Nazareth Regional High School v. N.L.R.B.
| Decision Date | 28 February 1977 |
| Docket Number | No. 121,D,121 |
| Citation | 549 F.2d 873,94 L.R.R.M. 2897 |
| Parties | 94 L.R.R.M. (BNA) 2897, 81 Lab.Cas. P 13,102 NAZARETH REGIONAL HIGH SCHOOL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. ocket 76-4076. |
| Court | U.S. Court of Appeals — Second Circuit |
Kevin J. McGill, New York City (Clifton, Budd, Burke & DeMaria, New York City, on the brief), for petitioner.
John C. Rother, N.L.R.B., Washington, D.C. (John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and John D. Burgoyne, Asst. Gen. Counsel, National Labor Relations Board, Washington, D.C., on the brief), for respondent.
Before MOORE, ANDERSON and FEINBERG, Circuit Judges.
Nazareth Regional High School (Nazareth) brings this petition to review and set aside an order issued on February 24, 1976, by the National Labor Relations Board (NLRB) which held that Nazareth committed several unfair labor practices. The NLRB has cross-petitioned for enforcement of its order finding Nazareth in violation of §§ 8(a)(1), (3) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3) and (5). 1 A cease and desist order was issued forbidding these practices. Nazareth was also required: (1) to recognize and bargain with the Lay Faculty Association, Local 1261, American Federation of Teachers, AFL-CIO (Local 1261 or Union); (2) to grant employees restitution of any wages and benefits that may have been lost because of unilateral imposition of contract terms; (3) to reinstate, with back pay, James Mirrione, a teacher found to have been refused reemployment in violation of § 8(a)(3); and (4) to post certain notices. Basic to the NLRB's holding was its finding that Nazareth was a successor to the Henry M. Hald High School Association (Hald) and the Diocese of Brooklyn with a duty to bargain with Local 1261 when Nazareth assumed operation of the school in September, 1974.
In December, 1973, Nazareth Diocesan announced that Hald, which had been managing Nazareth and eight other schools for the diocese, would discontinue operating Nazareth as of August 31, 1974, and that the school would be taken over by an independent local community group. Local 1261 had a collective bargaining agreement, which expired on August 31, 1974, with Hald covering all full-time lay faculty in the nine diocesan schools. The Union sought information from Hald and the diocese concerning what effect, if any, the transfer of Nazareth to a neighborhood group would have on the lay faculty, but all requests were either ignored or refused.
Early in 1974, the board of trustees which was to assume control of Nazareth for the school year commencing September 1, 1974, was formed. Local 1261 thereafter focused its attempts to gain recognition and to participate in the transition upon the chairman of this new board of trustees, Thomas Keenan, and Nazareth's principal, Brother Mathew Burke. Robert Gordon, president of Local 1261, wrote Keenan on March 17, 1974, requesting information about the changes at Nazareth but when he received no reply, he telephoned Keenan on March 25, 1974 and demanded a meeting with him and recognition of Local 1261 as the lay faculty's bargaining representative. In the hearings held on the charges in this case, Gordon testified that Keenan told him not to worry because the board of trustees intended to rehire all the lay faculty. Although contradicted by Keenan, Gordon's testimony was credited by both the Administrative Law Judge and the NLRB.
In April, 1974, Keenan mailed letters to most of the lay teachers at Nazareth inquiring whether they wished to teach at the school during the next year under the new administration. He enclosed with this letter a standard employment agreement stating the terms and conditions of employment at Nazareth for the coming year. The Union, on June 20, 1974, once again demanded recognition on the basis of its belief that a majority of the lay faculty had been retained. During the summer the final teacher selections were made by the principal, and, in August, copies of the employment agreement were mailed to them for their signatures. Nazareth began operations on September 1, 1974. Of the 55 lay teachers at Nazareth, 49 had been employed during the previous year at Nazareth Diocesan which had had a lay faculty of 66.
James Mirrione was one of the teachers at Nazareth Diocesan who was not hired by Nazareth. Mirrione taught religion at the school from 1972 to 1974 and had actively participated in a strike there in September, 1973. During the strike, several teachers crossed the picket line and Mirrione, apparently, was quite outspoken in his criticism of them. In November, 1973, he was elected to be an alternate delegate to the Union. In the spring of 1973, he refused to participate in a fund-raising drive for the school because of its failure to cooperate with the Union regarding the reorganization. The principal criticized Mirrione for taking this view. Mirrione had never received a copy of the letter sent out by Keenan concerning reemployment. When later notified of the new administration's refusal to retain him for the 1974-75 school year, Mirrione was told simply that the board of trustees had decided not to offer him a position. A letter, dated June 13, 1974, from Keenan to Mirrione confirmed the board's decision. During October, 1974, Mirrione heard that two positions were open and unfilled in the school's theology department and he filed an application for employment in that department. The principal informed him that there were no jobs available.
When Local 1261 could get no cooperation from the school officials in its drive for recognition, it appealed to the parents and protested the administration's treatment of the Union's demands. In response to this appeal to parents, a letter was drafted by the chairman of the social studies department, Peter Holmes, and the coordinator of the music department, James Serpico, during the spring of 1974 criticizing Local 1261. This letter was circulated among the faculty and, after 40 signatures were obtained, it was mailed to the parents. The Union continued to demand recognition and in the fall of 1974 Holmes filed a decertification petition which was supported by a letter signed by 32 lay faculty members requesting decertification and the opportunity to establish a new, independent union to represent their interests. This letter was also circulated by Holmes and other individuals at the department chairman or coordinator level.
An additional event at the beginning of the 1974-75 school year, alleged to constitute anti-union activity by Nazareth, was the principal's speech at a faculty mass. In referring to the disruptive effects of the 1973 strike, he stated that such activities "would be dealt with swiftly and severely."
Local 1261 first filed charges against Hald, the diocese and Nazareth on May 28, 1974. The charges asserted that these parties were interfering with their employees' rights by refusing to recognize and bargain with Local 1261, by unilaterally altering the conditions and terms of employment through individual negotiation, and by discharging all members of the unit to defeat the local. On December 23, 1974, the Union filed further charges against the same parties alleging unfair labor practices in the refusal to retain Mirrione and continuing coercion and interference with employees' § 7 rights. The charges were consolidated on March 21, 1975 and, upon the issuance of a complaint by the Board's General Counsel a hearing date was set. The complaint charged Hald and the diocese with committing unfair labor practices under §§ 8(a)(1) and (5) 2 of the Act. Nazareth was claimed to have violated §§ 8(a)(1), (3) and (5).
After four days of hearings, the Administrative Law Judge (ALJ) recommended the dismissal of the § 8(a)(3) and (5) claims against Nazareth but found that it had violated § 8(a)(1) through its principal by threatening to deal severely with future strike activity. The ALJ found that, while Nazareth was the successor to Hald and the diocese, the evidence was insufficient to support the other claims of anti-union activity in violation of § 8(a)(1), and that there was no duty to bargain with the incumbent union, because the presumption of continued majority status had been rebutted. On the § 8(a)(3) claim, the ALJ determined that the evidence was insufficient to support the conclusion that an anti-union motivation underlay the refusal to hire Mirrione. The General Counsel took exceptions to these rulings.
The NLRB announced its decision on February 24, 1976, in which it adopted the ALJ's finding of successorship by Nazareth, but found that the evidence was insufficient to rebut the presumption of continued majority status by the Union and that Nazareth had not entertained a good faith doubt on this point. It further found that on September 1, 1974, when Nazareth began to operate the school and had hired a majority of its predecessor's employees in the unit, Nazareth had a duty to bargain with the Union. The NLRB further found that under NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 294-95, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972), Nazareth was bound to bargain with the Union over the initial terms and conditions of employment because it was "perfectly clear" as of March 25, 1974, that the new administration planned to retain all of the predecessor's employees in the unit. The NLRB concluded, therefore, that Nazareth violated §§ 8(a)(1) and (5) by refusing to recognize the Union and by unilaterally established the initial terms of employment.
The NLRB also disagreed with the ALJ by holding that Nazareth had violated § 8(a)(3) by not hiring Mirrione. After noting Mirrione's union activities, the anti-union background against which the refusal to hire should be viewed, and...
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