*1 topics meetings that, the main at those related to test of supervisory status while not patient Similarly, although care. Cafaro simple apply, has nonetheless received filled out a form entitled “Outline Guide for express approval Congress, as the 1978,” Budget Plans and that form re Yeshiva, Supreme supra. Court noted in unit, quested suggestions improving Accordingly, we hold that the Board did not budget not recommendations. Lastly, authority ruling еxceed its that Cafaro whereas paid head nurses like Cafaro were supervisor, reject was not a approximately per 12 and lh cents more Hospital’s argument discharge that her did nurses, hour than assistant head and were 8(a)(1). not violate Under the circum- § clocks, punch time they stances, whether, we need not even decide received the same life insurance and medi supervisor, discharge if Cаfaro was a her nurses, cal benefits as did staff which were nevertheless violated the Act it because in- less than the benefits to which supervisors terfered with the protected exercise of the were entitled. rights of others who were concededly Hos- pital See, employees. g., Gerry’s e. Cash suggest We do not that the evidence here Markets, NLRB, Inc. v. 602 F.2d overwhelmingly pointed one conclu- (1st 1979); 1022-23 Cir. Food Store Em- sion оr even that we would have decided the Union, ployees NLRB, Local 347 v. issue 418 F.2d panel as the three-member (D.C.Cir. did, 1969). 1180-81 Board sitting had we been place. its Rather, question is a turning close one petition for review is denied and the facts, precise on the plethora of order of the Board is enforced. involving Board cases nurses indicates.21
But just it is in such instances that we must
not substitute our view of the facts for that
of the Board. At hearing, Hospital present
did testify gen- witness to
erally about the responsibilities duties and Hospital, head nurses at the but reliеd on NATIONAL LABOR RELATIONS cross-examination of Cafaro and on docu- BOARD, Petitioner, mentary evidence to supervi- establish her
sory status. An administrative law judge’s credibility usually determinations are not Lay Faculty Association, Local disturbed; rulings and the ALJ’s here on 1261, Intervenor, crucial, Cafaro are particularly they since points credit her on that weaken the effec- tiveness of BISHOP FORD CENTRAL documents relied on CATHOLIC the Hos- SCHOOL, Respondent. pital. court, HIGH In this Hospital dissects length, frequently evidence at prefacing Docket 79-4166. analysis phrase, “contrary to United Appeals, States Court of the Board’s finding,” arguing to us as Second Circuit. though it were our role to find the facts. It not; our much more limited function in Argued March 1980. regard, noted, as already is to deter- Decided June mine findings whether the sup- Board’s are ported by substantial evidence on the record
considered as a whole. We conclude that
they
Moreover,
are.
the Board utilized a
Compare,
g., Newton-Wellesley Hospital,
(1978);
e.
NLRB No. 10
Gnaden Huetten Memori-
(1975);
Inc.,
Hospital,
219 NLRB
(1975);
The Trustees of Noble
al
Presbyterian
819 C., Moore, Washington, of coun- D. Elliott sel), petitioner. Karp, (James
Jeffrey City S. New York Sandner, counsel), R. City, New York of for intervenor. McGill, (Clifton, City
Kevin J. New York DeMaria, Wiesen, Budd, A. Burke & Robert counsel), respondent. of City, York New LUMBARD, MULLIGAN Before OAKES, Judges. Circuit MULLIGAN, Judge: Circuit by this dispositive aрpli issue raised orders of the for enforcement of cation Board) (the Board Labor Relations National Bishop Ford Central Catholic is whether Central) (Ford to the High School May Board. On 1978 jurisdiction of the had that Ford Central the Board found 8(a)(1), (3) (5), violated sections 29 the 158(a)(1), (3) of Na U.S.C. §§ (the Act) by Act tional Labor Relations recognize Lay Faculty Asso refusing to Union) (the representative ciation 236 No. On March lay faculty, NLRB Supreme in NLRB v. Court 99 Bishop of (affirming 533 Ct. 59 L.Ed.2d S. decision, F.2d Circuit’s Seventh (1977)) held that the Board lacked statu “church-operated tory jurisdiction over petition for enforcement schools.”1 On case, in instant the Board’s order to the Board on the matter court remanded light 27,1979 in for reconsideration April On June Bishop decision. Board, with Member Penello dis (243 decision senting, supplemental issued a affirming 24) its decision as Washington, D. C. NLRB Donnelly, P. Charles рroceeding J. This enforcement B., Spielberg, Norton Ford Central. (N. R. Paul J. L. Allen, Jr., Come, Robert E. followed. Higgins, John E. squarely in diffi- embroil the Board and held that would had
1. The Seventh Circuit arising questions jurisdiction by out of the cult and sensitive the Board over the assertion Religion Amendment. lay Clauses constituted there involved faculties First 1322. Justice Brennan, and Estab- of both the Free Exercise violation White, joined Mar- in Justices dissent of the First Amendment. lishment Clauses Blаckmun, the Act cover Supreme construed shall and Court did F.2d at 1123-26. The lay This would involve involved. teachers Justice issue. Chief reach constitutional did not opinion preferred the dissent writing issues Burger constitutional so because do now do them. “I reach issue and instead to avoid the constitutional 518, 99 S.Ct. not.” the Court does teachers the Act not cover construed at 1328. inclusion schools since their condition, major juris- good аnd not to make Board lacked we hold that the Since encumbrances or place any alterations or the merits of we do not consider diction mortgages upon without on this have been raised other issues which approval of the Diocese. Ford Central appeal. keep buildings and contents I coverage *3 insured in amounts and kinds Although Diocese. satisfactory to the whether Ford Cen- In order to dеtermine portion to maintain a Diocese continues holding is within the of Catholic tral premises for its Educational Television history of the school we must examine the project, agreement makes it clear that present religious well as characteris- its solely responsible Ford many years, tics. For the Roman Catholic school,” “operation and maintenance of the (the Diocese) Brooklyn Diоcese of owned “debts, responsibility for its and assumes high and nine Catholic schools in obligations, liabilities.” Queens Brooklyn including Bishop The record demonstrates and it is undis- commis- Ford. In June a task force Roman Catho- puted that Ford Central is a sioned of the Diocese recom- “Bishop Ford Central lic school. Its title is existing mended the termination of the di- is “To High Its motto School.” high system. ocesan school As an alterna- All the mеmbers of the Imitate Jesus.” tive, incorporated the Diocese in 1972 Catholics, and Board of Trustees are Roman High Association Henry M. Hald School administrators, highest principal its two (Hald), corporation an educational which principal, and assistant are Franciscan operate was to a number of the Catholic professional Brothers. The staff of the high including Bishop schools in the Diocese composed predominantly school is of teach- By high Ford. 1975 two were closed ers who are members of Roman Catholic and two others were transferred to reli- religious orders. gious private communities or boards. Dur- ing possibili- the fall of faced with the philosophy of the school is stated in closed, ty might parent manual, Ford be faculty in these terms: groups began at the school discussions to The success of this school a Catholic the feasibility turning determine depend faculty school will on each mem- private school over to a board of trustees. striving ber as an individual and as a February 1976 Hald determined to close faculty member of a unified to form with indepen- Ford and transfer it to an Holy Spirit the assistance of the a com- Maher, Alphonsus dent board. Brother who munity gospel of faith where values are school, princiрal was then the re- expe- the norm and virtues are Christian signed principal and became the first rienced.
respondent Ford Central. good This school will be as faculty individual members that make it September On 1976 the Diocese and up. year The success of this academic agreement Ford Central entered into an depend faculty will on each member con- land, conveyed buildings, which title to the tributing his/her improvemеnts, appurtenant fixtures —religious conviction personal property to Ford Central. The agreement —professional competence recites that Ford Central is to title, however, only hold so as it “con- —personal integrity tinues youth —belief in high operate school.” If it to as a ceases encourage growth, support student to school, high rights, Roman Catholic all faculty fellow members of the and staff automatically and interest the Di- revert and to assist administrators. ocese. every member of the Each and provisions Other re- philoso- to PROMOTE and UPHOLD the quire phy Ford Central to maintain the of this school. cooperate priest chaplain —to Bishop Ford Central Philosophy of department. High religion School High School
Bishop Ford Central Catholic applies position for a When a teacher community persons-administrators, Central, form states application teachers, united their students and staff high “A Catholic school has specifically, expressed bond: faith God common of- problems spirit, opportunities, and goals, Roman Catholic tradition. other educational quite different from ten teaching a schedule of institutions. Besides recog- and teachers The administrators supervisory taking share of classes and of hu- the mandate that “The future nize responsibilities, who are manity hands of those lies expected to involve himself/her- genera- teacher coming strong enough provide basic ef- wholeheartedly in school’s living hoping.” self reasons tions with encouragement support and (The 31) provide Today, forts *4 Church generous, teenager’s to mature as to a call mandate, we work to- accepting this prаcticing and Catholic.” convinced striving in his gether to assist each student fulfilled Christian. become a mature and full- retains a In addition Ford Central ex- Through guidance, instruction and our who is available priest-chaplain time each student imitate ample, we ask that says Mass in counseling services and who age in wisdom and Jesus who “advanced a week. chapel the school once (Luke grace before God and men.” and 2:52) cial phy must defined in the threefold aim of Did.” We Above opportunities # provide spiritual, programs (Emphasis in all, be the # pastoral, recognize that this and sjt guiding which coincide with Catholic education original.) policies. educational and “To Teach # force [*] behind all philoso- [*] Jesus so- ed not tion under dismissed tral within its and Diocese scores the Board’s has severed its The Board order here is its alter only to Ford Central but and Hаld. The June Catholic ego, complaint relationship with the jurisdiction Hald, position that Ford II Bishop. This under- for lack was as to only because it initially the Diocese also to the jurisdic- direct- order Cen- Dio- the facul- religious responsibilities of did in its on The Board cese. quite in manual are ty as set forth is not Ford Central appeal argue explicit: its philoso- sufficiently Roman Catholic obligation phy, its curriculum or in RESPONSIBILITIES
RELIGIOUS
the Rоman Catholic
faculty
propagate
body
student
to indoctrinate the
expected to
faith and
cannot be
value
Students
The position
faith.
the tenets of that
participation
or value
faith commitment
that, having been
rather
faculty
members
of the Board
religious
activities
ownership
and
interest
diocesan
separated
fail
to witness
vibrant
from
longer
is no
style.
life
Ford Central
management,
Christian
Bishop.
“сhurch-operated” under Catholic
faculty
expected:
Each
member
Bishop so narrow-
We do not read Catholic
(e.g.
behavior
—to witness Christ-like
ly-
attitude, demeanor).
encourage
patiently
students
—to
The minor seminaries
foster Christian attitudes.
been union-
lay
had
schools whose
faculties
liturgies
Bishop
owned and
participate in school
were
—to
ized in Catholic
paraliturgical
by
activities.
either
sоle,
of Fort
by
the Diocese
corporation
stu-
encourage,
not FORCE
—to
Bend,
there-
They were
Wayne-South
Inc.
liturgies
participation in school
dent
properly
fore
described
paraliturgical
activities.
However,
schools.
the fact that
The entire focus of
was
management
responsibility
to and
for the
obligation
lay faculty
to imbue
schools were vested in the church was not
body
and indoctrinatе the student
entanglement prob-
at all the reason for the
religious
tenets of a
faith. As we have
jurisdiction
lems created
Board asserted
pointed out in
opinion,
Part I of this
lay
over the
of those
faculties
institutions.
obligation of
both
and reli-
Rather,
that,
the Court’s concern was
de- gious
precisely
at Ford
that. At
spite well intentioned Government involve-
place
no
in the Court’s discussion of the
ment,
“entangle-
the Boаrd could not avoid
entanglement problem in
religious
ment with the
mission of the
diocesan ownership
management
sug-
setting
school in the
of mandatory collective
gested
religious entangle-
as the basis for
bargaining.”
ment.
It is the commitment of the faculty
values no matter what
In order to determine whether the issue
in the curriculum is taught
obliga-
and the
entanglement
of excessive
arose in Catholic
propagate
tion tо
those
pro-
values which
Bishop, the Court turned to its recent deci
vides the risk of entanglement.
involving
“parochial
sions
aid to
schools.”
That the risk is real and not theoretical
Quoting
Kurtzman,
Lemon v.
pointed
was
out
the Seventh Circuit’s
2105, 29
L.Ed.2d 745
opinion in Catholic Bishop.
Court in Catholic
stated: “We can
ignore
danger
that a teacher under
We are unable to see how the Board can
*5
religious
discipline
control and
рoses to the
avoid becoming entangled in doctrinal
separation
religious
purely
from the
if,
matters
example,
for
an unfair labor
aspects
secular
pre-college
of
education.
practice charge followed the dismissal of
The conflict of functions inheres in the situ
teaching
a teacher either for
a doctrine
501,
ation.” 440
at
U.S.
S.Ct. at 1319.
that has
public
current favor with the
at
Using
Lemon,
language from
the Court fur
large
totally
but is
at odds with the ten-
ther noted: “The
religious
substantial
char
faith,
ets of the Roman Catholic
or for
acter of these
gives
church-related schools
adopting
some,
a lifestyle acceptable to
entangling
rise to
church-state relationships
but contrary to Catholic
teachings.
moral
of the kind the Religion
sought
Clauses
The Board in processing an unfair labor
503,
1320,
avoid.” 440
at
practice charge would necessarily have to
quoting
Kurtzman,
Lemon v.
supra, 403
concern itself with whether the real cause
U.S. at
at
S.Ct.
discharge
was that stated or whether
The
Bishop
Court in Catholic
also noted
this
merely pretextual
was
a
given
reason
“importance
of the teacher’s function in
discharge
to cover a
actually directed at
a church school.”
ty and distinct from Church” event submit irrelevant and accurate. condi- Ford Central
tionally separated the Diocese and the from continuing alle- imposed
condition is its giance loyalty to the Church. America, Appellee, UNITED STATES For these reasons enforcement v. entirety. order is denied in its Board’s TOMPKINS, William Defendant-Appellant.
OAKES,
Judge (concurring):
Circuit
1209,
Docket 79-1412.
question
I think that
whether Ford
“church-operated”
within
NLRB
Appeals,
States Court of
United
Catholic Bishop
Second Circuit.
1313, 1320,
99 S.Ct.
Maher was to remain on principal Hald, entity,
transfer from the diocesan Central, by-laws of Ford Central’s
predominantly lay board of trustees stated his “imple- chief responsibility was policy
ment decisions made Board.”
Moreover, effectuating the contract *7 provided “[m]anagement
transfer that exclusively
control shall rest
with” Central. hand,
On the other “management
and control” were conditioned trans-
fer contract grantee “so contin- operation
ues the And, premises.” sig- most
nificantly me, place reverter takes Thus, string
such real ceases. by the light,
held Diocese and it is this attendant indirect control gives Diocese,
condition the entan-
glement thought significant considerations Bishop, 5-4 in Catholic