Diocese of Fort Wayne-South Bend

DIOCESE OF FORT WAYNE-SOUTH BEND Diocese of Fort Wayne-South Bend, Inc. and Commu- nity Alliance for Teachers of Catholic High Schools (C.A.T.C.H.). Cases 25-CA-7932, 25- CA-7932-2, and 25-CA-7932-3 June 17, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On February 23, 1977, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Diocese of Fort Wayne-South Bend, Inc., Fort Wayne, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent's request for oral argument is hereby denied as the record and briefs adequately present the issues and positions of the parties. DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: A hearing in this consolidated proceeding was held at Fort Wayne, Indiana, on September 8 and 9, 1976,1 on complaint of the General Counsel against Diocese of Fort Wayne-South Bend, Inc. (herein Respondent), 2 based upon original charges filed on May 6 and 10. The order consolidating cases, complaint, and notice of hearing were issued on June 30. The principal issues in this case are whether Respondent discriminated against two of the lay teachers at its Marian High School, Mishawaka, Indiana, in violation of Section All dates hereinafter refer to the calendar year 1976, unless otherwise specified. 2 Thomas M. Clusserath appeared for Respondent at the hearing; however, by motion dated January 18, 1977, he moved to withdraw his 230 NLRB No. 38 8(aX3) and (1) of the National Labor Relations Act, as amended (herein the Act), when it refused to renew their contracts of employment in the latter part of April. Also involved is an allegation of an independent violation of Section 8(aXl1) of the Act. By its duly filed answer, Respondent denied the commission of any unfair labor practices and affirmatively asserted that the National Labor Relations Board (herein the NLRB) could not and/or should not assert jurisdiction in this matter. It was further asserted that the failure to renew the contracts of the employment of the two teachers was based upon good and sufficient cause and "served the end of maintaining the religious, moral, and disciplinary concepts being fostered in Respondent's Marian High School." Finally, Respondent affinrmatively asserted that it did offer one of the lay teachers a I-year contract to teach in another of its religiously oriented high schools, Hunting- ton Catholic High School, but that said offer was rejected by the teacher. Following the close of the hearing, helpful posthearing briefs filed by counsel for the General Counsel and by counsel for Respondent have been duly considered. Upon the entire record, and from my observation of the demeanor of the witnesses,3 I make the following: FINDINGis OF FACT I. JURISDICTION By Decision and Direction of Election dated July 17, 1975, in Case 25-RC-5984 (not reported in Board volumes), the NLRB asserted jurisdiction over Respondent based upon the following finding: The employer's annual budget for the five high schools operated by it exceeds $1 million annually and its annual direct inflow is about $185,000. The employer's contentions that jurisdiction should not be asserted because of its religious character are rejected. Roman Catholic Archdiocese of Baltimore, Archdiocesan High Schools, 216 NLRB 249 (1975). Based upon the foregoing, as well as a substantially similar stipulation of facts in the instant record, I find that jurisdiction should be asserted in the instant proceeding. II. THE LABOR ORGANIZATION INVOLVED I find that Community Alliance for Teachers of Catholic High Schools (C.A.T.C.H.) (herein the Union) is a labor organization within the meaning of Section 2(5) of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES A. Background As previously noted, Respondent operates five high schools in the Diocese; however, Marian High School is the only facility directly involved in the instant proceeding. appearance. No objection having been filed by any of the parties, said motion is hereby granted. 3 Cf. Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159. 1161 (1966). 267 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At all times material, there were approximately 30 lay (nonreligious) professional faculty members employed at this facility. Prior to the events here at issue, there is no evidence that any of the employees had ever been represented for purposes of collective bargaining by a labor organization. The Union's organizational campaign commenced in the spring of 1975, such campaign encompassing the lay faculty at all five of Respondent's high schools. Shortly thereafter, apparently in May or June 1975, the Union filed a petition for an election with the NLRB (Case 25-RC- 5984), upon which a hearing was held in the latter month. The NLRB's Decision and Direction of Election issued on July 17, 1975, finding as an appropriate unit the full and regular part-time lay faculty at the five high schools with certain additions and exclusions not pertinent herein. The election was held in early September. The Union won and was certified as the collective-bargaining representative on September 12, 1975. However, Respondent refused to bargain with the Union upon the latter's request, based principally upon its contention that the Board lacked jurisdiction (see 224 NLRB 1226 (1976)). At the time of the hearing herein, that case was pending for review before the United States Court of Appeals for the Seventh Circuit. Notwithstanding Respondent's refusal to bargain as aforesaid, the record herein shows that some of the teachers continued to pursue activities on behalf of the Union. Thus, officers were elected and a newsletter was published and distributed. One of the teachers (an alleged discriminatee herein) was selected as the building represen- tative (shop steward) and sought to bring to the attention of the principal of the high school a number of grievances of the faculty, of which more anon. During the period, officials of Respondent made certain statements indicating an antipathy toward the Union and, in April, refused to renew the contracts of two of the teachers who were officials of the Union. It is this conduct which is attacked in the complaint and to which we now turn for analysis. B. The Animus of the Respondent As far as the record shows, the first evidence of Respondent's hostility toward the Union was expressed in a letter of Reverend Dr. James Seculoff, superintendent of schools, addressed to all Catholic high school teachers, dated August 25, 1975. The letter itself is not attacked in the complaint as an unfair labor practice; however, it expresses the policy of Respondent on the subject and clearly may be considered along with all the other evidence as bearing upon motive relevant to the 8(a)(3) issues.4 Thus the letter expresses the policy of the Diocese which "does not favor a union for the profession of teachers." It points out the disadvantages of belonging to a union, such as paying and being assessed fines and assessments, and direction by "one man or clique rule." The remainder of the letter was spent in pointing out the precarious financial situation of the high schools, and that a raise in tuition from current levels (which might be necessary as a result of higher wage rates caused by a union contract) would have 4 See, e.g., Southern Desk Company, 116 NLRB 1168, 1177 (1956), enfd. 246 F.2d 53 (C.A. 4, 1957). serious consequences regarding continuation of the schools. Additional expressions of hostility to the Union by Father Seculoff occurred at the September meeting of the area board of education which took place a few days following the NLRB election, mentioned hereinabove. Only four or five members (not a full complement) were present on this occasion. One of the members was Charles Hall, a teacher and chairman of the science department at St. Joseph's High School (one of the Respondent's five high schools), and Father Seculoff, who was present as an ex officio member. Although the subject of the Union was not on the agenda of the meeting, Hall made a statement in favor of the Union and expressed his opinion as to some of the reasons why the Union came into existence. According to Hall's testimony, Seculoff responded that the high schools would in fact close and be put up for sale, and that the Diocese would reopen them in a couple of years staffed with nonunion teachers and parents. Seculoff denied making such statement but admitted that, after Hall's speech, the board went into a confidential session for the purpose of exploring the various options open to Respon- dent in view of the Union's victory in the election. Father Seculoff averred that none of the discussion was to be in the minutes, "so they threw out all kinds of wild ideas and the worst type of things and some good things that could possibly happen if the Union came in .... I was listening to what other members said. I might have said that I heard this happening in other places and do you think it will happen here." Father Seculoff insisted that he could not have made the statement in the manner in which Hall testified since the policy of Respondent is to only hire certified and licensed teachers which would, of course, exclude parents. Again, the foregoing incident is not alleged as an independent violation of Section 8(a)(1). After a consider- ation of all relevant factors, including the context in which the alleged statements are supposed to have been made, I am convinced and find that Seculoff reaffirmed his hostility to the Union and expressed dire consequences to the schools if the Union prevailed as the teachers' bargaining representative. Phil Niswonger was a lay teacher at Marian High School during the school year 1975-76, and joined the Union in October 1975. Thereafter he was selected as the building representative, i.e., a shop steward. In early February, he was present in the school cafeteria along with Father Seculoff, Principal DeVliegher, Mrs. DeHahn, and a Dr. Jim McDonald (other teachers). According to Niswonger's testimony, the subject of the Union arose and disagreement was expressed between him and Father Seculoff as to the number of union members. Seculoff made the comment that he felt that there were only about 30 members, while Niswonger indicated that according to the vote there were over 80 teachers that voted in favor of the Union, and therefore membership was closer to that number. Thereaf- ter, Seculoff referred to one Brian Waldron, a teacher at 268 DIOCESE OF FORT WAYNE-SOUTH BEND another of Respondent's high schools, who was a candidate for membership on the Union's Board of Directors. 5 Seculoff expressed his intention to dismiss Waldron and surmised that "that would be the end of the Union because if you chop off the head of an organization, you defeat the organization." Then Father Seculoff said that he would next year get rid of a few more and then by the third year, there would be no union members left and in that same sequence he said "maybe I will get rid of four or five members this year and that would take care of the Union if there was anybody left, we will get them the following year and by the third year there will be none left."6 On or about March 30, Virginia Black was a teacher and department chairperson over the department of religion at Marian High School. On that evening, Father Seculoff drove her home and stayed on for a few minutes. He asked Black about Phil Niswonger's teaching abilities and she responded that she was very pleased with him as a teacher-that he was very dedicated and willing, and was a very good Catholic. Father Seculoff made the remark that Niswonger made a terrible mistake by joining the Union.7 I find the foregoing implied threat to constitute interfer- ence, restraint, and coercion in violation of Section 8(aX)(1) of the Act.8 C. The Alleged Discriminatees 1. Phil Niswonger Phil Niswonger had been a teacher of religion and social studies at Marian High School since 1972. In addition to his teaching duties, he had been, since 1973, a swimming coach, for which he received an additional stipend. On top of the foregoing contractual obligations, Niswonger also engaged in certain extracurricular activities at the school such as: (1) moderator for the Marian High School tutors, (2) cochairman of the display case committee, (3) student work director, and (4) cafeteria moderator. Both the chairperson of his department, Virginia Black, and Princi- pal DeVliegher characterized Niswonger as being a tremendously willing and dedicated person as far as the giving of his time to activities for the betterment of Marian High School.9 From the foregoing, as well as from my observation of the demeanor of this individual, it is readily apparent that he is an outgoing and outspoken individual. Thus, the record shows that he spoke up at faculty meetings on issues involving all faculty members, presenting on their behalf points of view on various issues. Indeed, he also presented the students' point of view on problems to the principal and other members of the administration. It might be reasonably anticipated that the exercise of this kind of initiative would, on occasion, be the source of dissatisfac- 5 See, e.g., G.C. Exh. 8. 6 Credited testimony of Niswonger. Father Seculoff did not deny this statement, and neither DeVliegher nor DeHahn was interrogated concern- ing the incident. McDonald was not called as a witness. T Credited testimony of Black. Father Seculoff did not, in his testimony, deny making such statement. I It is not crystal clear from the record that Black was a teacher at the time of the incident. That is to say, she testified that subsequently, in April, Principal DeVliegher asked her to step down as department chairman and she presumably retained her teaching status since she was currently tion and friction between Niswonger and some of the faculty members on one hand and the principal on the other. For example, the record reflects that on one occasion Niswonger allowed one athletic team to use the equipment of another, which was supposedly against the rules and regulations. On another occasion, he unilaterally made a decision as to how to best deal with a pilfering problem without clearing it with high authority. However, as far as the record shows, Niswonger was never officially reprimanded or warned about such conduct by the principal or other members of the school's administration. As previously noted, Niswonger became a member of the Union in October 1975, and shortly thereafter was selected as the building representative (shop steward). As such, he had occasion to talk with members of the faculty who asked him to intervene on their behalf with DeVliegher as respects certain problems or grievances. Accordingly, at the end of the swim season in February, Niswonger wrote a letter to DeVliegher consisting of four single-spaced, typewritten pages in which he pointed out several areas in which he thought changes might be made which would result in better relationships among the faculty members. Niswonger stated that he was writing to DeVliegher from many perspectives: (1) as a concerned catholic, (2) as a member of Marian's faculty, and (3) "officially as the 'C.A.T.C.H.' representative to Marian." A few days later DeVliegher met with Niswonger in the former's office to discuss the contents of the letter. DeVliegher made it clear at the outset that he was talking to Niswonger as "principal to teacher and not in any other capacity that was stated in the letter." '°0 DeVliegher testified that there was no further discussion of "the Catch organization, as such." However, Niswonger testified that DeVliegher stated that he (DeVliegher) had discussed Niswonger's letter with Father Seculoff after DeVliegher received it but before the meeting with Niswonger, and that Seculoff noticed a concern when he learned from the letter that Niswonger was a union member, and stated to DeVliegher that "I thought Phil was our friend." Furthermore, at the meeting between DeVliegher and Niswonger, the former asked how many people were members of the Union, but Niswonger refused to tell him, stating that he probably already had an idea who they were. DeVliegher stated that he knew that Mrs. DeHahn was a member and that he knew as a result of Niswonger's letter that the latter was a member. Niswonger asked if DeVliegher knew of anyone else, to which the latter responded that he did not know "for sure" but he had his suspicions." DeVliegher testified that during the latter part of April he had several conversations with Niswonger concerning the renewal of the latter's teaching contract. He further testified that he "had determined that [he] would not be employed by Respondent at the time of the hearing. In any event, Respondent made no contention respecting this point at any time during the proceeding. 9 In addition to the activities enumerated above, Niswonger also found time to be a leader of a local community troop of the Boy Scouts of America. 1' Testimony of DeVliegher. " Credited testimony of Niswonger. DeVliegher did not directly deny the foregoing statements attributed to him. 269 DECISIONS OF NATIONAL LABOR RELATIONS BOARD renewing [Niswonger's] contract ... ," but that the conversation concluded with the understanding that "there would be a distinct possibility of extending a contract ... with the understanding that what had been done by him on behalf of others would not continue." That is to say, that whatever good intentions Niswonger possessed with re- spect to presenting the problems of others to DeVliegher, "he had taken upon himself responsibilities and had gone beyond what was appropriate for his particular station in the school . . . and what was appropriate for him as a member of the faculty." 12 DeVliegher testified that he further advised Niswonger to encourage the individual faculty members and students to see DeVliegher directly with whatever complaints they had rather than having such complaints conveyed to him by Niswonger. Niswonger testified that on April 27 he had a conversa- tion with DeVliegher in the latter's office at the latter's request, at which time DeVliegher stated that he was thinking of not renewing Niswonger's contract and listed the following reasons: (I) he was too involved in girls' athletics; (2) he was too involved in student affairs and revealed to the students confidential matters discussed at faculty meetings; and (3) Niswonger was generally the cause of all the problems at Marian High School. However, according to Niswonger, DeVliegher did not indicate a final determination not to renew the contract at that time but indeed indicated that Niswonger would probably receive a contract. However, on April 30, there was a conversation among DeVliegher, Niswonger, and Robert Haas, the athletic director, during school hours. DeVliegh- er opened the meeting by stating that there were still some unresolved situations which, if left unresolved, would apparently preclude issuing Niswonger a contract. At that point, Haas turned to Niswonger and said, "Phil, will you accept me as athletic director, yes or no?" Niswonger said yes. Haas then inquired, "Will you not speak about any athletic meeting outside the athletic department meeting? Yes or no?" Niswonger said that he was not clear about what Haas meant and could not answer the second question. At that point Haas had to leave and told DeVliegher, "I charge you to terminate Mr. Niswonger as swim coach," and left the room. Niswonger met again with DeVliegher in the afternoon after school and DeVliegher indicated that what Haas meant was that the substance of any athletic departmental meeting should be kept in confidence, to which Niswonger agreed. They also dis- cussed some rumor of irregularity in the athletic depart- ment, the exact nature of which was not disclosed in the record. On the evening of April 30, at approximately 10 o'clock, DeVliegher and Haas went to Niswonger's house.13 At that time DeVliegher handed Niswonger a paper which served notice that the latter's contract would not be renewed. DeVliegher testified that the reason that the notice was served at that particular point in time was because of the 12 Testimony of DeVliegher. 13 DeVliegher testified that Haas accompanied him simply to indicate to Niswonger that a particular individual (whose name was not disclosed in the record) was not involved in the rumor which was the subject of discussion the preceding afternoon. 4 The newsletter (G.C. Exh. 8) indicates that DeHahn ran unopposed deadline for renewal of a teacher's contract, and he felt that, if a different conclusion was reached in the future as a result of further discussions, the notice could be rescinded. Niswonger testified that he inquired of DeVliegher the reasons for the notice to which DeVliegher responded that he and Haas had "come to the conclusion that [Niswonger] had been trying to solve the problems at Marian and that he had been unsuccessful." 2. Linda DeHahn DeHahn was first employed by the Respondent in the spring of 1974 as a substitute teacher, completing the unexpired term of another faculty member in the science department. Thereafter, she became a regular full-time teacher completing two full contract terms (1974-75, and 1975-76) before her contract was not renewed by De- Vliegher in late April. One of the principal subjects taught by DeHahn was biology, and she had several classes consisting of both classroom and laboratory work. The record reflects that DeHahn was active on behalf of the Union, and that DeVliegher became aware of such activities by early fall of 1975. Thus the officers of the Union were named in the Union's September 15, 1975, newsletter which was distributed to all faculty members and which became the object of a dispute between DeVliegher and DeHahn. '4 In September 1975, DeHahn attended the monthly faculty meeting. It appears that there was some discussion concerning faculty tickets to athletic events, and that the policy of the Respondent had been recently changed to allowing faculty members one ticket instead of two. DeHahn spoke up at the meeting and accused the administration of changing the policy as a retaliatory measure for the faculty's voting in the Union. Athletic Director Haas denied that it was a retaliatory measure, claiming that it was due to the financial situation of the athletic department. Subsequently, DeHahn discussed the issue with DeVliegher who affirmed Haas' position. During this conversation, DeHahn advised DeVliegher that she was the vice president of the Union, and that her statements reflected the union members' feelings concern- ing the matter.15 DeVliegher recalled that, sometime in January or February, he had a conversation with DeHahn in his office about the Union. He asked to speak with her because of the number of leaflets and bulletins which had been distributed in the teachers' mailboxes. DeVliegher advised DeHahn that he considered the mailboxes to be of a confidential nature and that the mailboxes were not to be invaded or used by someone else. DeHahn agreed not to distribute the material to any teacher who was not a member of the Union. The record reflects several instances, prior to latter April 1976, wherein Mrs. DeHahn's conduct as a teacher was called into question by DeVliegher. The first of such for vice president of the Union and, with one exception, was the only faculty member from Marian High School running for union office. 1' Credited testimony of DeHahn; DeVliegher did not deny the statements attributed to him. As previously noted, Haas was not called as a witness. 270 DIOCESE OF FORT WAYNE-SOUTH BEND instances was in April 1975, when it was apparently reported to DeVliegher that four students in her seventh hour class were playing cards. After a discussion with DeHahn, DeVliegher noted that DeHahn "used bad judgment in allowing the students to play cards. It will not happen again." '6 A second incident occurred about September 1975, when DeVliegher advised DeHahn that some students had complained to the guidance officer that her biology 2 course was not being taught in the depth that they had expected. DeHahn explained that this was a new course for her and she had discussed the matter with him before the course was offered. She advised that she would take up the matter further with the students, which she did. The matter was not mentioned again until DeVliegher brought it up at the exit interview. Finally, there was a matter of the distribution by DeHahn of a reading list to the students in her biology class. It appears that a portion of the course was devoted to a study of human reproduction. In connection with such study, DeHahn prepared a list of five books for "extra reading."l? She was called into DeVliegher's office con- cerning the matter, the latter stating that he had received a phone call from a parent objecting to the list. DeHahn stated that the list was prepared to indicate to the students some kinds of materials which might lead them away from the sensational matter which was on the market and which they had easy access to at the local drugstore, and that the reading matter was in no way required or even strongly suggested. However, DeVliegher requested that she with- draw the list, to which she objected on the grounds that this would call more attention to it than it deserved. The matter was finally resolved when it was agreed that a second list prepared by DeVliegher would be distributed to the students. DeHahn attended the March 1976 faculty meeting which, the record reflects, was a rather emotional affair. DeHahn spoke at the meeting which, among other things, involved some discussion about alleged discrimination against girls' versus boys' use of gym facilities. DeHahn's conduct at the meeting became a subject of discussion in a subsequent meeting between DeVliegher and Niswonger. The latter expressed concern that DeVliegher "put down" DeHahn at the March faculty meeting. DeVliegher stated that DeHahn did not have any business or concern to discuss the topic at hand. In late April, in a conversation between DeVliegher and DeHahn in the former's office, he advised her that he had determined not to renew her contract. When she asked why, he enumerated the following reasons: (1) her classroom discipline left a good deal to be desired; (2) he "seriously questioned" the value or competency which one particular class of biology had been presented, in this connection, he had particular reference to the complaint in 1' Resp. Exh. 7. l" Resp. Exh. 4. Three of the books were written by the celebrated duo of Masters and Johnson; another was written by David Rubin entitled "Everything You Always Wanted to Know About Sex." 'I In this connection, DeVliegher had particular reference to the "ongoing friction between the athletic and nonathletic faculty which was agitated by conversations of which [DeHahn ] was a part." 19 In this connection I note the testimony of Department Chairman September 1975, hereinabove discussed; and (3) he had noticed a "widening divergence in our points of view educationally and philosophically besides noting the fact that other rules and regulations were not given sufficient attention." DeVliegher further testified that, although he did not mention the matter of the reading list specifically at that time, he had that subject in mind when he used the term "philosophically divergent points of view." After having his memory refreshed by use of a preheating affidavit, DeVliegher also recalled that, during the exit interview with DeHahn, he mentioned the fact that he had been made aware of conversations between her and other faculty members during the cafeteria hour in which "she expressed ideas during her lunch hour with other faculty members which created or intensified feelings of agitation among faculty members." 18 DeHahn's version of the exit interview is somewhat at variance with that of DeVliegher's. Thus, with respect to the matter of class discipline and complaints from students, she stated that she was aware only of the September incident which she thought had been resolved, and that he agreed that there had not been any complaints since that time. With respect to the dress code, she spoke of the temperature in the labs which she felt warranted a departure from the dress code, and the fact that the sleeves on the girls' jackets brushing against glass beakers resulted in excess breakage.' 9 DeHahn testified that DeVliegher mentioned something about attendance of students that the dean had mentioned to him "a time or two," and she asked why she had not been notified about that since she was unaware of it.20 Finally, with respect to the matter of discussion of topics during the lunch hour which agitated the faculty, DeHahn testified that DeVliegher "agreed that faculty members did not give up their freedom of speech when they went through the doors of Marian High School." Analysis and Concluding Findings with Respect to the 8(aX3) Allegations As set forth above, the Respondent has cited certain delinquencies on the part of both employees which it asserts provided ample cause under the Act for its determination not to renew their contracts. On the other hand, the General Counsel argues that it was the union activities of the employees, to which Respondent was unalterably opposed, that prompted Respondent's con- duct. The legal principles governing the resolution of this issue have been often stated, and may be briefly reviewed, as follows: The issue before us is not, of course, whether or not there existed grounds for discharge of these employees apart from their union activities. The fact that the employer had ample reason for discharging them is of Virginia Black who testified undeniably that "Mr. DeVliegher admitted that nobody enforces the dress code 100 percent." 20 This apparently refers to the testimony of Sister Michael Ann Durer, dean of students at the time, who testified that she was aware that DeHahn did not accurately record absences on some occasions since DeHahn would not record some students as absent that the administration knew were absent because the parents had telephoned about them. 271 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no moment. It was free to discharge them for any reason good or bad, so long as it did not discharge them for their union activity. And even though the discharges may have been based upon other reasons as well, if the employer was partly motivated by union activity, the discharges were violative of the Act. [N.LR.B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352, 355 (C.A. 2, 1962), enfg. 133 NLRB 911 (1961).] The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity. [Sunshine Biscuits, Inc. v. N.L.RB., 274 F.2d 738, 742 (C.A. 7, 1960), cited with approval in N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7, 1964).] Again, it was stated in Hartsell Mills Company v. N.LR.B., 111 F.2d 291, 293 (C.A. 4, 1940): It must be remembered, in this connection, that the question involved [a finding of discrimination] is a pure question of fact; that, in passing upon it, the Board may give consideration to circumstantial evidence as well as to that which is direct; that direct evidence of a purpose to violate the statute is rarely obtainable; and that where the finding of the Board is supported by circumstances from which the conclusion of discrimi- natory discharge may legitimately be drawn, it is binding upon the courts, as they are without power to find facts or to substitute their judgment for that of the Board. Applying the foregoing principles to the facts in the case at bar, I am convinced, and therefore find, that although the Respondent proffered reasons which it asserted provided ample basis for the refusal to renew the employees' contracts, the union activities of the employees played a substantial part in the Respondent's motivation, and therefore the terminations violated Section 8(aX3) and (1) of the Act. Thus, the record clearly shows that the Respondent was exceedingly hostile to the union activity of its employees, considering it not only a threat to its financial security but also as a divisive force in the operation of its religious school system. Moreover, the principal of the school, who was solely responsible for making the ultimate decision to terminate, had been well aware for several months prior to the actual terminations in late April that the two employees involved were active participants in union activities; indeed, DeVliegher admitted that they were the only two members of the faculty whom he knew to be members of the Union. With this background, we proceed to an examination of the evidence relied upon by the Respon- dent for its conduct since as stated in N.LR.B. v. Great Dane Trailers Inc., 388 U.S. 26, 34 (1967), cited in N.L.R.B. v. Armcor Industries, Inc., 535 F.2d 239, 243 (C.A. 3, 1976): 21 Testimony of DeVliegher. 22 Indeed, if the cause of termination related solely to the conflict between Haas and Niswonger, DeVliegher could have remedied the When the record established a prima facie case that "the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him." As respects Niswonger, DeVliegher acknowledged that he had been a member of the faculty for 4 years, the fast 3 years of which DeVliegher "had no serious misgivings or exceptions to take of his teaching performance or to his conduct or to his example . . he was a giving person and enthusiastic person and that I did express my thanks and admiration for his dedication to the school and to the various other activities."21 However, he cautioned Niswon- ger that the amount of extracurricular activities should not be an infringement upon the latter's primary responsibility as a teacher. Moreover, DeVliegher testified that he had not been aware in the first 3 years that a certain amount of difficulty had arisen between Niswonger and other mem- bers of the faculty. Testifying in a rather long and rambling dissertation, DeVliegher seemed to be indicating that it was in the last year of his employment that the activities and efforts of Niswonger were "gravely hindering the object of peace and harmony and cooperation." The record reflects, as hereinabove discussed, that these matters came to a head when Niswonger wrote the February 24 letter to DeVliegher where he set forth, among other things, that he wished to discuss matters of concern with DeVliegher in his capacity as the "Catch" representative to Marian. De- Vliegher refused to recognize Niswonger in this capacity, and it appears that DeVliegher's attitude toward Niswon- ger deteriorated rapidly from that point. Indeed, 2 or 3 weeks following the March faculty meeting, Niswonger asked DeVliegher if the latter would still be interested in having an informal meeting with the concerned teachers, to which DeVliegher replied, "There would be no further discussion on any topic for the rest of the year." Based upon the foregoing, I can only conclude that DeVliegher was willing to countenance the frustrations caused by Niswonger's extracurricular activities until such time as Niswonger sought to pursue these matters as a union representative and not simply as an "omsbudsman," a term previously used by DeVliegher to characterize him. In short, it was only after Niswonger donned the apparel of a building representative that he became so obnoxious as to warrant the most extreme form of discipline which the Respondent had power to impose.22 Thus, the record reflects no instance in which DeVliegher or any other representative of Respondent ever cautioned or warned Niswonger that any further activities of his would be the subject of nonrenewal of his teaching contract. Moreover, I note that at the hearing Respondent sought to raise an additional reason (failure to promptly report grades) which had not previously been mentioned as a cause for the situation by relieving Niswonger of his responsibilities in the athletic department, as Haas suggested. 272 DIOCESE OF FORT WAYNE-SOUTH BEND termination. This has been held to be an indicia of discriminatory motivation.2 In sum, I find and conclude that Respondent was motivated, at least in part, by Niswonger's concerted and union activities in its conclusion not to renew his contract in April 1976. Accordingly, it violated Section 8(aX3) and (1) of the Act, and I shall recommend an appropriate remedy. 24 I reach the same conclusion with respect to the case of Mrs. DeHahn. To be sure, there were several instances, above set forth, which arose during her teaching career which were the object of some criticism by DeVliegher. However, none were deemed of such importance by DeVliegher that he ever warned or cautioned DeHahn that she would be subject to nonrenewal of her contract if another such incident occurred (which it did not). The one incident involving the reading list, which Respondent sought to emphasize at the hearing, was not even explicitly mentioned as a cause for termination by DeVliegher at the exit interview. Indeed, the activity of DeHahn which seemed most to irritate DeVliegher was her speaking out at the March faculty meeting and her activities during cafeteria hour in "agitating" other members of the faculty. It may be reasonably inferred that DeVliegher related such outspoken conduct to Mrs. DeHahn's prominence in the Union and sought to nip such activities in the bud.25 In short, Respondent here did not sustain its burden of establishing that it "was motivated by legitimate objec- tives," and I find and conclude that DeHahn's termination was motivated, at least in part, by her active participation in the Union, to which Respondent was opposed. I therefore find and conclude that the failure of Respondent to renew her contract was discriminatory and therefore violative of Section 8(aX3) and (1) of the Act. 26 Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the interstate opera- tions of Respondent, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 23 See, e.g., Inland Motors, 175 NLRB 851. 852 (1969); Hurd Corporation, 143 NLRB 306, 318 (1963); The Tompkins-Johnson Co., 224 NLRB 31 (1976). z4 Respondent. in its seventh affirmative defense to the complaint, asserted that it did offer Niswonger a I-year contract to teach in another of its high schools. Huntington Catholic High School, for the 1976-77 school year and that said offer was rejected by Niswonger on or about June 21. Niswonger explicated the reasons for his refusal in a letter dated June 18 (Resp. Exh. I l). I do not deem such offer, which would, among other things. tend to undermine the strength of the Union at Manan High School, as being sufficient to impair my finding of discrimination and/or to conclude that Respondent thereby fulfilled its duty of reinstatement. 25 See, e.g., Duo-Bed Corporaton v. N.LR.B., 337 F.2d 850 (C.A. 10, 1964), cert. denied 380 U.S. 912 (1965); Hartsell Mills Company v. N.LR.B., supra, N.L.R.B. v. Jamestown Sterling Corp., 211 F.2d 725 (C.A. 2, 1954). 20 In connection with both cases of alleged discrimination. I have not 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against Phil Niswonger and Linda DeHahn, in the manner aforesaid, because they engaged in activities on behalf of the Union, as described above, and by thereafter failing and refusing to reinstate them, Respondent has violated Section 8(aX I) and (3) of the Act. 4. By warning its employees that they made a mistake by joining the Union, the Respondent has interfered with, restrained, and coerced employees within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(aX)() and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent unlawfully failed and refused to renew the contracts of employment of Phil Niswonger and Linda DeHahn, in the manner aforesaid, it is recommended that Respondent offer said employees immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for loss of earnings that they may have suffered as a result of the discrimination against them. Any backpay found to be due shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As the unfair labor practices committed by Respondent strike at the very heart of employee rights safeguarded by the Act, I shall recommend that Respondent be placed under a broad order to cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act.27 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER28 The Respondent, Diocese of Fort Wayne-South Bend, Inc., Fort Wayne, Indiana, its officers, agents, successors, and assigns, shall: overlooked the testimony of Respondent's witnesses that DeVliegher, in April. held a meeting of some department chairmen and older teachers in which they voted on whether certain other teachers (including DeHahn and Niswonger) should be retained. The group voted that the two alleged discrminatees should not be retained. However, I have given this evidence little probative value since DeVliegher testified that (I) it was not normal procedure, and (2) the decision not to renew Niswonger and DeHahn's contracts was made by him "somewhere in March." 27 N.LR.B. v. Enrwistle Manufacruring Company, 120 F.2d 532, 536 (C.A. 4, 1941). 28 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 273 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Discouraging membership in Community Alliance for Teachers of Catholic High Schools (C.A.T.C.H.), or any other labor organization, by failing or refusing to renew contracts of employment, or otherwise discriminat- ing against employees because of their union membership or activities. (b) Warning employees that they had made a mistake by joining the Union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist the above-named labor organization, to bargain collectively through representa- tives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Phil Niswonger and Linda DeHahn immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to seniority or other rights or privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary and relevant to analyze and compute the amount of backpay due under this recommended Order. (c) Post at its Marian High School, Mishawaka, Indiana, copies of the attached notice marked "Appendix." 29 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by the Respondent's authorized representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to faculty members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 29 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Community Alliance for Teachers of Catholic High Schools (C.A.T.C.H.), or any other labor organization, by refusing to renew contracts of employment, or other- wise discriminating against employees because of their union membership or activities. WE WILL NOT warn employees that they made a mistake by joining the above-named labor organiza- tion. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through represen- tatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Phil Niswonger and Linda DeHahn their former jobs or, if those jobs no longer exist, to substantially equivalent positions, and will restore their seniority and other rights and privileges. WE WILL pay them any backpay they may have lost as a result of our discrimination against them. All our employees are free to become or remain, or refrain from becoming or remaining members of a labor organization. DIOCESE OF FORT WAYNE- SOUTH BEND, INC. 274