549 F.2d 5 (7th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1706, 52 L.Ed.2d 394 (1977) had been incorrectly decided. My review of these two cases leads me to believe that Judge Van Artsdalen arrived at the proper conclusion although as stated below my reasons are somewhat different and additional to those he recited in Caulfield.

It is true that District Courts generally do not have jurisdiction to enjoin the NLRB from conducting representation or unfair labor practice proceedings. Under Section 10 of the NLRA3 the exclusive means of obtaining judicial review of NLRB rulings is for the aggrieved party to seek review in the Court of Appeals after a final order has been entered. Final NLRB orders that are reviewable under Section 10 of the Act in the Court of Appeals do not include Board decisions in certification proceedings.4 Therefore, an aggrieved employer must precipitate an unfair labor practice decision by the NLRB by refusing to bargain with the union's representative in order to obtain judicial relief.5 As noted, relief lies then in the Court of Appeals and not in the District Court.6

The long-settled rationale for this doctrine of exhaustion is that the administrative agency must be given an opportunity to correct its alleged wrongful action. The doctrine has been generally applied to the NLRB, and proceeding through the administrative remedies of the Board is typically a prerequisite to federal jurisdiction. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938).7 The reasons for the exhaustion doctrine as outlined by the Supreme Court in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) are to prevent premature interference with agency processes, to afford parties and the courts the benefit of its experience and expertise, to compile a record which is adequate for judicial review, and to afford an opportunity to correct its own errors.8 Therefore, while there are strong policy reasons for requiring exhaustion of administrative remedies, those reasons must be analyzed in terms of their applicability to the particular circumstances involved in this case.

The questions thus presented by the broad outline above can be stated as follows. First, does § 10 of the NLRA even apply to this case where First Amendment liberties are alleged to be infringed by any exercise of jurisdiction by the NLRB and where the question is not one of "review" of agency action? Second, do any of the well-known judicially created exceptions to the reach of Section 10; for acts of the NLRB beyond its statutory grant of authority, Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958); where swift judicial resolution is necessary to avoid international complications, McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963); and where Plaintiff makes a nonfrivolous assertion that the Board has deprived it of fundamental constitutional rights, Fay v. Douds, 172 F.2d 720 (2d Cir. 1949), apply to the issues raised here? And finally, do the exceptions to the exhaustion doctrine, where the reasons for exhaustion are inapplicable, where exhaustion would be futile, and where the agency is inherently incompetent to deal with the issue, apply to the First Amendment claim presented by the Plaintiff?

Judge Van Artsdalen discussed the first question in Caulfield of whether Section 10 of the NLRA had any applicability to the First Amendment claims, and concluded by saying: "I . . . determined that this case was not a `labor' case but a `First Amendment' case as the court was not being asked to review a representation order or decision of the NLRB."9 It cannot be doubted that the Plaintiff seeks to protect a prime constitutional right or that the relief he seeks is to stop at the very threshold any exercise of jurisdiction by the NLRB. That is, it is not a question that concerns certification, or the bargaining unit, or the manner of a Board-conducted election or any other matter of the administration of the NLRB for which Section 10 would control, rather, it is a question of whether at the very first instance the NLRB should be prohibited from proceeding in any manner when that conduct would allegedly infringe...

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