Roman Catholic Diocese Of Brooklyn

ROMAN CATHOLIC DIOCESE OF BROOKLYN Roman Catholic Diocese of Brooklyn, Henry M. Hald Association, Bishop Ford Central Catholic High School and Lay Faculty Association, Local 1261, American Federation of Teachers, AFL-CIO. Cases 29-CA-4746. 29-CA-4861, 29-CA-5212. and 29-CA-5234 May 15, 1978 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS PENIELIO AND TRUESDALE On July 28, 1977, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, all parties filed exceptions and supporting briefs. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge. to modify his remedy so that interest is to be computed in the manner prescribed in Florida Steel Corpora- tion, 231 NLRB 651 (1977), 3 and to adopt his recom- mended Order, 4 as modified herein. Respondent Roman Catholic Diocese of Brooklyn. Charging Party. and General Counsel excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950). enfd 188 F.2d (C.A. 3. 1951). We have carefully examined the rec- ord and find no basis for reversing his findings. Respondent Bishop Ford Central Catholic High School excepted to the Administrative Law Judge's finding that a unit of all full-time permanent lay teachers is appropriate for purposes of ollective bargaining. While we agree that such a unit is appropriate, we do so for reasons other than those offered by the Administrative Law Judge. The record establishes a signifi- cant history of collective bargaining between the Union and the predecessor employer. In 1966, the Roman Catholic Diocese of Brooklyn began bargain- ing with the Union for a unit consisting primarily of lay teachers. The parties negotiated a series of collective-bargaining agreements, the last of which was in effect at the time of the transfer of the high school to its new operators in 1976. Furthermore, "There is nothing in the statute which re- quires that the unit for bargaining be the only appropriate unit. or the ultimate unit, or the most appropriate unit, the Act requires only that the unit be 'appropnate'." Morand Brothers Beverage Co., 91 NLRB 409. 418 (1950), enfd. 190 F.2d (C.A. 7, 1951). Thus, we find that the unit lay teach- ers described herein as an appropriate unit for purposes of collective bar- gaining. St. Joseph Hospital & Medical Center, et al., 219 NLRB 892 (1975): Continental Can Co.. 217 NLRB 316 (1975); Columbia Broadcasting Siystem. Inc.. 214 NLRB 637 (1974). Contrary to the Administrative Law Judge. we find that Respondent. Ford Central Catholic High School. became a successor employer and was obligated to bargain with the Union in the unit of all full-time permanent la) teachers as of August 27. 1976, when said Respondent made its final decision on hiring. See. generally. Isis Plumbing & Hearing Co., 138 NLRB 716 (1962). 4The Administrative Law Judge recommended that in order to remedy ORDER Pursuant to Section 10(c) of the National L.abhor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge. as modified below, and hereby orders that Respondent Bishop Ford Central Catholic High School, Brooklyn, New York, its officers, agents, successors. and assigns, shall take the action set forth in said recommended Order of the Administrative Law Judge and that Re- spondents Roman Catholic Diocese of Brooklyn and Henry M. Hald Association, Brooklyn. New York, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph A. 2(a): "(a) Make whole the employees of Bishop Ford High School in the appropriate unit hby payment of backpay from the date of their termination to the date Respondent bargains in good faith with the Union or until such employees are offered reinstate- ment by Respondent. whichever occurs first." 2. Substitute the attached notices for those of the Administrative Law Judge. the failure of Respondent's Roman Catholic Diocese of Brooklyn and lien- ry M Hald Association to bargain with the Union over ihe decision to close the school and over the effects of that decision, the aforementioned Respon- dents he required to bargain with the Union and pay backpay in the manner prescribed in Vauns Packing Plant. 211 NLRB 692 (1974). However. we would require Respondents to bargain with the Union over the effects of the decision and to make whole the terminated employees by the payment of backpay with interest from the date of the termination to the date they commence to bargain in good faith with the Union or until the employees are offered reinstatement, whichever occurs first. less net earnings during such period, and computed in the manner prescribed in F W Wool.orrih Compare. 90 NLRB 289 (1950). and Florida Steel Corporation. supra. (See. generally. Isis Plumbing & Heating Co.. supra): Brockw.a Motor Trucls. 230 NL.RB 1002 (1977); Metro Transporation Services Compani. Inc..218 NLRB 534 11975). (Chairman Fanning would continue the backpay obligation un- til such time as the Respondent has complied with its obligation to bargain) Unlike the respondent in I an' Packing Plant. Respondents here did not completely eliminate the unit and thereby terminate the bargaining relation- ship with the Union. Instead, Respondents unilaterally closed part of their operation and terminated a number of unit employees at the end of the school year. while continuing to operate the four remaining schools. See Pine Vallev Division of Ethan Allen. Inc.. 218 NLRB 208 (1975) APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we, Respondents Roman Catholic Diocese of Brook- lyn and Henry M. Hald Association, have violated 236 NLRB No. 3 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the National Labor Relations Act and has ordered us to post and mail this notice. We therefore notify you that: WE WILL NOT refuse to bargain in good faith with the Lay Faculty Association, Local 1261, American Federation of Teachers, AFL-CIO, as the exclusive bargaining representative of our employees in the appropriate unit stated below, with respect to our decision to close or spinoff any of our facilities in the unit and the effects of our decision upon our employees. WE WILL NOT refuse to bargain in good faith with the Union concerning rates of pay, hours of employment, and other terms and conditions of employment as the exclusive bargaining repre- sentative of our employees in the following ap- propriate unit: All full-time, permanent lay leaders employed in member schools of the Henry M. Hald As- sociation, excluding supervisors as defined in the Act. WE WILL. NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. WE WIL.t make whole the employees of Bishop Ford High School in the appropriate unit by payment of backpay from the date of their ter- mination to the date Respondent bargains in good faith with the Union or until such employ- ees are offered reinstatement by Respondent, whichever occurs first. WE WILL, upon request, bargain collectively and in good faith with the Union with respect to the effects of our decision to close and spin off the Bishop Ford High School and reduce to writing any agreement reached as a result of such bargaining. ROMAN CATHOLIC DIOCESE OF BROOKLYN AND HENRY M. HALD ASSOCIATION APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that Respondent Bishop Ford Central Catholic High School has violated the National Labor Relations Act and has ordered us to post this notice. We there- fore notify you that: WE WII.L NOr refuse to recognize and bargain in good faith with the Lay Faculty Association, Local 1261, American Federation of Teachers, AFL-CIO, as the exclusive bargaining represen- tative of our employees in the following appro- priate unit: All full-time permanent lay teachers em- ployed in Bishop Ford Central Catholic High School in Brooklyn, New York, exclusive of supervisors as defined in the Act. WE WILL NOT discourage membership in the Union, or any other labor organization, by dis- criminatorily refusing to hire job applicants or by in any other manner discriminating against employees with respect to their hire or tenure of employment or any term or condition of em- ployment. WE WILL NOT in any other manner, interfere with, restrain or coerce our employees in the ex- ercise of their rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL recognize and, upon request, bargain in good faith with the Union as the exclusive bargaining representative of our employees in the above unit. WE WILL offer to employee Daniel Caffrey im- mediate and full employment to the position he was discriminatorily denied and make him whole as provided in the Board's Decision and Order. BISHOP FORD CENTRAL CATHOLIC HIGH SCHOOL DECISION STATEMENT OF THE CASE FRANK H ITKIN. Administrative Law Judge. Hearings were held in the above consolidated cases commencing on September 13, 1976, and ending on January 24, 1977, in Brooklyn, New York.' Briefly, General Counsel contends that Respondent Diocese and Respondent Hald violated Section 8(a)(l) and (5) of the National Labor Relations Act by negotiating in bad faith with the Charging Party Union by withholding information from the Union regarding plans to lay off employee teachers at two high schools within the bargaining unit;2 by withholding information from the Union regarding plans to terminate operations at B The unfair labor practice charges in Cases 29-CA-4746 and 4861 were filed on December 2. 1975. and February 18. 1976. respectively. The comp- laints in these cases, as amended. issued on March 31 and August 31. 1976. The charge in Case 29-CA-5212 was filed on September 24, 1976, and the pending complaints were further amended. The charge in Case 29-CA-5234 was filed on October 8. 1976. and the complaint in this case issued on December 6. 1976. The above complaints. as amended, were consolidated. 2 Christ the King and Bishop Loughlin High Schools. 2 ROMAN CATHOLIC DIOCESE OF BROOKLYN and "spin-off" a high school within the unit;3 by failing and refusing to bargain with the Union concerning these issues; and by refusing to make available to the Union certain books and records as requested by the Union in connection with the termination of operations at Bishop Ford High School. General Counsel contends that Respon- dent Diocese and its alter ego Respondent Ford Central violated Section 8(a)(1) and (5) of the Act by refusing to meet, confer, and bargain with the Union concerning the effects of Ford Central's succession to the operations at Bishop Ford High School; by discharging unit employees at this school; by withdrawing and withholding recognition from the Union as the bargaining agent of the unit employ- ees at this school; and by refusing to honor the existing collective-bargaining agreement with respect to this school. General Counsel contends that the above conduct of Re- spondents Diocese and Hald is also inherently discrimina- tory and is therefore violative of Section 8(a)(3) of the Act. Finally, General Counsel contends that Respondents Dio- cese and Ford Central discriminatorily refused to hire em- ployee Daniel Caffrey because of his activities on behalf of the Union, in violation of Section 8(a)(I) and (3) of the Act. Respondents, as discussed below, deny these and re- lated allegations of the complaints, as amended. Upon the entire record, including my observation of the witnesses, and after reviewing the briefs of all counsel, I make the following: FINDINGS OF FACT I. INTRODUCTION; BACKGROt ND Respondent Diocese is a religious organization engaged in operating religious, educational, and related institutions in the Boroughs of Brooklyn and Queens. And, as the Board found in Roman Catholic Diocese of Brooklyn, et al., 222 NLRB 1052, fn. 3 (1976), enfd. in part 549 F.2d 873 (C.A. 2, 1977), "Respondent Hald, an educational corpora- tion formed pursuant to the laws of the State of New York, was organized in 1972 by [Respondent Diocese] to operate a system of private, nonprofit Catholic high schools in Brooklyn and Queens . ... The Diocese of Brooklyn owns the schools of the Hald Association and retains control over the schools through the Catholic Schools office." The Board found that Respondents Diocese and Hald are inte- grated entities, that Respondent Hald is the alter ego of Respondent Diocese and that Respondents Diocese and Hald are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. See Roman Catholic Diocese of Brooklyn, supra, and cases cited therein. The record in the instant case also shows and I find and conclude that Respondents Diocese and Hald are integrat- ed employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Respondent Hald is the alter ego of Respondent Diocese. Further, the record in the instant case shows, and I find and conclude, that the anticipated revenues for the school year 1976-77 for Re- spondent Ford Central will be in excess of $1 million and that Respondent Ford Central, during this same period. Bishop Ford High School. will purchase goods and materials in the State of New York valued in excess of $10,000, which goods and mate- rials will originate outside the State. I therefore find and conclude that Respondent Ford Central is also an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. In addition, the Board has found in the prior cases involving the parties, and I find and con- clude on the record here, that Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. The events involved in this consolidated proceeding principally commence with the 1975 bargaining sessions between Respondent Hald and Charging Party Union for a new agreement. However. a recitation of the earlier rela- tionship and collective-bargaining agreements between these parties is necessary for background purposes. In 1966, Respondent Diocese recognized the Union as the collective-bargaining agent for a unit principally consisting of the lay teachers in certain schools. The parties negotiat- ed an initial and, later, successive collective-bargaining agreements. In 1972, as noted above, Respondent Hald was formed to act as, inter alia, bargaining representative for certain schools classified as Diocesan high schools. In 1972, there were nine Diocesan high schools within the ju- risdiction of Respondent Hald.4 About this time, the Bish- op of Brooklyn commissioned a task force to make a report and recommendations concerning the future of Catholic high school education in his Diocese. In June 1972, this task force issued its report. The report recommended. in effect, that the Diocese terminate its involvement in sec- ondary education by 1973. The report concluded (R. H. Exh. 10, p. 9); In the light of our study of the Diocesan High School system as now functioning, and particularly our stud- ies of financial, staff, enrollment, attitudinal and com- mitment factors, we conclude that we must recom- mend the termination of the present Diocesan High School system as of June 1973. An "alternative plan" was also recommended by the task force which involved, inter ahia. negotiations with religious communities which may have an interest in operating vari- ous schools on lease from the Diocese: the possibility of operating various schools as regional high schools by a lay board of directors; and the termination of remaining schools. During June 1972. Respondents Diocease and Hald were involved in negotiations with the Union for a new agreement. The union representatives were given a copy of the task force report and invited to study it in connection with pending negotiations. And, according to the credible testimony of Father Joseph Buckley, articles XXIII and XXIV of the 1972 74 collective-bargaining agreement be- tween the parties (G.C. Exh. 2, pp. 19-21) were negotiated "in the framework" of this report. Article XXIII provides. inter alia, that "each member school specifically retains the right to lay off or terminate the teachers covered by this agreement due to the elimination of teaching positions or 4 Ihelx Aere St Brendlin'. Bixhop I Frd. Blh.p Loughlin. ( hrwi the King. M1ater ( hriliil Bishop Kearne. N\azilrelh. Bihop Reilk. and Brhop M IDonnell 3 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for any other reason not in conflict with the express terms of this agreement." In situations where "substantially iden- tical teaching positions" are involved, teachers with tenure status are given greater protection. Article XXIV provides for reemployment of tenured teachers due to consolida- tions or closings of member schools. Provision is made for the referral of tenured teachers to another member school. The later 1974-75 contract between the parties (G.C. Exh. 3, pp. 20-22) contains essentially similar provisions, as modified by the parties in articles XXIV and XXV. The current 1975 77 contract (G.C. Exh. 6, pp. 26-30) also con- tains similar provisions, as further modified by the parties. I note that the current agreement contains detailed provi- sions pertaining to long-term tenured teachers who are thus displaced. Although the Bishop of Brooklyn did not implement the task force report by 1973, as recommended, the record shows that four of the nine schools involved were subse- quently terminated or transferred to regional or religious groups. Thus. Bishop McDonnell High School was closed at the end of the 1972-73 school year. Kearney High School ceased operations in August 1973. The Sisters of St. Joseph, a Catholic religious order, undertook operations at Kearney as a regional school. The Kearney transaction be- came the subject of unfair labor practice proceedings. See Henriy M. Hald High School Association, et al., 213 NLRB 415 (1974), and 216 NLRB 512 (1975). Later, in 1974, Bish- op Reilly High School was closed. And, at the end of the 1973 74 school year, Nazareth High School was closed and operations at this school were transferred to a board of trustees of lay and religious persons. The Nazareth trans- action also became the subject of unfair labor practice pro- ceedings. See Roman Catholic Diocese of Brookhlyn, 222 NLRB 1052 (1976), enfd. in part 549 F.2d 873 (C.A. 2, 1977). Consequently, by 1975. two of the nine unit schools were permanently closed and the operations at two others were transferred to religious communities or private boards. 11 THE PARTIES NEGOTIATE A NEW CONTRACT; THE SETTLEMENI FOLLOWIN(G THE STRIKE: THE SLBSEQUENT LAYOFFS About March 24, 1975, Respondent Hald began negoti- ating with Charging Party Union for a new collective-bar- gaining agreement. The Union's chief negotiators were Robert M. Gordon, its president, and Harry Kranepool, its vice president. Hald's chief negotiators were Brother Me- dard Shea, its assistant superintendent for teaching person- nel, and Edward J. Burke. its attorney. Union President Gordon 5 testified that the first bargain- ing session was held on March 24; that the Union then presented its proposal; and that the second session was held on April II. According to Gordon, at this second meeting, We discussed the proposals, but prior to serious dis- cussions of them, I raised as a point to Mr. Burke and Brother Medard [Shea] that we were assuming in these negotiations that we were bargaining for all of the G(;ordon also teaches at Christ the King high School, schools of the Hald Association and that any contract we entered into would be for all of the schools for the term of the contract and that they would live up to their obligations of the contract for all of the schools for its entire term. According to Gordon, attorney Burke responded: "Of course we will. What would lead you to believe otherwise?" Gordon assertedly cited to Burke the prior closings and terminations of Hald schools. Gordon claimed: [W]e wanted to be sure that if we were going to enter into negotiations and enter into a contract with this Employer that it was going to be a contract that would be honored by the Employer for the entire term of the contract and for all of the people in the bargaining unit for whom it had been bargained. Burke responded, according to the testimony of Gordon, that "he [Burke] had no knowledge of any plans to transfer the schools or to spin them off or to give them away." The earlier collective-bargaining agreement between the parties had expired on August 31, 1975. The parties were unable to agree on a new contract before the schools were to open and, consequently, a strike commenced on Septem- ber 3, 1975. Bargaining continued between the parties dur- ing the 5-week strike. Federal mediators participated in the bargaining. Gordon testified that at a bargaining session held on or about September 2, shortly before the strike commenced, he asked: "[1]f we sign with you-we were discussing a two-year contract at the time-we were sign- ing a contract for two years for five schools and you will operate the five schools for the two years." Burke, accord- ing to Gordon, answered that "he did not see that there would be any problem, that he knew of no plans to close any schools, that to his knowledge and to Brother Medard's knowledge there were no such plans to close any schools." Father Joseph Bynon, superintendent of schools for the Diocese and Hald, testified that during late September Hald determined that unless the strike ended and agree- ment was reached by Friday, October 3, two of the five unit schools involved, Christ the King and Bishop Lough- lin. would close. As Father Bynon explained: We would maintain the senior students and maintain the senior program at Loughlin [and Christ the King], but the freshmen, sophmores and juniors would be terminated. We tried . . . to get them placement in other Catholic schools, but we realized that the major- ity would have to go into public schools, for lack of room. On Friday, October 3, the above determination was put into effect. 6 'See R. H. Exh. I 1. the resolution of Hald. dated September 30. 1975. authorizing Father Bynon to announce the above determination. Union President Gordon recalled that on Monday October 6. [Wle were told that the two schools had been closed. And we reiterated that we were bargaining for five schools, that we insisted that the Em- ployer maintain the five schools and that an) of our proposals were based on the assumption that five schools would be maintained. Attorney Burke replied that "two of the schools were closed" and he "was bargaining for Ihree schools." 4 ROMAN CATHOLIC DIO( ESE OF BROOKLYN On the morning of October 8, 1975, the parties reached a tentative settlement. The terms of this agreement were summarized by Union President Gordon in a document dated October 8. 1975., and entitled "Proposed Strike Set- tlement." (See G.C. Exh. 4). Included within the 15 listed items in that document are the following: I. Christ the King High School and Bishop Loughlin High School reopen immediately. 2. All teachers return to work tomorrow. No reprisals clause. * $ 5. Seniority in layoff according to 4 categories. * * 15. [Two] year agreement, next negotiations begin on 5/1/77. Gordon testified that he was assured by Burke on October 8 "that the schools would reopen" and "the teachers would go back." Gordon assertedly "asked [Burke], beyond the opening of the two schools, we can assume that we have an agreement here for five schools for two years" and Burke "agreed." Brother Medard Shea also "agreed." However, as Gordon further testified, the Hald negotiators "wanted to be absolutely certain that [they] could tell me this and [they] wanted to have an opportunity to meet with the trus- tees" of Hald. Later that same day, as Gordon testified. attorney Burke telephoned Gordon and informed him "that he had spoken to the trustees and that he would defi- nitely say that the agreement was the one that had been approved by them." The agreement of the parties had to be ratified by the Union's membership and prepared in final form by attor- ney Burke. Union President Gordon testified that during the week of October 20, pending preparation of the agree- ment in final form, "I had heard rumors in my own school. Christ the King, that layoffs were coming by Friday . . . also Mr. Kranepool called me to say that he had heard the same rumors" in his school. Union Vice President Krane- pool was then a department chairman in Bishop Loughlin. Gordon, as he testified, telephoned Brother Medard Shea, who assertedly "told me [Gordon] that they [the rumors] had no foundation" and "that there were no plans to lay off any teachers." In addition, about this same time, Gor- don testified that Daniel Caffrey, a teacher and union dele- gate at Bishop Ford, related to Gordon "that there were rumors of the closing of Bishop Ford." Gordon again called Brother Medard Shea and, according to Gordon. was assured that "there were no such plans or consider- ation of plans." Gordon recalled that, in his conversation or conversations with Brother Shea, . . .he [Brother Shea] said something along the lines . .that it was possible at some later time that there might be somebody who was interested in the school [Bishop Ford] but that he had no knowledge of it, that he was unaware that there was anybody interested in the school. .... He [also] said that he was not guaran- teeing me that in the normal course of events under the contract that [there] would not be [employees] laid off during the year but he had no plans of laying off any teachers during the 'ear. According to Gordon. the 1975 77 contract was execu- ted in Burke's office on November 6, 1975. Present were Gordon, Kranepool, and Burke. Gordon testified: And before I agreed to sign [the contract]. I looked at him [Burke] and I said.... holding up my hand to indicate the numbers, five schools, two years, right. Ed? And he said, that was right. And I said, no prob- lems? And he said, no problems. Gordon signed the contract. Gordon recalled that after he signed Burke first apprised him that Brother Shea "will be calling you tomorrow" or "possibly today." Burke ex- plained: "I think it is about the layoffs." Gordon, accord- ing to his testimony, asserted. "I didn't know there were going to be layoffs." ' Union President Gordon then tele- phoned Brother Medard and a "meeting was arranged for the next day at Brother Medard's office." Gordon recalled that during this telephone conversation, I told him [Brother Medard] that I didn't understand how this was happening. He told me again pretty much as Mr. Burke had, well you knew that there were going to be layoffs. I said. No, I didn't know there were going to be laxoffs. You told me that there weren't going to be any layoffs . . . only a couple of weeks ago. His answer was, well I told you that no final decision had been made then and that is true. no final decision had been made, in fact no final decision has been made. Union President Gordon and Brother Medard met on "the next day," as arranged. Gordon assertedly was told "that a decision had been made to lav off seven teachers at Christ the King and three at Bishop Loughlin." According to Gordon. Brother Medard had in front of him "letters from the two principals suggesting the names of people to be laid off." Although Brother Medard would not "give" GCordon "copies of the letters." Gordon "saw them for a moment" and Brother Medard "read" to him "the list." 8 Gordon assertedly asked, "if there was some way that the layoffs could be stalled or cancelled or cut back." Brother NMedard responded that "an effort had been made to mini- mize the number of layoffs." Gordon assertedly asked "if it would be possible for [him] to consult with [his] own execu- tive board to find out frankly what they were willing to give to save these jobs." Brother Medard assertedly re- sponded: "Well, no. you'll have to make these proposals now, this is going into effect tomorrow . . . meaning Fri- day." However, Brother Medard in fact postponed "the decision until Monday." 9 Thereafter. on Sunday November 9. Union President Gordon and Brother Medard again met. Gordon then as- serted to Brother Medard that he "was dismayed to have A., noted ahove. the 1975 77 agreemsent (; ( t xh 6. like the earlier aereenien.t,. contain expres proirlSn pertainnin tio ilioff art XXI\t and reemploimnent of tenured teachcr, due to ,chh.o.l ihing, (iar XX\ VI One ..uch leiler l (i ( E xh 7. dated Ochber 31. 19'7. rined hs Prini- pil tlugh Klrrv:n for ( hrosl the Klnvl 'aul ( 'o'm.n. emplosed h> Re.pondenri t)ir.e.c I.. huaine.s irln;.sier a, alo.i. preenl at/ t l.rt' eilill 5 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been put in this position" and that he had "some proposals for [Brother Medard], but" he "wanted some assurances that we were not going through the motions." According to Gordon, He [Brother Medard] told me he would take down and pass along . . . any proposals that I would make and that he had the feeling that the decision had been made and any proposals that I made were going to be rejected. Consequently, according to Gordon, "no proposals" were made. The teachers were apprised of the layoffs on Mon- day, November 10, 1975.'0 On cross-examination, Union President Gordon asserted that there was a "commitment" on the part of Hald "to keep" all five schools open for the term of the 2-year agree- ment; that the Employer did not have the right "to close the schools"; and that the contractual provisions pertain- ing to closings or consolidation as contained in the 1975- 77 agreement "meant at the end of the contract." In addi- tion, Gordon asserted that on October 8 attorney Burke "said that he [Burke] thought some students might be lost." in reference to the subject of layoffs, and "I [Gordon] said I thought the loss would be minimal, that I was not willing to enter into an agreement unless I could be assured that my teachers would go back and you [Burke] agreed that the)' would go back." In short, according to Gordon, Burke promised and assured him that "the schools will be open for the term of the contract" and the teachers "will all go back." Union Vice President Kranepool related how the pro- posal of the mediators resulted in a tentative agreement on October 8, 1975. Kranepool testified: The assumption would be that Bishop Loughlin and Christ the King would be open and there would be five schools in operation for the duration of the two- year contract. * * * All the teachers [at the two closed schools] would be hired back under the proposal. Kranepool recalled that Gordon stated that "he [Gordon] was assuming that . . . there would be five schools and that we would not lose any teachers in those two schools that were closed." The Hald representatives assertedly "saw no difficulty with that kind of agreement at that par- ticular time." Further, Kranepool recalled that on Novem- 10See GC.C. Fxh. 8, a letter from Brother Medard to Union President Gordon, dated November 10. stating the names of the teachers and dates and terms of the layoffs Also see R.H. Exh. 23 dated November 12, a memorandum from Brother Medard to the principals concerning the lsa- offs Gordon also testified that earlier, during the week of October 24, he had asked Hugh Kirwan, principal of Christ the King. about the "layoff rumor." Kirwan assertedly responded. "he didn't know anything about it Gordon questioned Kira;;n about this after the layoffs were announced Kirwan, according to Gordon, said that "he had been told b) Brother Me- dard not to discuss the layoffs." In addition, Gordon testified that Etheln Canasan. assistant principal of Christ the King. acknowledged to him that she had been told. "there would be problems with the Ulnion if the I nion knew about the layoffs and that no mention should be made to 1Gordon] of the layoffs until such time as the contract was signed." Canavan denied Ihls testimon, tier testimony is discussed below. ber 6, after the agreement was signed in attorney Burke's office, "Mr. Burke said to call Brother Medard [Shea] to check on the status of the schools, the number of teachers and so forth." Gordon assertedly asked, "[W]hat do you mean?" Burke responded: "Well, there may be some lay- offs since we had a drop in the number of students." Elsewhere, Kranepool testified, in part as follows: Q. Do you recall hearing any rumors among the troops there of problems regarding layoffs, anything like that, after the end of the strike? A. Well, the first day or so when we were back in action, we had a general faculty meeting. My princi- pal, Mr. Muccigrosso, addressed the body, tried to get everybody together again. And during the course- and during his course of discussion, he did mention that there might be a possibility of layoffs at Bishop Loughlin High School, to the faculty at large. Q. Did he give you a time target as to when they would be? A. He would have to study the matter. He would have to see how many kids came back, because this was October 8th and 9th they were talking about. Some of the students already had left the building with their papers. So it was kind of up in the air. There was no definiteness, but there was a cloud-who, what, where, when? This was the scuttle going around the school at that particular time. Q. Now, did you inquire as to the correctness of Mr. Muccigrosso's statement? A. I did have occasion to speak to him and ask him what the situation was. And Mr. Muccigrosso said that at that particular time-this was a couple of days later, because it was Thursday and Friday when we came back, and said that there was no decision made as yet, which was October the 10th, somewhere in that vicinity. Earlier, in a prehearing affidavit given to a Board investi- gator, Kranepool had stated: During the [October 8] session . . . Mr. Burke said at one point that there could be layoffs because we might have lost some students due to the two schools, Christ the King and Bishop Loughlin, being closed, but that he wasn't sure at this time. This was probably in an- swer to a question about hiring all of the teachers back. Kranepool acknowledged that the above-quoted statement is true. Kranepool also acknowledged that the student-to- teacher ratio at Christ the King and Bishop Loughlin was about 20 to I; that a large number of students had been "lost" at Bishop Loughlin and at Christ the King following the strike; and that . . .since there was a drop in enrollment, the princi- pal [at his school] instructed us at one time at a de- partment chairman meeting to look over people in your department and see where things could be cut back. .... He wanted input and . . . he would make the final decision. Kranepool's prehearing affidavit also contains the fol- lowing statements: 6 ROMAN CATHOLIC DIOCESE OF BROOKLYN I don't specifically recall whether Bob Gordon brought up the question of whether Hald would con- tinue to operate all of its schools for the duration of the contract at the April 11 bargaining session or any other session prior to the October 8 session. Before we left the table [on October 8] . . . Bob Gor- don again asked if by agreeing to the agreement just proposed, this meant no closings for the duration of the contract. Mr. Burke responded that he knew of no proposed closings at the time. We then accepted the Mediator's proposal and package. * * After we signed, during the course of our discussions [on November 6] . . . Mr. Burke stated to Bob: Call Brother Medard regarding the number of students and the number of teachers. Bob said he would do so. I don't recall if there was any specific discussion about this point. The testimony of Union President Gordon pertaining to a commitment by Hald to operate five schools for 2 years and not to lay off teachers during the school year is sub- stantially controverted by the testimony of Father Joseph Buckley, the assistant to the superintendent of Hald: Fa- ther Joseph Bynon, a superintendent and trustee of Hald: Brother Shea, an assistant superintendent of Hald: Ethelyn Canavan, an assistant principal at Christ the King; Msgr. Charles Diviney, a trustee of Hald and vicar general of the Brooklyn Diocese; John F. Kearney. an attorney and trus- tee of Hald; Robert Muccigrosso, the principal of Bishop Loughlin; and Edward Burke, the attorney of Hald. Thus. Father Buckley testified that he was on the Hald bargain- ing team for the 1975-77 contract; that he attended "al- most all of the meetings": that no commitment was made to the Union to retain any specific number of schools for the term of the agreement or not to lay off teachers during the school year; and that, in answer to questions by union representatives pertaining to closings or consolidations, . . .the response was, we are negotiating at present for the schools that we understand are in existence and we know of no plans for such things. But we can make no other response than that, that we know of no present plans. Father Buckley recalled that the Union had proposed "sys- temwide tenure and seniority." See R.H. Exh. 5. This pro- posal, which would have permitted systemwide "bump- ing," was rejected by Hald and, instead articles XXIV and XXV were continued in the 1975-77 contract, as modified. Father Bynon testified that the Hald "bargaining team took their directions" from him: that he in turn reported to the Hald trustees; and that there was no commitment to retain five schools for the duration of the contract or not to lay off teachers during the school year. Father Bynon ex- plained that on October 8, following the settlement, some 250 students had been "lost" at Christ the King and some 30 students had been "lost" at Bishop Loughlin and, conse- quently, "because of the loss of students and the financial detriment to the Hald schools, we knew, barring some mir- acle, that there would have to be layoffs." i Brother Medard testified that no commitment was made to the Union to retain all five schools during the term of the agreement or not to lay off teachers. Brother Medard noted that the union negotiators never proposed orally or in writing that Hald make any commitment to retain all five schools for the term of the agreement. Further, Brother Medard recalled that at the October 8 session, when the settlement was announced. "we did mention . . . because of the impact of the strike at that time . . . there would be layoffs." Brother Medard added that, thereafter, . we did discuss the layoffs, the need of layoffs, the necessity in these particular schools because of the en- rollment. We discussed the overall numbers. We dis- cussed how we could limit the number of prospective layoffs . . . as high . . . at one time as 20-30. And we agreed with both parties to make every effort to limit this number. Brother Medard explained that, following the October 8 session, he consulted with the school principals and other members of administration: he later met with Union Presi- dent Gordon: he asked Gordon for "alternative proposals" and never received any: and, finally, on Sunday. Novem- ber 9, he again met with Gordon in a "last ditch effort" to prevent the layoffs: however, the parties were "unable to come to any arrangement that would solve the problem." Ethelyn Canavan testified that Christ the King had "lost" over 250 students following the settlement: that the "faculty was very aware that the loss of students would mean the loss of teachers": and that she discussed this sub- ject with Gordon, the union president, and a teacher at her school. "many times" after the strike. Canavan testified: Bob said . . . he had been promised by the Diocese there would be no layoffs. I was kind of surprised and I said, . . how could that be, look at the students we have lost here. I said, do you have that in writing Bob, and he said no. Msgr. Diviney testified that the Hald trustees conferred on October 8 "to ratify" the proposed settlement. Msgr. Diviney recalled that, when Father Bynon reported on the reopening of Christ the King and Bishop Loughlin High Schools as part of the settlement, "I asked him whether or not we could make a contract for two years with the possi- bility of schools closing within a year." Father Bynon re- plied that "it was possible to make a contract, because within the provisions of the contract there was the ability on the part of Henry Hald Association to . . . close the schools without terminating the contract." Msgr. Divine) was aware of no commitment to keep the five schools open 11 Father B)non was shown the Hald trustee minutes of (.ctoher 29. 1975 (G C. Exh. 68). and asked to explain the "decision" to. ninter i/liat "re- tain all five schools for the next two Nears." Father B'non testified thai "harririg .ian other developments the h ald Assocsiatlon. if these schools remained under the authorit , of Milid would maintain them until June of 1977": "if something else came up. thai would change the ballgame". ve ire ilasiss looking for . Sonlchod\. a board of trustees or relihgiou roirlntiillts. i) Indicate .i solid proposal" to take ,-cr the chj lsol, and. on October 29. 19'5. "there is rlithlaing In the horizon ati all tr Indl.cate .11\ Illtertet rf all\bodf\ ItAllla Oset Ihe operation aif these scho iils" 7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for any given period of time. John F. Kearney testified that, during the October 8 conference of the Hald trustees. the question "was asked of Father Bynon as to whether the agreement with the Union contemplated carrying the schools for any particular length of time, and [Father By- non] told us . . . up until June 1976" the end of that school year. Robert Muccigrosso related that his school. Bishop Loughlin, "lost" a large number of students by about Octo- ber 8: that he later conducted a faculty meeting on or about October 10 where he "mentioned that we will have layoffs" -- the "exact number to be determined": and that Union Vice President Kranepool was present at this meet- ing. Kranepool, as well as other department heads, thereaf- ter made recommendations to Muccigrosso on proposed layoffs. According to Muccigrosso. Kranepool never indi- cated to him that the layoffs would be contrary to the agreement of the parties. Attorney Burke denied giving assurances to Union Presi- dent Gordon that there would be five schools for the term of the 1975 77 agreement. Burke also recalled that, follow- ing receipt of the mediator's proposal and agreement on October 8, he stated: if they are successful in re-opening the two schools [Christ the King and Bishop Loughlin], there's going to be layoffs because . . . the reports we were getting was, there were hundreds of students that had already processed out. However. Burke promised that "no final decision would be made without first talking to" Gordon. Burke noted: "There was no dispute by the Union to our assessment that quite likely there would be layoffs." In addition, Burke testified that the final contract was executed by Union President Gordon on November 5, and not on November 6 as testified to by Gordon. Between October 8 and Novem- ber 5, Burke had received a telephone call from Gordon, as follows: [Gordon] said . . . Harry [Kranepool] tells me that they're going ahead with decisions to lay off at Bishop Loughlin.... He said, we had a deal that [Hald] wouldn't make any decisions until we had a chance to talk about it. I [Burke] said, that's right . . . and it's still a deal. I don't know what's going on at Loughlin, it may be that they are doing a study of the faculty to see how many, if any, are to be laid off, but I will tell you that there will be no decisions made until you've had a chance to talk about it. Thereafter, on November 5, in his office, Burke told Gor- don, "be sure to get in touch with Brother [Medard] as far as the layoffs are concerned because we now had the names and numbers and he wanted to move on it." Gor- don replied, "Isn't there any way he can avoid it for the year?" Burke responded: "You [Gordon] can go talk to him [Brother Medard], to see 'what the situation is, but realistically, there's an awful lot of teachers out there and a lot fewer students." On the record made in this proceeding. I find that the testimony of Father Buckley, Father Bynon, Brother Me- dard Shea, Ethelyn Canavan, Msgr. Charles Diviney, John Kearney, Robert Muccigrosso, and Edward Burke is more reliable and accurate than the testimony of Union Presi- dent Robert Gordon and Union Vice President Harry Kranepool. Gordon's assertions that there was a commit- ment to retain five schools for the full term of the agree- ment and that there would be no layoffs during the school year are not sufficiently established by credible testimony. There are no written provisions in the 1975-1977 contract to this effect. There are, however, provisions in the agree- ment pertaining to layoffs, closings, and consolidations. Further, the prehearing affidavit of Kranepool, as dis- cussed supra, conflicts with Gordon's testimony in signifi- cant areas. And, on this record, I find that the testimony of Respondent's witnesses, as discussed above, is more rea- sonable and reliable. 111. THE CLOSING OF BISHOP FORD HIGH SCHOOL A. The Decision To Accept the Proposal of the Parents' Group To Take Over the School The parties settled their dispute and reached an agree- ment on October 8, 1975. This agreement was to be pre- pared in final form and executed by the parties. In the meantime, on October 23, the Franciscan Brothers, who performed teaching services at Bishop Ford High School, issued the following statement: We remain deeply offended by the behavior of the teachers who were on strike for five weeks at Bishop Ford High School. We believe that those teachers who participated in the harassment of non-striking teach- ers, both religious and lay, the use of abusive and foul language, the endangering of property, the interrup- tion of Friary deliveries, and the disruption of classes, behaved in a manner unbecoming professional educa- tors who should teach students by setting a Christian example. We remain deeply offended by the behavior of the officers of the Hald Association and its bargaining agents. The decision reached by these persons created turmoil in the lives of all personnel in the Hald schools, as well as the administrators, teachers, and secretarial staffs of other Catholic and public schools in Brooklyn and Queens, parents, and not least of all, the students. The statement concluded: "Consequently, we Brothers find it necessary to re-evaluate the present situation and reconsider our future commitment at Bishop Ford High School." This statement was later published in "The Tab- let," a Diocese newspaper, on October 30. Father Bynon, superintendent of the Hald schools, testi- fied that he was unaware "that such a statement was being prepared"; that he had been told earlier about the "unrest" among the Franciscan Brothers by Brother Edwin Gill; and that a copy of this statement was received by him in the mail on or about October 23. Father Bynon explained: 8 ROMAN CATHOLIC DIO(CSE OF BROOKLYN Prior to this, we were asked by a member of the Fran- ciscan Brothers, Brother Edwin, he had come to our office and said there was a great deal of unrest at Bishop Ford. A few of the brothers were refusing to go back to teach . . . once the strike was settled.... This generating . . . support from the other brothers. He felt that they were so unhappy and so confused that there was a possibility that a good number of them might withdraw from that school in June of 1976. So. he urged me to see them and talk to them. Father Bynon, Father Noonan. and Brother Medard Shea met with the Franciscan Brothers on October 23.12 At this meeting, according to Father Bynon: The brothers were expressing their strong dissatisfac- tion with the Hald Association, with me personally as an executive officer of the Hald Association, with mn staff-Brother Medard [Shea], Father Bynon. * * * * * They were just totally upset with the whole thing. They really felt . . . that they would like to remove themselves, if they could, from the Hald Association. * . * . * [W]e said to them . . . the Task Force Report wa,, back in 1972 had suggested that if a religious commu- nity wanted to take over a school. that should be a direction the Diocese should move in. But they kind of realized that they [did not have] the manpower to do something like that . . . we said the other thing the Task Force Report suggested was that a board of trus- tees . . . take over the school and run an independent school. It didn't seem feasible to them at that time. The meeting ended with the Franciscan Brothers undecid- ed as to whether they would "withdraw" from Bishop Ford High School. Subsequently, on October 29, 1975. the Hald trustees met. The minutes of this meeting (G.C. Exh. 68) state that the "Bishop requested that the educators develop recom- mendations to cut or eliminate the unexpected deficit of Hald"; that a "decision" was made to "retain all five schools for the next two years"; and that the trustees were to "plan for a Hald meeting on December 17 at which time [the following] two plans are to be submitted and reviewed. -plan to spin-off three schools (C.K., F., M.C.) 3 by 1977-plan to reduce or eliminate the strike loss, estimated up to $400,000." Father Bynon, who attended the trustee meeting, explained that the 1975-77 contract between the parties did not preclude Hald from closing any of its schools during the term of this agreement and there was no commitment to the Union to retain the five schools for the term of this agreement. However, by October 29. 1975. 2 Father Bsnon testified that this meeting "as on Octiober 23. tie a.d testified that 'before we could get to the meeting ,xe set up with themn. lhi appeared in the Tablet." "The Tablet.' however. stas published on October 30. Father Bynon later explained: "Ihis Istatementi came n the mlli t,, u prior . . in the morning . . . that we were supposed to meet with them " Although the record is not clear on this poin. I nam persil.aded tIha the above meeting was on October 23. " Christ the King. Bishop Ford. and Maiter (Chrisl there were no pending plans by any groups or persons to take over any Hald schools and the Hald trustees "were talking about [what] would happen by September 1977." In short. "as long as the schools remained under the Hald administration . .. we should keep them open until 1977." Father Bynon added that, unless the above transfers or spinoffs were effected hb 1977. "they were going to close [the three named] schools by June 1977." Thereafter, on or about November 7. 1975. Father By- non, together with Father Noonan and Brother Medard Shea. met with Franciscan Brothers Edwin Gill and Timo- th, Walsh. Father Bynon testified: Thes informed us that the Fathers' Guild and Moth- ers' Guild associated with Bishop Ford High School had formed a steering committee. that they were ,ery anxious to explore the possibilities of establishing a board of trustees and taking over the operation of the school. [Brother Edwin (Cill] expressed this kind of interest growing among the Fathers' Guild and the Mothers' Guild: he was reall% asking us [for] information about what would be the time involved of a steering commit- tee sending a proposal . . . what would be the time lines if they wanted to take over the operation of the school . . .what would they have to do with regard to the State education department; what kind of infor- mation would the' have to supply. It was that kind of [an] exploratorN thing. Father Bynon acknowledged: "We were obviously enthusi- astic about their inquiries": "we thought something might be happening on the local scene": "but it was . .. er vague as far as any kind of date or time on it." According to Father Bxnon. "The next thing that arrived was . . . [a] proposal from a steering committee of Bish- op Ford High School'" See (i.C. Exh. 54. This proposal and accompanying letter arrived at Hald about November 20. 1975.14 Father B-non reviewed the proposal with his staff and "became vert conscious of its inadequacies. It wasn't firm enough: it wasn't clear enough to be viable at that point in time." Consequently, as Father Bynon testi- fied, "W'e sent it back to the steering committee with sug- t4 1he acclmpaning e letcr. daied \oisember 20. 1975. and signed hb the memhers of the steering commirtte. stiale in prtt A, p.lrents e hac ae responirhilhts to act in the best interest of ,our ?oung \No, as representati\c, of olher parents. ve the elected commit- tee members hase a responsiblhits It act in their best interet we be liee the attached proposal to make Bishop Ford High Sch ool an inde penldent ,chool Is in Ihe hel Interel t f all concerned the effect of our sertli prohlems on our I r.lncl.icn Brother, C.n- not he lminlimied In our ile,. I departure of our Rellcgoiu from Ithl school -oilild trelan ithe I.... of the schoil rhose parents and friend, of Bishop F ord with hom W.e .ire in contacl support thi sic ts we ind others haue rirtten r to he f rAllci.c.in Brothers expreslng ,fr full sup- p rt .unid undert.andinr. i and suggesting Ihat our cho ol beco rte Inde- pen ent ' C halec disc Ised tIl itilI tt1iU Principal. Brother \lphonris lIMar- ei . toci enh hi., help intr u opport in chan.ing Bishop I o rd to an Inde- pentdeint ch,l and to help purl t ociecr .a pr.pcr forma.l proposal for \ tur cOTit der iioll 9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gestions." Is Father Bynon testified that between Novem- ber 7 and 20 he "had no discussion of any kind about the possibility of establishing a separate independent school at Bishop Ford." Father Bynon recalled that on or about December 10, 1975, he received a "revised proposal" pertaining to Bishop Ford. See G.C. Exhs. 55 and 56. Father Bynon "reviewed it": "thought it had merit": and "arranged for a meeting of the Hald Association" on December 17. The Hald trustees met on December 17 and decided to take the "Ford pro- posal under advisement with a response due within a month." Father Bynon was authorized to issue a news re- lease and notify the Union of the proposal. The minutes of the Hald trustees recite: "The [trustees] plan to meet on January 7, 1976. at 2 p.m. to consider its response to the Ford proposal." (R.H. Exh. 14.) The Hald trustees met on January 7, 1976. Father Bynon recalled that "at the meeting of January 7, there was no . . .final resolution determining the status of Bishop Ford . . but, instead, our concern was, as the minutes reflect, to get the clarification of language with regard to the televi- sion studio" at the Bishop Ford High School premises. The minutes reflect that the steering committee should provide "a clearer indication in the proposal for the future continu- ation of the Diocesan T.V. Studio in the present facilities" and "all language clarifications in the proposal are to be completed within 30 days in order that there be given to [the Union] a 180-day period after notification regarding a Hald decision." Thereafter, as Father Bynon explained, the Hald trustees met on February 5, 1976, and . . . resolved to close Bishop Ford High School . . . moved on that resolution because [they] thought, in the proposal, there was a potential for keeping a ('ath- olic school on those premises and that would be the best circumstances which could have . to close one of our buildings.'" Father Noonan, assistant superintendent of schools. re- called that he received the initial Bishop Ford proposal on or about November 20, 1975. Father Noonan testified: Q. When did you know that such a proposal would be forthcoming? A. Well, I had a number of discussions with Broth- FI :iher By ion, in adlvls ing Father Noonen.ii, his assmisant superlnlcindeitl that the proposa.l he relturned for change,. noted. inter al/ia. that the propos al did no Iidentify the boward .of trustees: the proposal inldicated that "the school wo,uld he an adjunct" .of the liocese; and the proposal called f)i ". limited grant-in-aid prograit" from the Diocese See (i. C }xh. 54 I a Iather Bynon testified thal at an "inroirmal meeting" on October 23. 1975. he ',as informeild of the "possihilty" ,of a group seeking to oprcl.lae Christ the King .is an indepenldent schol. IFather Brnon suggested Io thi lt group "if the.s ere seIious and even then we were only talking aboiut the possibiliti this was for the school sear of September 1978." F:ather H\Ixin also suggested to thalt group that "thes should get stome person." like Br tlh er Matthew Burke, "a;i a iorsulritn, beccause he hald been through tlhis" Brother Matthew hld been the principal at Nazareth high Sch.o.il \- though I ather Billnon believed that the group could nol effeet sluch i1 p'"- posril before Septemblher 1978 (Christ the King Im fiact hecalile "indepenldtil" bh August 31. 197t See R If t.xhs 15 and 16. tile minutes ,if the II1.d1 trustees for April 5 adl 13, 1976. Father Bnon testified thai the lav teachers ,at ( hrist the Kiric lIhi School Were curtentls represented b, the ( harging Parts IUnn I lie clos- ing .and spinoff if ( hrist the Kiing is not lilecged here to violalte tile Ai er Alphonsus [Maher, the principal of Bishop Ford,] on the phone. We had had a meeting on the 13th of November in which Brother Edwin [Gill] told us that . . . [they] had resolved the question whether the Brothers were going to stay in the school at all for the year . . . they would, and that they were receptive to a parents' group forming a regional board. They would support such a move. It was on, I believe, the 18th of November that Brother Alphonsus [Maher] called me and said that he had a meeting with the steering com- mittee and they had, or the parents' guild, the fathers' guild, and they were interested in forming the steering committee and they were going to meet with the moth- ers' guild, and so we knew that it was in the works then. Father Noonan also acknowledged that on or about No- vember 14 he made available to Brother Alphonsus Maher a copy of the proposal which had been utilized in the earli- er Nazareth spinoff. Father Noonan noted that the initial November 20 pro- posal was inadequate because, inter alia, "they [the parents' group] were asking for monies from the book store which did not belong to Hald" and for other monies which be- longed to the "parent organization." Further, "there was language in there that seemed to indicate they weren't too sure whether they' were going independent. Somewhere [in the proposal] it says something about [being] an adjunct of the Diocese." Father Noonan did not forward the Novem- ber 20 proposal to the Hald trustees because "there were a number of things there that I couldn't agree with . . . in my opinion, there was not a concrete proposal." Thereafter, on or about December 10, Brother Alphon- sus Maher "resubmitted a new proposal" on behalf of the parents' group which was, in turn, submitted to the Hald trustees at their December 17 meeting. Father Noonan re- called that the Hald trustees "deferred any action" at the December 17 meeting; "they wanted to give Brother Me- dard [Shea] and [Attorney Burke] time to speak to the Union." Father Noonan recalled that the Hald trustees next met on January 7, 1976, further discussion ensued, and "the final decision wasn't made until February 5, 1976." Father Noonan explained: "The decision was made [on February 5] to pass the proposal on to the Diocesan authority, the Bishop, and the recommendations-the Hald Association decided to close the school." Stephen Faughnan was a parent of a student at Bishop Ford High School and a member of the Fathers' Guild. He later became "chairman of the steering committee to pres- ent" the proposal for Bishop Ford to become "an indepen- dent high school." Faughnan read the statement of the Franciscan Brothers which was published in "The Tablet" on October 30, 1975. He later wrote Brother Alphonsus Maher, the Bishop Ford principal, a letter on November 13. which states in part: It has been suggested in the past that "going pri- vate" as per Nazareth, Bishop Reilly and Bishop Kearney, might be a way to eliminate some of the problems experienced at Bishop Ford. Our members [of the Fathers' Guild] need more insight into what this means and how it might help our school. I hope 10 ROMAN CATHOLIC DIOCESE OF BROOKLYN you can join us at this meeting (on November 171 or, if not convenient, at our next regular meeting on De- cember 8th. Faughnan recalled that he had spoken to Brother Al- phonsus Maher "a day or two before" he wrote the Brother on November 13, 1975. Faughnan testified that, to his knowledge, no person interested in establishing an "inde- pendent" school had "contacted" Hald or Diocese repre- sentatives concerning this subject prior to November 5 or 6, 1975, when the 1975 77 contract was executed by the parties. The Fathers' Guild held a meeting on November 17. Brother Alphonsus Maher spoke to the group. The minutes of this meeting (R.F.C. Exh. 7) state, inter alia. Brother Alphonsus addressed meeting. S * The Franciscan community could not take over Bish- op Ford, so the independent route would be the best way. * * The advice received was, if a board of trustees is set up, the Fathers' Guild and Mothers' Guild should form a steering committee to outline method of opera- tion, a projection of finances for three years and rec- ommend names for board of trustees. Buildings and properties would be turned over to in- dependent board. Advice for best approach set up elected steering committee to get in touch with Broth- ers. Keep confidential the present discussion going on. A motion was made, seconded, and passed by the Fathers' Guild to elect a committee "to plan and present a proposal for Bishop Ford to become an independent school." On the next day, November 18, the steering committee met. This meeting was attended by members of both the Fathers' Guild and Mothers' Club. The minutes of this meeting (R.F.C. Exh. 8) state, inter alia, The mothers present endorsed the plan for an inde- pendent school and indicated they, had previously sug- gested such a solution to the principal. The Chairman mentioned the formal requirements of the proposal and the help provided by the principal, Brother Alphonsus [Maher]. The plan used by Nazar- eth H.S. is being used as a guide. Thereafter, on November 20, the steering committee again met. Chairman Faughnan. as the minutes of this meeting show (R.F.C. Exh. 9), "informed the committee that the formal proposal . . . was ready for presentation to the Hald Assn." Brother Alphonsus Maher "read the proposal to the committee" and, after a discussion, Brother Alphon- sus "was asked to submit the proposal" to Hald.'7 Faughnan testified that thereafter, on February 5. 1976, the steering committee met again. He explained: "We un- derstood there was going to be a [Hald trustees] meeting on February 5, at which time a decision would be forthcoming [from Hald]. We wanted to act on that promptly." The minutes of this.steering committee reflect that the commit- tee then made its transition to a formal board of trustees. The Ford Central trustees conducted a meeting 6 days later on February 11, 1976 (see G.C. Exh. 59). As Faughnan explained, there were then 12 trustees-9 lay persons and 3 religious persons. '8 Faughnan also testified that neither the Diocese nor Hald has "had any say" in the selection of the members of the steering committee or the board of trustees and neither the Diocese nor Hald has "had any say" in the operation of the new school or "anything to do with the development of personnel policies" at the new school-"in the salaries that they were being paid" or in "the terms and working conditions under which they were employ ed." Justin D. Mahoney. chairman of Respondent Ford Central's board of trustees, testified that he first heard about the steering committee proposal to make Bishop Ford an independent school in late November 1975. Ma- honey assertedly received a telephone call from Faughnan "in the latter part of November, asking me .. . if Bishop Ford was able to go independent . . . would I be willing to serve on the board of trustees." Mahoney agreed. Mahoney did not, however. serve on the steering committee. Brother Alphonsus Maher, principal of Bishop Ford, tes- tified that the above-quoted statement of the Franciscan Brothers was published in "The Tablet" on October 30, 1975: that he did not participate in and was not "a part of" this statement: that about this time, during late October, parents of students at Bishop Ford expressed concern to him about the future of the school at various social func- tions: that. specifically. a number of mothers asked him at a Mothers' Club meeting "is there any possibility that we can go independent": that he was later asked b, Stephen Faughnan to discuss this subject at a Fathers' Guild meet- ing on November 17: and that, at the Fathers' Guild meet- ing on November 17, "there was some talk as to whether there would be any possibility of the school going indepen- dent." (See the notes of this meeting. R.F.C. Exh. 7. dis- cussed supra.) Brother Alphonsus was asked bN the mem- bers of the Fathers' Guild "if he would explore for them what would have to be done to go independent" and he did. Brother Alphonsus acknowledged that he probably spoke with Brother Medard and/or Father Noonan. his superiors, between November 13 and 17 "to get this ad- vice." Brother Alphonsus was, however, vague and uncer- tain in his recollection of dates. Brother Alphonsus recalled requesting from the Hald representative copies of the earli- er proposal used in the Nazareth transfer. He prepared the November 20 proposal for Bishop Ford to go "indepen- ' I the mirles reflct th:l. "in response to .a specifi qiIcnoII ha i nleni her of Ihe ,nOlllniitee .i a1 union role in Ihe nce school. Hrother -\lphll.u . indilatc lie hJ t. r no hbletll , a t e heo ;lhtr lllOn or r il\ LiniLO for that I t lrlhcil r[lll ct.l iol,, h the tru'tec' aire dl,,cuxsed beli, iii refereirce to III , ll-ik.' l ' in l .it e', 'Icl terl l lli Il DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent"; he delivered this proposal to Father Noonan: he was later told by Father Noonan that certain parts of the proposal were unacceptable: he revised the proposal and submitted the December 10 proposal; and he was told on February 5, 1976, that this proposal had been "approved" by Hald. Thereafter, Brother Alphonsus resigned as princi- pal of Bishop Ford and became principal for the new board. 9 Attorney Burke testified that he first learned of the pro- posal for Bishop Ford to go private on or about November 20 after Father Noonan called him. And, Brother Medard Shea, assistant superintendent of the Hald schools, testified that by November 5 or 6. 1975, he had no "knowledge. . . concerning a plan or a proposal or a suggestion to close Bishop Ford." 20 General Counsel alleges, inter alia, that Respondents Di- ocese and Hald bargained in bad faith with the Union by withholding information from the Union regarding plans to close or spin off Bishop Ford High School. General Counsel has failed to prove this allegation with sufficient credible evidence. And, although the testimony of Respon- dents' witnesses was at times unclear and confusing, I am persuaded here that the credible testimony of Father By- non, Father Noonan, Stepiien Faughnan. Justin Mahoney. Brother Alphonsus Maher, Edward Burke, and Brother Medard Shea shows that by October 8, 1975, when the parties settled their dispute and agreed upon the terms of the 1975-77 contract, Respondents Diocese and Hald did not have pending before them or under consideration any current plans or proposals to close or spin off Bishop Ford. The statement of the Franciscan Brothers on October 23, 1975 (published in "The Tablet" on October 30), set into motion the community activity which ultimately resulted in the November 20 proposal for Bishop Ford to become an independent school. However, even by November 5 or 6. 1976, when the parties formally executed their 1975 77 agreement, there were no pending plans or proposals be- fore the Diocese or Hald to spin off Bishop Ford High School. 19 Brother Alphonsus Mlaher iecadled that l alher Noonan objected to his Novembner 20 proposal hecause. ite, uiiai, the proposal provcded fol "gian i in-aid" from the )Diocc,e the patent organization funds were referred to) ill the proposal alihoiugh laid hadl no control over these funds and the pro- posal referred to Ihe new school as in ;"adjunct"' of Ihe D)icese he pro posal was "revised" b HrBrolher Alphlnsus and "subhnmilted as revised "'I lie proposls w. ere typed bh lald pcoelllcl aind liald personnel were utillzer in compiling the data onlained thectin Flrh testiltiniio of Brolther Alphon- Stlu iN further discussed below in conllnection with the successor aind altrie- a iJ conlentions 0 HBrother Meda;id Shea recalled that he attended a meeting where the statemeln of the I ranllciscn Brothiers. as quoited above. was discussell Brother Medard Ian1d Father Noonan ;r ,ould place this meeting oin or alhou October 28. I note that .Ilther BOnonl placed this meeting on Octobher 23, the day the Francisclan Brothers issued their statement I also note that Brother Alphlonsus Mal;lher whose testiminn is discussed above, was unlccl tlainl f the exact date of this rieening There is, oi this recoidl some ctnfusioll ;is to specific dates I ari hou- ever. persuaded thail Illere was in fact 1; rieceting oil ()clobhe 23 is te stified bY F ithcr Bnos n. I am also persuaded that there w as a further meeting Wn November 7 ais testified hn Father Bn,non. I heliee tha t ather Bnoin has mistakenly referred t,) tile fact Ihin he wai;s told ll Noevcmber 7 tha it steering cummitlee haed hee t "1rliedll " Ihe credible leistlmonn of :i ugh- nal antd the mintiles iof the steerit clOniiiilltee show that such a comilllttce u. is formed liter. on oir ahiou Noetecihel 17. B. The Discusssions Between Hald and the Union Concerning the Decision to Close the School Union President Gordon testified that about the middle of December 1975 he received a letter from Hald which indicated that "a proposal had been received for the taking over of Bishop Ford and that it might be considered." 2i Union President Gordon further testified that later, on De- cember 22, 1975, he and Union Vice President Kranepool met with Brother Medard Shea and other Hald representa- tives. At this meeting, "I [Gordon] asked a number of ques- tions concerning Bishop Ford and concerning the possibili- ty of it being transferred or closed, as I had been told." ;ordon specifically recalled asking, inter alia, "who owns the school": "who operates the school"; "who will own the school if there is a transfer": "what will happen to the people in the bargaining unit assuming there is a transfer"; and "when did you [Hald] first hear of the proposal con- cerning Bishop Ford High School." Gordon's questions were not answered at this meeting. On December 31. 1975, counsel for Hald wrote a letter to Gordon pertaining to the questions which Gordon had asked earlier. This letter (G.C. Exh. 13) states, in part: Question 5: May the Faculty Association have a copy of the steering committee proposal? Answer: Since the proposal from the steering commit- tee has not been accepted and indeed no decision to close Bishop Ford has yet been made, the Henry M. Hald School Association is not in a position to release the proposal at this time. We will, however, be glad to meet and discuss the elements which the Hald Associ- ation is considering in its evaluation of the Bishop Ford operation. Question 6. Who are members of the steering commit- tee? ,4nswer. It would not be appropriate to release this information concerning an independent entity in- volved in ongoing negotiations concerning Bishop Ford. * * Question 9.: Is the Hald Association willing to main- tain the present five operating units until the end of the present contract? Answner. We are willing to discuss the matter and we will entertain any proposals that the Lay Faculty As- sociation may have. As you know, consideration of Bishop Ford's future has been a matter of concern to the Hald Association since 1972 at the time when the Task Force Report was issued. The Trustees of the Hald Association will meet on January 7, 1976, to consider and to decide whether to close Bishop Ford High School. If you wish to discuss the continuation of Bishop Ford as a Hald Association School, any comments, suggestions, or meetings in regard to Bish- And see (G.( Exh. 10. a letter from Union President Gordon to Brother lrtdard Shea. dated I)December 15. 1975, pertaining to "rumors" about a loin , o Bishop I ord and requesling that Hald "prov ide us with any infor- trlltolln concerning such . cliosing in order that we mas represent our memnllhers band hargain concerning the effects of such closinng 12 ROMAN CATHO.IC( D1O(t ILS OF BROOKLYN op Ford Ishould] be made or held before Januars 7 so that any proposals made may be considered hb the Hald Association Trustees at that January 7 meeting. To that end we will be willing to meet with you or other representatives of the Lay Faculty; Association on January 5, 6 or other times that may be mutuaills convenient. Question 10: What does the Hlald Association see as its obligations to the present staff? Answer: As you know, we have previously discussed and provided for this in our collective bargaining. In addition we are prepared to discuss any further con- siderations you feel are appropriate. On January 7, 1976. Brother Medard Shea wrote lnion President Gordon a letter (G.C. Exh. 15 stating, inter alia. that Hald "was scheduled to meet today. January 7. for a review and possible decision concerning the closing of Bishop Ford . .. and the proposal submitted for the estab- lishment of a new independent central high school." Broth- er Medard Shea further stated that Hald had "deferred making any decision [in order] to provide more time to the Union" to respond and state its "position." Thereafter. on or about January 9. Union President Gordon and Vice President Kranepool met with Brother Medard Shea and other Hald representatives. Gordon testified that he again asked questions similar to those which he had asked at the December 22 meeting. Gordon assertedly was unable to "learn who was going to own the school or operate the school." He was not "given the name or address of an, person" to contact in connection with the proposed trans- fer. In addition, as Gordon recalled, "[We] were presented with what we were told was part of the proposal. We were told that these were the parts that the Employer deemed pertinent concerning the establishment of the school." Later, on Janurary 22, 1976, counsel for Respondent sent Union President Gordon a letter (G.C. Exh. 16). nam- ing Justin Mahoney as the "steering committee" represen- tative to contact. This letter concluded: I again draw sour attention to [Hald's] intention to make a decision in regard to the possible closing . . . before the end of this month. If you hase further pro- posals or recommendations concerning whether or not [Hald] should close Bishop Ford, said proposals or recommendations should he made as soon as possible and before the end of this month. Union President Gordon testified that. "based upon in- formation that we were given concerning the reasons for the closing of the school, we requested the books and rec- ords of the Roman Catholic Diocese of Brooklyn and of the Henry M. Hald Association." This request was made during the January 9 meeting. Gordon was never given the "books" of the Diocese. lie was told that the union repic- sentatives were not "entitled to that information." Gordon recalled "two separate meetings" with Hald represenitaties in late January pertaining to his request for llald's finan- cial information. At one such meeting the Union "received a certified audit" from Hald for the years 1972 73 and 1973 74. As for the related information for 1974 75, ac- cording to Gordon. "we were told they were not read`l." (Gordon testified that the liald representatives did not "of- fer . . .anything in lieu of those books." Gordon recalled copying in longhand the certified audits which were made axvailbhlbe "we were not permitted to photocopy ans of them." And. Giordon testified: li t appeared apparent to us immirediately that there was certain information that was not included in the audit . . . there were things like driver education which brought [in] a good deal of mone . . . . They did not appear in the audit .... So we asked about them. Gordon's "questions" were "taken down" by the Hald rep- resentatiles. C.C. Fxh. 17, a letter to Union President Gordon from counsel for llald, dated Januars 30. 1976. refers to "our meeting on Januars 28 during which you [Gordon] re- viewed the [Hlaldl books landl you requested a breakdown and explanation" of certain "figures." l he letter purports to answer Guordon's questions pertaining to the financial data. Ihe letter further states: At the Januar) 28 meeting. you indicated that you would evaluate the information and make a proposal "by the end of next week at the latest." I remind you that an, proposal the LFA wishes to make should be made as soon as possible. 1 he need to make a decision in the Bishop Ford matter is evident. Problems con- cerning enrollment, faculty status, etc.. cannot be re- solved until such decision is made. 1The letter concluded: "If you plan to make such proposals to [fiald], we must insist that those proposals be forwarded to us no later than the close of business on Tuesday. Feb- ruary 3, 1976." Ulnion President Gordon received the above letter (G.C. Fxh. 17) on Monday, February 2. 1976. He requested Hald to delay its decision. |Iald. by its counsel. sent Gordon a letter, dated Februars 3 (G.C. Fxh. 18), which granted the I lion a "one-day extension" to Februars 4. 1976. The let- ter concluded: "If the LFA has reconimendations to make . . . thes should be in the hands of Brother Medard Shea . . . b the close of business on Wednesday, February 4. 1976(" (Gordon recalled that the above letter was not re- ceived by him until February 3. Thereafter. by letter dated Februars 5. Uinion President Gordon wrote the Hald trus- tees a letter (G.C. Exh. 19). protesting the conduct of the tlald representatives and "asking that you postpone your final decision after we can meet with you directly (as soon as possible arnd at your convenience)." The Hald trustees did not postpone their decisioni Earlier. on February 2. 1976. Union President Gordon wrote Justin NMahone, a letter "concerning the present sta- tus of Bishop Ford." See G.C. Exh 20. Mahones's name had been supplied to Gordon bs }laid as a member of the steering committee. Mahone, admittedly was not on the committee." Mahoney did not reply to this letter or re- lated telephone calls prior to the Ilald decision on F ehru- arF\ to transfer the school. Also see (i.C. Exh 21. l hereaf- ter. by letter dated MNarch 12. 1976, Mahone\ wivote GCordon, in part as follows (G(.C. xth. 22); 13 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dear Mr. Gordon: I have been asked by board representatives of the Henry M. Hald Association to provide certain infor- mation to you which you deem necessary for bargain- ing with the Hald Association. As I understand it, you have requested the names and addresses of those indi- viduals who are currently engaged in setting up the formation of Bishop Ford Central High School. Please be advised that the executive committee of the board of trustees is the group which is responsible for obtaining official corporate status from the State of New York. The members of that committee are the persons who are most responsible for the intial acts taken by the board of directors. [Listed names omitted here.] Please be advised that there is no steering committee for Bishop Ford Central Catholic High School. Following the Hald decision on February 5 to close and transfer the Bishop Ford school, the Union and Hald rep- resentatives again met, according to Gordon, on a number of occasions to discuss the Union's "proposals concerning the effects of the transfer." Negotiations ran to about late March 1976. Gordon recalled that Hald "discussed" the Union's proposal. Gordon testified: We gave them written proposals. * * They concerned [the] possibility of severance pay, use of sick leave, continuation of fringe benefits, also [a letter] stating that the only reason for [the] layoff was lack of [a] job. * One concession was made [by Hald] in the area of willingness to discuss the letter concerning [the teach- ers] not having been fired for bad service. * * There was also a willingness to grant one additional personal day if the teacher needed time to go to a job interview. 22 And, on March 4, 1976, attorney Burke wrote Union Presi- dent Gordon, in part as follows (R.H. Exh. 27): To confirm the proposals made to you at our March 2 meeting, the position of the Hald Association is as follows: I. All teachers who would not otherwise be termi- nated as of August 31. 1976 but for the closing of the school will be terminated as of that date. 2. The Hald Association will abide by all of the terms and conditions of the existing collective bar- gaining agreement including its obligations as listed in Article XXV, "REEMPLOYMENT OF TENURED TEACILERS DUE TO CONSOLIDATIONS OR CLOSING OF MEMBER SCHOOLS." 3. Without assuming any contractual commitment ee R.I. }Ish. 4, the prpoasls of the nion. the Hald Association will attempt to refer all qualified teachers affected by the closing of Bishop Ford High School to other teacher openings. 4. Where a teacher adversely affected by the clos- ing has used all of his Personal Business Days that he is entitled to under the contract he shall be eligible for one additional Personal Business Day leave with pay where he documents that the reason for the paid leave is in connection with his efforts to obtain other em- ployment and the activity cannot be performed on other than school time. 5. When the notice to the adversely affected teach- ers is drafted we shall meet with the Union and con- sult with them concerning the language of the termi- nation letter, with the understanding however that the Hald Association will reserve to itself the right to fi- nally determine what wording will be adopted. In addition you asked if the Hald Association would suggest to the Office of Catholic Charities for the Diocese of Brooklyn that these teachers so affect- ed by the decision to close be granted assistance if need be. Please be assured that such a request will be relayed to the appropriate representatives for their consideration. During the course of the meeting you asked for in- formation concerning the operations of the proposed Bishop Ford Regional High School. We have written to Mr. Justin Mahoney, the designated representative of the proposed new school, and requested that he communicate with you concerning the following items: I. Whether or not there exists in addition to, or in place of, the Steering Committee, a Board of Directors (Trustees or other named organization). 2. The names and addresses of all individuals who are members of the Steering Committee and/or the Board of Directors. 3. How many, if any, of the members of the Board of Directors are parents of students presently attend- ing Bishop Ford High School? 4. What distinction, if any, is there between the Steering Committee and the Board of Directors? You also asked for a list of teacher openings at the remaining Hald Schools as of September 1, 1976. The schools of the Hald Association are presently without knowledge as to what their employment needs, if any, will be for the 1976-1977 school year. At such time as this information is available we shall endeavor to noti- fy you. On cross-examination, Gordon testified: Q. Is it your testimony that the only material made available to you was the certified audit [for 1973 and 1974]? A. Yes. Q. Did you ask for anything else? A. No, I said that I had no reason to assume that they were not correct. Q. So you didn't ask for anything else? A. That's right. Q. Well, is it accurate to say- 14 * * * ROMAN CATHOLIC DIOCESE OF BROOKLYN A. Well, I did not ask for anything else concerning Hald. I didn't ask for the books and records as well of the Roman Catholic Diocese of Brooklvn. I did not ask for anything other than the material presented to me concerning Hald. Q. So the Hald Association did not refuse to pro- vide you with any' financial information? A. It did not refuse to provide, that is correct. Gordon acknowledged that "there was no denial of ans financial data" from Hald. Brother Medard Shea testified that at the meeting on December 22, 1975, Union President Gordon asked man) questions with respect to the Bishop Ford transfer; the questions were referred to Hald counsel: and by letter dat- ed December 31. 1975 (G.C. Exh. 13), Hald counsel re- sponded to the questions. In addition. Brother Medard tes- tified that Union President Gordon was latter "offered . . . any and all [financial] records [of Hald] that he wanted at that time." Brother Medard acknowledged that the "books" of the Diocese were not made available to the Union. Brother Medard explained that no claim had been made that the "Diocese could not afford to continue the operation of the Hald schools." 21 Patricia Essex, accountant for the Diocese and Hald, tes- tified that on January 28, 1976, Union President Gordon and other union officials "came to the office and asked to be shown the books" of Hald. They were supplied with "the general ledger and all of the material that we had at that time." According to Essex. the union representatives were shown "the bins of the general ledger cards . . . the tuition records, the payroll records." Essex recalled: "TheN asked some questions about what are allowances for doubtful accounts" and related items and "we supplied them with that [information] a couple of days later." Essex identified R.H. Exhs. 39 and 40 as photographs of the Hald books for the year ending August 1975 these pictures were taken at the meetings of January 28 and 30 which were attended by the union officials. Essex asserted: "[We] gave them the audited statements for year ending August '74 and August '75." Essex, however, later explained: They had asked specifically for information for the year ending August 1975 on Bishop Ford High School. The audit [for 1975] wasn't [available at that time]. Apparently, the 1975 "certified" audit was not available during the January 28 and 30 meetings. The Union. how- ever, was given the 1973 and 1974 "certified" audits and the current records were made available. 24 The testimony summarized above is in large part undis- :i Father B non also testified that the Dioc.ese wa not claiming that It "could not afford" to run Bishop Ford High Shoeol: rather, it sas a que,- tion of "priorities." Union President Gordon acknoAledded that the l Id representatives had not claimed that the Diocese had inaln.cial problenm leading to the closing of Ford. 2 Attorney Burke similarls related whal transpired hen the umon Atl- cials examined the Hald financial records during late Januarr 9I h c1 attornes Burke's letter to Union President Gordon. dated March 4. 1976 quoted iupra. summarizing their earlier meelin (R H t xh 27) puted. Gordon's account of what transpired during this phase of bargaining, as summarized above. by and large comports with the cited letters of Hald representatives and the related testimonS of Brother Medard Shea. Patricia Es- sex. and attorney Burke. I specifically note that Gordon acknowledged that Hald did not refuse to provide him with any requested financial information from Hald. And. I am persuaded here that his testimony recited above, as thus corroborated and substantiated. reasonably reflects what in fact transpired. Is I-ORI) CENTRAl. TAKES OVER OPERATIONS AT BISHOP FORD Hl(it SC( Ii(X.: THE EVIDENCEF PERTAININ(i TO THE SUCCESSOR AND A TFR EGO CONTENTIONS John Kearney, attorney and trustee for Hald. testified that the Diocese and Hald authorized application to the New York Supreme Court, as required by state law. for permission to convey the Bishop Ford property to Ford Central. This application, which is in the form of an ex parte petition from the Diocese, verified by the Most Re- verend Francis J. Mugavero, the Bishop of Brooklyn. and dated September 3. 1976 recites: The interest of your petitioner will be promoted by the said conveyance for the reason that the above de- scribed property was used as a Catholic High School operated by [Hald]. Bishop Ford Central . . . will op- erate a Catholic High School on said premises; upon the cessation of the operation of said High School, title to said premises shall revert to petitioner. Peti- tioner is thereby relieved of the liabilities and obliga- tions attendant upon ownership of said property while. at the same time, retaining a reversionary inter- est therein. The court approved the application. And, as Kearney fur- ther explained. a contract was prepared on September 3. 1976. which transferred the real property involved to Ford Central (i.C. Exh. 48). The contract provides, inter alia. TO HAVE AND TO HOLD the same so long as the grantee continues the operation of a Roman Catholic High School upon the premises described herein, upon the cessation of which all rights, title and interest herein conveved shall revert to the grantor. or its suc- cessor. In the event it shall. for any reason. cease to operate said High School, title to the premises herein de- scribed shall automatically revert to the "Diocese" without further action on its part. * . . . * It is understood that "Bishop Ford" [Ford Central] in all respects shall have sole and exclusive responsibility for the operation and maintenance of the school and that whatever debts, obligations, or liabilities, legal or equitable, which are incurred by "Bishop Ford" in the course of said operations and maintenance, will be the sole responsibility of "Bishop Ford" and shall not inure. devolve or attach to the "Diocese" in any was. 15 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Management and control of the premises shall rest ex- clusively with "Bishop Ford." According to Kearney, these were the same procedures uti- lized by the Diocese and Hald in the Kearney, Nazareth and, later, Christ the King, transfers and spinoffs." 25 Ford Central applied for and, on July 30. 1976, received a charter to operate the high school from the New York board of regents. Previously, Hald had applied for and ob- tained cancellation or modification of its charter insofar as it pertained to the operation of this school. Stephen Faughnan, chairman of the Ford Central "steer- ing committee," testified that Ford Central's board of trus- tees consisted of 9 la) persons and 3 religious persons: no members of the Ford Central board served on the Hald board or were employed by Hald or the Diocese; the initial expenses of Ford Central "were paid by the parents' orga- nization" of Ford Central; the funds of the old school's parents' organizations also "were made available to the new school to pay current bills": and services performed or the cost for use of facilities made available for the new school by Hald were "billed for" by Hald and paid for by Ford Central. Faughnan noted that the Ford Central "steering committee" was composed of parents of students at the Bishop Ford school; the members of the committee were not "connected" with the Diocese or Hald. Faughnan explained that the new school has received "nothing" by way of money from Hald or the Diocese; the new school has lost about $65.000 in grant-in-aid moneys which the old school had received from the Diocese; there "was no understanding" whereby the Diocese and Hald would ap- point trustees for the new school; the Diocese and Hlaid do not participate in hiring or firing Ford Central personnel and, specifically. Ford Central has no "relationship" with the Diocese's Catholic Schools Office; the Diocese and Hald are performing no services for the new school; and there are no transfers or interchanges of personnel between Ford Central and the Diocese and Hald. Faughnan testified that the "actual hiring decision" for the teaching personnel at Ford Central was made in late August 1976. See R.F.C('. Exh. 93, the minutes of the Ford Central committee for August 27, 1976. In an attempt to avoid a deficit, the Ford Central board of trustees de- termined to increase the number of religious persons teach- ing at the new schiool. 26 Faughnan recalled that about 21 of the 25 lay teaching vacancies in the new school were in fact F' t'he contract also prrlxides that the D)iicese will retaiil possessilln ,I that pornion iI the pr emiS used In connectiion 'itth ils educationalll tciet l sion studio anld lower 'Ihe proposals of the Ford (entral steering conini!- lee and the ml.ules f the lid iiustee for, Jailuar 7. 1976. make reference to the )iocese Iciesvisiln rtdio, Althiough the record is In.t entirel cl air the priposal diled D)e ellbher I1( 197i 5 iG.C ixhi 56i). orretl no ilte.,, effect, hiat the Diocese AW) ud retain use or it l tielsinll iludi.o o11 Ihi premises and, in turn. wiould cmnipeins;ate Ford Central lxtit a griit fi 55()000} i'he tiaid trustee iminutes for JanuarN 7, 1976 ( (i xh 091 Li explained. al 1 , . shou , in eftect, that this graitl hs the t)litrie xuldi hi prTsoided to Ford C(entral in connection with the use if the teleluiion situd hb the D)ilcese I note, however. that accx rding to the teillitonlS ,. I lihic Joseph Bynon. the grant of $50,000 from the Diocese to Ford Central has been "left open" and "there's been no transfer of funds " *6 Rciigiou, teachers contrih ute one-half if iheii salars Ii the [ niopl ,ct F-aiihnaril lSo nitletd that the lex, sxchooll delertlirel IlTt11 it is'uoIul hcxill co-educational hich wo-ld Inive additional expenditures filled by "prior faculty" from the old school. As counsel for Ford Central states in his brief, citing the testimony of Faughnan, [Olne of the major factors which influenced the board of trustees in the hiring of the lay staff were the [unfair labor practice] charges that had already been filed against them by the Union before the new school commenced operations. Received into evidence were, inter alia, the resolutions of Ford Central opening new savings and checking accounts for the new school; the new payroll checks for staff and new paymaster system; contracts between vendors and suppliers and the new school: notifications to utilities for the new school: a new employer identification number as- signed to Ford Central from the Internal Revenue Service; and correspondence and applications between the new school and various officials, agencies, and business entities. Justin Mahoney,. chairman of the Ford Central board of trustees, testified that he attended trustee meetings com- mencing on or about February 5. 1976; he was not a mem- ber of the Ford Central "steering committee"; the Diocese and Hald did not participate in the preparation or formula- tion of the Ford Central budget; Ford Central has received no funds from the Diocese and Hald: there is no agree- ment whereby the Diocese and Hald will "make up" defi- cits of the new school: the Ford Central trustees selected their own principal (Brother Alphonsus Maher) and per- sonnel and the Diocese and Hald had no "input" in these determinations: the teachers at the new school are no lon- ger covered by the Diocese's pension plan: the Ford Cen- tral trustees are examining new pension plans for the teach- ers and the new school's insurance broker has no connection with the Diocese and Hald; the Ford Central trustees are responsible for the terms and conditions of employment for personnel at the new school: and the Dio- cese and Hald had no "input" in establishing their terms and conditions of employment. Mahoney further noted that there is a new and different faculty handbook, school manual, and school calendar at Ford Central. and the Dio- cese and Hald had no "input" in the preparation of these items. Mahoney also noted that personnel and pay records for the old school have been removed by Hald from the school premises; the Diocese and Hald do not have access to the new school's current records; the Diocese and Hald perform no role in interviewing Ford Central employees or establishing administrative or academic standards; the Di- ocese and Hald have no "input" in Ford Central fund- raising programs: the Ford Central trustees have made no use of the Catholic Schools Office employee referral ser- vices: Ford Central's teachers are not covered by the Dio- cese group or health insurance plans; the Ford Central trustees adopted their bylaws in February 1976; and the Diocese and Hald had no "input" in this "determination." Mahoney further testified that he received a letter from F ather Noonan, dated May 21, 1976, referring to "our un- derstanding at the time of the acceptance of the proposal , . that the Bishop would nominate two persons" to the Ford Central board of trustees. See G.C. Exh. 62. The let- ter named two nominees. Mahoney "presented" the letter to the Ford Central board and "we just rejected it." Maho- 16 ROMAN CATHOLIC DIOCESE OF BROOKLYN ney added that the Diocese has made no appointments to the Ford Central board of trustees: there are no require- ments by the Diocese and Hald to hire any persons; and Ford Central makes no reports or financial statements to the Diocese and Hald. In addition, according to Mahoney, the school has a new telephone number: the Diocese and Hald do not guarantee Ford Central's credit; the new school has not used the sales tax-exemption status of the Diocese and Hald; and the Teamsters Union represents the custodians at the new school. Mahoney testified that the Ford Central trustees hired some 21 out of 25 lay teachers from the "prior faculty"; this decision was first made on or about August 27, 1976; and the trustees decided that "we would attempt to get as man), religious as possible." Mahoney asserted that the Bishop "has no authority over" the new school; the Dio- cese lawyer explained that the Diocese had "no control over the property" so long as the trustees operate a Catho- lic school; and Ford Central is "an independent school." 27 Brother Alphonsus Maher testified that he resigned as a principal of Hald's Bishop Ford and was named principal of the new school on or about February 12, 1976. He re- ceived no compensation from Hald after his resignation. There are 10 chairpersons at the new school-5 have been carried over from the old school. Only one of the new five chairpersons, according to Brother Maher, was not "con- nected with the old school." The old school employed about 48 lay teachers; the new school employs about 25 lay teachers and, as noted, 21 of the 25 are from the "prior faculty." The new school has increased the number of its religious personnel by hiring 13 additional Brothers and/or Sisters. These religious persons, as noted, return one-half of their salary to the Employer. Brother Alphonsus also testified that the new school has not received any funds from the Diocese and Hald; the new school reimbursed Hald for services which Hald had performed for the new school such as, for example, dupli- cating and mailing; the Diocese and Hald have had no "input" in selecting textbooks used in the new school, con- tent of the courses, or student disciplinary policies; the pol- icy applying to recruitment of students has been expanded by the new school to include areas outside the Diocese: the new school no longer contributes money to the Catholic Schools Office or pays for subscriptions to "The Tablet"; no members of the Ford Central board of trustees serve in policy-making positions for the Diocese and Hald; the sal- ary schedule for teaching personnel at the new school is higher than the schedule for the teachers at the old school: the new school "passing grade" has been raised from 65 to 70; the sarious forms and emblems and stickers utilized at the new school have been changed: there is a new faculty and student handbook; there is now a computer service for payroll at the new school; there is a different food caterer at the new school; Hald has removed its records from the school premises; the new school has changed its name, seal, and logo; and the new school, unlike Bishop Ford, considers the "co-operative entrance examination" as only one of several criteria. I he testimonyn of Fo rd ( entral trustees Wllliam Arniold iand MIdeChle Pettrozo is to the same general efflee. Brother Alphonsus testified that the Ford Central trus- tees selected the faculty at the new school on August 27. 1971; he had conducted numerous interviews earlier during July and August; and "the board of trustees had de- termined that preference would be given to religious" per- sonnel. The "duties of the [10] chairpersons in the new schol are broader . . . more clearly spelled out . . . [and] in some instances quite different" than at the old school. See R.F.C. Exh. 75.28 G.C. Exh. 63 is the Ford Central application to the New York board of regents for its charter. It is dated February 24. 1976. The application states, inter alia, Although the selection of the faculty has not yet been undertaken, the board [of trustees] anticipates that a certain percentage of the faculty ... will be carried over to the new institution. Brother Alphonsus testified that the Ford Central board of trustees first authorized him to sign employment contracts with the lay teachers on or about August 27. 1976. Brother Alphonsus was shown a newspaper article appearing in the New York Daily News on February 17, 1976 (G.C. Exh. 51). which attributed to Brother Alphonsus the following statement: "He [Brother Alphonsus] added that most of the faculty, made up of both lay and religious teachers, probably will be retained." Brother Alphonsus denied making such a statement.2 9 Union President Gordon testified that during March 1976 he spoke on the telephone with Justin Mahoney, the chairman of the Ford Central board of trustees, and Gor- don "told him that we were the representatives of the teachers there, asked him if he was willing to recognize the Union or at least sit down and speak to us in an attempt to settle this matter." Mahoney refused. Later, by mailgram dated September 8, 1976, Gordon "again requested recog- nition." Counsel for Ford Central responded on September 8. stating, intcr alia: "the board does not believe that your labor organization represents a majority of the faculty at Ford Central and for that reason must decline your de- mand." Daniel Caffrey, a teacher and union delegate at Bishop Ford High School, testified that he applied for a teaching position at the new school on or about March 29, 1976. : I)Departmcnt chairmen at the Hald unit schols were determined to be superlovsrs in (Cac 29 L A 59. on June 30. 1975 (See R F (C. Exh 80) Hald and the Ilnion. In their 1975 77 agreement. made changes pertaining to department chalrinen and included them in the unit. (See GC Fxh 5. item 4) " I hornira R;lffert%, a reporter for the Neri York Da;il, News, identified the ahboe nepiaper areicle ,tiIh his hshne Rafferl was "sure''" that this artile as e " he result if a. meeting * ith Brother Alphonsus: he. however, could mit "specificalls recall": he had no -notes" of the meeting. it is "pos- sihle" thati someoine else "helped'" or "wrote it": and the above statement a.ttrihuted to Brother \iphon,,u is not enclused In qulotartins in the printed article Alden Pugh tretilled that on or ahoul April 27. 1976. he wla, told h, Peter Puirpurra. a trustee of I t-rd (Cenlral that the teachers of the ,old schoil swould " ll he rehired with the exception of those Aho had caused dlstul- hllnce,e duiring their last lrike " Pugh acknowledged that Purpurra posihslb aiid that he th.ought all the teachers would he rehired John Bianchi. a teacher of Bihop lord. recalled thai Pugh told him that it is 'mot li hkel most oIi the tctihers will he rehired." Cf (; (' t-h 51) Peter I'lrpurra testified that hlie "said"' to Pugh: "I thlought all of the tacchers ollld he rehired '." Purpurra: nioted that during April 1976 the Ford ('enlrl trLstees had milde nii decison trl hiring personnel 17 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (See G.C. Exh. 37.) Later, on or about April 15, 1976, he received a formal notice of termination as a teacher at Bishop Ford. Thereafter, in late May 1976, he received an employment application form from the new school. (See G.C. Exh. 42.) He completed and returned the application form and, in August, was notified by Brother Alphonsus to make an appointment for an interview. He called the old school at its old telephone number, spoke with the same telephone operator, and made an appointment. His inter- view was on or about August 10, 1976. He noticed, at the time, that the same office staff was present. During this interview, Brother Alphonsus reviewed the "new contract" with Caffrey. (See G.C. Exh. 43.) Caffrey questioned Brother Alphonsus about various portions of the new con- tract. Caffrey noted that, under the contract, he would re- ceive $1,500 less than he had received during the prior year because the "new school was not recognizing a permanent state license as equivalent to a masters degree." Caffrey was notified on or about August 27, 1976, that he was not hired.30 General Counsel, in support of his contention that Ford Central is the alter ego of the Diocese or Hald, called wit- ness James Biechler as an expert in Roman Catholic canon law. Professor Biechler is an assistant professor of religion at La Salle College in Philadelphia and his background includes graduate studies in canon law. He possesses, inter alia, a "licentiate degree in canon law [which] qualifies one to teach canon law in the Catholic seminary." Professor Biechler testified that a canon is a statement of ecclesiasti- cal law; Canon 335 "says that the bishops have the right and duty to govern their [diocese], both in spiritual and temporal matters with legislative, judicial and coercive power, to be exercised according to the sacred canons": and for those institutions which call themselves Catholic, the bishop is responsible as an overseer . . . for all of the institutions, and for those which are particularly of his own diocesan establishment . . . he has complete administration, overseership and responsibility. Professor Biechler noted that a "community of diocesan "0 There was also testimony by Joanne Marshall thati she starlted etlplo,- ment as a teacher a; Bishop Kearney Hligh School during September 1974 She applied to the Catholic Schools Office and sent a sepalralt applicatioln I) Kearney High School as well. She vas interviewed at Kearnex by Sister John (rucis and told,. I [Marshall] should go t1o the Diocesran office foai an interdieis. that she aas sure thai I would have the jobh IMakel sure rou go to the D)iocesan office ii forrnalize it. t forrln.alize the employment This is merely I formility. but you hae toi go fou ;1 interview to0 be okayed by them. I had the job regardless but I have to go thlough the procedlre. the formalit . . Barry L.ist also started as a teacher at Keaerner in Senptember 197. lie wasi referred by the Catholic Schools Office to Kearnev (See ( (' Lxh 47.) I st was later interviewed at Kearnes tie "received a notice from the school that [he] was required to go down for another interview at the [)ioceslan office." List recllded that. at Kearne'N. "Sister John tilld Inc that I xias hired." I note that neither Marshall nor l.ist. during 1973 or 1974 signed employment contracts with FiHad or the )iocese. I he Ke;lrnes "spin-off' occurred about August 1973. right could be supressed by a bishop"; however, Professor Biechler acknowledged that "I just offhand ... can't think of a particular case where a bishop surpressed a diocesan group." Further, Professor Biechler testified that "a group of in- dividuals" cannot "set up a Roman Catholic high school without the permission of the bishop of that diocese." Pro- fessor Biechler explained: Canon law states that it is the obligation of the bishop to see to it that in Catholic schools within his diocese only teaching is promulgated which is in accordance with Catholic doctrine, as well as to see to it that good morals are taught and practiced within the school. He has the obligation to oversee the text books and the teachers, especially of religion, and to eliminate any of those things which he finds to be out of accord with Catholic doctrine. Professor Biechler added that, "depending upon [a bish- op's] own particular interpretation of Catholic doctrine," the above statement "could vary from diocese to diocese" and "in fact it does." Professor Biechler also noted that under Canon 1521 the bishop administers "ecclesiastical property" and, in his view, the Bishop Ford property is still "ecclesiastical property." Professor Biechler testified that the Bishop of Brooklyn therefore would have "direct au- thority" over a school like Ford Central. Professor Biechler acknowledged on cross-examination that "canon law" is "not fixed"; there are differences in the interpretations of the canons; "canon law . . . is in the process of being re- vised"; and he has had no actual experience or sustained contact with the Diocese of Brooklyn. Msgr. Anthony Bevilacqua, chancellor of the Brooklyn Diocese and Hald trustee, possesses a doctorate in canon law and is a licensed attorney of New York. In his view, the Bishop Ford property is no longer "ecclesiastical prop- erty." Msgr. Bevilacqua explained: This group that operates the school [Bishop Ford] . . . is a lay group . . . doing work . . . that has Catholic goals.... The only authority [the Bishop] would have over them under canon law is a general authority that the Bishop has over anybody in his Church, and that is under two canons, 335 and 336 . . . have vigi- lance over faith and morals. The most [the Bishop] can do there . . . he could have supervision over whether they teach something con- trary to faith and/or morals. Msgr. Bevilacqua acknowledged that if a teacher "were teaching something that was contrary to the faith or doing something very objectionable according to the canons, [the Bishop would] have a right to demand [his] removal" and, further, it is the Bishop who would decide whether a school is a "Catholic school." The testimony summarized in this section is essentially uncontroverted. I credit the above testimony of John Kear- ney, Father Bynon, Stephen Faughnan, Justin Mahoney and Brother Maher. Their testimony. as recited above, is in large part mutually corroborative. Further, on this record, 18 ROMAN CATHOLIC DIOCESE OF BROOKLYN I credit the denial of Brother Maher with respect to the statement attributed to him by newspaper reporter Thomas Rafferty. Rafferty's testimony. in this respect. is not suffi- ciently clear. I also credit the assertion of Ford Central Trustee Peter Purpurra with respect to his conversation with Alden Pugh. The testimony of Pugh, in this respect. is also not sufficiently clear. In addition, I am persuaded on this record that the above testimony of Union President Robert Gordon and Delegate Daniel Caffrey is reliable and trustworthy. Likewise, I find the testimonv of Joanne Marshall and Barry List. in connection with their employ- ment in 1973-74 at Kearney, to be credible and trustwor- thy. Finally, I credit the testimony of both Professor Biech- ler and Msgr. Bevilacqua. They are, in my view, both credibly expressing their views and opinions on canon law. The significance of their expert testimony is discussed in- fra. V FORD CENTRAi 'S RFFU SAI 10 HIRi DANI l CAFFRFY Daniel Caffrey started his employment as a teacher at Bishop Ford High School in 1965. He was elected delegate to the Union about 1970 and served in that position until 1976. Caffrey was the only Union delegate at Bishop Ford prior to his termination. Caffrev recalled that about 1974. when Brother Maher was promoted to principal at Bishop Ford. he urged Brother Maher "to familiarize himself with the current contract" so that "we could continue to have an excellent relationship" between the parties. Brother Maher became "annoyed" at Caffrey's remark and stated that "neither [Caffrey] nor the Union would tell him how to run the school." Caffrev's duties as Union delegate in- cluded servicing the contract between the parties and initi- ating grievances on behalf of employees. Caffrey recalled that he requested and received "two days off" during the first week of March 1975 for "person- al business." Caffrev used these two days to attend the AFL-CIO legislative convention with Union President Robert Gordon in Albany. While Caffrey and Gordon were at the airport en route to Albanv, they met Father Bynon, Father Noonan and Brother Shea. Subsequently. Brother Maher apprised Caffrey that he was "being docked for two personal days." According to Caffrey. Brother Maher stated that he "had received a telephone call from Brother Shea instructing him that [Caffrey] was to be docked." Caffrey complained to Union President Gordon about this action and was ultimately allowed the "personal days" by the Employer. Caffrey participated in discussions with Brother Maher during 1975 in an effort to save unit jobs. Caffrey had been on the Union negotiating committee during 1975: had par- ticipated in the 5-week strike in September 1975: and had picketed at the school. Caffrey recalled that, before the strike, during June 1975, Brother Alphonsus Maher apprised him that, in selecting a new chairman of the mathematics department. he [Brother Maher] had narrowed down the choice for department chairman to [co-employee Donald] Reilly and [Caffrey]. He felt we were both qualified and capable and he agonized over it and at one point he thought of flip- ping a coin. He said what finall, made up his mind was Reills had prior administrative experience. Caffres was the "senior member" of his department and there "were only two teachers who taught longer than [he] did" in the school." Following the settlement of the strike in October 1975. there was. according to Caffrey. a problem at Bishop F ord with teacher extracurricular salaries. Caffre) explained: Teachers who had extra curricular activities found that their stipend for that activits had been docked at the same rate that their salars had been docked. I in- quired from other schools if that was being done at the other schools and it was not. I went and told Brother Alphonsus [Maherl and he said that he didn't realls know what was being done at the other schools but he felt what he did swas the right thing to do. the fair thing to do. I said that I felt it was a reprisal against the teachers at Bishop Ford for participating in the strike. He said he didn't agree with that, it was not a reprisal I said I would have to bring it to the attention of the Union. which I did. Subsequent to that. I was in- formed bh Brother Alphonsus that the teachers would not be docked in their extra curricular activities be- cause he did not wish to he at variance with other Hald schools. that again he did not believe it was a reprisal. As discussed in section IV. supra, Caffrey was notified b' Hald on or about April 15s. 1976. that he was terminat- ed; he applied to the new school for a teaching position and was interviewed bs Brother Maher on or about August 10. 1976: and he was later notified bh Brother Maher that his application had been rejected. Brother Maher. in his letter to Caffrev. dated August 27. 1976 (G.C. Exh. 44). states: "all positions for the 1976-1977 school sear hase been filled" and "we will keep sour application on file for the sear." The Ford Central minutes for the meeting of its personnel committee, dated August 27. 1976 (R.F.C. Exh. 93). indicate that Caffres was "not endorsed [and] not needed 'for program inplementation." 32 Brother Edward Sullivan is assistant principal at the new school. Last year, he was chairman of the social studies department and computer programming at the old school. He has known CaffreN for about 10 years. He recalled that during the school Christmas party in December 1975. I was tending bar for the faculty Christmas party and Mr. Caffre) came over to me and made a number of offensive upsetting statements to me as if he were badgering me or trying to provoke me to some kind of t Ra'nmond Nash 3nJ J.lame (1)')Di, '- James Raldllan. a te.lhcr at - r Id ( cnrad. noted and Icntied the s,.en math leacher, it :Ordl ( entr:l dJrinng the turrcIlt sear: there ,ere eihti .last car at the prir sh.Ioo.1 l nd Ihe mth dep.rinicit h.llrn.Flal .i Btlhop Ford D)onald Relil "ai in-t .. ppl" \nd cc R i t I h 9' 19 . t DECISIONS OF NATIONAL. LABOR RELATIONS BOARD reaction which as if he were egging me on to some- thing. I can't remember verbatim the entire thing. I recall it as an extremely unpleasant experience. He came over to me to the effect would I wish him a Merry Christmas and just looking at his face, his tone of voice, the man hadn't spoken to me in months prior to this and it made no sense in front of this audience he would ask such a question. When I didn't respond to that question he continually went further for at least 45 minutes when nobody else was present: badgering me with different things, would I wish his children a Merrv Christmas. I was a very unChristian person, I had no right to be in a Catholic school, with this kind of attitude I was astounding my sainted mother who had died two months previously who would have turned over in her grave. I recall getting extremely upset by the whole thing and finally, after about an hour. I left the party. On cross-examination, Brother Sullivan testified: Q. Brother Edward, are you a member of the Order of St. I rancis? A. Yes, I am. Q. low long were you and Dan Caffrey friends'! A. I first met him when I went to Bishop Ford in 1967. Q. Were you there as a teacher at the time'? A. Yes. Q. Would you describe your relationship with Mr. Caffrey as more than a business relationship? A. Yes. Q. Would it be fair to characterize it that you were vers close personal friends? A. Yes. Q. Did you frequently visit Mr. Caffrey's home? A. I had been there on occasion. I would not say frequently. Q. How did Mr. Caffrey's children address you? A. Uncle Eddie. Q. Did you go to the christening of Mr. Caffrev's son? A. His youngest son I did. Brother Sullivan first related the above incident to Brother Maher some time "after the [Christmas] recess when we returned." Brother Maher testified that he said nothing to Caffrey about the above incident: "sleeping dogs might just as well be allowed to continue sleeping [and] I saw no useful pur- pose to perhaps stirring up any further animosity"; "in the months following the settlement of any strike there is con- siderable tension in the air between strikers, nonstrikers and what-have-you": and there was "a general atmosphere of tension . . . following the strike." Brother Maher "pre- sented" Caffrey's application to the Ford Central board: he "did not recommend [Caffrey] for hiring." His asserted "reason" for "not recommending Caffrey" was that Broth- er Sullivan had been named assistant principal, a position which "involves a good deal of interplay ... with facult,." and "I did not see how the thing could work out at all." 33 ('affrey testified on rebuttal: Q. Mr. Caffrey, could you please describe to the Court your personal relationship with Brother Edward Sullivan prior to the September 1975 strike? A. Brother Edward and I had worked at Bishop Ford High School for about eight, nine, ten years. whatever it might be. We became, very shortly after his arrival at the school, very close friends. That rela- tionship grew and grew to the point where my children considered him an uncle, where he was a welcome guest in my home, where I was a welcome guest at his home in Brooklyn and in Philadelphia. I cannot think of a person on the faculty who I thought more of and considered higher than Brother Edward Sullivan. Q. Were you invited to Brother Edward's home in Philadelphia? A. Yes, I was. Q. Mr. Caffrey, did you have any incidents prior to September of 1975 that would lead you to believe that your relationship with Brother Edward Sullivan had changed? A. No, I did not. Q. How would you describe your relationship with Brother Edward after the strike of 1975? A. I would say our relationship began to deteriorate the very first day at school. That would be the day before the strike began. Q. What happened then? A. I found it necessary to call a meeting of Union members. Negotiations were at a standstill. It was ob- vious at that point that a strike might begin the next day. The schedule called for department meetings. I went to the department chairmen and I asked them would it be possible that they could delay this meeting until after I could have a few minutes to talk with the Union members. All but one agreed. The one who did not was Brother Edward Sullivan. Q. When did you hold that meeting? A. I held it at that time anyway since there were only four or five at most, four or five teachers who couldn't make it and Brother had assured me his meeting would be brief, and I felt that he could make up for what I had to say and they could go over it when the)' got there. Q. During the strike of 1975 did you have any con- frontation or meetings with Brother Edward? A. Not during the strike, no. Q. Can you tell us of any statements he made to you about the strike after it was concluded? A. When we returned to school October 8th or 9th . . . 1975, 1 went to his office and got the cold shoul- ' H th r enier\IJ hcr d /enied, la, s Iat ing to ( affre? that neither C(affres nor ie Ih :nion ",ill tell [html ho) t1o run the school." Brother Maher testl- licdl ihat ( ffre, Ims a "competent teacher" and the ( hrislmas parts incident. n effect. -" a, the miain reason [for not hiring ( affresl . hecause of the ItllMs1hlp that t u'-tlld hSlce i') cqilt helteen assitanlt principal aind Ict, hillL, (Illff" 20 ROMAN CATHOLIC DIOCESE OF BROOKLYN der. Present in his office at that time was one of the non-striking teachers. I said hello or something and got a very cool response and I left. From that time on. in any attempt I made [to] communicate with Brother Edward, he ignored me, he slammed doors in my face. he was rude and obnoxious to me. There was a point when I brought my children to the school and they ran over to say "Brother Eddie, Uncle Eddie" and I was standing next to them and he totally ignored me. He spoke to the children, totally ignored me. Later my oldest son said "Why did Uncle Eddie not talk to you?" He humiliated me all because --all as a result of the fact that we had been on strike. So that when the time came for the Christmas party I felt it was about the time that we cleared the air and got this thing out in the open. We had been friends for so long I could not understand his treatment of me for three months. What Brother Edward Sullivan related was based on what transpired at that conversation, Christmas party. I credit the testimony of Caffrey as discussed above. I was impressed favorabley with his candor and demeanor on the witness stand. Insofar as the testimony of Brothers Sullivan and Maher differ with the testimony of Caffrey, I am persuaded here that the recollection of Caffrey is more complete and reliable. As discussed infra. I find and con- clude on this record that the real reason why Brother Mah- er and the trustees of the new school refused to hire Caf- frey was because of Caffrey's union activities. I reject as pretextual Brother Maher's claim that Caffrey's brief con- frontation with Brother Sullivan at the Christmas party was in fact the reason for the refusal to rehire Caffrey months later in August 1976. or that this reason was unre- lated to Caffrey's union activities. I note that Caffrey at no time was reprimanded by the Employer for this or any other claimed misconduct. Discussion 5 I THE ALL EtED [' lHHOL DING OF INFORMAI ON 1)1 RIS(i NF(OTIATIONS FOR 1II I 197 77 (ON I RA (1 General Counsel argues that Respondents Diocese and Hald violated Section 8(a)l and (5) of the Act "by nego- tiating in bad faith with [the Union] by withholding infor- mation from the Union regarding their intentions and plans to lay off teachers from Hald schools and their con- sideration of termination of operations at Bishop Ford High School." General Counsel notes that the "crucial is- sue in the determination of whether or not Respondents Diocese and Hald bargained in had faith is what represen- tations were made to the Union about the maintenance of a five-school Hald system for the [contract term] of two years and that there would be no layoffs during the school year." General Counsel, in support of this contention, re- lies upon cases such as Walter Pape. Inc.. 205 NLRB 719 (1973). In Walter Pape, Inc., supra, the Board (Member Kenne- dy dissenting) found that the employer violated Section 8(a)(l) and (5) of the Act by engaging in bad faith bargain- ing with the union and by refusing to bargain with the union concerning the effects on unit employees of its unila- teral decision to dispose of its sales distribution routes) 4 The Board held: The Administrative Law Judge found that by with- holding information from the union during negotia- tions regarding its earlier formulated decision to trans- fer its routes or of its simultaneous negotiations to that end [which] . . . were nearing fruition, respondent bargained in bad faith. We agree. At the very least. respondent should have advised the union that the ter- mination of the routes was under active consideration and was imminent. .... Respondent's failure to do so demonstrates that respondent engaged in surface bar- gaining with an intention of keeping the union "on a string" until its deal ... was consummated . . . [Al- so,] respondent failed to bargain with the union over the effects of the transfer. General Counsel must prove the above violation by a preponderance of the evidence on the record considered as a whole. And. I find and conclude that in the instant case General Counsel has failed to sustain this burden. Thus. as detailed in Section 11 of the findings supra, General Coun- sel has failed to prose by sufficient credible evidence that ans committment or assurance was made b' the Diocese or Hald representatives to Union representatives during negotiations for the 1975 77 contract to the effect that all five Itald high schools would he retained during the term of the 2-year agreement and that there would be no lavoffs during the current school year. Indeed, the contract con- tains provisions pertaining to s!ich closings and lasoffs. Further, as shown in Section II AL of the findings supra. General C ounsel has failed to establish by sufficient credi- ble evidence that bs October 8. 1975 when the parties settled their dispute and agreed upon the terms of the 1975 77 contract Respondents Diocese or Hald had pending before them or under consideration any plans or proposals to close or spin-off Bishop Ford High School. The statement of the Franciscan Brothers on October 23. 1975, later published in The Tablet on October 30. 1975. was the initial stimulus which set into motion the commu- nits activit, ultimately resulting in the November 20 and December 10 proposals from the parents' group to make Bishop Ford an "independent" school. NMoreover. General Counsel has failed to demonstrate that by November 5 or 6. 1975 when the 1975 77 agreement was formally execu- ted by the parties there were an) plans or proposals pending before the Diocese or Hald to spin off the Bishop Ford school. Consequently, the record does not sufficiently show an unlawful "withholding [of] information from the Union during negotiations" as alleged. Cf. 11 alter Pape. Inc., su- pra. I would therefore dismiss these allegations of the con- solidated complaints. a [ le B .oard detnilcm It ullllCt fNs. l II, "adopt" or "'pa,. o11" t Ihe findllS If III \1\ l lII rII ilc at I .,JLIdl. c "Illhit IIe I [rr.,ll.lt. II re LitI In [Tihe im- plox-Ui' d ir ip- ii f ' 1 r rI ItC 'iiIs a stlhtIllntrACt r~liher t[hl i sIale Pnd a 11.1 Ilh ctlllre e. ,il] II.cit ctI l S {et }i }l I hb li . )l hlo art.rglin ing oi'cr ilh ic.de-Ion 1 a Id 1,lf I f tie rollcs 21 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VII THE FAILURE TO BARGAIN OVER THE DECISION AND EFFECTS OF THE DECISION 10 CLOSE BISHOP FORD HIGH SCHOOL General Counsel argues that Respondents Diocese and Hald violated Section 8(a) (1) and (5) of the Act by failing to bargain in good faith with the Union over the decision to close Bishop Ford High School and the effects of that decision on the unit lay teachers. General Counsel ac- knowledges that the parties did meet and discuss this sub- ject several times. However. General Counsel argues that the "timing of the bargaining and information supplying" by the Employer "denied the Union the opportunity to bargain effectively" over the decision to close the school and, although the Employer subsequently "met with the Union as to the effects of the closing on the teachers," the Employer did not fulfill its bargaining obligation in this respect. In East Bat U nion of M1achinists, Local 1304, United Steeluorkes of .4America [Fibreboard Corp.] v. N.L.R.B.. 379 U.S. 203 (1964). the Supreme Court held that the "con- tracting out of work previously performed by members of an existing bargaining unit is a subject about which the National Labor Relations Act requires employers and the representatives of their employees to bargain collectively." The Court stated (379 U.S. at 213): The company's decision to contract out the mainte- nance work did not alter the company's basic opera- tion. TIhe maintenance work still had to be performed in the plant. No capital investment was contemplated. '[he company merely replaced existing employees with those of an independent contractor to do the same work under similar conditions of employment. There- fore, to require the employer to bargain about the matter would not significantly abridge his freedom to manage his business. The Court noted (379 L.S. at 215): "Our decision need not and does not encompass other forms of "contracting out" or "subcontracting" which arise daily in our complex soci- ety." In General .oloto ( orp., 191 NLRB 951 (1971). the Board (NMembers I;anning and Brown dissenting), stated: Consistent Nwith the expressly restricted scope of Fi- brehoard, the courts have sustained the Board's posi- tion in subcontracting cases, but rejected Board deci- sions requiring bargaining over more elemental management decisions, such as plant closings and plant removals. It appears that the Board has not dealt definitively with the specific question whether the Act imposes a duty to bargain over a decision to sell an employing enterprise. We believe, however, that this issue is con- trolled by the rationale the courts have generalls adopted in closely related cases, that decisions such as this, in which a significant investment or withdrawal of capital w'ill affect the scope and ultimate direction of an enterprise, are matters essentially financial and managerial in nature. They thus lie at the very core of entiepreneurial control and are not the type of sub- jects which (ongress intended to encompass within "rates of pay, wages, hours of employment, or other conditions of employment." Such managerial deci- sions ofttimes require secrecy as well as the freedom to act quickly and decisively. They also involve subject areas as to which the determinative financial and op- erational considerations are likely to be unfamiliar to the employees and their representatives. The court of appeals (Chief Judge Bazelon dissenting) af- firmed the Board's decision in International Union, United Automobile Aerospace And Agricultural Implement Workers Of America, UA W, and its Local 864, UA W (General Mo- tors Corp.) v. N.L.R.B., 470 F.2d 422 (C.A.D.C., 1972) (and see cases cited). Counsel for Respondent Hald states in his brief that the Board requires that "an employer must bargain over a de- cision to close one of its plants," citing Royal Typewriter Co., 209 NLRB 1006, 1012 (1974), enforced as modified, 533 F.2d 1030 (C.A. 8, 1976). Counsel for Respondent then argues, "to determine whether Hald had any duty to bar- gain over the decision to spin-off Ford, it must be de- termined whether that spin-off is a closing or a sale" and, here, the "spin-off falls under the General Motors rationale rather than the Roal Typewriter" holding. I reject this con- tention. The evidence of record, as recited in sections III and IV of the findings supra, makes it quite clear that we are not involved with a "sale" within the meaning of the Board's rationale as stated in General Motors. Here, we are not dealing with "a decision to sell an employing enter- prise": "a significant investment or withdrawal of capital [which] will affect the ultimate scope and direction of an enterprise"; "matters essentially financial and managerial in nature" which "lie at the very core of entreprenural con- trol": "managerial decisions" which "require secrecy as well as the freedom to act quickly and decisively"; and "areas as to which the determinative financial and opera- tional considerations are likely to be unfamiliar to the em- ployees and their representatives" (191 NLRB at 952). On the contrary. we are concerned with a factual situa- tion analagous in many respects to the Fibreboard trans- action. Thus, here, as in Fibreboard, the Employer's deci- sion to spin-off the Ford school "did not alter the [Diocese's and Hald's] basic operation"; the "work" of op- erating a Catholic school "still had to be performed" in the same facility; "no capital investment was contemplated"; the Diocese and Hald "merely replaced existing employees with those" of Ford Central "to do the same work under similar conditions of employment"; and, "therefore, to re- quire the Employer to bargain about the matter would not significantly abridge his freedom to manage his business." (379 U.S. at 203). Indeed, as counsel for Hald states in his brief: While it is true that the transfer of real property from the Diocese to the board of trustees was for a nominal sum, it is imperative to remember that the Diocese of Brooklyn's main concern was that Catholic secondary education be continued in the Ford school; the Union and the rest of the world knew that this was the Diocese's intent from the Task Force Report pub- lished in 1972. This was not the case of a proprietary institution looking to sell part of its operation at a 22 ROMAN CATHOLIC DIOCESE OF BROOKLYN profit. Rather, what we have here is a charitable, non- profit organization trying to keep the concept of Cath- olic secondary education alive in the Diocese while getting out of the actual operation of the same. I therefore find and conclude that there is a duty to bar- gain over both the decision to spin-off such a school and the effects of that decision on the school personnel. The evidence of record, as recited in Section II1 B of the findings supra, established that Respondents Diocese and Hald failed to fulfill this bargaining obligation. Respon- dents Diocese and Hald first received a written proposal to take over the school from the Bishop Ford parents' group on or about November 20, 1975. This proposal, as dis- cussed in Section 111 A supra, had been prepared by Re- spondents' principal. Brother Maher. with the assistance of Respondents' personnel and with the aid of a proposal used in the earlier Nazareth spin-off. Respondent Hald's attorney, Burke, was then informed of this proposal. How- ever, the Union was given no notice at the time of the existence of a written proposal. Respondent Hald. in its brief, asserts that "this proposal was not communicated to the Union since it was in fact rejected by the Hald Associa- tion with certain suggestions given to the steering commit- tee to improve the proposal so that it might be acceptable." However. I find on this record that Respondents Diocese and Hald, at this time, had reason to believe that their principal, Brother Maher. would make the revisions to the initial proposal as suggested by his superiors. And. he in fact did make the requested modifications and presented a revised proposal on December 10. Nevertheless, the Union was not advised of the existence of a proposal until about mid December. Indeed, by letter dated December 15, 1975, Union President Gordon specifically inquired of Brother Shea about the "rumors" of a school closing and requested Hald to "provide us with an) information . . . concerning such a closing in order that we may represent our members and bargain concerning the effects of such closing." The parties first met to discuss the proposed closing on December 22. At this meeting, Union President Gordon asked, inter alia, "who will operate the school"; "who will own the school if there is a transfer"; "what will happen to the people in the bargaining unit assuming there is a trans- fer"; and "when did you first hear of the proposal." Gordon's questions were not answered at this meeting. In- stead. about 9 days later, by letter dated December 31, Hald's attorney wrote to the Union: Since the proposal from the steering committee has not been accepted and indeed no decision to close Bishop Ford has yet been made. [Hald] is not in a position to release the proposal at this time. . It would not be appropriate to release this information concerning an independent entity [the names of the members of the steering committee] involved in ongo- ing negotiations concerning Bishop Ford. At the same time, the Union was notified that "the Trus- tees of [Hald] will meet on January 7. 1976. to consider and to decide whether to close Bishop Ford High School" and if you wish to discuss the continuation of Bishop Ford as a [Hald] school, any comments, suggestions, or meetings .. [should] be made or held before January 7 so that any proposals made may be considered by [Hald] at that January 7 meeting.15 Thereafter. on January 7, 1976, Brother Shea wrote Union President Gordon a letter stating, inter alia, that the Hald trustees "deferred making any decision [in order] to provide more time to the Union" to respond and state its "position." The parties met on January 9. Union President Gordon renewed the questions which he had asked earlier. He was "presented with what we [the Union representa- tives] were told was part of the proposal"-"we were told that these were the parts that the Employer deemed perti- nent concerning the establishment of the school." Gordon was still not given the "names and addresses of any per- sons to contact in connection with the proposed transfer." However. about 2 weeks later, on January 22. the Hald attorney wrote Gordon a letter naming Justin Mahoney as the "steering committee" representative to contact. Maho- ney, who became chairman of the Ford Central board of trustees when the Hald decision was made final on Febru- ary 5. was not on the steering committee and did not re- spond to repeated efforts by the Union to communicate with him until after the Hald decision had been made final. Respondent Hald's asserted reason for not revealing to the Union earlier the name of a Ford Central representative was the claimed confidentiality of such information. I re- Ject this assertion. We are not dealing here with a trans- action concerning business interests involved in ongoing negotiations. The steering committee, as noted, was com- posed of parents of students at the old school. The Union represented the lay teachers at the old school. In the con- text of the previous transactions and bargaining between the parties, the prompt and full disclosure of such informa- tion would not have violated any business confidentialities. And, as noted supra, the Board found a similar refusal to disclose such information by Respondents violative of Sec- tion 8(a)( I) and (5) in the ANazareth case (222 NLRB 1052). ' I note that In Romnl, (Cirholic Diocee Ofi Br-ooA/in. 222 NLRB 10)S 1976). Insoling the earlier a::zareth spinoff. the Board laled In part Informed of this plan to change the school's operatiln. the r nion in Januar' 1974 and ,eseral times thereafter. requested that Respondenrs liald and D[)i.ee proside it ilth info.rmna.io . coIcerning the plailed chalnge Ihe requested information as, neer furnished hs either Re- ,spondent ' .ciordin S to the testimons of both Robert Gordon. president of the L' on. and Brother Sledard Shea. ass.stant Ielplerinendent for leaching personnel of both Respondents I)locese aind iald the L mnon sought inforlmatlion concerning: what effec Ithe scAh. os proprosed cloi- ine s ould haise on the teachers: who presentlls o. ned and operated the ,ch.o.l and iho xould own and operatr lhe cs.hoo l after August 31. 1974: Who "as on the board of trustees design.ited to operate the i.chool: and 'ho <. ould serve as chairnman of the board of trustees the Board found Fhe requested information Wlas clearn reles ant to dealings bet'een the tnploiser and the L nion n its representail e capacxit Brother Medard Shea's deliberate refusals to pro" ide the requested In- formation "constitute the clearest refusal to bargain In good faith 23 .* DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD Hald's counsel, in his letter of January 22 naming Maho- ney as the steering committee representative to contact. apprised the Union of Hald's "intention to make a decision in regard to the possible closing... before the end of this month." The Union was told: If you have further proposals or recommendations concerning whether or not lHald] should close Bishop Ford, said proposals or recommendations should be made as soon as possible and before the end of this month. However, at the January 9 meeting of the parties, Union President Gordon had requested an opportunity to inspect the books of Hald and the Diocese. Union President (ior- don and other union representatives reviewed Hald's fi- nancial records on January 28 and 30. Their examination of the records raised certain "questions." These questions were answered by Hlald's attorney in a letter dated January 30. Hald's attorney, in his letter, concluded: "if y ou plan to make such proposals to [Hald], we must insist that those proposals be forwarded to us no later than the close of business on Tuesday, February 3. 1976." Gordon. howcvser, did not receive this letter until Monday. Februars 2. His efforts to obtain an extension from this deadline resulted in the granting of a "one-day extension" to February 4. Ilis further efforts to confer with the tlald trustees over this matter were rejected. The Hald decision was made final on February 5. 1976. After Respondents Diocese and Hald made the decision to transfer the school on February 5, the Hald and Union representatives met on several occasions to discuss the ef- fects of this decision. The Union made numerous propos- als. The Hald representatives, however, essentially agreed only to abide by the requirements of article XXV of the 1975-77 contract pertaining to the re-employment of ten- ured teachers due to consolidations or closings: to give the terminated teachers a letter explaining that their termina- tions were for economic reasons; and to give the terminat- ed teachers one extra personal business day where thes show, "that the reason for the paid leave is in connection with ... efforts to obtain other emplosment and the acti x- itx cannot be performed on other than schuol time." Respondents Diocese and fHald. by the ahove conduct. did not afford the Union representatives ample and suffi- cient time to prepare an effective proposal and bargain iit a meaningful manner over the decision to close Bishop Fold High School. Although the Diocese aiind laid had received a written proposal as early as November 20, they did not notify the .;nion of any pending proposal until mid De- cember. Respondents initially refused to provide the ltilon with the proposal or the names of persons to contact in connection with the proposal. Later. Respondents dis- closed selected portions of the proposal and named Maho- ne) as the "steering committee" represenaltive to contact. Mahoney ignored Union efforts to contact him until after the decision was made final. The ULnion representatives inspected the Hlald books on January 28 and 30. Supple- mental financial information was received hby the Ulnion on February 2. Respondents. however. would not extend the date of its decision past February 5. Under these circumLi- stances, I find and conclude that Respondents did not ful- fill their obligation to bargain in good faith with the repre- sentative of their employees, in violation of Section 8(a)( I and (5) of the Act. Cf. Royal Tlpewriter Co., supra, 209 Nl.RB at 1013: Roman Catholic Diocese Of Brooklyni su- pra, 222 NLRB at 1052. Counsel for Respondent Hald argues that in any event it bargained in good faith with the Union over the effects of its decision to close the school. However, as found above. Respondents withheld from and delayed furnishing to the Union requested information which was both relevant to and necessary for the Lmnion to bargain effectively with the Employer over its decision to close the school. As a conse- quence, the Union was presented with the Employer's de- termination to close the school at the end of the current school year as a fail acIcomrpli. Thereafter, the Union at- tempted to bargain with the Employer over the effects of its decision. However, with the decision to close finalized and the school year drawing to a close, the Union had been deprived of any real opportunity to bargain effectively on this issue. In short, Respondents. by their conduct, denied the t nion an opportunity to bargain about the effects of the Employer's decision "when a measure of balanced bar- gaining power existed." Cf. Inter.sate Tool Co., Inc.. 177 Nl.RB 686, 687 688 (1969); Van's Packing Plant. 211 NL.RB 692 (1974): Rapid 4ir Expediting, Inc., 220 NLRB 931. 933 (1975). and cases cited. ('ounsel for Respondent Hald argues, "even assuming cirriicendo that Respondent had a duty to bargain with the IUnion over the spin-off of the school, that duty to bargain had been met and fulfilled in the collective-bargaining ne- gotiations which followed the issuance of Bishop's Task Force Report in 1972." Counsel for Respondent Hald cites. iotcr (llia. Article XXV of the current contract, the "management's rights" and "zipper clause" and the fact that "the Union was on notice that closings and transfers or spin-offs were occurring." I have. in reviewing this con- tention, considered the bargaining history of the parties as detailed in section I vupra: the language of the clauses cit- ed: the completeness of the agreement; the rejected pro- posals made by the Uinion: and related factors. Cf. Ra- diocar ('orporaltion, 199 NL.RB 1161 (1972) (Members Fanning and Jenkins dissenting),. and cases cited. Never- theless. the background bargaining, propo,sals and agree- ments of the parties culminating in the 1975 77 contract do niot. on this record. sufficiently show a waiver of the U1nion's rights involved here. Specificall 3. article XXV of the 1975 77 contract (G.C. Exh. 6). which deals with re- employment of tenured teachers due to closings, does not manifest a waiver of further bargaining over such a deci- sion or the effects of such a decision. u( nscl. 1tKwr Rcp 0ol IT }tt l I II r 1,rsl Ihll B il d a dJipte d tihe rea.,lislic ,X [c \eliliITIt[r\ ' , J Iudgt*c I lie V , '1 I id ,,, 1 jil t,'! i,,! 2 1 \I RB .15., 422 421 i197'4 hereil calilcd A,,rncl it, the effcct Ih;i Rte.-ndrcnt Ilild flifillIld ill d.iiuC iio hal;,lin 'scen it Limplied utiih Ouit et.ior,lI *.f the u/ilc agreementci pri,,idine fir the reftrrrl ,f ten- t Ct d ie t ch., lo s I, lb tllst l cH identl .ical .l cthiriS p illi nl1," II ,Iolhcr hi does not appear that the Admilnistrativ e L.;i Jtudcr. ill rhe A r eic, c. h;d In focus before him the speci.f quesililn of the extent oIf lhe Lt mpil, ci dut\ toi bargain on this issue. Mtoreover. the Adrllillstra;lic li.;l Juidgee found: "In ans eveni. Respondent alrtl offered ti harcaei and dcd haartlin 24 ROMAN CATHOLIC DIOCESE OF BROOKLYN In sum, I find and conclude that Respondents Diocese and Hald violated Section 8(a)(l) and (5) of the Act by failing to bargain in good faith with the Union over the decision and effects of the decision to close Bishop Ford High School. VIII. THE ALLEGED REFUSAL TO Ft RNISH REQI:ESTFD FIt ANCIAI INFORMATION AND BARGAIN ABOUT THE LAYOFFS General Counsel asserts that "at no time did Respon- dent Hald provide requested books and records of the Re- spondent Diocese. .... While, on one hand, Respondents claimed that they could no longer afford to operate the Hald system, they did not provide books of the other half of the alter ego relationship-those of Respondent Diocese. Such refusal to supply requested information constitutes bad faith bargaining." General Counsel. in support of this contention, cites N.L.R.B. v. Truitt Mfg. Co.. 351 U.S. 149 (1956).37 The evidence of record, as recited in section III. B, of the findings, supra, shows that on January 28 and 30, 1976, union representatives were permitted to inspect Respon- dent Hald's financial records. And, although Hald's cur- rent certified audit was unavailable, the union representa- tives were supplied by Hald with all of its available financial material which they requested. The union repre- sentatives posed certain questions after inspecting this fi- nancial information and their questions were answered by the Hald representative in his letter dated January 30. As Union President Gordon acknowledged, Respondent Hald "did not refuse to provide [him] with any financial infor- mation" there "was no denial of financial data" from Hald. Admittedly, the Diocese's financial records were not made available to the union representatives. Brother Shea explained that no claim had been made that the "Diocese could not afford to continue the operation of the liald schools." Father Bynon explained that the Diocese was not claiming that "it could not afford" to operate Bishop Ford about the matter." Counsel for Respondent I.ald cites the decision ,f V -., York Mirror. Division of the Herorst ('(irporlrtin. 151 N RH 834. 841 84' i1965). in support of his contention that. "n such circumstannces. an em- ployer has no duty to bargain over a decision to close its facilities" the facts in that case are inapposite 'there, the parties "in a long and effective bargaining relationship" had "reached contractual settlement on the em- ployees' severance pas and termination rights In the event of ahbolishment of unit jobs". the employer "continued the bargaining relationship after the shutdown": the union's primar) and virtuall' sole concern after the shul- down was securing the employees' rights under the contraicts" and the employer "concededls met its obligation to bargain with the 'nlion con- cerning these rights and other effects of the shiltdioin, negotiating to full and complete settlement the employees' and severance and termin;tion pais and cooperating in efforts to find other employment fir them" i? In iruitt 'fj (' i} qir. the Boird ordicl t tihe emiploser t, ~uppl [ Iec union with such nformllation as would suhbstantate the emploser's "poslilon of ils ecilintlm Inahilits to pa;l the requested isf iniceile e" (351 i .S ;it 151 I he (ourt said "We agree fwith the Board itha i refusal to Lublstiitl- ate a claim of inabilith It, pa increasedl acges mils supporl ; findling of a failure Io bargaln in m c,-nd faiiti I hil l S at 1t ] the ( 'crt ddelcd N',e do not hold, htncs er that iII < cui a.,.c i, s hili civ.. intiti iti, nabli tI is raised as 11 ariinlenle sl nt ign rcdsn ettCeesd l ages it 11 ItIlt.tl.Cill fllou s that the enlphlsccs .are cnlllll d Io slhta;lntl:ilng ct ldCl nC I t h case must turn iprn Its pa;rit ul.l fatli High School- rather, it was a question of "priorities." Union President Gordon acknowledged that the Hald rep- resentatives had not claimed that the Diocese had financial problems leading to the closing of the school. Under all the circumstances present here, I find and con- clude that Respondent Hald fulfilled its bargaining obliga- tion in this respect. Further, I find and conclude that Gen- eral Counsel has not established that Respondent Diocese unlawfully refused to produce its books for inspection. No claim was made by the Diocese that it was financially un- able to operate the school. Rather, the Diocese had de- termined, as a matter of "priorities," that it wanted to be relieved of the operation of the school-not that it could not afford or was in fact financially unable to do so. Ac- cordingly, on this record, I would dismiss these allegations of the consolidated complaints. Cf. New, York Printing Pressmen (Milbin Printing, Inc.) v. N.L.R.B., 538 F.2d 496 (C.A. 2, 1976), reversing and remanding 218 NLRB 223 (1975) (Member Jenkins dissenting); and cases cited. 3 8 General Counsel next asserts: "After the layoffs were announced to Gordon, he was given no opportunity to ne- gotiate.... Such a layoff decision without giving the Union ample opportunity to make proposals to prevent the layoffs is further evidence of bad faith bargaining . . . spe- cially in view of the oral agreement of October 8, 1975, and the concealment of the layoffs." This contention is unsup- ported by sufficient credible evidence of record. As recited in section II of the findings supra, the 1975-77 contract contains explicit provisions pertaining to such layoffs; at the October 8 session Hald Attorney Burke and Brother Shea did indicate that "there would be layoffs" because of the significant drop in enrollment at two schools following the strike: on or about November 6 or 7 representatives of Respondent Hald met with representatives of the Union to discuss this subject; the representatives of the parties met again on or about November 9 to discuss this subject: Union President Gordon was afforded an opportunity to present proposals but declined to do so, and Respondent Hald thereafter implemented this decision in accordance with article XXIV of the contract. There is no claim made here that these layoffs were in "reprisal" for strike or other protected activity. Accordingly, I find and conclude that General Counsel has failed to prove that Respondents did not fulfill their bargaining obligation in this respect. IX TI1 CO(ONItNtION TiAl RISPOND)ENT FORD CENTRAL IS THE Ai.FER It:iO )() RESPONDENI DIOCESE General Counsel argues that "the facts surrounding the creation and current operations" of Respondent Ford Cen- tral establish that it is the alter ego of Respondent Diocese. G(eneral ('ounsel states: it can be seen that Respondent Diocese created, ap- proved and ma' terminate the operations of [Ford ('entrall. The realities of the situation are that the same operation is being conducted with the same pur- l itcrc IilIkC iT 5,.W ),,A Prrw,,l/i, I.r. . u'n s V 1 R B uprua. Respon- ilirt' ucfnl,lll rc.la,,lnah lntIcrplcied In llotl he result of financial iniabih hr , (he p art ,f the I)i)ocee! It nIleer tie enlplo\eec' Jdenim "ds 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pose, the same personnel, the same pupils and the same curriculum. A similar argument was made by General Counsel in Hen- ry M. Hald High School Association, The Sisters of St. Jo- seph, 213 NLRB 415, 420-421 (1974), in connection with the Kearney spin-off. There, the Administrative Law Judge rejected this contention, concluding instead that the "inde- pendence exercised by the Sisters in school operational matters at Bishop Kearney High School is enough to obvi- ate the operation of the doctrine of alter ego." The Board affirmed the Administrative Law Judge on this issue. Gen- eral Counsel claims that the Kearney transaction-because it involved the transfer of a school to an established reli- gious order-is distinguishable. However, I note that in Roman Catholic Dioceseof Brooklyn, et al. 222 NLRB 1052, 1063 (1976), involving the later spin-off of the Nazareth school to a lay and religious board of trustees, "General Counsel expressly disavowed any contention that the Dio- cese and Nazareth Regional, which now runs the school. are alter egos." And, in the recent Christ the King transfer (see fn. 16, supra), there is no claim that the transfer was for an unlawful purpose. The Board, in determining whether one entity is an alter ego of another or whether two or more businesses consti- tute a single employer, considers criteria such as the inter- relation of their operations; centralized control of labor relations; common management; and common ownership and financial control. See, e.g., Roy'al Tvpewriter Co. v. N.L.R.B., 533 F.2d 1030, 1042-44 (C.A. 8, 1976) and cases cited. And, as the Board stated in Western Union Corpora- lion, et al., 224 NLRB 274, 276 (1976) (Member Fanning dissenting): It is well settled that a critical factor in determining whether separate legal entities operate as a single em- ploying enterprise is the common control of labor rela- tions policies and that common ownership is not de- terminative where such requisite common control is not shown. Moreover, as noted above, such common control must be actual or active, as distinguished from potential control. Applying the foregoing criteria to the instant case, I find and conclude that the Bishop Ford spin-off is essentially similar to the Kearney and Nazareth spin-offs and that General Counsel has failed to show that Respondent Ford Central is the alter ego of the Diocese. Thus, as the evi- dence recited in Section IV of the findings shows, the Dio- cese transferred ownership and control of the property in- volved to the Ford Central trustees so long as they continue to operate a Catholic school on the premises- "management and control of the premises" was vested "ex- clusively" in the Ford Central trustees with a possibility of reverter. The Ford Central trustees applied for and ob- tained a charter from the State of New York to operate the school. Hald in turn cancelled its charter for the school. The Ford Central board of trustees was composed of nine lay and three religious persons. No members of the Ford Central board of trustees served on the Hald board or were employed by Hald or the Diocese. The Diocese and Hald have not given the Ford Central trustees any monies for the operation of this school.39 And, as Stephen Faughnan, chairman of the Ford Central steering committee, credibly testified, neither the Diocese nor Hald has "had any say" in the selection of the steering committee and in naming the trustees for the new school. Faughnan added that nei- ther the Diocese nor Hald has "had any say" in the opera- tion of the new school; the development of its "personnel policies"; the "salaries that were being paid"; and the "terms and working conditions" of its personnel. Faugh- nan noted that the new school has lost some $65,000 in grant-in-aid monies from the Diocese because it has be- come "independent"; there is no "relationship" between Ford Central and the Diocese's Catholic Schools Office; the Diocese and Hald are performing no services for the new school; and there are no exchanges of personnel be- tween the Diocese and Hald and Ford Central. Likewise, Mahoney, chairman of the Ford Central board of trustees, credibly testified that the Diocese and Hald did not participate in the formulation of Ford Central's bud- get; Ford Central has received no funds from the Diocese or Hald; the Ford Central trustees selected their own per- sonnel, established their terms and conditions of employ- ment, and the Diocese and Hald had no "input" in these determinations; and changes have been made by the Ford Central trustees in the operation and maintenance of their new school. Further, Mahoney noted that the Ford Central trustees rejected a claim by Father Noonan that the Bishop nominate two persons to the Ford Central board of trus- tees. According to Mahoney, the Diocese and Hald have made no appointments to the Ford Central board; there are no requirements by the Diocese and Hald to hire cer- tain persons; and Ford Central makes no reports or finan- cial statements to the Diocese and Hald. Brother Maher, the principal of the old school, acknowl- edged that he, with the assistance of Diocese and Hald personnel, prepared the November 20 and December 10 proposals; that he later resigned to become principal of the new school: and that 5 of the 10 chairpersons at the new school have been carried over from the old school. Of the five new chairpersons, only one was unconnected with the old school. Of the some 25 lay teachers hired, 21 are from the old school. Brother Maher related, inter alia, that the new school has not received any funds from the Diocese and Hald: the new school reimbursed Hald for services which Hald had performed for it: the Diocese and Hald had no "input" in selecting textbooks used in the new school, content of the courses and student disciplinary pol- icies: the policy applying to recruitment of students has been expanded by the new school to include areas outside of the Diocese; the new school no longer contributes money to the Catholic Schools Office or pays for subscrip- tions to The Tablet; no members of the Ford Central board of trustees serve in policy making positions for the Diocese and Hald; the salary schedule for teaching person- nel at the new school is higher than the schedule for the teachers at the old school; the new school "passing grade" has been raised; the various forms and emblems and stick- ' Ithe Diocese. however, hals apparentll agreed to pay $50.000 to the new sch ool in connection with its retention of possession of the television t studio alnid tower at the premises 26 ROMAN CATHOLIC DIOCESE OF BROOKLYN ers utilized at the new school have been changed; there is a new faculty and student handbook: there is now a com- puter service for payroll at the new school: there is a differ- ent food caterer at the new school; Hald has removed its records from the school premises: the new school has changed its name, telephone number, seal and logo: and the new school. unlike Bishop Ford. considers the "co-op- erative entrance examination" as only one of several crite- ria in accepting students. The evidence of record does not sufficiently show that Ford Central is a "disguised continuance" of the former employer (Cf. Southport Petroleum v. N.L.R.B., 315 U.S. 100. 106 (1942); was created as part of any sham or fraudu- lent transaction by the Diocese and Hald to evade their statutory obligations: or constitutes an alter ego or single employer. as claimed. There is no sufficient showing here of any interrelation of operations: centralized control of labor relations: common management: and/or common ownership and financial control. In sum, as the Administra- tive Law Judge stated in the Kearney case (213 NLRB at 420-421): The independence exercised by the Sisters in school operational matters at Bishop Kearney High School is enough to obviate the operation of the doctrine of al- ter ego, but the doctrine of successorship is applicable. Here, a Catholic high school was continued as was: the same principal remained in command: the reli- gious teachers. Sisters of St. Joseph. remained: and lay teachers continued teaching as before the succession. Accordingly, Respondent Sisters were successors with- in the meaning of N'.L.R.B. v. Burns International Se- curitv Services. Inc.. 406 U.S. 272 (1972). Moreover, the expert testimony of Professor Biechler and Msgr. Bevilacqua on canon law does not provide the requisite proof of control. It is true. as Msgr. Bevilacqua acknowledged. it is the Bishop who would decide whether the new school is a "Catholic school" and the Bishop. in exercising "vigilance over faith and morals." could demand the removal of a teacher from the school if he were "teach- ing something that was contrary to the faith or doing some- thing very objectionable." However, whether the Bishop would assert his religious power in a manner which would establish control over labor relations at the new school is, at best, speculative and remote.40 The Diocese has stated in its conveyance to the Ford Central trustees that the trus- tees shall have "sole and exclusive responsibility for the operations and maintenance of the school"--"manage- ment and control of the premises shall rest exclusively with" them. There is nothing in this record which shows that the Bishop, the Diocese or Hald has in fact retained an "actual or active, as distinguished from potential control," over Ford Central's labor relations policies. I would therefore dismiss the allegations in the consoli- dated complaints alleging Ford Central and the Diocese to be alter egos. 40 (Cf. Preshvierian ( hurth v Malrl Eh:laheth B/lue Htll Memorial, 393 U.S 440 (19691. X RFSPONI)DFN FORD CENTRAI. IS A SUC( ESSOR EMPLOY FR The record in this case, as in the Kearnes and Nazareth cases, shows that Respondent Ford Central is a successor employer to Bishop Ford and. consequently. is obligated to bargain with the Union as the representative of its employ- ees in an appropriate unit. The pertinent principles of law were restated bv the second circuit in Nazareth Regional Htigh School v. N.L.R.B., 94 LRRM 2897. 2900-03 (C.A. 2. 1977). "The key factor in determining whether an employer succeeds to an obligation to bargain with the incumbent union is the substantial continuity in the identity of the work force": the incumbent union "is entitled to a rebutta- ble presumption of continued majority status after the first sear as the certified representative of the unit": the "dimi- nution in unit size is insufficient to rebut the presumption of continued majority status" even when "the reduction in unit size occurs as a result of a change in ownership": "to establish a good faith doubt of continued majority status. the employer must produce 'clear and convincing evidence of loss of union support capable of raising a reasonable doubt of the union's continuing majority' ": and normally a successor employer may unilaterally fix the initial terms and conditions of employment be- cause there is no duty to bargain with a union until the new employer's complement of employees in the bar- gaining unit actually contains a majority of persons formerly employed by the predecessor. .. [However.] when the successor makes it "perfectly clear" that it intends to retain all the employees in the unit, the new employer may be required to bargain with the union over the initial terms of employment. [Ihid./ The court also noted in Nazareth (94 LRRM at 2901. fn. 4): Although there is some evidence that supervisors were active in the Union in the past, there is no indication that this placed the Union under the employer's domi- nation. We, therefore, reject this defense to the bar- gaining order. Further, the court stated (94 LRRM at 2900. fn. 3): Nazareth contends that the unit is inappropriate be- cause it improperly excludes the religious faculty. Al- though subject to the same conditions of employment and holding positions of equal responsibility, the members of the religious faculty are paid substantially less than the lay faculty. The NLRB has wide discre- tion in determining the appropriate bargaining unit . . .and the exclusion of a group of employees be- cause of substantial variance in pay scale was a proper exercise of discretion. The unit of non-supervisory. full-time lay faculty is appropriate. Applying these principles here, it is clear that Respon- dent Ford Central is a successor employer obligated to bar- gain with the Union in a unit of nonsupervisory. full-time lay faculty at the school. When Ford Central commenced operations on or about September 1. 1976. some 21 out of approximately 25 of its lay teachers were from the former school. Likewise. the school principal, a substantial num- 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber of its department chairmen and the office staff were from the former school. Ford Central was continuing at the same facility in the operation of a Catholic school. Conse- quently, by on or about September 1, 1976. the Union's majority status in this appropriate unit was clear and the employing industry was continuing operations essentially intact and unchanged.4' General Counsel argues that the successor employer's bargaining obligation "attached no later than February 17. 1976" when Brother Maher assertedly made a statement to the press pertaining to the composition of the new faculty. I have rejected this and related evidence in Section IV of the findings. The evidence of record does not make it "per- fectly clear" here that Ford Central intended "to retain all of the employees in the unit" (Ibid). The decision to hire the lay faculty was not made until late August 1976 and. therefore, Ford Central did not violate the Act by refusing to bargain with the Union earlier over the employees' "ini- tial terms of employment." (Ibid.) Respondent Ford Central argues that "although it is a successor employer. Ford Central does not have an obliga- tion to bargain with the Union because the bargaining unit excludes the religious faculty who have a solid community of interest with the lay faculty." 42 The evidence of record shows that the religious persons-unlike the lay faculth return one-half of their salary to the Employer, take certain vows of poverty and may be furnished living quarters at modest costs. Accordingly, as the Board and court held in the prior litigation involving Nazareth, a unit of nonsuper- visory, full-time lay faculty of the school is appropriate. Respondent Ford Central argues that the "Union's de- mand for recognition in a unit including department chair- men is patently inappropriate." Counsel for Respondent. in his letter to the Union on September 8, 1976 rejecting the Union's latest demand for recognition, made no refer- ence to this contention as a reason for rejecting the de- mand. The number of supervisors involved is insubstantial. And, as the court stated in Nazareth Regional High School v. N.L.R.B., 94 LRRM at 2901, "the NLRB's order has remedied the defective demand by eliminating supervisors from the unit." In sum, Respondent Ford Central was obligated to rec- ognize and bargain with the Union as the representative of a majority of its employees in an appropriate unit com- mencing on or about September 1, 1976. Respondent Ford Central, by its refusal to recognize and bargain with the Union, violated Section 8(a)( ) and (5) of the Act. Xl RESPONDENT FORD CENTRAL'S REFUSSI TO IIREF EMPl.Or I: DANIEL CAFFREY I find and conclude here that Respondent Ford Central's refusal to hire employee Daniel Caffrey was mo- tivated at least in part by Caffrey's union activities at the 41 Union President Gordon's earlier demands for recognition dilrin March were renewed on September 8. 1976. In aidditiln, unfair labor pr.ic tice charges had been filed. And. on this record. I would find the I ni[oWt demands to be continuing throughout the pertinent period See Rmmii Catholic Dioceve , lura, 222 NLRB at 1054. fn 18 42 Counsel asserts that of the 44 regular full-time fiacult. 23 are "rell glous persons old school. Thus, as the evidence recited in section V of the findings shows, Caffrey was a senior teacher at the old school. lie was regarded by his superiors as a competent teacher. He was an active union supporter and the Union's only delegate at the old school before the transfer of opera- tions to Ford Central. As union delegate. he serviced the contract and processed grievances. In March 1975, when he took off "two personal days" to attend a union conven- tion, he was docked. Later, as a result of his complaints to the Union and Management, he was given credit for these personal days. Following the strike in October 1975. he protested to Brother Maher, the school principal, that docking the teachers with respect to their extra curricular activities was "a reprisal" because of their strike activities. Brother Maher ultimately yielded to Caffrey's complaints. Brother Maher. who continued on as principal at Ford Central. admittedly refused to recommend to the trustees that they hire Caffrey in August 1976. According to Broth- er Maher, his "main reason" for this refusal resulted from an incident which occurred many months earlier at the school Christmas party in 1975. At that party, Caffrey had said to Brother Edward Sullivan, who was tending the bar, in effect. would [Brother Sullivan] wish [Caffrey] a Merry Christmas . . . would [Brother Sullivan] wish (Caf- frey's] children a Merry Christmas . . . [Brother Sulli- van] was astounding [his] sainted mother who had died two months previously [because of his attitudel. Brother Sullivan had been a close friend of Caffrey and his family before the strike. However, after the strike, their friendship ended. Brother Sullivan, following the transfer of operations from the old school to Ford Central, was named assistant principal at the new school. Brother Mah- er, the principal, claimed that he did not recommend Caf- frey to be hired because he "did not see how the thing could work at all" since the position of assistant principal "insolves a good deal of interplay . . . with faculty." Nei- ther Brother Maher nor Brother Sullivan ever spoke to Caffrev about the incident many months earlier at the Christmas party. It is settled law that the "Board is not compelled to ac- cept the Employer's statement" of the reason for discharg- ing or, here, refusing to hire an employee "when there is reasonable cause for believing that the ground put forward hb the Employer was not the true one" and that the "real reason was the Employer's dissatisfaction with the employee's" union or other protected concerted activities. Great Atlantic and Pacific Tea Co., Inc. v. N.L.R.B., 354 F.2d 707, 709 (C.A. 5, 1966). Moreover, a discharge of, here, a refusal to hire an employee "motivated only in part by" an unlawful purpose "is similarly illegal." J.P. Stevens & C'o. . N.,.R.B.. 380 F.2d 292, 300 (C.A. 2, 1967), cert. denied 389 U.S. 1005. I reject as pretextual Brother Maher's claim that Caffrev was denied employment for a reason unconnected to his union activities. I am persuaded here that the real reason why Caffrey was refused employ- ment was because of his persistent union activities at the old school: he was the only union delegate at the school: and management seized upon the Christmas party incident as a belated excuse for not hiring the employee. Manage- 28 ROMAN CATHOLIC DIOCESE OF BROOKLYN ment, at the same time, unlawfully withheld recognition from the Union. Respondent Ford Central, by the above conduct, vio- lated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. Respondents Diocese and Hald are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondents Diocese and Hald are integrated entities and Hald is the alter ego of the Diocese. 3. Respondent Ford Central is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 4. The Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. 5. Respondents Diocese and Hald violated Section 8(a)(l) and (5) of the Act by refusing to bargain with the Charging Party Union, the representative of its employees in an appropriate bargaining unit, about the decision and effects of the decision to close one of its facilities. 6. All full-time permanent lay teachers employed at Ford Central Catholic High School in Brooklyn, New York, exclusive of supervisors as defined in the Act, consti- tute a unit appropriate for purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 7. At all times material, the Charging Party Union has been the exclusive bargaining representative of all employ- ees in the above unit. 8. Since on or about September 1, 1976, Respondent Ford Central has failed and refused to recognize and bar- gain with the Union, in violation of Section 8(a)(l) and (5) of the Act. 9. Respondent Ford Central has violated Section 8(a)( 1 ) and (3) of the Act by refusing on or about August 27. 1976. to hire employee Daniel Caffrey because of his union activ- ities. 10. The unfair labor practices found herein affect com- merce within the meaning of Section 2(6) and (7) of the Act. 11. Respondents have not committed the other unfair labor practices as alleged in the consolidated amended complaints in this proceeding. THE REMEDY To remedy the above unfair labor practices and to effec- tuate the purposes and policies of the Act, Respondents will be directed to cease and desist from engaging in the conduct found unlawful and from, in any other manner. interfering with its employees' Section 7 rights and to post the attached notices. It has been found that Respondents Diocese and Hald violated Section 8(a)(l) and (5) of the Act by failing and refusing to bargain with the Union over its decision and effects of its decision to close the Bishop Ford school. In view of the economic reasons for the Employer's decision, assessed in the context of the prior closings and spinoffs. Respondents Diocese and Hald will not be directed to bar- gain over the decision to close the facility. Moreover, a full restoration of the status quo ante would not, on this record. effectuate the purposes and policies of the Act. Instead, the limited remedial provisions utilized in Van's Packing Plant. supra. 211 NLRB at 692, as quoted below, appear more reasonably designed to achieve meaningful bargaining be- tween the parties over the effects of the Employer's deci- sion by restoring "some measure of economic strength" to the Union. Therefore, as the Board stated in Van's Packing Plant, supra.: [Wle deem it necessary, in order to effectuate the poli- cies of the Act. to require the Respondent to bargain with the Union concerning the effects of the closing . . .on its employees, and shall accompany our order with a limited backpay requirement designed both to make whole the employees for losses suffered as a re- sult of the violation and to recreate in some practica- ble manner a situation in which the parties bargaining position is not entirely devoid of economic conse- quences for the Respondent. We shall do so in this case by requiring the Respondent to pay backpay to its employees in a manner similar to that required in 7ransmarine Navigation Corporation. and its subsidiary, International Terminals. Inc.. 170 NLRB 389. Thus, the Respondent shall pay employees backpay at the rate of their normal wages when last in Respondent's employ from 5 days after the date of this Decision and Order until the occurrence of the earliest of the follow- ing conditions: (1) The date the Respondent bargains to agreement with the Union on those subjects per- taining to the effects of the . . . shutdown on its em- ployees: (2) a bona fide impasse in bargaining: (3) the failure of the Union to request bargaining within 5 days of this Decision, or commence bargaining within 5 days of the Respondent's notice of its desire to bar- gain with the Union; or (4) the subsequent failure of the Union to bargain in good faith; but in no event shall the sum paid to any of these employees exceed the amount he would have earned as wages from the date on which the Respondent terminated its . . . op- erations, to the time he secured equivalent employ- ment elsewhere, or the date on which the Respondent shall have offered to bargain, whichever occurs soon- er; provided, however. that in event shall this sum be less than these employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent's employ. Respondents Diocese and Hald will also be directed to post the attached notice in "Appendix A" at their remain- ing facilities and mail copies to the Union and their former employees who were terminated at Bishop Ford High School. It has been found that Respondent Ford Central vio- lated Section 8(a)(I) and (5) of the Act. Respondent Ford Central will be directed to recognize and, upon request, bargain in good faith with the Union as the bargaining agent of its employees in the unit found appropriate. It has been found that Respondent Ford Central further violated Section 8(a)( 1) and (3) by refusing to hire employee Daniel Caffrev. It will therefore be recommended that Respon- dent F ord Central offer immediate and full employment to 29 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the position which Caffrey was discriminatorily denied or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings sustained as a result of Respondent's unlawful conduct, by paying him a sum of money equal to that which he normally would have earned from the date of the discrimination to the date of Respondent's offer of em- ployment, less net earnings during such period, with back- pay computed on a quarterly basis as provided in F. W Woolworth Company. 90 NLRB 289 (1950), and with inter- est at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Respondents will preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine compliance with and the amount of backpay due under the terms of this Decision. ORDER 43 A. The Respondents, Roman Catholic Diocese of Brooklyn and Henry M. Hald Association, Brooklyn and Queens, New York. their officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with the Lay Fa- culty Association, Local 1261, American Federation Of Teachers, AFL CIO, the exclusive bargaining representa- tive of the employees in the unit described below, with respect to their decision to close and spin-off any of their facilities in the unit and the effects of that decision upon the employees: (b) Refusing to bargain in good faith with the Union concerning rates of pay, hours of employment, and other terms and conditions of employment as the exclusive repre- sentative of their employees in the following appropriate unit: All full-time, permanent lay teachers employed in the member schools of Respondent Hald, excluding sup- ervisors as defined in the Act: (c) In any other manner, interfering with. restraining, or coercing employees in the exercise of the rights guaranteed them in Secion 7 of the National Labor Relations Act. 2. Take the following affirmative action which is neces- sary to effectuate the purposes and policies of the Act: (a) Pay the terminated employees at the Bishop Ford High School their normal wages for the period, as set forth in the Remedy section of this Decision; (b) Upon request, bargain collectively and in good faith with the Union with respect to the effects of their decision to close and spin-off the Bishop Ford High School on the employees and reduce to writing any agreement reached as 43 In the event no exceptions are filed as provided by Sec. 102.46 of lhe Rules and Regulations of the National Labor Relations Board. the lindilns. conclusions. and reconmmended Order herein shall. as prov ided in Sec 102.48 of the Rules and Regulations, be adopted b? the Board and becimle its findings, conclusions, and Order, and all ohbjections thereto shall bhe deemed waived for all purposes a result of such bargaining: (c) Preserve and upon request make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order: (d) Post at its facilities in Brooklyn, New York, copies of the notice marked "Appendix A." 44 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondents' representative, shall be posted immediately upon receipt thereof and be maintained by them for 60 consecutive days thereafter, in conspicious places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. Respon- dents shall also mail copies of said notice to the Union and to all employees at its Bishop Ford High School prior to Respondents' cessation of operations there: (e) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. B. The Respondent, Bishop Ford Central Catholic High School. its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain in good faith with the Lay Faculty Association, Local 1261, American Feder- ation Of Teachers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time permanent lay teachers employed in Bishop Ford Central Catholic High School in Brook- lyn. New York, exclusive of supervisors as defined in the Act: (b) Discouraging membership in said Union. or any other labor organization, by discriminatorily refusing to hire job applicants or by in any other manner discriminat- ing against employees with respect to their hire or tenure of employment or any term or condition of employment: (c) In any other manner interfering with. restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which is neces- sary to effectuate the purposes and policies of the Act: (a) Recognize and, upon request, bargain in good faith with the Union as the exclusive bargaining representative of its employees in the above unit; (b) Offer to Daniel Caffrey immediate and full employ- ment to the position which he was discriminatorily denied and make him whole for any loss of earnings which he may have sustained as a result of the discrimination against him, in the manner set forth in this Decision: (c) Preserve and, upon request. make available to the Board or its agents, for examination and copying, all pay- 44 In the event that this Order is enforced b i a Judgment of a Ililted States (Court of Appeals. the sords in the notice reading "Posted bs Order of lhe National I.;lbor Rel;tions Board" shall read "Posted Pursunlt to a ludgmenit ,f the U nited States Court of Appeals Enforcing an Order of the Naitionl L abor Relilltons Board." 30 ROMAN CATHOLIC DIOCESE OF BROOKLYN roll records, social securitN records. timecards, personnel records and reports, and all other records necessary to ana- lvze the amount of backpav due under the terms of this Order; (d) Post at its facilities in Brooklyn, New York, copies of the attached notice marked "Appendix B." as Copies of said notice. on forms provided by the Regional Director for Region 29, after being duly signed by Respondent. shall be posted immediately upon receipt thereof. and be main- tained for a period of 60 days thereafter. in conspicious 4' See fn 44. mlrsr places. including all places where notices to emplo ees are customarily posted. Reasonable steps shall be taken bN Re- spondent to insure that said notices are not altered, de- faced. or covered bh an, other material: (e) Notifv the Regional Dwuector for Region 29, in arlt- ing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith."4 11 Is I RTlltR ORDEt:R:D that the allegations of the consoli- dated complaints not found unlawful in this )ecision he dismissed. I (gIIetlCl ( o) ll l o' nl tlll Io ".vrr .t the p ge nltiim els f tihe rc ,rd . 1,, I1t1ed 31