Nazareth Regional High School

NAZARETH REGIONAL HIGH SCHOOL Nazareth Regional High School and Lay Faculty Association, Local 1261, American Federation of Teachers, AFL-CIO. Cases 29-CA-9978, 29-CA-9978-2, and 29-CA-10012 29 April 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 21 May 1985 Administrative Law Judge James F. Morton issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief to the Board. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge concluded that because the Respond- ent is operated by an independent, predominantly lay board of trustees, over which the Diocese of Brooklyn has virtually no control, the Board should assert jurisdiction over the Respondent based on the Board's decision in Roman Catholic Diocese of Brooklyn, 243 NLRB 49 (1979), enf. denied sub nom. Bishop Ford Central Catholic High School, 623 F.2d 818 (2d Cir. 1980), cert. denied 450 U.S. 996 (1981). We disagree with the judge for the following reasons. The `facts, as set out more fully by the judge, in- clude the following. The Respondent's predecessor, Nazareth High School, was one of nine high schools - operated by the Roman Catholic Diocese of Brooklyn until about 1971.1 In 1972, because of rising costs, the Brooklyn Diocese organized the Henry M. Hald High School 'Association as an educational corporation for the purpose of operat- ing the diocesan high schools. The diocese contin- ued to own and control the schools, and the Bishop of Brooklyn and other churchmen of the di- ocese were trustees of the Hald Association. On 16 August 1974 title to the Nazareth High School property was transferred to, a newly formed independent educational corporation, Nazareth Re- gional High School (the Respondent), which was to operate Nazareth as a regional high school. The Respondent was granted the property to have and ' The frill-tune permanent lay teachers at the nine schools have been represented by the Union since 1966 In Roman Catholic Diocese of Brook- lyn, 222 NLRB 1052 (1976), enfd 535 F.2d 1387 (2d Cir. 1976), the Board found that the respondent's predecessor violated Sec. 8(a)(5) and (1) by refusing to bargain with the union and violated Sec. 8(a)(3) and (1) by refusing to hire an individual for discriminatory reasons 763 to hold so long as it "continues the operation of a Roman Catholic high school ... upon the cessa- tion of which, title and interest ... shall revert to the [diocese]." The Respondent derives most of its operating funds from tuition; it receives no funds from the di- ocese. The Respondent's policies are set by a 15- member board of trustees, the majority of whom are lay persons whose children attend or have at- tended the school. At the time of the hearing, two board members were members of Catholic religious orders: the Respondent's principal, who is a Xave- rian brother, and a Franciscan brother. Generally, new board members are nominated and voted on by current board members. The Bishop of Brook- lyn, however, can appoint one or two board mem- bers as his observers. The Respondent's principal reports to the board. The Respondent does not require its students to be Catholic, although the Respondent's principal "guessed" that 75 percent of the students are Catholic. The Respondent's principal also "guessed" that over 90 percent of the faculty are Catholic.2 Only 4 of the approximately 65 faculty members are members of religious orders, including the principal and an assistant principal. The Re- spondent's principal has the responsibility for hiring and firing the faculty, and he does so with- out consulting with the Bishop, except when hiring a priest. When hiring faculty, the principal asks candidates if they are willing to 'teach, Catholic doctrine. Students are required to take a religion course in each of -their 4 school years. Students study the Old Testament in their first year; the New Testa- ment in their second year; morality in their third year; and marriage in their fourth' year, all with an emphasis on traditional Catholic views. Although the Respondent's religion department is composed entirely of lay teachers, the Respondent's principal testified that he depends an the lay teachers to transmit the values of the Catholic Church to the- students. Moreover, the principal testified that teachers who teach courses other than religion also have a responsibility to impart and develop Catho- lic moral values; for example, when sex is taught in a biology class or a health class, the teacher should also discuss the moral aspects of'sex. The Respondent's faculty handbook states that it is "a private Catholic preparatory' school ]which, in] emphasizing the traditional study of arts and sciences, defines itself in the attempt to transmit the teachings of Jesus Christ and His Church." The z The judge incorrectly stated that the Respondent estimated that 70 percent of the faculty are Catholic. 283 NLRB No. 116 764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent's student, handbook states that the stu- dents "belong to a Christian community and .. . are expected to be a sign of the values which Jesus taught." The outward indicia that the Respondent is a Catholic school include the fact that there is a cru- cifix,in each classroom; mass is celebrated daily in the school's third-floor chapel; each day one of the religion classes is_ assigned to attend and participate in the mass; meat is not served on Fridays during Lent; and a prayer is read over the public address system, each morning. Secondary indicia that the Respondent is a Catholic- school include its partici- pation, in an athletic league composed of diocesan high schools; its being listed in various publications of the Diocese of Brooklyn as a Catholic ' high school; and its voluntary membership in the Na- tional Catholic Educational Association. The Respondent uses the services of the superin- tendent of schools' of the Diocese of Brooklyn, who is appointed by the Bishop, to keep abreast of various-secular educational requirements and devel- opments. The principals of the area Catholic high schools, including the Respondent, meet with the superintendent regularly, and they receive commu-, nications from him approximately once a week. The Respondent also refers the curriculum of the religion department to a representative of the Bishop for, review after the start of the school year, although there is no formal requirement that it must do so. Rather, the Respondent appears to be continuing a practice used by its predecessor, the diocesan Nazareth High School. The Respondent employs a_ chaplain who is ap- pointed by the diocese. The diocese directs the'Re- spondent concerning what the chaplain, is to be paid. The chaplain is part of the Respondent's guidance department and is available to the stu- dents for consultation on religious matters. , The amended complaint in the instant case al- leges that the Respondent violated ' Section 8(a)(3) and (1) of the Act by discharging two employees because of their strike activity and violated Section 8(a)(5) and (1) by having established the position of debating coach and'having set the'salary and other terms of that position without -having bargained with the Union. The Respondent's answer, , as amended at the hearing, admitted virtually all the allegations of the amended complaint except for the issue of whether the Board could assert juris- diction over the Respondent. In Roman Catholic Diocese of Brooklyn, 243 NLRB 49 (1979), enf. denied sub nom. Bishop Ford Central Catholic High School,-623 F.2d 818 (2d Cir. 1980), cert. denied 450 U.S. 996 (1981), the Board asserted jurisdiction over the respondent, finding that it was not "church operated" within the mean- ing_ of NLRB v. Catholic Bishop of Chicago; 440 U.S. 490 (1979).3 In -contrast to the schools in Catholic Bishop, which were 'operated by either the Archbishop of Chicago or the Diocese of Ft. Wayne-South Bend, the school in Bishop Ford was operated by an independent lay board of trustees over which the diocese had no control. The dio- cese in Bishop Ford had no representatives on the board of trustees, did not control the school's oper- ation, and did not exercise any influence over hiring and policymaking decisions. The Board con- cluded that the school was an entity separate and distinct from the' Church, and that therefore juris- diction should be asserted over the school. The judge in the instant case noted that the pre- hearing stipulation signed by the parties,-,as well as the overall ' record, established that the facts and issues presented here were virtually identical to those in Bishop Ford, above. Following the Board's decision in Bishop Ford, the judge concluded that there was no impediment to the Board' s assertion of jurisdiction in the instant case. The judge then expressed his views about the positions of the par= ties in this case. lie found, in sum, that jurisdiction could be asserted because the Diocese of Brooklyn did not fund or control the Respondent, and be- cause there was no evidence that the alleged unfair labor practices affected the rights guaranteed by the religion clausess of the U.S. Constitution. The Board's decision, issued this day, in Jewish Day School of Greater Washington, 283 NLRB 757 (1987), involved, a school that, like the schools in Bishop Ford and the instant case, was operated by a predominantly lay board of directors. , In Jewish Day School, the Board overruled, its decision in Bishop Ford, finding that Bishop Ford interpreted Catholic Bishop in, an overly restrictive manner by holding that a school that was not directly operat- ed by a religious organization was not "church- op- erated." The Board in Jewish Day School explained that the analysis in Catholic Bishop did not focus on a school's direct affiliation with religious organiza- tions, but rather focused on a school's religious purpose, the teacher's role in effectuating that pur- pose, and the potential effects of the Board's exer- cise of jurisdiction. The Board concluded, that 8 In Catholic Bishop,, the Supreme Court held that teachers in- church- operated schools were not within the Board's jurisdiction because the Board's exercise of jurisdiction in such a situation "would give rise to se- rious constitutional questions ," 440 U.S. at 501, by potentially interfering with the school's religious mission and character. The Court found that church-operated schools involved "substantial religious activity and pur- pose" and that the "substantial religious character of these church-related schools gives rise to the entangling church-state relationships of the kind the Religion clauses sought to avoid." Id. at 503, quoting Lemon v. Kurtz- man, 403 U.S. 602 (1971) NAZARETH REGIONAL HIGH SCHOOL Catholic Bishop precludes the Board from exercis- ing jurisdiction when a union seeks to represent a unit of 'teachers in a school whose "purpose and function in substantial part are to propagate a reli- gious faith." Jewish Day School, supra at 761. Ap- plying this standard, the Board held that it was precluded from - asserting jurisdiction over the Jewish Day School, and it accordingly dismissed the election petition filed by the Union. We find that Jewish Day School, which overruled the Board's decision in Bishop Ford and thereby eliminated the underpinnings of the judge's deci- sion in the instant case, 4 controls our decision here. As in Jewish Day School, we find that the Respond- ent's purpose and function in substantial part'are to propagate a religious faith. As noted above, the Re- spondent defines itself in its faculty handbook by its "attempt to transmit the teachings of Jesus Christ and His Church," and in ,its student hand- book states that students are "expected -to be a sign of the values which Jesus taught." The Respond- ent's principal asks applicants for teaching positions, if they are willing to teach Catholic doctrine. Teachers of both religion and nonreligion courses are expected to impart the values of the Catholic Church to the students. Furthermore, religion' classes are mandatory at all grade levels. The Re- spondent's religious purpose is also highlighted by the fact that mass is celebrated daily in the school's third-floor chapel, that each day a religion class is assigned to attend and participate in that mass, and that a prayer is read over the public address system each morning. Thus, we find applicable here the following statement by the Second Circuit in Bishop Ford: It is, the suffusion of religion into the, curricu- lum and the mandate of the faculty to infuse the students with the religious values of a reli- gious creed which create the conflict with the Religion clauses and not the vesting of legal title or the responsibility of operation. [623 F.2d at 823.] Moreover, the physical plant of,the Respondent is subject to a right of reverter to the diocese, condi- tioned on the Respondent's continued operation as a Catholic school. ,5 In view of the foregoing, we find that our asser- tion of jurisdiction here would create the same sig- nificant risk of constitutional infringement that the 'i As noted above, the parties stipulated that the facts and issues in the instant case were virtually identical to those in Bcrhop Ford ' 5 This right of reverter is the same as that used by the diocese in Brehop Ford, which prompted the Second Circuit to state that the school was "only conditionally separated from the Diocese and the condition imposed is its continuing allegiance and loyalty to the Church." 623 F.2d at 824. 765 Supreme Court foresaw in Catholic Bishop. Accord- ingly, we conclude that the Board is precluded from asserting jurisdiction, and we shall dismiss the complaint. ORDER The complaint is dismissed. Elliot J. Mandel, Esq., for the General Counsel. Kevin J. McGill Esq. (Clifton, Budd, Burke & DeMaria), of New York, New York, for Nazareth Regional High School. Robert M. Gordon, Esq. (Gordon & Librie), of New York, New York, for Lay Faculty Association, Local 1261, American Federation of Teachers, AFL-CIO. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. The only issues raised by the pleadings, as amended at the hearing, are whether or not Nazareth Regional High School (Respondent) is an employer within the meaning of Section 2(6) and (7) of the National Labor Relations Board (the Act), and whether assertion of the Board's ju- risdiction over Respondent would violate the religion clauses of the first amendment to the Constitution of the United States. The consolidated complaint in these cases, as amended at the hearing, alleges that Respondent is an employer within the meaning of Section 2(6) and (7) of the Act and that Respondent has violated Section 8(a)(1), (3), and (5) of the Act. In particular, Respondent is alleged to have violated Section 8(a)(1) and (3) by discharging two employees (and not reinstating them until the next day) because they had been on strike and to have violated Section 8(a)(1) and (5) by having established the position of debating coach and set the salary and other terms of employment therefor without having bargained collec- tively thereon with Lay ' Faculty Association, Local 1261, American Federation of Teachers., AFL-CIO (the Union).1 Respondent's answer, as amended at the hearing, ad- mitted virtually all allegations of the amended complaint but framed the jurisdictional issues set out above. ' The hearing was held before me on September 24 and 25, 1984. On the entire record,2 including my olbservation of the demeanor of the witnesses, and after full consideration of ,the briefs filed by the General Counsel and Respondent, I make the following ' Other unfair labor practice allegations were withdrawn at the hear- ing 2 After the hearing closed, Respondent filed a motion to supplement the record to receive in evidence an affidavit of one of its witnesses. The Union objected . Respondent's motion is denied. I note that A. Exh 1 al- ready contains some of the data referred to in the affidavit annexed to Respondent's motion. The other matters in that affidavit cannot be con- sidered newly discovered evidence and, in any event, would constitute cumulative evidence that would not warrant a re opening of the hearing. 766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT JURISDICTION The facts set out below are contained in reported Board decisions and in the transcript, including exhibits, of the hearing before me. , A. Background The Roman Catholic Diocese of Brooklyn encom- passes the boroughs of Brooklyn and Queens in New York. Up until about 1971, it operated nine diocesan high schools. One of these was Nazareth High School. Since 1966, the full-time permanent lay teachers at those nine schools have been represented by the Union for purposes of collective bargaining. In 1971, the Bishop of Brooklyn, because of rising costs, appointed a task force to make recommendations concerning the future of those schools. The task force recommended that "the Diocese withdraw completely from the sponsorship of high schools by closing four of them outright . . . others . . . to be offered to Religious Communities who would assume full responsibility for operating them and still other schools were to be turned over to regional boards who would assume full fiscal re- sponsibility." The Bishop adopted certain of those rec- ommendations. As to Nazareth High School, he deter- mined that it will continue as a diocesan high school as its principal "agreed to [operate] the school without asking for any diocesan subsidy [and that he would] ex- plore the feasibility of establishing a board to assume full responsibility." In 1972, the Brooklyn Diocese organized the Henry M. Hald High School Association as an educational cor- poration, under the laws of the State of New York, for the purpose of operating the diocesan high schools. The Bishop and other churchmen of the Brooklyn Diocese were ,the-trustees of the, Hald Association. The Diocese owned the schools,and retained control over them. The Hald Association entered into a collective-bar- gaining agreement, with the, Union- covering "all full time, permanent lay teachers employed in the member schools of the Association." One of the school members of the Hald Association was Bishop Kearney High School. On September 13, 1973, proprietorship of that school was transferred to a religious community, the Sisters of St. Joseph, That reli- gious organization was held to be the successor to the Hald Association and to have violated Section 8(a)(1) and (5) of the Act by having failed and refused to recog- nize the Union as bargaining agent for its' lay faculty. The General Counsel had contended that the Diocese, the Hald Association, and the Sisters of St. Joseph were all alter egos of each other. The Board held that, while the Diocese and the Hald Association were alter egos, the Sisters of ' St. Joseph exercised sufficient independ- ence in operating the school to obviate the operation 'of the alter ego doctrine as to them but they were found to be Hald's successor, as noted above. The complaint was dismissed as' to the Hald Association. Incidentally, the Board noted that, in the absence of exceptions, it adopt- ed pro forma the finding that the school's operations af- fected commerce within the meaning of Section 2(2), (6), and (7) of the Act and the conclusion that the Board should assert jurisdiction. See Henry M. Hald High School Assn., 213 NLRB 415 (1974). - B. Respondent as Successor By letter dated December 10, 1973, the Union was in- formed that, effective August 31, 1974, operation and control over Nazareth High School would be transferred from the Hald Association "to a neighborhood communi- ty group -which would operate Nazareth as a, regional high school." On August 16, 1974, title to the school property oper- ated as Nazareth High School was transferred to a newly formed educational corporation, Nazareth_ Regional High School, for it to have and to hold so long as it "contin- ues the operation of a Roman Catholic high school .. . upon the cessation of which, title and interest . . . shall revert to the [Diocese]." The Union sought information concerning the planned change. The Board found that the Hald Association and also Respondent, as Hald's successor, had violated Sec- tion 8(a)(1) and (5) by having refused to furnish the re- quested data, Respondent also had violated Section 8(a)(1) and (3) of the Act. See Roman Catholic Diocese of Brooklyn, 222 NLRB 1052 (1976). C. The Bishop Ford Case Another of the nine schools that were members of the Hald Association was severed therefrom and was-operat- ed thereafter under an independent board of trustees. Re- specting that school, the Board found, that the new entity was a successor to Hald as to lay faculty employed at the school and that the separate refusals to bargain by the Hald Association and by the school itself were each violative of the Act. See Roman Catholic Diocese- of Brooklyn, 236 NLRB 1 (1978). The cited case and a sup- plemental decision thereon, discussed further below, are referred to herein as the Bishop Ford case. D. How the Jurisdictional Issue Was Raised No issue had been raised in any of the foregoing cases concerning the Board's jurisdiction over high schools op- erated by the Brooklyn Diocese. On March 21, 1979, the U.S. Supreme Court decided NLRB v. Catholic Bishop of Chicago, 440 U.S. 490. It af- firmed the holding of the U.S. Court of Appeals for the Seventh Circuit reported at 559 F.2d 1112 (1977). The Seventh Circuit had determined that the ' Board's order (requiring diocesan high schools to bargain collectively with a certified labor organization) infringed on the au- thority of the bishops of the Roman Catholic Church to maintain those parochial institutions in accordance with ecclesiastical concern and the Board thereby had im- properly curtailed the rights of the bishops under the re- ligion clauses of the first amendment. The Seventh Cir- cuit stated that, the very hearing on which the Board predicated its findings was itself insensitive to the princi- ples of the religion clauses. The Court also touched on the "parochai"'issue, always a factor in first amendment cases in this area and it considered other factors. The NAZARETH REGIONAL HIGH SCHOOL Seventh Circuit observed finally that a church that ,chose to educate its people without financial aid from the Gov- ernment should be equally free from the inhibitions of the Act. The Supreme Court, in reviewing the Seventh Circuit's opinion, consciously sought to avoid the consti- tutional issues and stated that it would make a narrow in- quiry as to whether the exercise of the Board's jurisdic- tion over church-operated high schools presents a signifi- cant risk that the religion clauses of the first amendment will be infringed. The high schools involved in that case were operated by the Roman Catholic Dioceses in Chi- cago and in Fort Wayne-South Bend. The court stated that it would first consider whether the exercise of the Board's jurisdiction posed a significant risk of such an in- fringement. It discussed various aspects of the case and noted, among other things, that the Board's very process of inquiry into the religious concerns of those schools may impinge on rights protected by the religion clauses. The Court then determined that serious first amendment questions would follow the Board's assertion of jurisdic- tion over church-operated schools. The Court next ob- served that precedent required it to seek to avoid the constitutional issue. On that premise, it proceeded to focus its attention on whether Congress had intended that the Board assert jurisdiction over church-operated schools. After noting that Congress had not clearly ex- pressed an affirmative intention that the Board assert such jurisdiction, the Court concluded that it could avoid the constitutional issue by affirming, the lower court's conclusion that church-operated schools were exempt from the Act's coverage. The Board's order in the Bishop Ford case, discussed above, was brought before the United States Court of Appeals for the Second Circuit, which remanded the case for the purpose, inter alia, of reconsidering the Board's jurisdiction over Bishop Ford Central Catholic High School. The Board reviewed the record in that case and determined that Bishop Ford was being operat- ed as a separate institution, was governed by °an inde- pendent lay board of trustees over which the Brooklyn Diocese had no control, and that Bishop Ford High School "was clearly beyond the definition of a `church- operated' school The Board held further that as Bishop Ford High School "was an entity separate and distinct from the church, [t]here would be no danger, in asserting jurisdiction, of entanglement of the Government with the church." The Board thus concluded that there was no impediment to its asserting jurisdiction over Bishop Ford High School and reaffirmed its original Decision and Order regarding that respondent. See Roman Catholic Diocese of Brooklyn, 243 NLRB 49 (1979). The Board applied to the U.S. Court of Appeals, Second Circuit, for enforcement of its supplemental deci- sion in Bishop Ford. The court denied enforcement, hold- ing that the Board lacked jurisdiction. The court there reasoned that, if the Board were correct, then Bishop Ford would be entitled to financial aid from the Govern- ment. It observed that the commitment of the school's faculty to religious values and their obligation to propa- gate those values provide the risk of entanglement suffi- cient to deprive the Board of jurisdiction. See NLRB v. Bishop Ford Catholic High School, 623 F.2d 818 (2d Cir. 767 1980). The Union's petition for a writ of certiorari was denied.3 E. The Instant Case After the initial pleadings in this case were filed, Re- spondent moved for summary judgment concerning juris- diction. The parties entered into a factual stipulation and joined in a request that the Board transfer the case di- rectly to itself for consideration. On January 5, 1984, the case was transferred to the Board. On April 26, 1984, the Board denied Respondent's motion and remanded the matter for a hearing; the Board noted that the stipulation of facts presented to it did not specifically address Re- spondent's funding or the relationship and control, if any, over Respondent's board of trustees by the Diocese of Brooklyn. In the late -1960s, 34 members of the Brothers of St. Francis Xavier (Xaverian brothers) were teaching at Re- spondent's predecessor diocesan school, Nazareth High School. At the time of the hearing in this case, there was only one left, Respondent's principal. Respondent operates a 4-year school. It has 1080 Stu- dents and 65 faculty. Tuition is $1940 annually including expenses. Respondent derives virtually all of its operat- ing moneys from tuition. The Diocese of Brooklyn does not subsidize it with any monetary contribution. Re- spondent's policies are set by a 15-member board of trustees, most of whom are laypersons whose children attend school there. Another board member is a non- Catholic clergyman, several others are honorary mem- bers, and the remaining are members of Roman Catholic religious orders (i.e., Respondent's principal and a Fran- ciscan brother). The Bishop of Brooklyn appoints two board members as his observers. Respondent's president has sole responsibility for hiring all faculty and he reports to the independent board of trustees. Respondent's brief notes that the presi- dent can be removed by the Bishop of Brooklyn inas- much as he is a member of a religious order. I do not view this as an element of direct control of Respondent by the Bishop inasmuch as the independent board of trustees could designate a lay replacement. Realistically, as Respondent's president testified, the emphasis in recent years has been towards placing more and more re- sponsibility and, correspondingly, authority, in the hands of the laity whereas in the past, the clergy dominated. Respondent does not require its students to be Catho- lic nor are they asked if they are. Its president "guesses" that 75 percent of the students are Catholic. The same observation applies to faculty except that Respondent es- timates that 70 percent of the faculty are Catholic. The outward indicia that Respondent is 'a Catholic school include the fact that a crucifix is in each of the classrooms, that mass is celebrated at the school daily, that one of the religion classes is assigned each day to attend and participate in the daily mass, and that a prayer, excerpted from the daily mass, is read over the public address system at the start of each schoolday. 3 450 U.S. 996. 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD , Religion courses are required for all students on a 5- day-a-week basis for each of the 4 school years. first year students study the Old Testament; second year students study the New Testament; third year students are given courses in morality; and fourth year students study mar- riage, all with emphasis on traditional Catholic views, in- cluding those on abortion. Respondent uses the services of the superintendent of schools of the Diocese of Brooklyn to keep abreast of various secular requirements and developments and refers its religion department curriculum to the superin- tendent's office for review. There does not appear to be any formal requirement that Respondent must consult with the Diocese office in that regard. Rather, Respond- ent seems to be continuing- a practice used by its prede- cessor, the diocesan Nazareth High School. In Respond- ent's brief, there is the statement that the Diocese "over- sees the religious curriculum at [Respondent]" and Re- spondent premises that statement in part on the testimo- ny of Respondent's principal that "he is under obligation to participate with the Superintendent [of Schools for the Diocese of Brooklyn]." Concerning those assertions, I again note that there is no independent evidence that Re- spondent is obligated to clear its curriculum in its reli- gion department with the Diocesan office. Rather that "obligation" is based, on continuing a prior practice and on the personal sense of responsibility that guides Re- spondent's president as a member of a Catholic religious order. That is not to suggest that the obligation is less. Indeed, as it would spring from conviction rather than a written rule, the commitment may well be greater. Secondary indicia as to Respondent's being a "Catho- lic" school include its participation in athletic activities in a league comprised of diocesan high schools, its being listed in various publications of the Diocese of Brooklyn as a Catholic high school, and its voluntary membership in the National Catholic Educational Association. Respondent has published a faculty handbook that states that it is "a private Catholic preparatory school [which, in] emphasizing the traditional study of the arts and sciences, defines itself-in the attempt to transmit the teachings of Jesus Christ and His Church." The-handbook issued to Respondent's students informs them that they -"belong to a Christian community and ... are expected to be a sign of the values which Jesus taught." - Respondent employs a chaplain whose services are ob- tained from the Diocese. The chaplain is available to the students for consultation in religious matters. The brief submitted by Respondent states that "[u]ndoubtedly, this chaplain would report to the Bishop [unsatisfactory events]." That comment is based on speculation and I give it no weight. Finally, I note that the parties joined in a stipulation that the jurisdictional facts in Bishop Ford Catholic High School, supra, are substantially similar to those in the in- stant case. F. Recent Case Law Development The General Counsel and Respondent had filed briefs that carefully `analyzed the opinions in the cases dis- cussed above and also in the cases cited and discussed in those opinions. Subsequent to the filing of these briefs, two cases were decided that bear on the jurisdictional issues before me. These parties were given leave to, and did, file supplemental briefs concerning those recent cases. In Universidad Central de Bayamon, 273 NLRB 1110 (1984), the Board rejected a contention that the universi- ty was a religious institution exempt from the coverage of the Act under the rationale of Catholic Bishop of Chi- cago, supra. The Board, in rejecting that contention, noted that the university is not owned, financed, or con- trolled by the Roman Catholic Church or the Dominican Order and that the university's academic mission is secu- lar. The Board, however, did revise the scope of its order to relieve the university from bargaining concern- ing the terms and conditions of employment of its in- structors in its CEDOC program as that program's pri- mary objective remained the training of priests for the ministry. In a non-Board case decided this year by the U.S. Court of Appeals for the Second Circuit, the court held that the N.Y. State Labor Relations Board had jurisdic- tion over diocesan high schools operated by the Roman Catholic Archdiocese of New York. See Catholic High School Assn. of the Archdiocese of New York v Edward R. Culbert, 753 F.2d 1161 (2d Cir. 1985). The court noted that delicate constitutional issues were presented in ad- dressing the difficult and sensitive question left open by the Supreme Court in` Catholic Bishop, supra. The same constitutional questions considered by the Seventh Cir- cuit in Catholic Bishop were analyzed. The Second Cir- cuit "decline[d] to follow the Seventh Circuit down [the] slippery slope" whereby the Seventh Circuit had found that collective bargaining inevitably would enmesh the State with the rights guaranteed under the religion clauses of the first amendment. The Second Circuit quoted the Fifth Circuit's statement, "that faculty mem- bers are expected to serve as exemplars of practicing Christians does not serve to make the terms and condi- tions of their employment matters of church administra- tion and thus purely of ecclesiatical concern."-The court then weighed other factors. Ultimately, it concluded that the State of New York had a compelling interest to pro- tect and that the exercise of the state board's jurisdiction is justified as it would have indirect and incidental effect on decisions on parochial schools involving religious issues. The court also noted that the National Labor Re- lations Board did not have jurisdiction' of the diocesan schools involved, in view of the holding in Catholic Bishop. G. Analysis' The stipulation signed by the parties prior to the open- ing of the hearing and the overall record in this case es- tablish that the essential, facts and issues are virtually identical with those considered by the Board in its sup- plemental decision in Bishop Ford, supra (243 NLRB 49). As I am obligated to follow Board precedent unless and until it is reversed by the U.S. Supreme Court, I find, as did the Board in the second Bishop Ford case, that there is no impediment to the Board's assertion of jurisdiction NAZARETH REGIONAL HIGH SCHOOL over Respondent in the case before me. That deteiiiiina- tion effectively decides the issues in this case, at least for my purposes.' Still, I may- well have the obligation to submit to the Board my views as to 'the respective posi- tions of the parties, each of whom candidly acknowl- edges that the merits of their respective claims will be pressed on appeal. Further, the Board's remand order of April 26, 1984, permits the parties to renew their conten- tions . before me and, presumably, I am to make recom- mendations thereon. I turn then to the consideration of those matters. There is no evidence that Respondent's board of trust- ees has acted under the direction of the Diocese of Brooklyn, nor is there evidence that the Diocese has ever sought to influence the board of trustees by indirec- tion. Further, Respondent has voluntarily availed itself of the various services offered by the diocesan superintend- ent of schools. In all matters involving labor relations policies, Respondent has sole control. In financial mat- ters, Respondent bears sole responsibility. The evidence bearing directly on religious consider- ations in this case are to some extent equivocal. Thus, al- though school begins with a prayer and, while classes are regularly scheduled to attend religious services with at- tendance compulsory, Respondent consciously hires fac- ulty and enrolls on a nonreligious basis . Its president is of the opinion that the great majority of its faculty and its students profess to be Roman Catholics. I do not view it as my function to determine how "re- ligious" or how "Catholic" Respondent's curriculum is, especially as "there is some question whether the Board has the authority to rule on the constitutionality of the Act itself." See Mid American Health Services, 247 NLRB 752 (1980). Rather, my responsibility is discharged by weighing the evidence as to the extent, if any, the Brooklyn Diocese controls or funds Respondent and by ascertaining obvious problem areas that have developed or could develop by reason of the impact of labor rela- tions policies on religious endeavors. On this last point, I note that'the labor relations history of Respondent and its predecessors discloses no obvious problems that im- pacted adversely on the rights guaranteed by the religion clauses. The unfair labor practice allegations in this case and in prior cases, insofar as they affected first amend- ment rights, could just as easily have involved any com- mercial enterprise and could just as routinely be resolved by the Board. I do not mean to minimize Respondent's contention by making that observation. Rather, I do so in order to underline what appears to be the crucial aspect of this case insofar as the issue of the Board's ju- risdiction ultimately is concerned. The sole concern of the Board should be whether or not its assertion of jurisdiction could adversely impact on any rights Respondent may have under the religion clauses. The answer, dictated by practical experience in past cases involving Respondent and by the absence of any evidential basis demonstrating an actual conflict, is simply that there is no demonstrable impediment to the assertion of jurisdiction. As a corollary, it may be fairly said that, if any such impediment exists, it could readily be removed simply by Respondent's surrendering its in- dependence from the Diocese and then enveloping itself 769 with` the, protection accorded diocesan schools under Catholic Bishop of Chicago. I have alluded to matters that are the real areas of concern in cases involving the religion clauses. From my reading of those cases, it seems obvious that decisions of the Courts, bearing on issues involving the Board's juris- diction and rights guaranteed by those clauses, disclose that the relevant and significant factors they take into ac- count are much broader in scope than those considered by the Board. This appears to be because the Courts ad- dress a broader spectrum of policy issues than does the Board, in evaluating the merits of a claim of undue gov. ernmental interference with rights guaranteed by the reli- gion clauses. Thus, as is obvious from a reading of the cases discussed above, the Courts have (a) posed and considered hypothetical conflicts, (b) expressed in vari- ous ways no little concern that "parochaid" as it is termed may be fostered by permitting the Board to assert its jurisdiction, and (c) weighed matters outside the Board's area of expertise.4 The Court decisions make it clear that the Board's function is relatively limited. In fact the Courts have observed that the Board's inquiry is to be restricted to so limited an area that the., very in- quiry into the jurisdictional issues does not unduly im- pinge on the rights protected by the religion clauses. Ob- viously, some inquiry is to be made. The proper scope of the Board's inquiry should be limited to three areas: that is, funding, control of labor relations policies, and wheth- er the Board's inquiry itself would probably (not hypo- thetically) impinge on the rights protected by the reli- gion clauses. The test used by the Board in the second Bishop Ford case properly limits the scope of the inquiry for the Board purposes. In short, jurisdiction should be asserted over Respond- ent as the Diocese of Brooklyn does not fund or control Respondent and as there is no evidence that the unfair labor practice issues herein improperly impacted on the rights guaranteed by the religion clauses.5 As I read Uni- versidad Central de Bayamon, supra, the Board's holding "that the University's academic mission is secular" is, in context, a fording that the assertion of jurisdiction would not impinge on the rights protected by the religion clauses. I am hesitant about making an overall evaluation as to Respondent's mission in the instant case, especially as the Supreme Court in Catholic Bishop cautioned against the prospect that such an inquiry might itself be impermissible by reason of the first amendment. The courts of appeals themselves do not hesitate to make such evaluations but, for the reasons set forth above, the 4 Thus, in Archdiocese of New York, supra, the Second Circuit took into account the contents of papal encyclicals ; the Seventh Circuit in Chicago Bishops, supra, quoted secondary authority having to do with the "true scripture . . . Americanism . . and [the making ofd loyal Roman Catho- lics"; the Second Circuit in Bishop Ford II observed that "the tenets of Roman Catholicism do not emanate from the Bishop of Brooklyn with all deference to that prelate." The Board's area of inquiry, in my view, is not so expansive as to authorize it to weigh considerations such as those. 5 The opinion of the Second Circuit in Archdiocese of New York, supra, contains, in my view, an exemplary approach in evaluating whether the unfair labor practices in the instant case unduly impinged on first amend- ment rights 770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Courts seem to fulfill a broader role than that allocated to the Board. Respondent separately contends that the assertion of jurisdiction ,by 'the Board in this case would violate the equal protection component of the Fifth amendment to the Constitution of the United States . Respondent argues that it would be denied , the protection accorded diocesan schools,-,althoughAt is pervasively religious in-character, solely because it is not owned by the hierarchy of the Roman Catholic Church. The difficulty I have with this argument is that it begs _ the very question to be an- s-wered.. If the , U.S. Supreme , Court were to have held that an independent school (operated by a lay board of trustees to teach, inter alia, certain religious beliefs) is not subject to the Board's jurisdiction, Respondent may well have a valid point. The precedent controlling my decision, however, does not support Respondent's equal protection view. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act and it will effectuate the policies of the• Act to assert jurisdiction. 2. The Union is a labor organization as defined in Sec- tion 2(5) of the Act. 3. By having discharged Steven Monroe and Arthur Weyranch and by not reinstating them to full employ- ment until the next day, because of their activities on behalf of the Union, Respondent has violated Section 8(a)(1) and (3) of the Act. 4. By having failed and refused to bargain collectively -with the Union as to the duties, salary, and other em- ployment terms and conditions of its debating coach, Re- spondent has violated Section 8 (a)(1) and (5) of the Act. 5. The violations described above in paragraphs 3 and 4 constitute unfair labor practices that affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Respondent shall be ordered to make whole Steven Monroe and Arthur Weyranch for all moneys they lost, with interest as a result of their unlawful discharge; the amounts to be calculated in accordance with F. W. - Wool- worth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). [Recommended Order omitted from publication.]